Punjab-Haryana High Court
Smt. Kailash Devi vs Nitin And Another on 1 December, 2012
Author: Rameshwar Singh Malik
Bench: Jasbir Singh, Rameshwar Singh Malik
CRM A-666-MA of 2012 1
PUNJAB & HARYANA HARYANA HIGH COURT AT
CHANDIGARH
CRM A-666-MA of 2012
Date of decision:1.12.2012
Smt. Kailash Devi
...Applicant
Versus
Nitin and another
...Respondent(s)
CORAM: HON'BLE MR.JUSTICE JASBIR SINGH
HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK
Present: Mr.Gopal Sharma, Advocate,
for the applicant.
RAMESHWAR SINGH MALIK, J.
The instant application under Section 378 (4) of the Code of Criminal Procedure (`Cr.P.C.' for short), has been filed by the applicant, seeking leave to file appeal against the judgment dated 31.5.2012 passed by the learned Additional Sessions Judge, Rewari, whereby accused Sachin was convicted for the offence under Section 302 IPC and sentenced for imprisonment of life, whereas the accused-respondent Nitin was acquitted of the charge framed against him.
Facts first. The complainant-applicant moved an application Ex. PR before the police alleging therein that the accused have committed the offence in question. However, in order to avoid repetition and also for the sake of brevity, it would be appropriate to refer to the facts noted by the learned trial Court, which read as under:-
"Brief facts of the prosecution case are that on 21.7.2010 at about 2-25 p.m. when AS1 Babu Ram CRM A-666-MA of 2012 2 along with Constable Dinesh Kumar 720 was present near Gym Khana on Garhi Bolini Road, Rewari in connection with investigation of case bearing FIR. No. 150 of 2010, under Sections 323/506 IPC, Police Station, Model Town, Rewari, complainant Smt. Kailash Devi met him and presented application Ex.PR alleging therein that on 16.7.2010 at about 4-00/4-30 p.m. her daughter namely Sheetal left her home stating her that she was going to meet her friend Geeta at Dharuhera Chungi, Rewari but she did not return to her house till date. On the basis of the complaint, the present case bearing FIR No. 251 dated 21.7.2010. under Sections 366/120B IPC was registered at Police Station, Model Town, Rewari. The matter was investigated by the police. Phone calls of Sheetal were scrutinized. She made various calls to the subscribers of telephone bearing Nos. 9590086972, 9671810908. 955993175. 9838398281 and 9718061389 and they were interrogated by the police but nothing was extracted during investigation. On 24.7.2010 Raj Singh, husband of the complainant, got suspicion that her daughter has been kidnapped or murdered by his son-in-law. On further investigation, it was revealed by the Investigating Officer that prior to leaving the house. Sheetal had also made certain CRM A-666-MA of 2012 3 calls to her husband. Accused Sachin, husband of Sheetal, was interrogated by the police and during the interrogation, accused Sachin confessed that he committed the murder of Sheetal and he concealed her dead body near tube-well in village Kakodia, District Gurgaon. On his disclosure statement, dead body of Sheetal was recovered. Section 302 IPC was added. Postmortem on the dead body of Sheetal was got conducted from PGIMS, Rohtak. On the disclosure statement of accused Sachin, Alto car bearing No. HR26AM-2153, used in the crime, was got recovered. Accused Sachin also got demarcated the STD shop where he had called his wife Sheetal before committing her murder. During further investigation, it had come in the investigation that accused Nitin had associated in committing murder of Sheetal. Accused Nitin was also arrested in this case on 29.7.2010. Photographs of the dead body were taken. Scaled site plan of the place of occurrence was got prepared. Statements of the witnesses under Section 161 Cr.P.C. were recorded and after completion of other necessary formalities of investigation, a report under Section 173 Cr.P.C. was prepared and submitted before the learned Area Magistrate for trial of the accused for the offence punishable under Section 302/201 IPC."CRM A-666-MA of 2012 4
On the presentation of the report under Section 173 Cr.P.C., the relevant documents were supplied to the accused, in accordance with law. However, the offences having been found to be exclusively triable by the court of session, the learned Illaqa Magistrate vide order dated 7.12.2010, committed the case to the court of session, for its trial. A prima facie case was found to be made out against the accused for commission of offence under Sections 302/201 IPC. Accordingly, the accused were charge sheeted. The accused pleaded not guilty and claimed trial.
In order to prove its case, the prosecution examined as many as 19 prosecution witnesses, besides tendering the relevant documents in its evidence. On conclusion of the prosecution evidence, separate statements of the accused were recorded under Section 313 Cr.P.C. Entire incriminating material brought on record was put to the accused. The accused alleged false implication and claimed themselves to be innocent. Opting to lead defence evidence, the accused examined as many as six defence witnesses, besides tendering the relevant documents in their defence evidence.
After hearing both the parties and going through the evidence brought on record, the learned trial Court, vide its judgment dated 31.5.2012 held accused Sachin, husband of the deceased, guilty for the offence under Section 302 IPC. He was convicted thereunder. Consequently, the convict was sentenced to undergo life imprisonment and to pay fine of Rs.5,000/-. In default of payment of fine, the convict was further ordered to undergo imprisonment for three months. However, CRM A-666-MA of 2012 5 the learned trial Court held that the prosecution could not prove its case beyond reasonable doubt so far as accused-respondent Nitin was concerned. Accordingly, he was acquitted of the charge framed against him.
Feeling aggrieved against the above-said judgment passed by the learned Additional Sessions Judge, Rewari, acquitting accused- respondent Nitin, the applicant has filed the instant application seeking leave to file appeal. That is how, this Court is seized of the matter.
Learned counsel for the applicant submits that the learned trial Court has failed to appreciate the evidence in the right perspective. Sufficient evidence had been brought on record so as to bring home the guilt against both the accused. However, since the learned trial Court has proceeded on an erroneous and misconceived approach, the impugned judgment was not sustainable in law. .
Having heard the learned counsel for the applicant, after careful perusal of the record of the case and giving thoughtful consideration to the contentions raised, this Court is of the considered opinion that the present one is not a fit case for granting leave to file an appeal against the impugned judgment. The reasons are more than one, which are being recorded hereinafter.
Admittedly, the present case is based on circumstantial evidence. In such a situation, the Court is expected to critically examine the evidence with circumspection. In the cases where no direct evidence is available, a heavier onus lies on the prosecution to prove its case beyond reasonable doubt by leading cogent and convincing evidence. CRM A-666-MA of 2012 6 However, in the present case, there was no sufficient evidence produced by the prosecution against Nitin so as to record his conviction. In this view of the matter, this Court has no hesitation to conclude that the learned trial Court has committed no error of law while passing the impugned judgment.
The allegation of alleged recovery of mobile battery, on the basis of alleged disclosure statement of accused Nitin, itself was not sufficient. The prosecution could not lead any such evidence which may connect the accused-respondent Nitin with the crime in question. The alleged mobile battery was shown to have been recovered from an open place, which was accessible to all. Such an evidence could not have been read against the accused-respondent Nitin nor it would be prudent to record his conviction on this kind of weak evidence. Neither there was any last seen evidence nor any link evidence has been produced by the prosecution against accused-respondent Nitin so as to show his involvement in the commission of offence.
The learned trial Court, before arriving at the judicious conclusion for recording the acquittal of respondent-accused Nitin, recorded sufficient and cogent findings and the same read as under:-
"In view of the above mentioned circumstances, the only conclusion which can be drawn by this Court is that accused Sachin has committed murder of his wife Sheetal.
As per the prosecution version, only a mobile battery was recovered on the basis of disclosure statement of accused Nitin. There is no proof that the battery recovered CRM A-666-MA of 2012 7 from the possession of accused Nitin is the same battery which was being used by Sheetal. In other words, the recovery was effected from an open place which is accessible for all. In these circumstances, there is no sufficient evidence against accused Nitin and he is hereby acquitted of the charge levelled against him."
Learned counsel for the applicant failed to point out any piece of cogent evidence which might have been altogether ignored by the learned trial Court, so as to convince this Court to take a different view than the one taken by the learned trial Court. It is the settled proposition of law that whenever two views are possible, the view which goes in favour of the accused, is to be followed by the Court.
The view taken by this Court also finds support from the judgment of the Hon'ble Supreme Court in the case of Arulvelu & anr. vs. State represented by the Public Prosecutor and anr. 2009(4) RCR (Crl.) 638. The relevant observations made by the Hon'ble Supreme Court in para Nos.39, 40 and 41 in the case of Arulvelu's case (Supra) read as under:
In Ghurey Lal v. State of Uttar Pradesh (2008) 10 SCC 450, a two Judge Bench of this Court of which one of us (Bhandari, J.) was a member had an occasion to deal with most of the cases referred in this judgment. This Court provided guidelines for the Appellate Court in dealing with the cases in which the trial courts have acquitted the accused. The following CRM A-666-MA of 2012 8 principles emerge from the cases above:
1. The accused is presumed to be 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.
2. The power of reviewing evidence is wide and the appellate court can re-appreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law, but the Appellate Court must give due weight and consideration to the decision of the trial court.
3. The appellate court should always keep in mind that the trial court had the distinct advantage of watching the demeanour of the witnesses. The trial court is in a better position to evaluate the credibility of the witnesses.
4. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so.
5. If two reasonable or possible views can be reached
- one that leads to acquittal, the other to conviction -
the High Courts/appellate courts must rule in favour of the accused.
40. This Court in a recently delivered judgment State CRM A-666-MA of 2012 9 of Rajasthan v. Naresh @ Ram Naresh 2009 (11) SCALE 699 again examined judgments of this Court and laid down that "An order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger towards the accused. This Court has dealt with the scope of interference with an order of acquittal in a number of cases."
41. Careful scrutiny of all these judgments lead to the definite conclusion that the appellate court should be very slow in setting aside a judgment of acquittal particularly in a case where two views are possible. The trial court judgment can not be set aside because the appellate court's view is more probable. The appellate court would not be justified in setting aside the trial court judgment unless it arrives at a clear finding on marshalling the entire evidence on record that the judgment of the trial court is either perverse or wholly unsustainable in law.
In `Mrinal Das & others, V.The State of Tripura', 2011(9) SCC 479, decided on September 5, 2011, the Hon'ble Supreme Court, after referring to many earlier judgements, has laid down parameters, for interference against a judgement of acquittal, by observing as under :-
An order of acquittal is to be interfered with only when there are "compelling and substantial CRM A-666-MA of 2012 10 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 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 CRM A-666-MA of 2012 11 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 interfered with. Thus, this fine distinction has to be CRM A-666-MA of 2012 12 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."
No other argument was raised.
Considering the totality of facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that the prosecution has miserably failed to prove its case beyond reasonable doubt. The learned trial Court has not committed any error of law while passing the impugned judgment. No patent illegality or perversity has been pointed out, which is sine qua non to interfere in a judgment of acquittal. No case for interference has been made out.
Resultantly, the present application stands dismissed.
(JASBIR SINGH) (RAMESHWAR SINGH MALIK)
JUDGE JUDGE
1.12.2012
mks