Punjab-Haryana High Court
State Of Punjab vs Jaspal Singh And Others on 29 August, 2012
Bench: Jasbir Singh, Rakesh Kumar Jain
In the High Court of Punjab and Haryana, at Chandigarh
Criminal Misc. No. A-945-MA of 2011 (O&M)
Date of Decision: 29.8.2012
State of Punjab
... Applicant
Versus
Jaspal Singh and Others
... Respondents
CORAM: Hon'ble Mr. Justice Jasbir Singh, Acting Chief Justice.
Hon'ble Mr. Justice Rakesh Kumar Jain.
Present: Ms. Gurveen H. Singh, Additional Advocate General, Punjab for the applicant.
None for respondent No.1.
Mr. Ramneek Vasudeva, Advocate for respondents No. 2 and 3.
Mr. Hardial Singh Baath, Advocate for respondent No.4.
Jasbir Singh, Acting Chief Justice This application has been filed under Section 378(3) Cr.P.C. seeking leave to file an appeal against the judgment dated 16.5.2011 acquitting the respondents of the charges framed against them.
At the outset, counsel for the applicant-State has put on record a death certificate of respondent No.1 and made a request that his name be deleted from the array of the parties.
Ordered accordingly.
The respondents were arrayed as accused in FIR No. 84 dated 14.5.2009 registered under Sections 302, 201, 148 and 149 IPC Criminal Misc. No. A-945-MA of 2011 (O&M) 2 at Police Station City Ropar. It was an allegation against them that on 13.5.2009 they had killed Bhupinder Singh by causing injuries to him and thereafter an attempt was made to conceal the crime by throwing the dead body in a canal.
The process of law was initiated on a statement made by Balbir Singh (PW.6), brother of the deceased. His statement was recorded by Inspector Manvir Singh (PW.11) on 14.5.2009. The trial Judge has noted the following facts from the statement made by the above witness:-
"that he is resident of village Ladal and is a Carpenter by profession. Further this complainant reported to be having five brothers in all, out of which Darshan Singh expired about 7/8 months ago, but younger to him is Gurmail Singh and next to him is Bhupinder Singh and then is Lal Singh. This Lal Singh often remains mentally disturbed. Bhupinder Singh, the brother of complainant is a Contractor of Wood. That Bhupinder Singh disclosed complainant just three days earlier as if six boys consisting of present accused along with Varinder Singh son of Jagtar Singh and Gurmail Singh alias Geju are in the habit of stealing wood belonging to the Government, situate on the embankment of the canal. Further it is reported that he (Bhupinder Singh) prevented those boys from doing so, on which the accused and above named two other persons proclaimed that in case Brother of complainant prevented them from committing theft of wood, then he will Criminal Misc. No. A-945-MA of 2011 (O&M) 3 have to bear the dire consequences and even he may have to face killing.
3. As per the disclosures made by complainant, on 13.5.2009, he along with his brother Bhupinder Singh and cousin Jit Singh resident of Ladal were going on different Scooter and Motor Cycle. Complainant along-with Jit Singh were going on Scooter, but Bhupinder Singh was going on his Motor Cycle of make CT-100 Bajaj Chetak. Bhupinder Singh was somewhat ahead of complainant and Jit Singh. At about 9.30 P.M. when said Bhupinder Singh was some-what ahead of village Nanakpura, then he was encircled by the above named six persons. Complainant also made his Scooter to stop. Complainant in the light of the Torch saw as if his brother Bhupinder Singh was intercepted by the present accused along with Varinder Singh and Gurmail Singh alias Geju. These six assailants were proclaiming that lesson has to be taught to Bhupinder Singh because they have been prevented by him from stealing the wood. All these assailants started giving blows of axes held by them in their hands on person of Bhupinder Singh. These assailants also proclaimed that Bhupinder Singh will be thrown in the canal. Thereafter Bhupinder Singh was caught hold from his arms by accused Jaspal Singh and Gurdeep Singh, but from both his legs by accused Gurpreet Singh, Balbir Singh and Varinder Singh. Gurmail Singh caught hold Bhupinder Singh from his waist. Criminal Misc. No. A-945-MA of 2011 (O&M) 4 Thereafter, all these assailants after bodily lifting Bhupinder Singh threw him in the canal. Before such throwing of Bhupinder Singh in the canal, these persons took away the watch and purse of Bhupinder Singh."
It is further stated that out of fear, Balbir Singh (PW.6) and Jit Singh (PW.8) confined themselves in the bushes throughout the night. Thereafter, they went in search of the dead body of Bhupinder Singh but it could not be traced out and they proceeded towards the police station when the police party met them. The police had recorded the statement of Balbir Singh (PW.6) on the basis of which an FIR was registered against the respondents. The Investigating Officer Inspector Manvir Singh (PW.11) went to the place of occurrence and prepared a rough site plan with correct marginal notes. All the assailants except Gurmail Singh were arrested on 15.5.2009. During interrogation, they suffered disclosure statements, pursuant to which the recoveries were effected. The dead body was recovered on 18.5.2009 from a canal. Post mortem of the dead body was conducted by Dr. Navtej Pal Singh (PW.3). It has come on record that Gurmail Singh alias Geju could not be arrested and was declared as a Proclaimed Offender. The case of Varinder Singh alias Vicky was separated being a juvenile at the time when the offence was committed. He was tried separately by the Juvenile Justice Board.
On completion of the investigation, final report was put in the Court. Copies of the documents were supplied to the accused, as per norms. Their case was committed to the competent Court for trial vide order dated 4.9.2009. The accused/respondents were charge sheeted Criminal Misc. No. A-945-MA of 2011 (O&M) 5 to which they pleaded not guilty and claimed trial.
The prosecution produced 12 witnesses and also brought on record the documentary evidence to prove its case. On completion of the prosecution evidence, separate statements of all the accused were got recorded under Section 313 Cr.P.C. Incriminating evidence appearing on record was put to them which they denied, claimed innocence and pleaded false implication. Despite opportunity granted they led no evidence in defence.
The trial Judge, on appraisal of evidence, found the accused/respondents not guilty and accordingly they were acquitted of the charges framed against them. When giving benefit of doubt to the respondents, the trial Judge has rightly discarded the testimonies of Balbir Singh (PW.6) and Jit Singh (PW.8). It was noticed that despite being closely related to the deceased they made no attempt to save him from the clutches of the accused. It was also noticed that the FIR was got recorded after 23 hours from the time of occurrence and no explanation was given for such a huge delay. The stand taken by Balbir Singh (PW.6) and Jit Singh (PW.8) that out of fear they had confined themselves in the bushes throughout the night is not believable. It was also noticed by the trial Judge that as per the testimonies of the above witnesses, they were standing at a distance of about 20 yards from the place of occurrence and they had been seeing the incident by lighting a torch. If that was so, the assailants would have also caused harm to them. Many discrepancies in the statements of Balbir Singh (PW.6) and Jit Singh (PW.8) were also noticed to say that their presence at the Criminal Misc. No. A-945-MA of 2011 (O&M) 6 place of occurrence was not proved. In the morning also, instead of going to the police station, they went in search of dead body of Bhupinder Singh. Such an explanation was rightly not accepted by the trial Judge. It has also come on record that the police station is at a distance of only 2 Kms. from the place of occurrence. It has further come on record that instead of going to the police station they approached the Sarpanch who also did not inform the police regarding the incident in question. The story of bringing the divers to search body of the deceased in the canal without informing the police was also rightly discarded.
By taking note of the medical evidence on record, the trial Judge has rightly come to the conclusion that assertion of causing injuries by a Kulhari was not proved on record. Dr. Navtej Pal Singh (PW.3) in his cross-examination has admitted that possibility of the injuries by fall from the motorcycle cannot be ruled out. It was specifically stated by him that the possibility of accidental or suicidal fall cannot be ruled out in this case.
The motive to commit crime was also disbelieved by the trial Court. The trial Judge has also rightly come to the conclusion that the alleged recoveries of the offending material from the accused/respondents did not inspire any confidence. Furthermore, kulhari was also recovered from a place which was accessible to all. This Court feels that the opinion given by the trial Judge is perfectly justified and as per evidence on the record.
Criminal Misc. No. A-945-MA of 2011 (O&M) 7
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:-
"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 Criminal Misc. No. A-945-MA of 2011 (O&M) 8 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 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 Criminal Misc. No. A-945-MA of 2011 (O&M) 9 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 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 Criminal Misc. No. A-945-MA of 2011 (O&M) 10 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 error in passing the judgment on the part of the trial Court which may necessitate interference by this Court.
This application is also barred by 89 days in filing. No ground is made out to condone the delay in filing the application as well.
Hence, both the applications viz. Criminal Misc. No. A-945-MA of 2011 and Criminal Misc. No. 63459 of 2011 are dismissed.
(Jasbir Singh) Acting Chief Justice (Rakesh Kumar Jain) Judge August 29, 2012 "DK"