Punjab-Haryana High Court
Gurpreet Singh vs State Of Punjab And Another on 17 December, 2012
Author: Rameshwar Singh Malik
Bench: Jasbir Singh, Rameshwar Singh Malik
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
****
Crl. Misc. No. A-708-MA of 2012 (O&M)
Date of Decision:17.12.2012
Gurpreet Singh
.....Applicant
Vs.
State of Punjab and another
.....Respondents
CORAM:- HON'BLE MR. JUSTICE JASBIR SINGH
HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK
Present:- Ms. Rakhi Sharma, Advocate
for the applicant.
****
RAMESHWAR SINGH MALIK, J.
Crl. Misc. No.50203 of 2012 The applicant seeks condonation of delay of 30 days in filing the application under Section 378(4) Cr.P.C for grant of leave to file appeal against the judgment dated 9.5.2012.
Having heard the learned counsel for the applicant, the instant application is allowed for the reasons stated therein and the delay of 30 days stands condoned.
Crl. Misc. No. A-708-MA of 2012 The present application under Section 378(4) of the Code of Criminal Procedure (`Cr.P.C.' for short) has been filed seeking leave to file appeal against the judgment dated 9.5.2012 passed by learned Sessions Judge, Amritsar whereby the respondent - accused was acquitted of the Crl. Misc. No. A-708-MA of 2012 (O&M) -2- charge framed against him under Section 304 of the Indian Penal Code (`IPC' for short) and he was convicted under Section 304-A IPC. Accordingly, the respondent- accused was sentenced vide order of sentence dated 9.5.2012.
Facts first. The criminal law was set into motion by the applicant- complainant alleging that the accused- respondent has committed the offence in question. However, to avoid repetition and also for the sake of brevity, it would be appropriate to refer to the facts, as noticed by the learned trial Court and the same read as under:-
"Briefly stated, facts of the case are that on 10.9.2010, ASI Parshotam Singh from Police Station Chatiwind alongwith other police officials, was present at bus stand of village Chabba, in connection with patrolling and search of bad elements, where, Gurpreet Singh son of Kulwant Singh of Mehra community, resident of Chatiwind, (complainant) came across him and got his statement, Ex.PA, recorded, to the effect that on 9.9.2010, he was riding his motor cycle, make "Discover" having temporary No.PB-02-Tem-2010-1870, on which, his brother's wife namely, Poonam and his nephew, Karan, aged about five years, were pillion riders and they were coming from their village to go to Gurudwara Shaheedan Sahib, Amritsar, to pay obeisance there. At about 5.15 p.m., when they were a little behind premises of Banke Bihari Enterprises, Chatiwind, a tractor Sawraj-855 with a trolley overloaded with paddy crop, was going ahead, which, was Crl. Misc. No. A-708-MA of 2012 (O&M) -3- being driven by its driver at a very fast speed. He (complainant) blew horn of his motor cycle to get way to overtake the tractor trolley, but to no effect. He (complainant) managed to take his motor cycle parallel to tractor trolley and asked its driver to drive slowly, otherwise, he would run over the other persons going on the road, to which, he replied in the affirmative and by saying so, he accelerated the tractor trolley and the side of it hit his motor cycle, with the result, his sister- in-law, Poonam fell down from motor cycle and got crushed under the tyre of the tractor trolley and died at the spot. The driver of tractor trolley ran away from the spot. The cousin brother of complainant, namely, Sukhwinder Singh son of Sulakhan Singh and his brother Manpreet Singh @ Manu, who, were following them on separate motor cycle, also came there and saw the entire incident. The complainant came to know that the tractor trolley belonged to Sona Chandi Sheller and it was being driven by Baldev Singh son of Sadha Singh, resident of village Balle Chack. The respectables tried to get the matter compromised but it could not mature.
Aforesaid statement of complainant was read over to complainant, who, put his signatures, thereon, in token of its correctness. ASI Parshotam Singh attested the same and put his endorsement, Ex.PA/1, thereon, and sent ruqa to Police Station Chatiwind, Amritsar, through HC Harpal Singh, on the basis of which, formal FIR, Ex.PA/2. Was recorded by ASI Balwinder Crl. Misc. No. A-708-MA of 2012 (O&M) -4- Singh. Thereafter, ASI Parshotam Singh accompanied by complainant and other police officials, proceeded to the spot i.e opposite Banke Bihari Enterprises on Chatiwind Road, where, he found dead body of Poonam, which was badly crushed, to be lying on road side. He prepared inquest report, Ex.PJ, regarding unnatural death of Poonam and her dead body was identified by Baljit Singh and Karan Bahadur. The Investigating Officer prepared rough site plan of place of incident, Ex.PK, with correct marginal notes. He took into possession motor cycle, make Discover, having temporary No.PB-02-Tempt-2010-1870, vide recovery memo, Ex.PK, attested by HC Harpal Singh and PHG Jagir Singh. He also took into possession tractor trolley make Sawraj-855, having Engine No.471392-FF-000203, Chasis No.GXCF- 6160600008154, vide recovery memo, Ex.PM, attested by witnesses. He prepared an application, Ex.PC, and handed over the same to HC Kulwant Singh and HC Gurpreet Singh alongwith dead body of Poonam, for getting post-mortem examination conducted from Medical College, Amritsar.
That on 10.9.2010, Dr. Jasbir Singh, Junior Resident of Medical College, Amritsar, conducted post-mortem examination on dead body of Poonam and he found four injuries, thereon, including a crushed lacerated wound 20cms x 12 cms over the left side of head and neck extending from left parietal region of head upto base of left side of neck and he Crl. Misc. No. A-708-MA of 2012 (O&M) -5- opined that the cause of death, in this case, was laceration of brain, which, was sufficient to cause death in ordinary course of nature.
That on the same day i.e 10.9.2010, when ASI Parshotam Singh alongwith other witnesses, was present outside the premises of Police Station, Chatiwind, he came across HC Gurpreet Singh and HC Kulwant Singh, who, handed over to him the belongings of deceased Poonam alongwith copy of post-mortem report. The Investigating Officer prepared a parcel of such belongings of the deceased, sealing it with his seal having impression PS and that parcel, was taken into possession vide memo, Ex.PN, attested by HC Gurpreet Singh and HC Kulwant Singh. On return to the police station, the case property was deposited with the MHC.
That Shri Rattan Amolak Singh, Photographer, who took photographs of the site of accident on 9.9.2010, had produced such photographs, Ex.P1 to Ex.P7, before the Investigating Officer, who, took the same into possession vide memo, Ex.PO, attested by HC Harpal Singh and Rattan Amolak Singh.
That on 4.10.2010, accused was arrested in this case by ASI Parshotam Singh from bus stand of village Chhaba. Memo of arrest-cum-intimation, Ex.PP, in that regard, was prepared, which, was signed by accused and attested by HC Kulwinder Singh and PHG Raju. Personal search of accused was conducted vide memo, Ex.PQ, which yielded nothing. The Crl. Misc. No. A-708-MA of 2012 (O&M) -6- accused had produced before the Investigating Officer, RC of tractor trolley, Ex.PG, which, was taken into possession vide memo, Ex.PR. The RC of motor cycle, Ex.PH, was also taken into possession vide memo, Ex.PS, attested by the witnesses. The motor cycle and tractor trolley involved in the accident, were got mechanically tested from HC Lakhbir Singh, Head Mechanic from MT branch, Police Lines, Amritsar, who, vide reports Ex.PE and Ex.PF, respectively, found the same to be in working condition and such reports were taken into possession by the Investigating Officer. As per record of the office of DTO, Amritsar, the tractor troelly No.PB-46-E-7112 was registered in the name of M/s Sona Chandi Agro Processors near Chabba Varpal Railway Crossing, Tarn Taran Road, Amritsar, whereas, the motor cycle No.PB-02-BJ-8841, was registered in the name of Anoop Singh son of Kulwant Singh. After completion of investigation and other formalities, challan against the accused, was presented in the court of Area Magistrate, Amritsar.
After presentation of the report under Section 173 Cr.P.C., the relevant documents were supplied to the accused, in accordance with law. The offence under Section 304 IPC was found exclusively triable by the Court of Sessions because of which, the learned Area Magistrate committed the case to the learned Court of Sessions, for its trial.
Having found a prima-facie case to be made out against the accused, he was charge-sheeted vide order dated 19.1.2011, for the offence Crl. Misc. No. A-708-MA of 2012 (O&M) -7- punishable under Section 304 IPC. The accused pleaded not guilty and claimed trial.
In order to prove its case, the prosecution examined as many as eight PWs besides tendering the relevant documents in its evidence. After conclusion of the prosecution evidence, statement of the accused- respondent was recorded under Section 313 Cr.P.C. All the incriminating material brought on record was put to the accused. He denied the allegations, alleged false implication and claimed himself to be innocent. Opting to lead defence evidence, accused examined Smt. Rakesh Kumari, Ahlmad of the Court of learned Additional District Judge, Amritsar, as DW1 with a view to prove the file of MACT Case No.40 of 10.11.2010 decided on 1.8.2011. Photocopy of the award was proved as Ex.DW1/A. After hearing the parties and appreciating the evidence brought on record, the learned trial Court came to the conclusion that the prosecution has failed to prove its case under Section 304 IPC. However, it was held that the prosecution had successfully proved its case against the accused under Section 304-A IPC. The accused was held guilty for rash and negligent driving of the tractor trolley bearing No.PB-46-E-7112. He was convicted for the offence punishable under Section 304-A IPC vide impugned judgment dated 9.5.2012. Consequently, vide order of sentence dated 9.5.2012, the accused- respondent was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.5,000/- for the offence punishable under Section 304-A IPC. In default of payment of fine, he was further ordered to undergo rigorous imprisonment for three months.
Feeling aggrieved against the above said judgment whereby the Crl. Misc. No. A-708-MA of 2012 (O&M) -8- accused- respondent was acquitted of the charge framed against him under Section 304 IPC, the applicant- complainant has approached this Court. That is how, this Court is seized of the matter.
Learned counsel for the applicant submits that the learned trial Court has proceeded on erroneous approach while not appreciating the cogent evidence, in the right perspective. He further submits that the prosecution has brought on record sufficient and convincing evidence to bring home the guilt against the accused- respondent for the offence punishable under Section 304-A IPC. He concluded by submitting that since the impugned judgment was based on a misconceived approach, the same was liable to be modified.
Having heard the learned counsel for the applicant, after going through the record of the case and giving thoughtful consideration to the contentions raised, this Court is of the considered opinion that present one is not a fit case for granting leave to file appeal against the impugned judgment of acquittal. To say so, reasons are more than one, which are being recorded hereinafter.
A combined reading of the statements suffered by PWs would show that the mensrea was conspicuously missing in the present case. Further, neither there was any enmity nor any motive could be alleged. The learned trial Court has rightly found it to be a case of rash and negligent driving only. Thus, this Court feels no hesitation to conclude that the learned trial Court has committed no error of law.
It is a matter of record that the learned MACT, Amritsar, vide its award Ex.DW1/A has held that the deceased died because of the rash and Crl. Misc. No. A-708-MA of 2012 (O&M) -9- negligent driving of tractor trolley bearing registration No.PB-46-E-7112 which was being driven by the accused- respondent. Accordingly, a suitable amount of compensation was awarded to the claimants. Further, as per the medical evidence also, it was found to be a case of road side accident. In this view of the matter, it is unhesitatingly held that it was only a case under Section 304-A IPC and not under Section 304 IPC.
The learned trial Court, before arriving at a judicious conclusion has recorded cogent findings, which read as under:-
"Thus, from the statements of eye-witnesses examined on behalf of the prosecution, it comes out that it was a road side accident, which took place due to rash and negligent driving of tractor trolley by the accused. Therefore, said act of driver of tractor trolley, cannot be termed as culpable homicide, as it cannot be said that accused/ driver Baldev Singh @ Billu had caused death of Poonam with intention of causing death or with intention of causing such bodily injuries likely to cause death, or with knowledge that he was likely by such act, to cause death. At best, such act comes within mischief of section 304- A, IPC i.e causing death by negligence. Said section provides that whoever causes the death of any person by doing any such rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. Terms rashness and negligence have not been defined in the Code. However, as is generally understood, `rashness' is acting Crl. Misc. No. A-708-MA of 2012 (O&M) -10- in the hope that no mischievous consequences shall ensue though aware of likelihood of such consequences, whereas, negligence is want of care and caution to one's duty or business. Accused Baldev Singh @ Billu, driving the tractor trolley, did act in a rash and negligent manner, and his such act squarely fall within four corners of section 304-A, IPC. However, ingredients of section 299 IPC i.e culpable homicide, which is punishable under section 304 IPC, are not proved. There is nothing on record to show that accused Baldev Singh @ Bittu was earlier acquainted with the deceased or for that matter had any previous enmity with her, so as to plan her death by driving tractor trolley on the road.
This fact is further fortified from the testimony of DW1 Smt. Rakesh Kumari, Ahlmad, who, had proved copy of award passed by Shri A.P.Batra, the then Motor Accident Claims Tribunal, Amritsar, as Ex.DW1/A. Perusal of this award goes to show that Anoop Singh, husband, alongwith children of deceased Poonam, had filed a petition under section 166 of the Motor Vehicles Act against M/s Sona Chandi Agro Processors besides Baldev Singh, driver of tractor trolley (present accused), alleging that the accident in which Poonam lost her life, had been caused due to rash and negligent driving of tractor trolley No.PB-46-E-7112 by Baldev Singh. The Tribunal, while decided issue No.1, has come to such conclusion. The award was passed for Rs.4,08,000/- with Crl. Misc. No. A-708-MA of 2012 (O&M) -11- interest."
Learned counsel for the applicant has failed to point out any piece of cogent evidence which might have been altogether ignored by the learned trial Court while passing the impugned judgment of acquittal so as to convince this Court for taking a different view than the one taken by the learned trial Court. Further, it is the settled proposition of law that whenever two views are possible, the view which goes in favour of the accused, is to be followed by the Court.
The view taken by this Court also finds support from the judgment of the Hon'ble Supreme Court in the case of Arulvelu & anr. vs. State represented by the Public Prosecutor and anr. 2009(4) RCR (Crl.)
638. The relevant observations made by the Hon'ble Supreme Court in para Nos.39, 40 and 41 in the case of Arulvelu's case (Supra) read as under:
In Ghurey Lal v. State of Uttar Pradesh (2008) 10 SCC 450, a two Judge Bench of this Court of which one of us (Bhandari, J.) was a member had an occasion to deal with most of the cases referred in this judgment. This Court provided guidelines for the Appellate Court in dealing with the cases in which the trial courts have acquitted the accused. The following principles emerge from the cases above:
1. The accused is presumed to be innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent. Crl. Misc. No. A-708-MA of 2012 (O&M) -12-
2. The power of reviewing evidence is wide and the appellate court can re-appreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law, but the Appellate Court must give due weight and consideration to the decision of the trial court.
3. The appellate court should always keep in mind that the trial court had the distinct advantage of watching the demeanour of the witnesses. The trial court is in a better position to evaluate the credibility of the witnesses.
4. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so.
5. If two reasonable or possible views can be reached -
one that leads to acquittal, the other to conviction - the High Courts/appellate courts must rule in favour of the accused.
40. This Court in a recently delivered judgment State of Rajasthan v. Naresh @ Ram Naresh 2009 (11) SCALE 699 again examined judgments of this Court and laid down that "An order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger towards the accused. This Court has dealt with the scope of interference with an order of acquittal in a number of cases."
Crl. Misc. No. A-708-MA of 2012 (O&M) -13-
41. Careful scrutiny of all these judgments lead to the definite conclusion that the appellate court should be very slow in setting aside a judgment of acquittal particularly in a case where two views are possible. The trial court judgment can not be set aside because the appellate court's view is more probable. The appellate court would not be justified in setting aside the trial court judgment unless it arrives at a clear finding on marshalling the entire evidence on record that the judgment of the trial court is either perverse or wholly unsustainable in law.
In `Mrinal Das & others, V.The State of Tripura', 2011(9) SCC 479, decided on September 5, 2011, the Hon'ble Supreme Court, after referring to many earlier judgements, has laid down parameters, for interference against a judgement of acquittal, by observing as under :-
An order of acquittal is to be interfered with only when there are "compelling and substantial reasons", for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference. When the trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts etc., the appellate court is competent to reverse the decision of the trial Court depending on the materials placed."
Similarly, in the case of 'State of Rajasthan v. Shera Ram alias Vishnu Dutta , (2012) 1 SCC 602', the Hon'ble Supreme Court has Crl. Misc. No. A-708-MA of 2012 (O&M) -14- observed as under:-
"7. A judgment of acquittal has the obvious consequence of granting freedom to the accused. This Court has taken a consistent view that unless the judgment in appeal is contrary to evidence, palpably erroneous or a view which could not have been taken by the court of competent jurisdiction keeping in view the settled canons of criminal jurisprudence, this Court shall be reluctant to interfere with such judgment of acquittal.
8. The penal laws in India are primarily based upon certain fundamental procedural values, which are right to fair trial and presumption of innocence. A person is presumed to be innocent till proven guilty and once held to be not guilty of a criminal charge, he enjoys the benefit of such presumption which could be interfered with only for valid and proper reasons. An appeal against acquittal has always been differentiated from a normal appeal against conviction. Wherever there is perversity of facts and/or law appearing in the judgment, the appellate court would be within its jurisdiction to interfere with the judgment of acquittal, but otherwise such interference is not called for."
Thereafter, in the above case a large number of judgments were discussed and then it was opined as under:-
"10. There is a very thin but a fine distinction between an appeal against conviction on the one hand and Crl. Misc. No. A-708-MA of 2012 (O&M) -15- acquittal on the other. The preponderance of judicial opinion of this Court is that there is no substantial difference between an appeal against conviction and an appeal against acquittal except that while dealing with an appeal against acquittal the Court keeps in view the position that the presumption of innocence in favour of the accused has been fortified by his acquittal and if the view adopted by the High Court is a reasonable one and the conclusion reached by it had its grounds well set out on the materials on record, the acquittal may not be interfered with. Thus, this fine distinction has to be kept in mind by the Court while exercising its appellate jurisdiction. The golden rule is that the Court is obliged and it will not abjure its duty to prevent miscarriage of justice, where interference is imperative and the ends of justice so require and it is essential to appease the judicial conscience."
No other argument was raised.
Considering the totality of facts and circumstances of the case noted above, coupled with the reasons afore-mentioned, this Court is of the considered view that the learned trial Court has committed no error of law while passing the impugned judgment of acquittal. No patent illegality or perversity has been pointed out in the impugned judgment, which is sine quo non for interference in the judgment of acquittal. No case for interference has been made out.
Crl. Misc. No. A-708-MA of 2012 (O&M) -16-
Resultantly, the instant application being bereft of any merit and without any substance, is ordered to be dismissed.
(JASBIR SINGH) (RAMESHWAR SINGH MALIK)
JUDGE JUDGE
17.12.2012
renu