Punjab-Haryana High Court
Gurwinder Singh vs State Of Punjab And Others on 24 July, 2013
Author: Jasbir Singh
Bench: Jasbir Singh, G.S. Sandhawalia
CRM-A No. 913-MA of 2012 (O & M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
*****
CRM-A No. 913-MA of 2012 (O & M)
Date of decision : 24.7.2013
Gurwinder Singh ........Applicant-appellant
Vs.
State of Punjab and others .......Respondents
CORAM: Hon'ble Mr. Justice Jasbir Singh
Hon'ble Mr. Justice G.S. Sandhawalia
Present:- Mr. Lovekesh Gupta, Advocate, for the applicant/appellant
---
Jasbir Singh, J.
This application has been filed under Section 378(4) Cr.P.C. seeking leave to file an appeal against judgment dated 9.8.2012, ordering acquittal of respondents No.2 and 3 of the charges framed against them.
The above respondents were made to face trial in FIR No. 30 dated 20.4.2010, Police Station Lambra, District Jalandhar, for commission of offences punishable under Sections 302 read with Section 34 IPC and 120B IPC. It was an allegation against them that they, along with one Bohar Singh, had committed murder of Davinder Singh @ Buta (husband of respondent No.2).
The process of law was started on a statement made by Gurwinder Singh to SI Gulshan Lal-SHO Police Station Lambra on 20.4.2010.
Kumar Ashwani 2013.08.27 14:28 I attest to the accuracy and integrity of this document CRM-A No. 913-MA of 2012 (O & M) -2-
The trial Judge has noted the following facts from the statement made by Gurwinder Singh :-
"that his brother-in-law Davinder Singh alias Buta son of Phuman Singh resident of Kang Sahbo, Police Station Nakodar was married to Amandeep Kaur daughter of Jasvir Singh resident of Village Tootan, District Ferozepur about 4/5 months ago. That his above brother-in-law Davinder Singh alias Buta had been working in Doaba Dental Hospital, Lambra for the last fifteen years. That the complainant Gurvinder Singh was informed by his brother-in-law Davinder Singh alias Buta that his wife Amandeep Kaur had developed illicit relations with Davinder Singh resident of Harihar Jhok, Sadak Road, Ferozepur. That they could get him eliminated at any time. That on 20.4.2010, the brother- in-law of complainant Davinder Singh alias Buta left his house at 8.00 A.M. for Doaba Dental Hospital, Lambra. The complainant Gurvinder Singh came to meet him for some private matter at Doaba Dental Hospital, Lambra at 5.00 P.M. That Davinder Singh resident of Harihar Jhok, Sadak Road, Ferozepur armed with some sharp edged object accompanied by two unknown persons was standing there. That Davinder Singh and his associates inflicted injuries on the head of brother-in-law of the complainant Davinder Singh alias Buta with some sharp edged object. That they caused his murder by inflicting injuries on his person. That when the complainant came near his above brother-in-law, the assailant Davinder Singh and his companions fled away with their respective weapons. That Davinder Singh brother-in-law of the complainant had been murdered by Davinder Singh resident of Harihar Jhok, Sadak Road, Ferozepur with his two associates by conspiring with sister-in-law of complainant Amandeep Kaur. That the cause of murder of brother-in-law Kumar Ashwani 2013.08.27 14:28 I attest to the accuracy and integrity of this document CRM-A No. 913-MA of 2012 (O & M) -3- of complainant, namely, Davinder Singh was on account of this fact that his wife Amandeep Kaur developed illicit relations with Davinder Singh son of Harihar Jhok, Sadak Road, Ferozepur. That brother-in-law of complainant as referred above stopped them from indulging in this illicit relationship. That Davinder Singh and his associates, in conspiracy with Amandeep Kaur, the wife of deceased Davinder Singh, caused his murder."
It is on record that after getting above information, SI Gulshan Lal reached at the spot, conducted inquest proceedings on the dead body of Davinder Singh @ Buta and sent it for post mortem examination. He also got prepared a rough site plan of the place of occurrence with correct marginal notes. He recovered blood stained earth, which was taken into possession against a recovery memo.
Respondent No.2 was arrested on 21.4.2010. On interrogation, she suffered a disclosure statement, which led to the recovery of offending articles. Respondent No.3 Jagser Singh @ Sonu @ Joga @ Davinder Singh was arrested on 26.4.2010. On interrogation, he also suffered a disclosure statement, which led to the recovery of weapon of offence, a mobile phone and some other offending articles. Accused Bohar Singh could not be arrested and he was declared a proclaimed offender.
Post mortem on the dead body was conducted by Dr. Rajnish Kumar, Medical Officer, Civil Hospital, Jalandhar on 21.4.2010. He found three incised wounds on the head of the deceased. Injuries were found anti mortem in nature and are sufficient to cause death in ordinary course. Kumar Ashwani 2013.08.27 14:28 I attest to the accuracy and integrity of this document CRM-A No. 913-MA of 2012 (O & M) -4-
On completion of investigation, final report was submitted in the Court. Copies of the documents were supplied to the respondents- accused as per norms. Vide order dated 19.7.2010, case was committed to the competent Court for trial. The respondents-accused were charge sheeted, to which they pleaded not guilty and claimed trial. The prosecution produced 9 witnesses and also brought on record documentary evidence to prove its case.
On conclusion of prosecution's evidence, separate statements of the respondents-accused were recorded under Section 313 Cr.P.C. Respondent No.2 denied allegations of the prosecution and claimed innocence and false implication. She specifically stated that three unknown persons had killed her husband. Police came at the spot and on her asking, relatives were summoned at the place of occurrence. Complainant Gurwinder Singh also came there on getting information regarding death of her husband. She was falsely implicated in the case so that she may not claim share in the property left by her husband. She denied her relations with respondent No.3. Respondent No.3 also pleaded innocence and false implication. The respondents-accused also led evidence in defence.
The trial Judge on appraisal of evidence, found case of the prosecution doubtful, benefit of which was given to the respondents- accused by ordering their acquittal. Hence, this application.
It has come on record that Surinder Singh PW-1 has failed to identify the respondents-accused, rather he supported the plea taken by respondent No.2 in her statement, recorded under Section 313 Cr.P.C. The Kumar Ashwani 2013.08.27 14:28 I attest to the accuracy and integrity of this document CRM-A No. 913-MA of 2012 (O & M) -5- trial Court has discussed deposition made by this witness in Para No.10 of the judgment under challenge.
By making reference to evidence on record, it was rightly held by the Court below that Gurvinder Singh PW-8/ complainant was not present at the spot when alleged occurrence had taken place. It was noted that inquest proceedings were not signed by the above witness. It has also come on record that Police Station Lambra is at a distance of 50 yards from the place of occurrence, however, statement of above witness was recorded very late.
By discussing entire evidence, it was rightly said by the Court below that presence of PW-8 at the spot was doubtful. Detailed discussion has been made in Paras No. 11 and 12 of the judgment under challenge.
It has also come on record that there is no evidence of criminal conspiracy between respondents No.2 and 3. The recoveries of offending articles were also held to be doubtful. Some cuttings etc. in the ruka were also taken against the prosecution to say that FIR was anti timed.
Ram Brij Mohan PW-5 did not support case of the prosecution and was declared hostile. Story of arresting respondent No.2 from a hospital, was also held to be doubtful. The alleged letters, exchanged between the accused, were also doubted by the trial Court on analysing the evidence in a proper manner. Delay in reporting the matter to the police, especially when police station is at a small distance, was also rightly taken against the prosecution.
This Court feels that the view taken is as per evidence on Kumar Ashwani 2013.08.27 14:28 I attest to the accuracy and integrity of this document CRM-A No. 913-MA of 2012 (O & M) -6- record and perfectly justified.
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 are "compelling and substantial reasons", for doing so. If the Kumar Ashwani 2013.08.27 14:28 I attest to the accuracy and integrity of this document CRM-A No. 913-MA of 2012 (O & M) -7- 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 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:- Kumar Ashwani 2013.08.27 14:28 I attest to the accuracy and integrity of this document CRM-A No. 913-MA of 2012 (O & M) -8-
"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 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-appellant has failed to show any error in law on the basis of which interference can be made by this Court in the judgment under challenge.
Accordingly, the Criminal Misce. application is dismissed.
(Jasbir Singh) Judge (G.S. Sandhawalia) Judge 24.7.2013 Ashwani Kumar Ashwani 2013.08.27 14:28 I attest to the accuracy and integrity of this document