Punjab-Haryana High Court
Lovepreet Kaur vs Manjeet Singh And Others on 11 March, 2013
Bench: Jasbir Singh, Inderjit Singh
In the High Court of Punjab and Haryana, at Chandigarh
Criminal Misc. No. A-57-MA of 2013 (O&M)
Date of Decision: 11.3.2013
Lovepreet Kaur
... Applicant
Versus
Manjeet Singh and Others
... Respondents
CORAM: Hon'ble Mr. Justice Jasbir Singh.
Hon'ble Mr. Justice Inderjit Singh Present: Mr. Baldev Singh Dhillon, Advocate for the applicant.
Jasbir Singh, Judge Criminal Misc. No. 7243 of 2013 In view of the averments made in the application, the same is allowed. Delay of 15 days, in filing the appeal, stands condoned. Criminal Misc. No. A-57-MA of 2013 Applicant-Lovepreet Kaur has filed this application under Section 378(4) Cr.P.C. seeking leave to file an appeal against judgment dated 11.10.2012.
Both respondents No.1 and 2 were made to face trial in FIR No. 8 dated 8.1.2012, Police Station Pehowa, for commission of offences under Sections 120-B, 376 read with Section 511 IPC, 452, 506 & 509 IPC. It was an allegation against respondent No.2 that she had conspired with respondent No.1 in committing the crime. It is necessary to mention here that respondent No.2-Asha Rani is the Criminal Misc. No. A-57-MA of 2013 (O&M) 2 mother of respondent No.1.
Vide judgment dated 11.10.2012, respondent No.1 was found guilty for commission of offences under Sections 354, 452 and 506 IPC and on 12.10.2012, he was sentenced accordingly. However, both the respondents/accused were acquitted of the charges framed against him under Sections 120-B, 376 read with Section 511 IPC and 509 IPC. Hence, this application.
The process of law was stated on a statement made by the complainant to Assistant Sub Inspector Mohinder Singh (PW.7) on 8.1.2012.
The trial Judge has noted the following facts from statement made by the above applicant:-
"that she being 10+2 passed is resident of village Jurasi Khurd and accused Manjeet Singh lives in her neighbourhood. She further alleged that for the last about two/three months, accused Manjeet Singh used to send obscene messages regarding her from mobile cell No. 89308-44657 on the mobile cell No. 98139-70499 of her father and despite warnings given to accused Manjeet Singh, he did not mend his ways. She further alleged that on 8.1.2012, around 3.30 p.m., when she alongwith her aunt (mausi), namely, Jaswinder Kaur was present in her house, accused Asha Rani mother of accused Manjeet Singh, came towards her (prosecutrix) house and finding her alone in the house, she went back to her house and sent her son Manjeet Singh to her (prosecutrix) house Criminal Misc. No. A-57-MA of 2013 (O&M) 3 and finding her alone in the house, he caught hold her and having broken the string of her salwar started committing wrong act upon her and during the rescue course, prosecutrix gave kick blow to accused Manjeet Singh and having heard her rescue calls, her aunt Jaswinder Kaur came there and on seeing her, accused Manjeet Singh while taking his clothes fled away from the spot and while fleeing from the spot, he also unleashed a threat to prosecutrix to kill her in future. She further alleged that accused Manjeet Singh having conspired with his mother accused Asha Rani in order to spoil her life has committed the aforesaid wrong act."
On the basis of above statement, FIR Ex.P4/1 was registered in Police Station Pehowa. The Investigating Officer went to the place of occurrence, got prepared a rough site plan with correct marginal notes. Both the respondents/accused were arrested on 9.1.2012. On a disclosure statement made by respondent No.1, a mobile phone was recovered which was taken into possession against a recovery memo. A computer disc was also taken into possession. Mobile phone, owned by father of the applicant, was also taken into possession against a recovery memo. The Investigating Officer recorded statements of the witnesses and on completion of the investigation, final report was put in Court. Copies of the documents were supplied to the respondents/accused, as per norms. The case was committed to the competent Court, for trial. On 22.2.2012, respondent No.1-Manjeet Singh was charge sheeted for commission of offences under Sections Criminal Misc. No. A-57-MA of 2013 (O&M) 4 376 read with Section 511, 452, 506 & 509 IPC. He along with his mother Asha Rani was also charge sheeted for commission of an offence under Section 120-B IPC. Both the respondent/accused pleaded not guilty and claimed trial.
The prosecution produced nine witnesses and also brought on record documentary evidence to prove its case. On conclusion of the prosecution evidence, separate statements of both the accused were recorded under Section 313 Cr.P.C. Incriminating material was put to them which they denied, claimed innocence and false implication. It was specifically stated by them that on account of some property dispute, above false FIR was recorded against them. They led no evidence in defence.
The trial Judge, on appraisal of evidence, has rightly come to a conclusion that no offence was made out against respondent No.1 for commission of an offence under Section 376 IPC and also under Sections 511 & 509 IPC. Respondent No.2 was also exonerated of the charge framed under Section 120-B IPC.
After discussing evidence of the prosecution, it was noted by the trial Court that respondent No.1-Manjeet Singh had made no attempt to undress himself and the prosecutrix. Sufficient reasons are given in paragraphs No.22 & 23 of the judgment, under challenge, in that regard. It was rightly held by the trial Court that respondent No.1 was guilty of committing house trespass and making an attempt to outrage modesty of the applicant/complainant. He was also found guilty of exerting threats to the complainant.
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Sending of obscene messages by respondent No.1 to the prosecutrix was not proved on record. After discussing entire evidence, sufficient reasons are given to exonerate both the respondents/accused from commission of offences under Sections 509 IPC in paragraph No.26 of the judgment, which reads thus:-
"26. As regards offence under Section 509 IPC, allegedly, accused Manjeet Singh used to send obscene messages from mobile cell No. 89308-44657 on the mobile cell No. 98139-70499 of Gurmeet Singh intending that said messages shall be seen and read by her daughter and thereby, intended to insult her modesty, it is observed that as per prosecution version, as reflected from the testimony of PW-1 Satish Kumar, it is quite evidence that mobile cell bearing sim No. 89308-44657 belonged to him. Even though, PW-1 Satish Kumar had lost the said mobile cell in the summer season of 2011, but he did not take care to lodge any complaint qua missing of his mobile cell to the police authorities. At this juncture, it is relevant to point out here that PW-2 prosecutrix has emphatically stated that there is no landline connection in her house and the mobile cell remains with her father and she has no separate mobile cell for her use. Even though, PW-3 Gurmeet Singh father of prosecutrix, during his examination-in-chief, has categorically stated that accused Manjeet Singh used to send threat message on his mobile cell, however, during his cross-examination, while Criminal Misc. No. A-57-MA of 2013 (O&M) 6 deviating from his version, he has stated that he used to receive messages on his cell phone but he did not know as to who was sending those messages. He further specifically stated that he had not made any complaint to the police regarding the messages received on his mobile phone. Once it is quite apparent on the record that threat messages used to be received by father of prosecutrix on his mobile cell and especially, the fact that prosecutrix had no separate mobile cell for her use and the mobile cell No. 98139-70499 remains with her father, question of sending obscene messages to her by accused Manjeet Singh with intention to outrage her modesty does not arise at all. Even otherwise, alleged recovery of mobile cell No. 89308-44657, which belongs to PW-1 Satish Kumar, from accused Manjeet Singh is highly doubtful as in pursuant to disclosure statement (Ex.P-6) of accused Manjeet Singh, no independent witness of locality was associated by PW-7 Sub Inspector Mohinder Singh, Investigating Officer. Even otherwise, solitary testimony of PW-7 Sub Inspector Mohinder Singh, Investigating Officer, is of no help to the cause of prosecution as neither any independent witness was associated at the time of alleged recovery of aforesaid mobile cell nor official witness Constable Gurcharan Singh was examined by the prosecution to prove the recovery of aforesaid mobile cell from accused Manjeet Singh. Thus, in a given set of facts, prosecution has failed to Criminal Misc. No. A-57-MA of 2013 (O&M) 7 prove nexus of accused Manjeet Singh with the use of mobile cell No. 89308-44657 and, therefore, charge under Section 509 IPC is not made out against him."
It was specifically held that the prosecution has failed to prove any conspiracy between respondents No.1 and 2. Respondent No.2-Asha Rani was not found guilty of facilitating the commission of offence by respondent No.1. In that regard, it was observed by the trial Court as under:-
"27. Regarding aspect of conspiracy between accused Manjeet Singh and his mother co-accused Asha Rani to effectuate wrong act upon prosecutrix, it is observed that PW- 2 prosecutrix has merely stated that on 8.1.2012, at about 3.30 p.m., when she alongwith her aunt was present in her house, in the meantime, co-accused Asha Rani, mother of accused Manjeet Singh, came towards her house and then, she had sent her son accused Manjeet Singh to her house. However, during her cross-examination, PW-2 prosecutrix has emphatically stated that iron gate is affixed at the outer gate of her house with synthetic sheet and one can not see inside her house while standing in the street. She has also stated that outer gate of her house remains closed most of the time and it was closed at that time as well. Once in terms of testimony of PW-2 prosecutrix, it is quite apparent on the record no one can see while standing in the street in her house, then as to how prosecutrix came to know about appearance of accused Criminal Misc. No. A-57-MA of 2013 (O&M) 8 Asha Rani in front of her house when its outer gate was closed at the relevant time. Thus, there is nothing on the record to suggest that accused Asha Rani had conspired with co-accused Manjeet Singh to do illegal act with prosecutrix. Even otherwise, in our Indian society, no mother would instigate her son to ravish her neighbour and, thus, in a given set of facts, no incriminating role can be attributed to accused Asha Rani in the commission of offence, in question, by her son accused Manjeet Singh."
This Court feels that the view taken by the Court below is perfectly justified and is as per evidence on record.
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 Criminal Misc. No. A-57-MA of 2013 (O&M) 9 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 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
Criminal Misc. No. A-57-MA of 2013 (O&M) 10
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 Criminal Misc. No. A-57-MA of 2013 (O&M) 11 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."
The trial Judge has examined the entire evidence on record in a proper manner. Counsel for the applicant has failed to show any misreading of evidence, on record, by the trial Court below which may necessitate interference of this Court.
Dismissed.
(Jasbir Singh) Judge (Inderjit Singh) Judge March 11, 2013 "DK"