Punjab-Haryana High Court
Pritam Singh vs Kuldeep Singh Alias Manga And Others on 16 October, 2012
Author: Jasbir Singh
Bench: Jasbir Singh, Rameshwar Singh Malik
CRM A 1037-MA of 2011(O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM A 1037-MA of 2011(O&M)
Date of decision: 16.10.2012
Pritam Singh
.....Applicant
versus
Kuldeep Singh alias Manga and others
......Respondents
CORAM: Hon'ble Mr.Justice Jasbir Singh
Hon'ble Mr.Justice Rameshwar Singh Malik
Present: Mr.G.S.Virk, Advocate for
Mr.G.S.Nagra, Advocate for the applicant
Jasbir Singh, J.
C.M. No.70152 of 2011 This application has been filed for condonation of 34 days delay in filing the application for grant of leave to file an appeal. For the reasons mentioned in application, which is accompanied by an affidavit, it is allowed and delay stands condoned.
CRM A 1037-MA of 2011 Applicant - complainant (PW9) has filed this application under Section 378 (4) Cr.P.C. for grant of leave to file an appeal against judgment dated 25.8.2011. Vide the above judgment, respondent Nos.1 and 2, namely, Kuldeep Singh and Parminder Singh respectively were convicted for commission of offences under Sections 457, 308, 302 IPC and they were convicted vide order dated 27.8.2011, however, respondent Nos.3 to 5, namely, Kewal Singh alias Sameer, Harpreet Singh alias Khalsa and Sanjeev CRM A 1037-MA of 2011(O&M) 2 Kumar alias Sanju were found not guilty and ordered to be acquitted of the charge framed against them. Hence, this application.
After hearing counsel for the applicant and perusing the paper book, we are not inclined to interfere in judgment under challenge.
The above five persons were arrayed as accused in FIR No.167 dated 4.7.2004 PS Mullana for commission of offences under Sections 302, 457, 380, 120B IPC. It was an allegation against them that they, after trespassing the house, had killed father of the complainant Gian Singh and mother Balwant Kaur on the intervening night of 3rd and 4th July 2004. The trial Judge has noted the following facts regarding case of the prosecution:-
".....that on 4.7.2004, Kulbhushan Inspector (at that time Sub Inspector/ SHO Police Station Mullana (PW21) received telephonic message from Police Station Saha. Whereupon, he along with other police officials reached at village Pilkhani where complainant Pritam Singh (PW9) son of Gian Singh met him and made statement Ex.P19 to the effect that he is retired army man. He has two brothers and one sister. His eldest brother Hardeep Singh is serving in Merchant Navy, who resided in House No.20 at Mati Das Nagar, Mahesh Nagar, Ambala Cantt. His parents resided at their ancestral village Pilkhani. They had their land and house in village. On that morning i.e. of 4.7.2004, he received telephonic message from village Pilkhani that his father Gian Singh son of Ravel Singh aged 75 years and his mother Balwant Kaur aged 70/72 years have been murdered by some unknown persons. Immediately CRM A 1037-MA of 2011(O&M) 3 on receipt of this information, he reached at his house at Pilkhanai and found that bodies of his parents were lying on two separate cots of the courtyard of his house. Hands of his father were tied with the cot and his mouth was gagged with a piece of cloth and a pillow was lying on his face. There was injury on his forehead. Hands of his mother were also tied and her mouth was gagged and then tied with a piece of cloth. On search of the house, only one iron box was found missing, which was found, in the fields, on way to village Rattanherri. He alleged that some unknown person has committed murder of his parents after tyeing them. The incident happened on the previous night as his parents were seen alive by the neighbour on the evening of previous day."
Statement of complainant Pritam Singh (PW9) was recorded by Inspector Kulbhushan (PW21). On intimation sent by the above witness, FIR was recorded in PS Mullana for commission of an offence under Section 460 IPC. The accused were arrested in FIR No.372 PS Sector 5, Panchkula on 24.7.2004. On interrogation they confessed their involvement in the present case. All the accused identified the place of occurrence. The investigating officer got prepared the site plan of that place with correct marginal notes. After recording statements of the witnesses and completing other formalities, final report was put in Court for trial. Copies of the documents were supplied to the respondents-accused as per norms. Their case was committed to the competent Court vide order dated 2.12.2004. They were charge sheeted on 11.1.2005, to which they pleaded not guilty CRM A 1037-MA of 2011(O&M) 4 and claimed trial. The charge was re-framed on 7.10.2009. The prosecution produced 29 witnesses and also brought on record documentary evidence to prove its case. On conclusion of prosecution's evidence, separate statements of all the accused were recorded under Section 313 Cr.P.C. Incriminating evidence on record was put to them. They pleaded innocence and false implication. Respondent Nos.1 and 2 specifically stated that they had no connection with the other accused. Alleged recovery of offending articles was foisted upon them. The accused also tendered evidence in defence. The trial Judge on appraisal of evidence ordered acquittal of respondent Nos.3 to 5, whereas respondent Nos.1 and 2 were convicted and sentenced as found mentioned in earlier part of this order.
The medical evidence was brought on record by Dr.Suresh Sharma (PW22), who conducted postmortem on the dead bodies of Balwant Kaur and also Gian Singh on 4.7.2004 Pritam Singh (PW9)/ applicant deposed the mode and manner in which he came to know about death of his parents. He also deposed regarding recovery of some offending articles from the accused. Inspector Kulbhushan (PW21) gave vivid detail of the investigation, which was done at the initial stages. It was a case of blind murder. None was named as an accused in the FIR. Case of the prosecution rests upon circumstantial evidence. The accused were arrested in some other case. During investigation they admitted their participation in the present crime. The trial Judge has looked into the above aspects very carefully and after thrashing evidence in a threadbare manner, he has rightly come to a conclusion that against respondent Nos.3 to 5 the prosecution has failed to prove its case. When giving benefit of acquittal to them, it was CRM A 1037-MA of 2011(O&M) 5 observed as under:-
"53. Now, taking up case of prosecution against accused Harpreet alias Khalsa, it is observed that PW10 HC Om Parkash stated that accused Harpreet alias Khalsa made disclosure statement Ex.P34 on 28.7.2004 that a two-in-one music system stolen from the house of Jarnail Singh, had kept concealed by him in the rented shop located at Majri Chowk, Panchkula. That two-in-one belonged to Jarnail Singh (PW8). It was got recovered by accused Harpreet which was taken in possession vide memo Ex.P18. In this regard, deposition of PW8 Jarnail Singh would indicate tha his two-in-one music system was found missing from his house when he woke up in the morning of 4.7.2004. He stated that police had handed over his two-in-one music system after some days of the occurrence. He identified his own signatures on recovery memo Ex.P18. He deposed that two-in-one music system was recovered from accused Harpreet on 30.7.2004. He did not give the details that he was joined by the police on 30.7.2004 or that accused Harpreet led the police party and got recovered his two-in-one in pursuant to his disclosure statement. Rather his deposition indicates that two-in-one was handed over to him after some days of the occurrence. He nowhere stated that accused Harpreet got it recovered in his presence. The other recovery witness Suresh Chand SI could not be examined after the addition of charge under Section 302 CRM A 1037-MA of 2011(O&M) 6 IPC. The prosecution can not be faulted for non-examination of Suresh Chand SI, as already observed, as he was earlier examined as PW8 before amendment of the charge in the presence of the accused. However, since Jarnail Singh did not state that recovery of his two in one tape recorder was effected from the accused in his presence in pursuance to the disclosure statement of the accused, the case of prosecution regarding fact of recovery of two-in-one from accused Harpreet is not proved and has become doubtful. Furthermore, said two in one was not stolen from the house of deceased. It is stated to be stolen from the house of Jarnail Singh and incident is stated to have happened on the same night. The inference or presumption regarding murders of Gian Singh and Balwant Kaur, by way of recovery of two-in-one music system from accused Harpreet would not be available as it was not the stolen property, belonging to any of the deceased of the instant case. Hence case of Harpreet falls on different footing than that of his co-accused Kuldeep and Parminder. The recovery is not substantiated by leading cogent evidence and said tape recorder was not the stolen property from the house of deceased, hence, this piece of circumstantial evidence is not available to prosecution against Harpreet to draw presumption under section 106 or 114 of Indian Evidence Act.
54. The case of accused Sanjeev alias Sanju and accused Kewal is also on different footing as prosecution could not CRM A 1037-MA of 2011(O&M) 7 adduce any evidence except disclosure statements of these accused as well as of other accused, which are confessional in nature without leading to any recovery.
55. As regard recovery of weapon from accused Parminder and one small knife from Gurcharan Singh (since deceased), it is observed that no sharp edged injury was found on the person of the deceased and weapons could not be connected with the crime. The opinion of PW22 Dr.Suresh Sharma that sword and Khukhri could be used for causing injuries mentioned in the Post Mortem Report, can not be given much weight as he volunteered in his cross-examination that he has given opinion that injuries were caused from the handle side of the weapons and not from the sharp side of these weapons. Otherwise also, the cause of death of Gian Singh and Balwant Kaur is on account of asphyxia and not on account of the minor injuries on their persons."
This Court feels that the view taken is perfectly justified and is as per evidence on record. The alleged recoveries made from those respondents were not believed by the trial Court.
Their Lordships of the Supreme Court in Allarakha K.Mansuri v. State of Gujarat, 2002(1) RCR (Criminal) 748, held that where, in a case, two views are possible, the one which favours the accused, has to be adopted by the Court.
A Division Bench of this Court in State of Punjab v. Hansa Singh, 2001(1) RCR (Criminal) 775, while dealing with an appeal against acquittal, has opined as under:-
CRM A 1037-MA of 2011(O&M) 8
"We are of the opinion that the matter would have to be examined in the light of the observations of the Hon'ble Supreme Court in Ashok Kumar v. State of Rajasthan, 1991(1) SCC 166, which are that interference in an appeal against acquittal would be called for only if the judgment under appeal were perverse or based on a mis-reading of the evidence and merely because the appellate Court was inclined to take a different view, could not be a reason calling for interference."
Similarly, in State of Goa v. Sanjay Thakran (2007) 3 SCC 755 and in Chandrappa v. State of Karnataka, (2007) 4 SCC 415, it was held that where, in a case, two views are possible, the one which favours the accused has to be adopted by the Court.
In Mrinal Das & others v. The State of Tripura, 2011(9) SCC 479, decided on September 5, 2011, the Supreme Court, after looking into many earlier judgments, has laid down parameters, in which interference can be made in a judgment 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 observed as CRM A 1037-MA of 2011(O&M) 9 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 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 CRM A 1037-MA of 2011(O&M) 10 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."
Counsel for the applicant has failed to indicate any misreading of oral as well as documentary evidence on record by the trial Court. No case is made out for interference.
Dismissed.
(Jasbir Singh)
Judge
$
16.10.2012 (Rameshwar Singh Malik)
gk Judge