Punjab-Haryana High Court
Ajmer Singh vs State Of Punjab And Another on 26 March, 2013
Author: Jasbir Singh
Bench: Jasbir Singh, Inderjit Singh
CRM No. 3733 of 2013 in/and
CRM-A No. 23-MA of 2013 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
*****
CRM No. 3733 of 2013 in/and
CRM-A No. 23-MA of 2013
Date of decision : 26.3.2013
Ajmer Singh ........Applicant-appellant
Vs.
State of Punjab and another .......Respondents
CORAM: Hon'ble Mr. Justice Jasbir Singh
Hon'ble Mr. Justice Inderjit Singh
Present:- Mr. Padamkant Dwivedi, Advocate
for the applicant/appellant
---
Jasbir Singh, J.
CRM No. 3733 of 2013 After hearing counsel for the applicant, application is allowed. Delay of 38 days in filing the appeal stands condoned. CRM-A No. 23-MA of 2013 Respondent No.2 was made to face trial in FIR No. 15 dated 24.2.2012 Police Station Kiratpur Sahib, for commission of offences punishable under Sections 363, 366A/376 IPC.
The process of law was started on a statement Ex.PF, made by the applicant-complainant, who is father of the prosecutrix. The Investigating Officer ASI Balbir Kumar (PW-7), after recording statement of the applicant, went to the place of occurrence, inspected the spot and CRM No. 3733 of 2013 in/and CRM-A No. 23-MA of 2013 -2- prepared a rough site plan Ex.PO of that place. Respondent No.2 was apprehended by the police party. The prosecutrix was also with him. She was medico legally examined by Dr. Surinder Kaur (PW-8). MLR of the prosecutrix has been brought on record as Ex.PV.
The Investigating Officer recorded statements of the witnesses and on completion of investigation, final report was presented in Court. Copies of the documents were supplied to respondent No.2 as per norms. Case was committed to the competent Court for trial vide order dated 24.5.2012. The respondent-accused was charge sheeted, to which he pleaded not guilty and claimed trial. The prosecution produced 10 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. Incriminating evidence on record, was put to him, which he denied, claimed innocence and false implication. He led no evidence in defence.
The trial Judge on appraisal of evidence found case of the prosecution doubtful and accordingly, respondent No.2-accused was acquitted of the charges framed against him, vide judgment dated 27.9.2012.
The applicant (father of the prosecutrix) has filed this application under Section 378 (4) Cr.P.C. seeking leave to file an appeal against the above judgment.
Heard counsel for the applicant.
CRM No. 3733 of 2013 in/and CRM-A No. 23-MA of 2013 -3- As per facts of the case, it was an allegation against the respondent-accused that on 20.2.2012 during night, in the absence of the applicant and his wife, he enticed away the prosecutrix and committed rape upon her. She was taken away by making a false promise that the respondent-accused wanted to marry her.
It is necessary to mention here that at the time of trial, the prosecutrix (PW-6) did not support case of the prosecution. She was declared hostile during her cross examination. The Public Prosecutor failed to get anything favourable from her to the case of the prosecution. She went to the extent of saying that she was not kidnapped and no rape was committed upon her, as alleged by the prosecution.
When giving benefit of doubt to the respondent-accused, the trial Judge has observed as under :-
"9. I have appreciated the arguments addressed by public prosecutor for the State and the counsel for defence and find that there is no iota of evidence led by the prosecution to prove the charges framed against the accused. PW-4 Ajmer Singh complainant has simply stated that he has seen his daughter Sunita Devi while going on Motor Cycle with accused Harnek Singh. He has no where stated that she was ever kidnapped or raped by accused Harnek Singh. PW-6 Sunita Devi, the victim has categorically stated in her examination in chief that she was never kidnapped and raped by the accused. Even during her cross examination by public prosecutor, she has not stated anything against the accused and in favour of the prosecution. Even she has denied her statement alleged to have been recorded under Section 164 Cr.P.C. by PW-9 Shri Baljinder Singh, JMIC, Anandpur Sahib. CRM No. 3733 of 2013 in/and CRM-A No. 23-MA of 2013 -4- Rather she has simply stated that her signatures were obtained thereon under pressure of the police. Though this statement Ex.PL has been proved by PW-9 Shri Baljinder Singh, JMIC, Anandpur Sahib, but it has got no evidentiary value at all for proving the offence alleged to be committed by the accused. It has been held in the authorities "Priya v. State of Punjab (supras), "George v. State of Kerala (supra) and "Bhup Singh v. State of Haryana (supra) that the statement of the victim recorded under Section 164 Cr.P.C. can only be used for the purpose of contradicting or corroborating the statement of the victim recorded in the Court. It has been further held that this statement of the victim was never subjected to cross examination by the accused and thus, it has no much evidentiary value. It has been further held that this statement has got no value, especially when the victim has denied all the allegations levelled by the prosecution against the accused in her statement recorded in the Court. So, the conviction of accused cannot be based solely on the basis of statement Ex.PL of the victim recorded under Section 164 Cr.P.C. by PW-9 Shri Baljinder Singh, JMIC, Anandpur Sahib."
It was rightly said that the prosecution has failed to prove its case. The prosecutrix took up a specific stand that she was neither kidnapped nor raped by the respondent-accused. Under the circumstances, it was rightly said by the trial Court that merely, on the basis of statement made by the prosecutrix, before a Magistrate under Section 164 Cr.P.C., conviction of the respondent-accused cannot be ordered.
This Court feels that view taken by the Court below, is perfectly justified and as per evidence on record.
Their Lordships of the Supreme Court in 'Allarakha CRM No. 3733 of 2013 in/and CRM-A No. 23-MA of 2013 -5- 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 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 CRM No. 3733 of 2013 in/and CRM-A No. 23-MA of 2013 -6- 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 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 CRM No. 3733 of 2013 in/and CRM-A No. 23-MA of 2013 -7- 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 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 (Inderjit Singh) Judge 26.3.2013 Ashwani