Punjab-Haryana High Court
Sonia Mahant @ Ranjit Kumar Sonu vs State Of Punjab And Another on 11 February, 2013
Author: Jasbir Singh
Bench: Jasbir Singh, Sabina
CRM-A No. 774-MA of 2012 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
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CRM-A No. 774-MA of 2012
Date of decision : 11.2.2013
Sonia Mahant @ Ranjit Kumar Sonu ........Applicant-appellant
Vs.
State of Punjab and another .......Respondents
CORAM: Hon'ble Mr. Justice Jasbir Singh
Hon'ble Mrs. Justice Sabina
Present:- Mr. K.S. Kahlon, Advocate, for the applicant-appellant
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Jasbir Singh, J.
The applicant-complainant has filed this application under Section 378 (4) Cr.P.C. seeking leave to file an appeal against judgment dated 1.8.2012 vide which respondent No. 2 was acquitted of the charges framed against him.
The process of law was started on receipt of an application Ex.PF/1 made by the the applicant-complainant, upon which FIR Ex.PF was recorded against respondent No. 2 on 21.11.2010, for commission of offences under Sections 326, 328, 377 and 506 IPC at Police Station Model Town, District Hoshiarpur.
After recording above FIR, the Investigating Officer ASI Davinder Singh (PW-6) went to the place of occurrence, got prepared a rough site plan Ex.PG with correct marginal notes. He also recorded statements of the witnesses and after completion of investigation, final report was put in Court. Case was committed to the competent court for CRM-A No. 774-MA of 2012 -2- trial vide order dated 29.3.2011. The respondent-accused was charge sheeted to which, he pleaded not guilty and claimed trial. The prosecution produced 7 witnesses and also brought on record documentary evidence to prove its case.
On conclusion of the prosecution's evidence, statement of the respondent-accused was recorded under Section 313 Cr.P.C. He denied the incriminating prosecution evidence appearing against him, pleaded innocence and false implication. The respondent-accused led no evidence in defence.
On perusal of evidence, the Court below awarded acquittal in favour of the respondent-accused. Hence, this application.
The trial Judge has noted following facts regarding case of the prosecution :-
"That the present case has been registered on the written complaint dated 25.8.2010 moved by Sonia Mahant to the SSP Hoshiarpur to the effect that complainant used to work with Geeta Mahant in group to earn livelihood. About 6 years back, Geeta Mahanat and his two other companion took the complainant to an undisclosed location and after administering intoxicant substance, surgically removed his penis and made him an eunuch. When the complainant regained conscious, the accused prevailed upon the complainant not to file any complaint against him and assured the complainant to involve him in the work carried out by the accused persons. The accused persons earmarked 18 specific areas for the exclusive working of the complainant. It was also complained that Geeta Mahant had forced the complainant into flesh trade against her consent and whenever CRM-A No. 774-MA of 2012 -3- complainant protested, she was subjected to physical cruelty and harassment at the hands of Geeta Mahant."
It is apparent from the record that the alleged injury was caused to the applicant-complainant in the year 2004. However, the written complaint was filed in the year 2010 i.e. after about 6 years of the occurrence. It was also so said by Dr. Jaswinder Singh (PW-1). The trial Judge on appraisal of evidence, rejected case of the prosecution. It was noticed that the best possible evidence has not been brought on record and no explanation has been furnished for a huge delay.
As per deposition made by Dr. Jaswinder Singh (PW-1), when ultrasound and mammography was done, he was not present and further he has not received opinion of any surgical specialist or surgeon who may have the experience of removing external genitalia of any person. This witness has further stated that injury to the complainant was possible only with a surgical intervention. It has also come on record that there was some dispute between the complainant and respondent No.2 regarding ownership of a house. It has been so mentioned by the Court below in Para No.21 of the judgment under challenge. The prosecution has failed to brought anything on record to say that under intoxication, injury was caused to the applicant-complainant as alleged. When granting benefit of acquittal to respondent No.2, the trial Judge has observed as under :-
"20. So by going through entire evidence of the doctors as well as other witnesses of this case, it is clear that allegation levelled by complainant Sonia Mahant with regard to chopping his penis by accused Gita Mahant are not believable. The alleged incident of chopping of the penis of complainant CRM-A No. 774-MA of 2012 -4- has taken place in the year 2004 and present FIR has been registered in the year 2010. There is unexplained delay of six years for lodging the FIR. PW2- Ranjit Kumar alias Sonu (complainant) is important witness of this case but strangely enough that he keep quite for such a long period of six years when the alleged incident has taken place. He never bothered to move any application before any authority regarding the alleged incident. Even PW-1 Dr. Jaswinder Singh has specifically stated that injury is not fresh and it is six years old. It has come in evidence that this job of surgeon cannot be done without surgical intervention. He admitted that without the consent of patient, surgeon never do any operation or surgical intervention. In the present case there is no such consent of patient or proof of any surgical intervention for the alleged removal of penis of complainant., Furthermore, from the testimony of PW7-Resham Singh, it is clear that it was told to him by complainant that his penis was chopped by Gita Mahant by giving him intoxicant and thereafter he approached Kehar Singh, Municipal Commissioner before whom Gita Mahant accused has confessed her guilt. However, strangely enough prosecution failed to produce said Kehar Singh, Municipal Commissioner in the Court to prove the fact of confession made by accused."
This Court feels that the view taken is perfectly justified and is as per evidence on record. The applicant has failed to give explanation for delay of 6 years in making the complaint after the date of alleged occurrence. There is no explanation as to why the prosecution has failed to bring on record the best possible evidence with it as per record.
Their Lordships of the Supreme Court in 'Allarakha K.Mansuri v. State of Gujarat, 2002(1) RCR (Criminal) 748', held that CRM-A No. 774-MA of 2012 -5- 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 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 CRM-A No. 774-MA of 2012 -6- 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:-
"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 CRM-A No. 774-MA of 2012 -7- 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 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 application is dismissed.
(Jasbir Singh) Judge (Sabina) Judge 11.2.2013 Ashwani