Punjab-Haryana High Court
Dalip Kumar vs Mohinder Kumar & Others on 19 October, 2012
Bench: Jasbir Singh, Rameshwar Singh Malik
CRM-A-604-MA of 2012 (O & M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-A-604-MA of 2012 (O&M)
Date of decision : 19.10.2012
Dalip Kumar .......Applicant/Appellant
Vs.
Mohinder Kumar & others ..........Respondents
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CORAM: Hon'ble Mr. Justice Jasbir Singh
Hon'ble Mr. Justice Rameshwar Singh Malik
Present:- Mr. Gurinder Pal Singh, Advocate
for the applicant-appellant
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Jasbir Singh, J. (Oral)
CRM No. 43190 of 2012 After hearing counsel for the applicant, application is allowed. Delay of 7 days in filing the appeal stands condoned. CRM-A-604-MA of 2012 This application has been filed under Sections 378(4) read with Sections 372 and 482 Cr.P.C. seeking leave to file against judgment dated 28.04.2012 vide which respondents No.1 to 7 were convicted for offences under Sections 148, 325/149 and 323/149 IPC and vide order of the even date, they were accordingly sentenced. However, all the above respondents accused were acquitted of the charge framed against them under Sections 307 and 382 IPC.
CRM-A-604-MA of 2012 (O & M) -2- Respondent No.8 was also acquitted of the charge framed against him under Sections 217 and 218 IPC. Hence, this application.
As per case of the prosecution, respondents were summoned to face trial vide order dated 15.10.2009 on a complaint filed by the applicant for commission of offences under Sections 307, 325, 323, 382, 505, 506, 148, 149, 217, 218 IPC and Section 25 of the Arms Act, 1959. It was an allegation against respondent No.8 that he had tampered with the statement made by the applicant, in conspiracy with the other accused.
The trial Judge has noted the following facts regarding case of the complainant :-
"Dalip Kumar complainant has filed the present complaint against the accused with the allegations that he is resident of village Chuhri Wala Dhanna. On 29.6.2003 there were panchayat elections in the village and three women candidates were contesting for the post of Sarpanch. The complainant and his family members were supporting Minakshi Devi wife of Radha Raman, who was contesting election for the post of Sarpanch. Polling was going on in the school premises of the village. He was going to school for casting vote. At about 1/1.30 p.m. when he was 5/6 yards short from the School, he was encircled by Parkash Chand, Manjit, Mohinder, Surinder, Gautam, Prabhu and Bindu and shouted that they would teach him a lesson for supporting Minakshi Devi in the election. They all the accused opposed Minakshi Devi in the election. Then Parkash Chand, who was armed with dang, gave a dang blow, which hit the complainant on his left shoulder. Manjit Singh, who was also armed with CRM-A-604-MA of 2012 (O & M) -3- dang, gave a dang blow hitting the complainant on his right shoulder. Then Mohinder gave a sota blow, which hit the complainant on his face. Gautam gave a danda blow, which hit him on right side of his fore-head. Gautam also snatched the gold chain from the neck of the complainant. The complainant fell down on the ground and while he was lying on the ground Prabhu gave a danda blow hitting him on his knee. Bindu gave a danda blow, which hit the complainant on his right elbow. Accused Prabhu also took out currency notes of `1,000/- from the pocket of the complainant when he was lying on the ground. The complainant raised roula; whereupon, his son Ajay Kumar also reached the spot and when he tried to rescue him, all the accused started causing him injuries and then he ran away from the spot. On hearing roula, his second son Vijay also reached the spot and on seeing him, accused Surinder fired a shot from his pistol towards Vijay with the intention to kill him, but luckily the fire missed. The complainant and his sons raised alarm; whereupon, the accused ran away from the spot with their respective weapons and while going they also took away gold chain and currency notes of `1,000/-. After arranging vehicle, Jagdish son of Gian Chand took the complainant and his son to Civil Hospital, Abhor where he was medico legally examined.
The complainant further alleged that on 29.6.2003 and 30.6.2003 he was not physically fit to make statement. On 1.7.2003 accused Ramesh Chander ASI had come from police station Khui Khera and he got recorded his statement to him (Ramesh Chander ASI), but he tampered with his statement as he was won over by the accused and at his instance, the accused have caused injuries to him (complainant) and his son. Ramesh CRM-A-604-MA of 2012 (O & M) -4- Chander ASI had not written in the statement regarding fire shot and snatching of chain nor he registered a case regarding the occurrence, but only recorded DDR No.9 dated 1.7.2003 writing therein that from the statement of Dalip Kumar only offence under Sections 323/379/336/34 IPC is found to have been made out."
It is a case of the prosecution that after discharge from the hospital, the applicant had been visiting the police station for action. When nothing was done, he filed the complaint in question.
In preliminary evidence, the applicant-complainant produced three witnesses and brought on record documentary evidence to prove his case. After noting contents of the preliminary evidence, private respondents were summoned to face trial. On their appearance, copies of the documents were supplied to them. The case was committed to the competent court for trial vide order dated 15.10.2009. The respondents accused were charge sheeted to which they pleaded not guilty and claimed trial. The prosecution/complainant produced five witnesses and also brought on record documentary evidence to prove its case against the respondents No.1 to 8.
On conclusion of prosecution's evidence, statements of the respondents-accused were recorded under Section 313 Cr.P.C., wherein the incriminating material existing on record was put to them, which they denied, claimed innocence and false implication. They also led evidence in defence stating that on the fateful day complainant along with Vijay had caused injuries to Gautam and CRM-A-604-MA of 2012 (O & M) -5- Surinder Kumar respondents and to save themselves from criminal prosecution, the complainant party fabricated the injuries and charged the respondents in a false criminal case. The trial Judge on appraisal of evidence acquitted respondents No.1 to 7 of charge framed under Sections 307 and 382 IPC. However, they were convicted for commission of offences under Sections 148, 325/149, 323/149 IPC. Respondent No.8 was also acquitted of the charge framed against him. Hence, this application.
Counsel for the applicant has taken us through the paper book. On perusal thereof, we are not inclined to interfere in the judgment under challenge. When giving benefit of acquittal it was noted that as per allegation of the prosecution, Surinder Kumar accused-respondent No.2 had fired a shot at Vijay Kumar with an intention to kill him, but Vijay Kumar saved himself by felling on the ground, this fact was disbelieved by the court. The trial Judge in paragraph no.23, after looking into evidence on record, has noted that the presence of respondents No.1 to 7 at the spot is proved on record. When giving benefit of acquittal to respondents No.1 to 7 of the charge under Section 307 IPC it was observed as under :-
"I have perused the evidence on record, in this regard. PW3 though stated that on seeing him running, accused Surinder Kumar fired a shot from his pistol on him with an intention to kill him, but he fell down and fire did not hit him. So far as statement of eye witnesses with regard to the injuries received by Dalip Kumar and Ajay Kumar is concerned, the said version is corroborated by medical evidence and is found believable. But the oral CRM-A-604-MA of 2012 (O & M) -6- testimony of the witnesses with regard to firing from the pistol towards Vijay Kumar PW is not supported by any other evidence on record. Since no injury was received by the witness, so there is no medical evidence on record. It has come on record that complainant had reported the matter to the police, on which DDR No.9 dated 1.7.2003 was registered. Perusal of the said DDR indicates that after recording statement of complainant Dalip Kumar, police proceedings were conducted by ASI Ramesh Chander. Police proceedings Ex.P1 show that ASI Sukhdev Singh was deputed in the concerned police station, in the jurisdiction of which the occurrence took place. He disclosed the Investigating Officer that a dispute had taken place, but no firing was made nor the snatching of chain and money, came into notice in the investigation. Both the parties, after fighting with each other, had gone for admission in the hospital.
Recovery of weapon has not been effected. In these circumstances, the Ballistic Expert's report could not have been obtained. So, there is no Ballastic Expert report to the effect that any firing took place.
Both the parties have admitted that occurrence took place in the School at the time of panchayat election. Election staff is supposed to be on duty. Firing noise might have been heard by the election staff or by those persons who were present in the School in connection with casting of votes. None has been examined to support the case of the prosecution. There is nothing on record that from the spot police had found any corroborative evidence to support the oral testimony of the witnesses with regard to the firing. Incharge of the School has not been examined. Both the parties are related to each other. It has come on record that they had previous civil litigation. In such circumstances CRM-A-604-MA of 2012 (O & M) -7- chances that some exaggeration of facts was made, cannot be ruled out. No doubt, independent corroboration is not required as a matter of rule, but keeping in view the totality of aforesaid circumstance, it is not safe to believe the testimony of Vijay Kumar on this point that accused Surinder Kumar had fired at him with an intention to kill. The rule of falsus in uno, falsus in omnibus is not applicable in such cases. The prosecution version with regard to firing by accused Surinder Kumar is not found believable and is surrounded with great suspicion. Consequently, the accused are entitled to acquittal under Section 307 IPC."
It was rightly noted by the trial Judge that firing of shot, as alleged, was not proved on record. No fire arm injury was received by any member of the complainant party at the time of alleged occurrence. It was also noted that the fire arm was not recovered. During investigation also, it has come on record that firing did not take place at the time of occurrence. It was rightly noted by the trial court that both the parties virtually have admitted that the occurrence did take place during Panchayat election in a School. Previous history of civil litigation was also noted by the trial court. To give benefit of acquittal to the respondents, it was also noticed that despite being available, no independent witness was examined to prove that a shot was fired by respondent-accused Surinder Kumar upon a member of the complainant party. Further the allegation of snatching of gold chain and amount of `1,000/- from the complainant by the respondent- accused Bindu was also not proved on record. Record reveals that the entire evidence has been discussed in a right manner CRM-A-604-MA of 2012 (O & M) -8- and benefit of acquittal has accordingly been given to the respondents so far as charge under Section 307 and 382 IPC is concerned.
To give benefit benefit of acquittal to respondent No.8 it was rightly noted by the trial Judge that whatever information was supplied to the above officer he had recorded it in the DDR Ex.P1, which was signed by the complainant. It is also come on record that after recording the DDR an enquiry was conducted. However, allegations regarding firing of shot by Surinder Kumar respondent accused and snatching of gold chain and money was found to be false. Above fact also stands recorded in the DDR Ex.P1. The trial court has rightly noted that, may be, on account of report given by respondent No.8 against the complainant party, he was involved in the present litigation. In the application seeking leave to file an appeal except making bald allegations it has not been shown at the time of argument that there is any misreading of evidence on the part of the trial Judge or any vital part of evidence has not been looked into.
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 CRM-A-604-MA of 2012 (O & M) -9- 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 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:-
CRM-A-604-MA of 2012 (O & M) -10- "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 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 CRM-A-604-MA of 2012 (O & M) -11- 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 (Rameshwar Singh Malik) Judge 19.10.2012 Anand