Punjab-Haryana High Court
Kehar Singh vs Balwant Singh on 31 July, 2013
Author: Paramjeet Singh
Bench: Paramjeet Singh
CRM A-177-MA of 2013 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-A 177-MA of 2013
Date of Decision: July 31, 2013
Kehar Singh ... Petitioner
Versus
Balwant Singh ... Respondent
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
1) Whether Reporters of the local papers may be allowed to see the
judgment?
2) To be referred to the Reporters or not?
3) Whether the judgment should be reported in the Digest?
Present: Mr. Swapanh Shaorey, Advocate,
for the petitioner.
Paramjeet Singh, J.
The instant application has been filed under Section 378(4) Cr.P.C. for grant of leave to appeal against the impugned judgment dated 08.02.2013 passed by the learned Sub Divisional Judicial Magistrate, Dhuri, whereby respondent has been acquitted of the accusation in a complaint filed under Section 500 I.P.C. notice of which was served upon him.
Brief facts of the case as mentioned in the impugned judgment are as under:-
"... the complainant alleged that he is doing the work of a carpenter and running his shop under the name and style of Kehar Singh Mistri at Sangrur Road, Dhuri since 1987 and Kumar Virender 2013.08.06 14:25 I attest to the accuracy and integrity of this document CRM A-177-MA of 2013 2 enjoys a good reputation and is an ideal personality amongst all the carpenters and its association namely Dastkari Social Welfare Society, Dhuri. Complainant further averred that he has two daughters, who are married and a son whois aged about 26 years and a bachelor and that his wife is a housewife and social worker and that he along with his wife enjoy a great reputation in the society as well as in the Ramgarhia society since he belongs to Ramgarhia caste. Complainant further averred that on 18.9.09 a gathering of all the Ramgarhia caste members was held at Vishavkarma Mandir, Dhuri to celebrate the birth of Lord Vishavkarma and that this date has great importance in the lives of the members of the Ramgarhia Community and that the complainant was also present in this gathering to devote his feelings and prayers to Lord Vishavkarama Ji. Complainant further averred that on every birthday of Lord Vishavkarama Ji a meeting of the entire Ramgarhia community is held for the election of the President of the Ramgarhia Community, Dhuri. Complainant further alleged that on 18.09.09 in the above gathering accused Balwant Singh was the stage Secretary and was making announcements on the loud speaker and that Baldev Singh handed over a letter to Balwant Singh and that Balwant Singh knowing well that the letter handed over to him by Baldev Singh contained derogatory and defamatory language against the complainant started reading the letter on the loud speaker at Vishavkarma Mandir, Dhuri. Complainant further averred that accused Balwant Singh vide reading the letter announced in the speaker that "the complainant is used to teasing the girls and women passing nearby the shop of the complainant and the complainant is used to pass the foul Kumar Virender 2013.08.06 14:25 I attest to the accuracy and integrity of this document CRM A-177-MA of 2013 3 comments on the girl and women and for that reason the complainant is liable to be ousted from the Ramgarhia Community." Complainant further averred that the accused knowing fully well hatched a criminal conspiracy with a malafide intention to defame and to lower down the reputation of the complainant and thus made the above mentioned representation by speaking derogatory and defamatory words on the loud speaker against the complainant and that due to the birth celebrations of Lord Vishavkarama Ji loud speakers were erected on the roof and inside the Vishavkarma Mandir, Dhuri, because of which the complainant stood defamed by the accused in general public as well as the Ramgarhia Community. Complainant further alleged that regarding this incidence, he moved an application before the D.C. Sangrur, who marked it to the SDM Dhuri for conducting an inquiry and that the SDM Dhuri in the court of inquiry recorded the statement of the complainant as well as the accused on 09.11.09, wherein accused no.1 Balwant Singh admitted his guilt and that the SDM Dhuri found accused no.1 guilty and held that the reputation of the complainant has been lowered. Complainant further alleged that he never made any comments towards women and girls and that he is a good person, who is having a good reputation and is a social worker and that the accused with a malafide intention had used derogatory language against him to lower down his reputation. Complainant further averred that after the above incident, members of the society and carpenters belonging to Ramgarhia Caste have stopped talking to him and had stopped dealing with him and have deprived and dispelled the complainant from the Ramgarhia Community, because of Kumar Virender 2013.08.06 14:25 I attest to the accuracy and integrity of this document CRM A-177-MA of 2013 4 which he is living in mental agony, trauma and his life has become miserable and he has not been able to find a suitable match for the marriage of his son. Hence, the instant complaint."
On the preliminary evidence, complainant himself stepped into the witness box as CW1 and examined Chajju Ram Reader SDM Office as CW2 and Balbhaddar Singh as CW3. Thereafter, accused- respondent was summoned vide order dated 29.10.2010.
Thereafter, statement of the accused-respondent under Section 313 Cr.P.C. was recorded. All incriminating facts and circumstances were put to the accused wherein they pleaded innocence and false implication.
The learned Trial Court vide judgment dated 08.02.2013, after appreciating the evidence, acquitted the accused-respondent of the notice of accusation served upon him. Hence, this application for grant of leave to appeal.
I have heard learned counsel for the petitioner and gone through the impugned judgment.
The learned trial Court, after appreciating the evidence on record, observed as under:-
"17. Firstly, it is to be seen that the incident alleged is of 18.9.09 and the complainant moved complaint dated 29.10.2009 before the Deputy Commissioner, Sangrur, which was exhibited by him as mark A in his preliminary evidence. The bare perusal of this application shows that no specific words as allegedly uttered by accused Balwant Singh had been mentioned and the only word used was objectionable.Kumar Virender 2013.08.06 14:25 I attest to the accuracy and integrity of this document CRM A-177-MA of 2013 5
This factum was admitted by the complainant in his cross examination. Furthermore, complainant in his cross examination admitted that in the meeting held on 18.9.2009 where allegedly the incident had occurred, Bhagwant Singh Teetu was elected as the President and various members which were approximately eleven in number were also elected, but that no such member or president had submitted any application with regard to the alleged incident of 18.9.09. Further complainant admitted that the members of the committee or the president had not been examined as a witness. Further, it is to be seen that the complainant specifically deposed that witness Balbhaddar Singh was not related to him and that witness Mohinder Singh did not belong to their community.
18. It is not that every witness who is related to the parties cannot be relied upon, but from the conduct and the deposition in the court, the reliability of the testimony of the witness needs to be checked. Complainant in his cross examination specifically deposed that witness Balbhaddar Singh is not related to him. Even Balbhaddar Singh in his deposition before the court at one point of time even went on to state that he does not know the family of complainant Kehar Singh, but thereafter made a startling revelation that Kehar Singh is his maternal uncle's son. This conduct of the witness as well as the complainant is highly unsatisfactory and I see no reason except for malafide intention to hide the relationship between the complainant and the witness.
19. Furthermore, it is to be seen that there is absolutely no evidence regarding the presence of CW4 Mohinder Singh in the gathering of the Ramgarhia community since he is not even a member of that community as admitted by him.Kumar Virender 2013.08.06 14:25 I attest to the accuracy and integrity of this document CRM A-177-MA of 2013 6
Moreover the complainant has himself admitted that he is on good terms with witness Mohinder Singh for the last 12-13 years. In these circumstances, the testimonies of Balbhaddar Singh and Mohinder Singh become highly unreliable and are thus liable to be discarded.
20. Further, the complainant has admitted that no member of the committee of the President elected on 18.9.09, who were admittedly present at the time of alleged incident, have been examined by him. These independent witnesses were easily available with the complainant to prove his allegations, but they have not been examined for reasons best known to the complainant. Complainant in his complaint alleged that members of his community had deprived and dispelled him from the Ramgarhia community and had stopped dealing or talking to him, but in his cross examination he admitted that he was none less than the President of his community and that despite the alleged incident he was not removed from the Presidentship. This factum also shows that the complainant has not suffered any harm to his reputation. Further, the complainant has heavily relied upon the statement of accused Balwant Singh before the SDM, Dhuri Ex.C3/B alleging that in this statement Balwant Singh admits his guilt, but bare perusal of this statement also shows that no words stated by Balwant Singh have been disclosed in his statement before the SDM.
21. In view of the entire discussion above, it is quite clear that the complainant has miserably failed to prove the guilty of the accused beyond reasonable doubt. Complainant in support of his case examined Balbhaddar Singh as CW2, who has been found to be untrustworthy as discussed above and the presence of CW4 Mohinder Singh is highly doubtful in a Kumar Virender 2013.08.06 14:25 I attest to the accuracy and integrity of this document CRM A-177-MA of 2013 7 meeting of the Ramgarhia community of which he is not even a member. Complainant has admitted the presence of the President of the community as well as eleven elected members at the venue of the alleged incident, but he failed to examine any of them and rather chose to examine Balbhaddar Singh regarding which he stated that he was not his relative, but it later transpired that the witness was his paternal aunt's son and the other witness did not even belong to his community. Moreover, complainant has admitted that he is a President of his community and has not led any evidence to show him being dispelled from the community or that his reputation was in any manner lowered in the community or that anyone from his community or general public stopped associating with him. Moreover, the complainant has been unable to even prove the utterance of defamatory remarks against him."
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. This view has been reiterated in State of Goa v. Sanjay Thakran, (2007) 3 SCC 755', and 'Chandrappa v. State of Karnataka, (2007) 4 SCC 415'.
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, Kumar Virender 2013.08.06 14:25 I attest to the accuracy and integrity of this document CRM A-177-MA of 2013 8 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."
In 'Mrinal Das & others v. The State of Tripura, 2011(9) SCC 479', decided on September 5, 2011, the Hon'ble 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 erroneous or a view which could not have been taken by the court of competent jurisdiction keeping in view the Kumar Virender 2013.08.06 14:25 I attest to the accuracy and integrity of this document CRM A-177-MA of 2013 9 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 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 Kumar Virender 2013.08.06 14:25 I attest to the accuracy and integrity of this document CRM A-177-MA of 2013 10 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."
Learned counsel for the petitioner has failed to show any error of law or on facts on the basis of which interference can be made by this Court in the judgment under challenge.
As such, this application for leave to appeal is dismissed.
July 31, 2013 [Paramjeet Singh]
vkd Judge
Kumar Virender
2013.08.06 14:25
I attest to the accuracy and
integrity of this document