Punjab-Haryana High Court
State Of Punjab vs Amrik Singh And Others on 1 December, 2012
Author: Rameshwar Singh Malik
Bench: Jasbir Singh, Rameshwar Singh Malik
CRM A-206-MA of 2012 (O&M) 1
PUNJAB & HARYANA HARYANA HIGH COURT AT
CHANDIGARH
CRM No.18021 of 2012 &
CRM A-206-MA of 2012 (O&M)
Date of decision:1.12.2012
State of Punjab
...Applicant
Versus
Amrik Singh and others
...Respondent(s)
CORAM: HON'BLE MR.JUSTICE JASBIR SINGH
HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK
Present: Mr.Anil Sharma, Addl. A.G., Punjab,
for the applicant.
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 State of Punjab seeking leave to file appeal against the judgment dated 9.2.2011 passed by the learned Additional Sessions Judge, Jalandhar, alongwith an application under Section 5 of the Limitation Act, seeking condonation of delay of 275 days in filing the application.
The criminal law was set into motion on the statement of Satnam Singh son of Mukhtiar Singh alleging that the offences in question were committed by the accused-respondents. However, in order to avoid repetition and also for the sake of brevity, it would be appropriate to refer to the facts as noticed by the learned trial Court, which read as under:-
"The prosecution story as contained in the FIR is based upon the statement of one Satnam Singh son of Mukhtiar Singh CRM A-206-MA of 2012 (O&M) 2 resident of Ramuwal, Police Station Mahatpur, which is to the effect that he is an agriculturist. On 11.2.1999 he alongwith his father Mukhtiar Singh were sowing the fodder crops in his fields and adjoining to his fields and a civil case is pending qua the adjoining, land measuring 2 kanal 8 marlas with Amrik Singh son of Jasbir Singh and stay order qua the same has also been passed and adjoining to his land Manjit Singh son of Jagir Singh was working in his land. At about 8.30 p.m. Amrik Singh son of Jasbir Singh armed with kirpan, Kala alias Rafiq armed with Dattar, Amrik Singh son of Bhajan Singh armed with Gandasi, Harbans Singh armed with Dang and Dharu servant of Amrik Singh son of Jasbir Singh armed with Iron rod came on white colour tractor Escort and started cultivating the crops qua which stay order was passed and then father of the complainant stopped them from doing so and Amrik Singh son of Jasbir Singh raised lalkara to caught hold them and Amrik Singh gave his kirpan blow on the right arm of the complainant. Harbans Singh gave his dang blow on the head of the father of the complainant. Dharu gave iron rod on the left side of the head of the complainant's father. Amrik Singh son of Jasbir Singh gave the kirpan blow on the complainant. Harbans Singh gave the dang blow on the right arm of the father of the complainant. When, complainant came forward to rescue his father, then Amrik Singh son of Bhajan Singh gave CRM A-206-MA of 2012 (O&M) 3 Gandasi blow on the complainant, which landed on his back side and all the aforesaid persons further caused injuries on his person and on the person of his father. They raised raula and on hearing their raula Manjit Singh son of Jagir Singh, Surinder Kaur and Mangal Singh came at the spot and all the assailants ran away from the spot with their respective weapons. Complainant and his father were got admitted in the Civil Hospital, Mehatpur and due to grievous injuries the father of the complainant was referred to Civil Hospital, Nakodar. Matter was reported to the police. Investigation was started. Accused were arrested and on completion of the investigation, challan against the accused was presented in the court."
On presentation of the report under Section 173 Cr.P.C., the relevant documents were supplied to the accused, in accordance with law. A prima facie case was found to be made out against the accused persons. Accordingly, they were charge sheeted for the offences punishable under Sections 326, 325, 324, 323, 148 and 149 of Indian Penal Code (`IPC' for short). The accused pleaded not guilty and claimed trial.
In order to prove its case, the prosecution examined as many as 3 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 CRM A-206-MA of 2012 (O&M) 4 to be innocent. However, no defence evidence was led by the accused.
After hearing both the parties and going through the evidence brought on record, the learned trial Court, vide its judgment of conviction dated 5.2.2008 held that the prosecution has proved its case beyond reasonable doubt. Accordingly, the accused were convicted and sentenced, accordingly. However, the accused-respondents filed Criminal Appeal No.54 of 2008 against the above-said judgment of conviction and order of sentence, which came to be allowed by the learned Additional Sessions Judge, Jalandhar, vide his judgment dated 9.2.2011.
Feeling aggrieved against the above-said judgment of the learned Additional Sessions Judge, Jalandhar, whereby appeal of the accused-respondents was allowed, the State of Punjab has approached this Court by way of instant application seeking leave to file appeal against the judgment of acquittal. That is how, this Court is seized of the matter.
Learned counsel for the applicant submits that the learned lower appellate Court has misdirected itself, while not appreciating the prosecution evidence, in its right perspective. He further submits that sufficient evidence, was brought on record bringing home the guilt against all the accused-respondents. On application under Section 5 of the Limitation Act, he submits that sufficient explanation has been given and since delay was not malafide, it deserves to be condoned. He concluded by submitting that since the impugned judgment was based on CRM A-206-MA of 2012 (O&M) 5 a misconceived approach, the same 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 judgment of acquittal. The reasons are more than one, which are being recorded hereinafter.
Firstly, the prosecution has failed to prove on record that the complainant party was in settled possession over the land and the accused were the aggressors. On the other hand, it has come on record that the application for interim injunction moved by Mukhtiar Singh, father of the complainant, was dismissed. Further, his appeal was also dismissed vide judgment Ex. D2. It shows that the complainant party was not in possession. Further, as per jamabandi Ex.D3 for the year 1993-94, Jasbir Singh, father of accused Amrik Singh, was shown to be recorded as owner in possession. Thus, serious doubt was created in the prosecution story.
Secondly, Satnam Singh-complainant (PW-2) himself admitted in his cross-examination that the occurrence took place on the disputed land. He further admitted that they moved an application for correction of khasra girdavri from the name of Jasbir Singh, father of accused Amrik Singh. It was admitted by him that entries in the khasra girdavri were still in the name of Jasbir Singh, father of accused Amrik Singh. He also admitted that the disputed land was purchased by Jasbir Singh from the erstwhile owners Ram Parkash and others. This witness CRM A-206-MA of 2012 (O&M) 6 further admitted that he was facing a criminal case got registered against him regarding the injuries caused to accused Amrik Singh. In this view of the matter, it seems that the complainant party was the aggressor party and the learned Additional Sessions Judge committed no error of law, while passing the impugned judgment of acquittal.
Thirdly, before arriving at the judicious conclusion, the learned Additional Sessions Judge has recorded cogent findings, which read as under:-
"It is admitted case of the prosecution that the occurrence took place in t h e d i s p u t e d a g r i c u l t u r a l l a n d measuring 2 Kanals 8 Marlas on which complainant Satnam Singh (PW2) was claiming his possession on the basis of revenue record and also on the basis of interim injunction order issued in favor of the complainant party. It was deposed by PW2 Satnam Singh that all the accused came their on a tractor to cultivate such land and when they were resisted by him and his father Mukhtiar Singh they attacked them and caused injuries. So, the very first question to be determined by the learned trial court to reach at just decision was to ascertain the possession over such disputed land CRM A-206-MA of 2012 (O&M) 7 but the impugned judgment of the learned Trail Court does not speak a n y t h i n g a b o u t t h e possession of such land. In their evidence the accused have proved copy of the order EX.D1 dated 02.12.2000 passed by the court of Civil Judge, Nakodar in Civil suit for permanent injunction filed on 15.10.1998 by Mukhtiar Singh father of the complainant against accused Amrik Singh son of Jasbir Singh according to which the claim of possession of Mukhtiar Singh f a t h e r o f t h e complainant over the land in question was discarded and interim injunction application was dismissed. Similarly the accused also proved on the record judgment EX.D2 dated 15 .1 0 .2002 according to which appeal filed by fath er of the complai nant was also dismissed.
Jamaban d i EX.D3 for the year 1993- 94 also sp eaks th at Jasbir Singh father of accused Amrik Sing h is recorded owner in possession of such land and before him hi s vendors Ram Parkash and oth ers were in possessi on as is depi cted from Khasra Girdwari entry EX.D4 from the year 1994 on wards. Even duri ng his cross examinat ion it was admit ted by PW2 Satnam Singh that the CRM A-206-MA of 2012 (O&M) 8 occurren ce took place in said disputed land. He also admitted they moved an applicat ion for correct io n of Khasra Gentri es in the name of Jasbir Singh father of accused Amrik Singh. He also admitted that Khasra Girdwari ent ries are sti ll in the name of Jasbir Singh father of accu sed Amrik Singh. He also admitted that such land has been purchased by Jasbir Singh from erstwhi le owners Ram Parkash and others whose names are reflected in the col umn of possession in Khasra Gird wari entri es EX.D4 from the year 1993- 94 on wards. He further admitted that mutation of ownership has already been sanctioned in fav our of Jas bir Singh father of accused Amrik Singh. So, it is proved to the h i l t t h a t o n t h e d a y o f occurrence neither the complainant nor his father was in possession of the land in which t h e o cc u r r e n c e t oo k pl a ce an d i n f act s u ch l a nd was i n exc l u s i v e po s s e s s i o n o f t he fat h e r of acc u s ed Amr i k S i n g h an d t hu s t h e com pl ai n a n t an d h i s f at h er we r e ha v i n g n o r i g h t t o go t o t h e sa i d l an d an d to refrain the a ccu s ed f r om cu l t i v at i ng t he s am e."
Learned counsel for the applicant failed to point out any piece of cogent evidence which might have been altogether ignored by CRM A-206-MA of 2012 (O&M) 9 the learned Additional Sessions Judge, 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 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 CRM A-206-MA of 2012 (O&M) 10 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."
CRM A-206-MA of 2012 (O&M) 11
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 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." CRM A-206-MA of 2012 (O&M) 12 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 CRM A-206-MA of 2012 (O&M) 13 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."
No other argument was raised.
Considering the totality of facts and circumstances of the case CRM A-206-MA of 2012 (O&M) 14 noted above, coupled with the reasons aforementioned, this Court is of the considered view that the learned Additional Sessions Judge, Jalandhar, has not committed any error of law, while passing the impugned judgment of acquittal. 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.
So far as the application under Section 5 of the Limitation Act is concerned, no satisfactory explanation has been given by the applicant to explain the inordinate and long delay of 275 days. The reasons given in the application have not been found to be sufficient to condone the long and unexplained delay.
Resultantly, the present application under Section 378 (3) Cr.P.C. as well as application under Section 5 of the Limitation Act read with Section 482 Cr.P.C., being bereft of any merit and without any substance, are ordered to be dismissed.
(JASBIR SINGH) (RAMESHWAR SINGH MALIK)
JUDGE JUDGE
1.12.2012
mks