Punjab-Haryana High Court
Mamani Devi vs State Of Haryana And Others on 3 April, 2013
Author: Jasbir Singh
Bench: Jasbir Singh, Inderjit Singh
CRM-A No. 934-MA of 2012 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
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CRM-A No. 934-MA of 2012
Date of decision : 3.4.2013
Mamani Devi ........Applicant-appellant
Vs.
State of Haryana and others .......Respondents
CORAM: Hon'ble Mr. Justice Jasbir Singh
Hon'ble Mr. Justice Inderjit Singh
Present:- Mr. S.K. Verma, Advocate, for the applicant-appellant
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Jasbir Singh, J.
The applicant has filed this application under Section 378 (4) Cr.P.C. seeking leave to file an appeal against judgment dated 10.9.2012 acquitting respondents No.2 to 8 of the charges framed against them.
The above respondents were made to face trial in FIR No. 41 dated 3.8.2009, Police Station GRPS, Jind, for commission of offences punishable under Sections 302 and 376/34 IPC.
The trial Judge has noted the following facts regarding case of the prosecution :-
"That on 3.8.2009 a telephonic information was received in relation to rapt No. 40 at 7.05 O'Clock to the effect that a dead body was lying under eucalyptus trees near K.M. No.125 on railway track. On this information, Tilak Raj SI/SHO reached on the spot, conducted proceedings under Section 174 Cr.P.C. on the dead body of 14/15 years old aged girl. Lower portion CRM-A No. 934-MA of 2012 -2- of body was naked. Underwear and pant were lying near it. There were strangulation marks on the neck. It appeared to be a rape and murder case. FSL team and dog squad were summoned on the spot. Mother of the deceased namely Mamani Devi w/o Raghbir r/o Vishwakarma Colony, who had arrived on the spot and identified dead body. She made a statement.
3. She stated that she was house wife. Her husband was a junk dealer. He was away for the last 15 days. She had five daughters. Eldest was Pushpa aged 15 years, next to her was Pooja aged 14 years (deceased), then was Asha, Payal and Lakshmi. She originally belonged to village Dahna, District Rewari.
4. She stated that her daughter Pooja had studied upto 8th standard. Last year she abandoned her studies and lived at home. On 2.8.2009 at 8.00 P.M. Pooja had gone to buy bread, but did not return till morning. They tried to find her out here and there, but failed. She had gone to P.S. City Jind in the morning to lodge report. Then she had gone to the office of S.P. for to make a request in this regard. There she came to know that dead body of her daughter Pooja was lying by the side of railway track at a place between big canal and Hansi railway crossing. So, she took Pushpa with her and reached there. She had identified dead body of her daughter. There were ligature marks on her neck. Her underwear and pant were lying there. It appeared that she was killed by strangulation after being raped.
5. She further informed that 2½-3 months back Nawab Khan had enticed Pooja. He had raped her as well. She had lodged report with P.S. City Jind. Nawab Khan was arrested. He was in jail at that time. She stated that two brothers of Nawab Khan and Ajay Yadav r/o Joginder Nagar, Jind had been visiting her house and pressurizing to compromise that CRM-A No. 934-MA of 2012 -3- case. Ajay Yadav had threatened to kidnap Pushpa in case she failed to settle the case. At that time Sonu son of saw mill owner was also with him. She suspected that these persons were behind death of her daughter so that Pooja can be prevented from deposing against Nawab Khan in that case."
The Investigating Officer prepared inquest report on the dead body and sent it for post mortem examination. As per medical evidence on record, duration between death and post mortem was 2/3 days. It was also informed that the deceased was pregnant. Fetus was sent for DNA Test to Forensic Science Laboratory. All the persons named by the applicant- complainant were also subjected to Polygraph Test, which was negative.
Thereafter, on 3.9.2009 investigation was handed over to Inspector Satpal of GRPS Police Station, then to DSP, Faridabad. On 29.10.2009, a supplementary statement of the applicant-complainant was recorded, wherein she had stated that Nawab Khan has conspired to eliminate the deceased and the murder was committed by Ajay Yadav.
It is on record that Nawab Khan was detained in jail when alleged murder was committed. He was formally arrested. He disclosed name of Ajay Yadav as the murderer. Father of Nawab Khan handed over two slips to the Investigating Officer, whereupon it was written that Pardeep @ Mitti had committed murder of Pooja on 4.4.2010 along with his friends. In the same fashion, one Lila-respondent No.3 has disclosed that he had participated in the crime.
During investigation, respondents-Sonu and Nawab Khan were found not involved in the crime and they were ordered to be discharged.
CRM-A No. 934-MA of 2012 -4-
The Investigating Officer recorded statements of the witnesses and on completing other formalities, final report was put in Court only against Anil alias Lila and Pardeep. Names of the other accused were put in Column No.2 of that report. However, during trial, they were summoned to face it, when an application under Section 319 Cr.P.C. was moved by the prosecution.
Copies of the documents were supplied to the respondents- accused as per norms. Case was committed to the competent Court for trial on 14.7.2010. The respondents-accused were charge sheeted, to which they pleaded not guilty and claimed trial. The prosecution produced 18 witnesses and also brought on record documentary evidence to prove its case.
On conclusion of the prosecution's evidence, separate statements of all the respondents-accused were recorded under Section 313 Cr.P.C. Incriminating evidence on record, was put to them, which they denied, claimed innocence and false implication.
The trial Judge on appraisal of evidence found them not guilty which resulted into their acquittal. Hence, this application.
The trial Judge by noting deposition made by Dr.P.K. Palwal (PW-4), has stated that no rape was committed upon the deceased as alleged. It is a case of circumstantial evidence. None had seen the offence being committed. Not only as above, as per Forensic Science Laboratory report Ex.PCC, no traces of semen etc. were detected on the underwear and pant etc. of the deceased. It is also on record that all the accused were subjected to Polygraph Test, which was negative. It is further noticed that CRM-A No. 934-MA of 2012 -5- most of the respondents-accused were named only on the basis of suspicion, being well wisher of Nawab Khan, against whom a criminal case was registered at the instance of the deceased. During investigation, it was not noticed that all the accused were frequent visitors to jail where Nawab Khan was detained. The trial Court further rightly said that merely because Ajay Yadav was found roaming in the area, is no ground to convict him in this case. Three accused were in jail at the time of alleged occurrence.
The trial Judge has found case of the prosecution unbelievable. The view taken is as per evidence on record.
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 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."CRM-A No. 934-MA of 2012 -6-
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:-
"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 CRM-A No. 934-MA of 2012 -7- 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 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 CRM-A No. 934-MA of 2012 -8- judgment under challenge.
Accordingly, the application is dismissed.
(Jasbir Singh) Judge (Inderjit Singh) Judge 3.4.2013 Ashwani