Punjab-Haryana High Court
State Of Haryana vs Manoj Etc on 1 October, 2012
Author: Rameshwar Singh Malik
Bench: Jasbir Singh, Rameshwar Singh Malik
Crl.Misc.No.A-635 MA of 2012 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl.Misc.No.A-635 MA of 2012
Date of decision : 1.10.2012
State of Haryana .......Petitioner
Vs.
Manoj etc. ....Respondents
....
CORAM : HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK **** Present : Mr. Sandeep Vermani, Addl.A.G. Haryana for the applicant-State.
...
RAMESHWAR SINGH MALIK,J The instant application under Section 378(3) of the Code of Criminal Procedure (`Cr.P.C.' for short), has been filed by the applicant-State, seeking leave to file appeal against the judgement of acquittal dated 30.5.2012, passed by the learned Additional Sessions Judge, Sonepat.
Facts first. A complaint was lodged by PW-5 Rameshwar on 30.6.2010 to the effect that he had two sons namely; Vinod and Surender. His elder son Vinod was running a dairy. In the night, at about 3.30 AM, he received a telephonic message from Joginder S/o Ram Phal, asking him about his son Vinod. The complainant replied that he was not aware about Vinod. Joginder informed the complainant that wife of Vinod was unwell and Vinod was missing from home since 10 PM. After some time, Joginder went to P.K. Colony, Sonepat, where the wife of Vinod told him that Vinod had gone out of the house, saying that he was to take back ` 20,000/- from Narender. He also disclosed that Vinod was having a mobile No.9813375288 with him. The complainant searched for his son, but he was Crl.Misc.No.A-635 MA of 2012 2 not found. In the morning, Anoop told him that he had received a telephone call from the police, that the dead body of Vinod was lying on the road, on the bridge of Kakroi river. Complainant reached at the spot and identified the dead body of his son. On the basis of said complaint, FIR Ex.PU was registered by S.I., Raj Rani, PW-10.
During the investigation, accused Manoj was arrested. He suffered a disclosure statement implicating other accused in the case. Thereafter, accused Sunil @ Meenu and Gurmeet were arrested. After completion of the investigation, the report under Section 173 Cr.P.C., was presented before the Illaqa Magistrate. The relevant documents were supplied to the accused. Thereafter, since the case was exclusively triable by the Court of Sessions, it was committed for trial to the learned court of competent jurisdiction.
Having found a prima facie case, charge was framed against the accused, vide order dated 20.12.2010. The accused pleaded not guilty and claimed trial. The prosecution, in order to prove its case,examined 18 PWs, besides tendering the relevant documents in evidence. After conclusion of the prosecution evidence, statements of the accused were recorded under Section 313 Cr.P.C. All the incriminating material brought on record was put to them. The accused alleged false implication and claimed complete innocence. However, no defence evidence was led by them.
After hearing the parties and considering the evidence brought on record, the learned trial court, vide its judgement dated 30.5.2012, acquitted the accused from the charges framed against them. Feeling aggrieved against the impugned judgement of acquittal, the State has filed the present application under Section 378(3) Cr.P.C., seeking leave to file appeal against the judgement of acquittal. That is how, this court is seized of the matter.
Learned counsel for the applicant has contended that the learned trial Crl.Misc.No.A-635 MA of 2012 3 court has committed serious error of law, while not appreciating the prosecution evidence in the right perspective. He further submitted that the prosecution has produced sufficient and convincing evidence bringing home the guilt. However, since the learned trial court has misdirected itself, while not properly appreciating the evidence, the impugned judgement of acquittal was not sustainable in law.
We have heard learned counsel for the applicant-State and with his able assistance, have gone through the record of the case.
After giving our thoughtful consideration to the contentions raised and careful perusal of the record of the case, we are of the considered opinion that present one is not a fit case, for granting leave to file appeal against the impugned judgement of acquittal. We say so for more than one reasons.
The prosecution has failed to prove the motive. The alleged undesirable relations between respondents no.1 and 3 namely; Manoj and Smt.Gurmeet have not been proved. PW-5 Rameshwar, who was father of the deceased, was totally silent in this regard, while making his complaint at the first instance. The complaint Ex.P-1 was not having even a passing reference about the undesirable relations between Manoj and Smt.Gurmeet, wife of Vinod-deceased. Not only this, PW-5 Rameshwar when appeared in the witness box, also did not say even a word in his examination-in-chief, regarding the undesirable relations between Manoj and Smt.Gurmeet.
It has also come in the examination-in-chief of PW-5 that he did not say so even in his supplementary statement. Thus, it was a case based on circumstantial evidence and court has to be extra cautious for recording the conviction. The case is to be considered in the totality of circumstances. In the present case, the prosecution has failed to bring any plausible evidence on record, to prove the fact of undesirable relations between Manoj and Smt.Gurmeet. Having said that, we have no hesitation to hold that the learned trial court has not Crl.Misc.No.A-635 MA of 2012 4 committed any error of law, while disbelieving the prosecution evidence in this regard.
The prosecution has also failed to prove the link evidence as well as the alleged recovery. The learned trial court has noted material discrepancies in the prosecution evidence in this regard, while referring to the statement of PW-6 Ram Phal. It has also been recorded that no independent witness was joined by the police, at the time of alleged recovery. In this view of the matter, it cannot be said that the learned trial court has proceeded on an erroneous approach, while passing the impugned judgement of acquittal.
After discussing the entire evidence, in the given circumstances of the present case, the learned trial court has recorded cogent finding in para 39 of the judgement, which reads as under :-
" Keeping in view the afore discussion,it can be said that in the case of the circumstantial evidence, the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probabilities the crime was committed by the accused and none else. The evidence must be so complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused. In the present case the same is missing. The prosecution has failed to establish any motive on the part of the accused. It is also doubtful that if Vinod since deceased had strained relation with accused Manoj, he would be in his company. The last seen evidence adduced by the prosecution appears to be a concocted story and has been introduced to strengthen the case of the prosecution. The alleged recovery could not be connected to the Crl.Misc.No.A-635 MA of 2012 5 crime. Thus, all the three circumstances relied upon by the prosecution have not been proved beyond reasonable doubt. They have failed to establish a strong link between the circumstances. The prosecution has failed to prove criminal conspiracy between accused Gurmeet and accused Manoj. In the absence of the same, it could not be said that accused Sunil had been engaged by them in order to commit the crime. "
Learned counsel for the applicant-State could not point out any material on the record, for taking a different view by us than the one taken by the learned trial court. The view taken by this court also finds support from the judgement 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 No.39, 40 and 41 in the case of Arulvelu's case (Supra) read as under:
39. 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 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 Crl.Misc.No.A-635 MA of 2012 6 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 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 Crl.Misc.No.A-635 MA of 2012 7 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."
The law laid down by the Hon'ble Supreme Court in Arulvelu's case (Supra) has also been followed by a Division Bench of this Court in a recent judgment in the case of State of Haryana vs. Aman Kumar & anr.2012(3)RCR (Crl.) 330, which we respectfully follow.
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 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 Crl.Misc.No.A-635 MA of 2012 8 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 Crl.Misc.No.A-635 MA of 2012 9 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."
No other argument was raised.
Considering the totality of facts and circumstances of the case noted above, coupled with the reasons aforementioned, we have no hesitation to conclude that neither any patent illegality nor perversity has been pointed out, in the impugned judgement of acquittal, which is sine-quo-non for granting the leave to file appeal. No case for interference has been made out.
Resultantly, the instant application under Section 378(3) Cr.P.C., seeking leave to file appeal against the impugned judgement, stands dismissed.
( JASBIR SINGH ) (RAMESHWAR SINGH MALIK)
JUDGE JUDGE
1.10.2012
GS