Punjab-Haryana High Court
Jagga Singh vs State Of Haryana And Another on 10 April, 2013
Author: Jasbir Singh
Bench: Jasbir Singh, Inderjit Singh
CRM A-184-MA of 2013(O&M) 1
In the Punjab and Haryana High Court at Chandigarh
CRM A-184-MA of 2013(O&M)
Date of Decision: 10.04.2013
Jagga Singh
......Applicant
Versus
State of Haryana and another
...Respondents
Coram: Hon'ble Mr.Justice Jasbir Singh
Hon'ble Mr.Justice Inderjit Singh
Present: Mr.Deepender Singh, Advocate for the applicant
Jasbir Singh, J.
This application has been filed under Section 378(4) Cr.P.C. seeking leave to file an appeal against judgment dated 3.1.2013 acquitting respondent Nos.2 to 4 of the charges framed against them.
The above respondents along with Chhotu Ram, Karamjit Singh alias Kammu, Harpal and Navneet were made to face trial in FIR No.25 dated 17.3.2011 police station Odhan for commission of offences under Sections 148, 149, 307 IPC and under Section 25 of the Arms Act 1959.
It was an allegation against them that they on 17.3.2011 fired shots at the applicant-complainant and his companions, in the process Lakhvir Singh (PW2) received one fire arm injury.
The trial Judge has noted the following facts regarding case of the prosecution:-
"that on 17.3.2011, PW10 Hira Singh, Inspector, SHO, Police CRM A-184-MA of 2013(O&M) 2 Station Odhan, on receipt of a message from the Control Room regarding firing at a distance of two kilometers on National Highway from Odhan to Sirsa, reached the spot in a govt. vehicle alongwith other police officials and pacified both the parties and the persons belonging to PW-1 Jagga Singh Brar's party were directed to reach the police station, whereas accused namely Chhotu Ram, Harpal, Navneet and Karamjeet were apprehended on the spot and were handed over to the additional force on its reaching the spot after sometime. Thereafter, PW10 Hira Singh Inspector reached the Rest House, Odhan and after some time when PW1 Jagga Singh became normal, got recorded his statement Ex.PA stating therein that on 17.3.2011 at about 9.00/9.15 a.m., he alongwith his two Gunmen started in a Safari Car, being driven by Manjeet Singh for District Court, Sirsa for Pairvee (watching the court proceedings) of murder case of his brother Chand Singh Brar. Shagandeep Singh was also in their vehicle with them, whereas Jasveer Singh and Lakhvir Singh were following them in a Zen Car bearing No.DL-2CG/8106, being driven by Lakhvir Singh. When they reached near the Bus Stand of Odhan, a Bollero Jeep bearing No.HR-22-E/4977 of green colour over took their vehicle. They saw that accused Navneet Kumar was driving that Bollero vehicle, whereas accused Chhotu was sitting alongwith him and five more persons were also sitting in the said vehicle. After covering 1-2 kilometers CRM A-184-MA of 2013(O&M) 3 distance, accused Navneet slowed down the Bolero and then after stopping the same, alighted therefrom and went towards Western side. Accused Chhotu fired a gun shot towards vehicle of PW1 Jagga Singh with the intention to kill him, which after hitting the window glass, hit the roof of Safari Car. At this, the driver of Safari stopped his Car. Gunman of PW1 Jagga Singh, PW-6 EHC Pala Ram, Surjit Singh and Shangandeep took him behind the sand dune on the Eastern side of the road. Thereafter, accused Chhotu and Harpal Singh armed with rifle .315 bore, Navneet armed with revolver, Karamjeet armed with pistol, Ravi armed with .12 bore gun, Palwinder and Lakhwinder armed with mousers started firing on the party of Jagga Singh Brar with their respective weapons. PW2 Lakhvir Singh received one fire arm injury on his right foot due to firing by accused persons. One fire shot, hit the Zen car. After receiving the injury, PW2 Lakhvir Singh took shelter behind the Sand. Thereafter, Gunman Surjit Singh informed the incident to DSP Dabwali through his Mobile phone and after sometime, police party reached the spot."
As per facts on record, four accused other than respondent Nos.2 to 4 were arrested on the spot. After getting FIR recorded, PW10 Inspector Hira Singh started the investigation. He took into his possession Bollero vehicle, one Zen car and another vehicle make Safari against recovery memos. Two bullets were recovered from the middle seat of Safari, which were taken into possession against recovery memo. From the spot, six CRM A-184-MA of 2013(O&M) 4 empty cartridges of .315 bore and five empty cartridges of .30 bore were also taken into possession. From another side of the road, five more empty cartridges of .315 bore and one empty cartridge of .32 bore were taken into possession. The investigating officer got the place of occurrence photographed through Ajit Singh (PW12). He also got prepared a rough site plan with correct marginal notes. On interrogation of Chhotu, Harpal, Navneet and Karamjit weapons of offence were recovered. The respondents
-accused were also arrested during investigation.
The investigating officer recorded statements of the witnesses and on completing other formalities, final report was presented in Court, copies of the documents were supplied to the respondents-accused as per norms. Their case was committed to the competent Court for trial vide order dated 18.5.2011. The respondents -accused were charge sheeted on 10.8.2011 to which they pleaded not guilty and claimed trial. The prosecution produced 13 witnesses and also brought on record documentary evidence to prove its case. On conclusion of prosecution's evidence, statements of 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. It was specifically stated by them that they were involved in this case on account of political rivalry. In fact no occurrence had taken place as alleged. The accused did not adduce any evidence in defence.
The trial Judge on appraisal of evidence found respondent Nos.2 to 4 not guilty which resulted into their acquittal, whereas other four co- accused were convicted vide the impugned judgment and sentenced CRM A-184-MA of 2013(O&M) 5 accordingly on 5.1.2013.
When giving benefit of doubt to the respondents, the trial Judge has observed as under:-
"In this case what is revealed from the statements of Jagga Singh, Lakhvir Singh and EHC Pala Ram, the eye witnesses, that they were known to Chhotu Bhaat only but not the other accused. Four out of total accused were arrested at the spot, therefore, there remains a dispute with regard to the identity of three accused, namely, Ravi, Parvinder and Lakhvinder. It is an admitted fact that these three accused Ravi, Parvinder and Lakhvinder are outsiders and they are said to have run away from the spot. The prosecution failed to explain that how the names of Ravi, Parvinder and Lakhvinder cropped up in the supplementary statement of complainant Jagga Singh and if in the supplementary statement Jagga Singh named all the aforesaid three accused as assailants then why the disclosure statements of Chhotu, Harpla, Navneet and Karamjit were recorded by the investigating officer."
It was further noticed by the trial Court that as per evidence on record, respondent Nos.2 to 4 were arrayed as accused on disclosure statements made by their co-accused, who were convicted in this case. The trial Court noticed that the prosecution has failed to establish identity of respondent Nos.2 to 4 as accused. After looking into the evidence it was stated as under:-
"31. In this case, no doubt disclosure statements of four CRM A-184-MA of 2013(O&M) 6 accused persons namely, Chhotu Bhaat, Navneet, Harpal and Karamjit have been recorded by the Investigating Officer in which they had implicated other three accused namely, Lakhwinder Singh, Parminder Singh and Ravi Kumar but no recovery has been effected from them despite their arrest and it is also improbable that on the date of occurrence particularly on the intervening night of 17.3.2011 they would be present at the spot for searching the mouser and they would got themselves arrested.
32. There is no corroboration to the disclosure statements of accused persons namely, Chhotu Bhaat, Navneet, Harpal and Karamjit.
33. Moreover, disclosure statement is not an evidence within the meaning of section 3 of Indian Evidence Act. Disclosure statement can be said to be a hear-say evidence. The police when records the disclosure statement of accused and does not effect any recovery from him in pursuance thereof then such statement is hit by section 25 and 26 of Indian Evidence Act. As regards, consideration of conviction against co-accused, then it has to be seen that what is the credibility of the accused who is going to make a statement. An accomplice is unworthy of credit unless he is corroborated in material particulars but accused Ravi, Lakhwinder and Parminder have been arrested from the place of occurrence as per statement of the investigating officer on receipt of secret information on the CRM A-184-MA of 2013(O&M) 7 intervening night of 17/18.3.2011 but without any recovery. It is highly improbable that the assailants who have run away from the spot on seeing the police would come at the spot on the same day during the night for searching their mouser especially when as per case of the prosecution accused Ravi had run away with his mouser. Therefore, this court cannot take the risk to believe the statements of Chhotu Ram, Harpal, Navneet Kumar and Karamjit Singh in so far as the identity of accused namely, Lakhwinder, Parminder and Ravi is concerned.
34. Moreover, names of three accused Lakhwinder, Parminder and Ravi were already known to the police as per supplementary statement of Jagga Singh. If it was so, then what was the relevance of recording the disclosure statements of four accused who were arrested at the spot regarding involvement of Lakhwinder, Parminder and Ravi in the occurrence."
The trial Court rightly came to a conclusion that respondent Nos.2 to 4 were innocent and they were falsely involved in this case. To say so, it was rightly observed that no weapon of offence was recovered from them and furthermore, they were not available at the spot when investigating officer reached there. As per FSL report, the cartridges recovered from the spot were proved to have been fired from the weapons recovered from co-accused of respondent No.4. Opinion expressed is as per evidence on record.
CRM A-184-MA of 2013(O&M) 8
The law to interfere in a judgment of acquittal is well settled. It is only in those cases where there are compelling circumstances and judgment under challenge is perverse, the appellate Court can interfere with an order of acquittal. The appellate Court is supposed to bear in mind the presumption of innocence of the accused and that the trial Court's acquittal order further strengthen that presumption. Interference in a routine manner, where other view may be possible, should be avoided unless there are good reasons to do the same.
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."
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 CRM A-184-MA of 2013(O&M) 9 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 and presumption of innocence. A person is presumed to be CRM A-184-MA of 2013(O&M) 10 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 CRM A-184-MA of 2013(O&M) 11 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 the applicant has failed to indicate any misreading of oral as well as documentary evidence on record by the trial Court. No case is made out for interference.
Dismissed.
(Jasbir Singh)
Judge
10.04.2013 (Inderjit Singh)
gk Judge