Punjab-Haryana High Court
Ram Kali vs Chamela Ram & Ors on 15 July, 2011
Author: A.N.Jindal
Bench: Satish Kumar Mittal, A.N.Jindal
CrL.Misc. No.258-MA of 2011 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CrL.Misc. No.258-MA of 2011
Date of Decision: 15.07.2011
Ram Kali ...Appellant
Vs.
Chamela Ram & Ors. ...Respondents
CORAM Hon'ble Mr.Justice Satish Kumar Mittal, J.
Hon'ble Mr. Justice A.N.Jindal, J.
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Present: Mr.Amardeep Singh Gill, Advocate, for the appellant.
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A.N.Jindal, J.
The appellant-complainant Ram Kali has sought leave to appeal against the judgment of acquittal dated 4.11.2010 passed by the learned Additional Sessions Judge, Kurukshetra, whereby he acquitted all the accused/respondents of the charges under sections 323/326/325/354/315/506/148 read with section149 IPC.
A fight had taken place between the two parties vide which FIR No.25 dated 30.3.2001 under sections 323,325 read with CrL.Misc. No.258-MA of 2011 2 section 34 IPC was registered against Raghbir Singh, Prem Singh, Naresh Kumar and Isham Singh, whereas Raj Kali filed a complaint against Chamela Ram, Sahab Singh son of Tulsi Ram, Sahab Singh son of Bolak Ram, Banta Ram, Ramphal, Surender Singh, Rajpal and Gulzar (hereinafter referred as respondents).
On trial, the respondents herein were acquitted by the learned Additional Sessions Judge, Kurukshetra vide impugned judgment.
State did not file any appeal against the judgment of acquittal of Raghbir Singh etc., whereas the complainant has come up in appeal against the judgment of acquittal passed against the respondents.
The facts as mentioned in the complaint are that on 29.03.2001 at about 7.00 PM, when the complainant-appellant heard the screams of Raghbir Singh, brother of her husband, she came out of house and saw Raj Kumar, Smt.Maro Devi and other family members running towards the side from where the cries were coming. The complainant also reached there and saw that the respondents were assaulting Raghbir Singh. She further saw that Chemela Ram was hitting Raghbir Singh with the handle of Gandasi. When Rajesh Kumar tried to intervene, Surinder Singh inflicted injury on his head with gandasi. Surender Singh Sarpanch who had come armed with Barchha inflicted an injury on the person of Maro Devi. When the complainant tried to intervene accused Chemela Ram caught hold of the complainant by her right arm and gave a CrL.Misc. No.258-MA of 2011 3 severe twist to the said part of the body. Sahab Singh had given a kick blow on her abdomen and Banta Ram caught hold of her legs. Resultantly, she fell down whereupon Banta Ram tried to remove her salwar. Raj Pal caught hold of her breasts and squeezed hard. Surender gave lalkara to strip her naked. On this Gulzar put his hand inside her shirt and all the accused outraged her modesty. Sahab Singh gave a kick blows in her abdomen.
In the meantime, Karnail Singh came and saved them from the clutches of the accused. After the complainant and other injured were shifted to the hospital, they were treated and medico legally examined. At the time of incident she was having three months pregnancy which was terminated. FIR was registered qua the occurrence. Since Raghbir Singh was not in the knowledge of the incident which happened with the complainant, therefore, he only disclosed that the complainant had received injuries. As such the complainant had to disclose all the facts by filing a complaint.
The court after recording preliminary evidence summoned the accused. Thereafter, the case was committed to the Court of Sessions.
Consequently, the accused were charge-sheeted for the offences punishable under sections 148, 323, 325, 326, 354, 315 and 506 IPC read with section 149 IPC, to which they pleaded not guilty and claimed trial.
The complainant in order to substantiate the charges, examined 15 witnesses. Dr. Rakesh Kumar (PW 1), Dr. Mrs. Sunita CrL.Misc. No.258-MA of 2011 4 (PW 2) are the doctors. The complainant also examined Ram Kumar, retired Inspector of Police as PW 3, HC Raj Pal Singh (PW4). She himself appeared as PW 5 and examined Dr.Rattan Lal Arya (PW 6), ASI Om Parkash (PW 7), Raghbir Singh (PW 8), Rajesh Kumar (PW 9), Naresh Kumar (PW 10), Sanjiv Kumar (PW 11), ASI Hanu Ram (PW 12), Dr.Rajesh Chhabra (PW 13), Dr.Jagat Ram (PW 14) and Dr.Pawan Singh (PW 15).
When examined under section 313 of the Code of Criminal Procedure, the accused/respondents denied all the allegations and pleaded their false implication in the case. In defence they examined Darshan Lal Assistant Manager, National Insurance Company as DW 1.
On conclusion of the trial, respondents were acquitted. The case of the complainant is that at the time of occurrence she was pregnant and on account of severe injures her pregnancy was terminated. In this regard she proved on record Ex.PCC, but it does not suggest termination of any pregnancy. The report Ex.PCC reads as under:-
" Tissues sent as products removed on D & C shows endomaterial tissues revealing marked decidual change. Choronic villus structure or trophobalstic tissues are not seen. Some blood clots and inflamed tissues are also seen."
The aforesaid report neither shows any miscarriage of CrL.Misc. No.258-MA of 2011 5 pregnancy nor any damage to the pregnancy zone. It even does not show that actually there was any pregnancy on the date of incident or removal of products on D & C of the complainant. As such the trial court rightly recorded that no offence under section 315 IPC was made out. As regards offence under section 354 IPC the complainant has not set up any such case that accused molested her modesty.
The complainant appears to be not fair in her conduct. She has exaggerated the prosecution version. She has given coloured version to throw the net wider. The police has not challaned the respondents. The complaint was filed after a gap of 8 months. The complainant has not given any explanation for filing this delayed complaint.
The injured eye witnesses have concealed the origin of the occurrence inasmuch as the complainant is silent for the injures on the person of the accused. Witnesses have also not explained satisfactorily as to which of the injuries were caused by which of the accused.
Initially, Raghbir Singh in his statement before the police had named 5 persons as assailants, whereas in the complaint filed by Raj Kali after 8 months, she named 8 persons as the assailants. She has also given completely different version regarding her injuries which was not disclosed by Raghbir Singh in his earlier version Ex.PN/2 as well as by Raj Kali in her statement got recorded before the police on 30.3.2001.
CrL.Misc. No.258-MA of 2011 6
Material witness namely Karnail Singh,who was seen by Raj Kali present at the time of occurrence, was not examined. Non- explanation of injuries by the complainant on the person of the accused in the facts and circumstances of the case proved fatal and this fact would be sufficient to hold that either the story concocted by the complainant was false or the occurrence did not take place in the manner as stated by the complainant. In any case, in case of acquittal, the judgment passed by the learned trial court should not ordinarily be disturbed merely on the ground that the evidence has not been appreciated in the right perspective. Such judgment could be disturbed if there was misinterpretation or mis-appreciation of evidence.
It is well settled by now that even if two views are possible, the appellate court should not reverse a judgment of acquittal unless there is glaring mistake resulting into perversity. The appellate court's jurisdiction to interfere is limited. When judgment of the trial court was neither perverse nor suffered from any illegality, reversal of the judgment of acquittal is not justified. In support of this view reliance can be placed on K.Prakashan Vs. P.K.Surenderan (2008) I SCC 258 and T.Subramanian Vs. State of Tamil Nadu (2006) I SCC 401.
In any case in catena of judgments the Hon'ble Supreme Court has discussed the scope of interference in the judgment of acquittal passed by the learned trial court, at the appellate stage. While dealing with this issue exhaustively. However, we need to CrL.Misc. No.258-MA of 2011 7 extract the view from a few judgments. In the case of Inspector of Police, Tamil Nadu Vs. John David, 2011 (3) RCR (Criminal) 272, Hon'ble Supreme Court while dealing with this question laid down the following guide lines:-
"13.In the case of State of U.P. v. Ram Sajivan & Ors. Reported at (2010) 1 SCC 529, one of us (Bhandari, J.) detailed the law in this regard as follows: -
"46. ................. This Court would ordinarily be slow in interfering in order of acquittal. The scope of the powers of the appellate court in an appeal is well settled. The powers of the appellate court in an appeal against acquittal are no less than in an appeal against conviction.
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In Chandrappa v. State of Karnataka this Court held: (SCC p. 432, para 42) "(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.CrL.Misc. No.258-MA of 2011 8
(3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
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CrL.Misc. No.258-MA of 2011 9
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In Ghurey Lal v. State of U.P., one of us (Bhandari, J.) summarised the legal position as follows in paras 69 and 70: (SCC p. 477) "69. The following principles emerge from the cases above:
1. The appellate court may review the evidence in appeals against acquittal under Sections 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate court can reappreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law.
2. The accused is presumed 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.
3. Due or proper weight and consideration must be given to the trial court's decision. his is especially true when a witness's credibility is at issue. It is not enough for the High Court to take a different view of the evidence. There must also be substantial and compelling reasons for holding that the trial court was wrong."
The crux of the aforesaid judgment is that the Court CrL.Misc. No.258-MA of 2011 10 would be justified in interfering with the judgment of acquittal only when there are very substantial and compelling reasons to discard the decision.
In another decision in the case of Sannaia Subba Rao & Ors. Vs. State of A.P. reported at 2008 (17) SCC 225, Hon'ble Supreme Court has referred to and quoted with approval the general principles while dealing with an appeal against acquittal, wherein, it was clearly mentioned that; the appellate court has full power to review, relook and re-appreciate the entire evidence based on which the order of acquittal is founded; further it was also accepted that the Code of Criminal Procedure puts no limitation or restriction on the appellate court to reach its own conclusion based on the evidence before it.
In the case of Sidhartha Vashisht alias Manu Sharma v. State (NCT of Delhi) reported at (2010) 6 SCC 1 the Apex Court held as follows: -
"27. The following principles have to be kept in mind by the appellate court while dealing with appeals, particularly against an order of acquittal:
(i) There is no limitation on the part of the appellate court to review the evidence upon which the order of acquittal is founded.
ii) The appellate court in an appeal against acquittal can review the entire evidence and come to its own conclusions. (iii) The appellate court can also review CrL.Misc. No.258-MA of 2011 11 the trial court's conclusion with respect to both facts and law.
(iv) While dealing with the appeal preferred by the State, it is the duty of the appellate court to marshal the entire evidence on record and by giving cogent and adequate reasons set aside the judgment of acquittal.
(v) 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.
(vi) While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities, it can reappraise the evidence to arrive at its own conclusion.
(vii) When the trial court has ignored the evidence or misread the material evidence or has ignored CrL.Misc. No.258-MA of 2011 12 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."
Therefore, one of the settled position of law as to how the Court should deal with an appeal against acquittal is that, while dealing with such an appeal, the appellate Court has no restrictions to review and relook the entire evidence on which the order of acquittal is founded. On such review, the appellate Court would consider the manner in which the evidence was dealt with by the lower Court. At the same time, if the lower Court's decision is based on erroneous views and against the settled position of law, then such an order of acquittal should be set aside.
Another settled position is that, if the trial Court has ignored material and relevant facts or misread such evidence or has ignored scientific documents, then in such a scenario the appellate court is competent to reverse the decision of the trial court.
Therefore keeping in mind the aforesaid broad principles of the settled position of law, we have analysed the entire evidence as adduced and have come to the conclusion that the evidence has been appreciated by the trial court in the right perspective and the judgment does not contain any such irregularity, illegality or perversity which may attract the exercise of the powers of the appellate court for interference therein.
CrL.Misc. No.258-MA of 2011 13
Consequently, finding no merit, the application for leave to appeal, is declined.
(Satish Kumar Mittal) (A.N.Jindal)
Judge Judge
15.07.2011
rp