Punjab-Haryana High Court
Partap Singh vs Dr.Lal Singh And Others on 11 January, 2013
Author: Sabina
Bench: Sabina
CRM-A No. 459-MA of 2011 (O&M) 1
In the High Court of Punjab and Haryana at Chandigarh
CRM-A No. 459-MA of 2011 (O&M)
Date of decision: 11.1.2013
Partap Singh
.... applicant-appellant
Versus
Dr.Lal Singh and others
.......Respondents
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr.Deepender Singh , Advocate,
for the applicant.
****
SABINA, J.
Respondent Nos.1 and 2 had faced trial along with co- accused Nurudin for commission of offence punishable under Sections 7 and 13 of the Prevention of Corruption Act, 1988 (for short 'the Act') in FIR No.20 dated 18.4.2007 registered at police station SVB (H), Gurgaon.
The Special Judge, vide impugned judgment dated 21.2.2011, acquitted respondent Nos.1 and 2 of the charges framed against them. So far as co-accused Nurudin is concerned, he was convicted qua commission of offence punishable under Sections 7 and 13 of the Act. Hence, the application under Section 378 (4) of the Code of Criminal Procedure, 1973 (Cr.P.C. for short) has been filed by the complainant with a prayer for grant of leave to file an CRM-A No. 459-MA of 2011 (O&M) 2 appeal against the judgment dated 21.2.2011 challenging acquittal of respondents No.1 and 2 by the learned Special Judge.
Prosecution story, in brief, is that complainant and his brothers had inherited the property of their father after his death. Construction of K.M.P. Express High Way was going on in their village. Land of the complainant was acquired and compensation was ordered to be paid to all the co-sharers in equal shares. Some dispute arose between the co-sharers with regard to the disbursement of compensation. On 17.4.2007, Raghubir, uncle of the complainant, died and his dead body was sent for postmortem examination to Government Hospital, Nuh. Nurudin and Sharif met the complainant in front of the hospital and raised a demand of ` 2,00,000/- to be paid to Dr.Lal Singh so that it could be written in the postmortem report that Raghubir had died due to heart attack on account of consumption of liquor. Thereafter, the complainant met the police officials and a raid was organised. The complainant handed over four bundles containing 400 currency notes in the denomination of ` 500/- each. The said currency notes were returned back to the complainant by the Investigating Officer after application of Phenol Phthalein Powder (P-Powder for short). Inspector Rajbir Singh and EHC Anoop Singh were appointed as shadow witnesses. Thereafter, the raiding party reached the Housing Board Colony, Nuh. Complainant along with shadow witnesses went to the house of accused Nurudin and handed over the tainted currency notes to him on demand. Thereafter, the police officials reahced the spot on receipt of signals from the shadow CRM-A No. 459-MA of 2011 (O&M) 3 witness. The tainted currency notes were recovered from accused Nurudin. When the hands of accused Nurudin were dipped in the solution of sodium carbonate, the colour of the solution turned pink. Nurudin stated that he had taken the said money so that he could pay to Sharif, who, in turn, would deliver it to Dr.Lal Singh.
After hearing learned counsel for the applicant, I am of the opinion that the present application deserves to be dismissed.
Learned Special Judge, while acquitting respondent Nos.1 and 2 of the charges framed against them, has observed as under:-
13. The prosecution to prove its case has examined mainly PW-9 Inspector Rajbir Singh shadow witness, PW- 11 Partap Singh complainant, PW-12 Satbir Singh Maan member of raiding part and PW-13 Sarwan Kumar, PW2 Naresh Kumar draftsman, PW-3 Constable Tirlok Chand, PW-4 ASI Babu Singh, PW-5 Dr. M.S. Ranga, PW-6 ASI Jai Bhagwan, PW-7 Inspector Basant Pal, PW-8 Dharmender Batra and PW-10 Harish Mehta are formal in nature. PW-11 Partap Singh complainant has supported the prosecution case to the extent of making complaint Ex.PG, raid on accused Nurudin, payment of ` 2 lacs to him and recovery thereof. He has specifically deposed that accused Dr. Lal Singh facing trial is not the Dr. Lal Singh who was introduced by accused Nurudin and Mohd. Sharif to him and the said Dr. Lal Singh asked the complainant to pay Rs.2 lacs to accused Nurudin for CRM-A No. 459-MA of 2011 (O&M) 4 reporting that Ra gh ub ir died du e to he ar t at ta ck by consuming alcohol. He has specifically deposed that accused Dr. Lal Singh never met him. He is not known to the complainant. He did not ask the complainant to pay ` 2 lacs to Nurudin for favourable report. He was some other person. The other evidence against Dr. Lal Singh is call details Ex.PK/7 and Ex.PK/8 of mobile no.
9816236490 of Dr. Lal Singh and mobile No. 9416140426 of accused Nurudin. But there is not even an iota of evidence on record to prove that mobile no. 9416236490 was even owned by Dr. Lal Singh and he ever used the same. There is also no evidence on record that accused Nurudin was owner of mobile no. 9416140426 and heused the same. There is also nothing on record to prove that accused Nurudin by his mobile number telephonically talked to Dr. Lal Singh on mobile no. 9416236490. PW-9 Inspector Rajbir Singh shadow witness, PW11 Partap Singh complainant and PW-12 Satbir Singh Maan, members of raiding party and PW- 13 Ramesh Pal DSP, Investigating Officer have deposed that they did not hear conversation between accused Nurudin and Dr. Lal Singh. There is no other evidence on record to prove that Dr. Lal Singh ever demanded any illegal gratification from PW11 Partap Singh complainant. Some columns of PMR Ex.P2 of Raghubir deceased are blank. Admittedly, PMR was CRM-A No. 459-MA of 2011 (O&M) 5 conducted on 17.4.2007. The PMR Ex.P2 with blank columns was recovered from an Almirah on 18.4.2007 which raises eye-brow on conduct of Dr. Lal Singh that why he kept columns in the PMR Ex.P2 blank. In this connection learned defence counsel pointed out statement of Dr. M.S. Ranga PW-5 who in cross examination has admitted that on 17.4.2007 all the doctors except Dr. Lal Singh posted in CHC Nuh were absent from duty. On 17.4.2007 an accident had taken place in this area, wherein 17 persons were injured and two were dead. Dr. Lal Singh conducted post-mortem on dead body of Raghubir and two persons died in the accident and also medico-legally examined 17 persons suffered injuries in the accident. He also attended patients in OPD and also did official work. All the administration including Deputy Commissioner, Superintendent of Police, Sub Divisional Magistrate and others were present in CHC Nuh on 17.4.2007. So Dr. Lal Singh remained awfully busy throughout the day on 17.4.2007 and 18.4.2007. Therefore, could not complete the PMR Ex.P2 of Raghubir. He has further deposed that PMR Ex.P2 was prepared by the Board of Doctors so there was no occasion for Dr. Lal Singh to demand and accept illegal gratification of ` 2 lacs from Partap Singh complainant as PMR Ex.P2 was also to be prepared and signed by the other members of the CRM-A No. 459-MA of 2011 (O&M) 6 Medical Board .
18. After having heard both the sides at length,going through the case file carefully and thoroughly giving thoughtful consideration to rival submissions and case law relied upon by learned defence counsel I am of the considered opinion that prosecution has failed to prove its case against accused Dr. Lal Singh and Mohd. Sharif as there is not even an iota of evidence to prove that accused Nurudin accepted illegal gratification of ` 2 lacs from PW-11 Partap Singh complainant on asking of Dr. Lal Singh and Mohd. Sharif. There is also not an iota of evidence to prove that accused Nurudin was in conspiracy with accused Dr. Lal Singh and Mohd. Sharif. Hence, they are entitled for benefit of doubt and acquittal."
The reasons given by the learned Special Judge, while acquitting respondent Nos.1 and 2 of the charges framed against them, are sound reasons and, thus, call for no interference.
In the present case, the money in question was recovered from accused Nurudin. The said accused had stated that he had taken the money on behalf of respondents No.1 and 2. Although the postmortem examination was conducted by respondent No.1 on 17.4.2007 but the learned Special Judge has rightly held that the fact that some of the columns were lying blank would not lead to the inference that the same had been intentionally not filled up as respondent No.1 was busy on 17.4.2007 on account of an accident in CRM-A No. 459-MA of 2011 (O&M) 7 which 17 persons were injured and two persons had died. The plea put forth by respondent No.1 that the fact that the some of the columns in the postmortem report were blank was only due to the fact that he was busy in attending to the injured appears to be probable.
Learned counsel for the applicant has failed to point out any mis-reading of evidence on record by the trial Court which would warrant interference by this Court.
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."
To the same effect is the ratio of the judgments of the Supreme Court in State of Goa v. Sanjay Thakran (2007) 3 SCC 755 and in Chandrappa v. State of Karnataka, (2007) 4 SCC 415. CRM-A No. 459-MA of 2011 (O&M) 8
Similarly, in Mrinal Das & others v. The State of Tripura, 2011 (9) Supreme Court Cases 479, the Supreme Court, after looking into various judgments, has laid down parameters, in which interference can be made in a judgment of acquittal, by observing as under:
"8) It is clear that in an appeal against acquittal in the absence of perversity in the judgment and order, interference by this Court exercising its extraordinary jurisdiction, is not warranted. However, if the appeal is heard by an appellate court, being the final court of fact, is fully competent to re- appreciate, reconsider and review the evidence and take its own decision. In other words, law does not prescribe any limitation, restriction or condition on exercise of such power and the appellate court is free to arrive at its own conclusion keeping in mind that acquittal provides for presumption in favour of the accused. The presumption of innocence is available to the person and in criminal jurisprudence every person is presumed to be innocent unless he is proved guilty by the competent court. If two reasonable views are possible on the basis of the evidence on record, the appellate court should not disturb the findings of acquittal. There is no limitation on the part of the appellate court to review the evidence upon which the order of acquittal is found and to come to its own conclusion. The appellate court can also review the conclusion arrived at by the trial Court CRM-A No. 459-MA of 2011 (O&M) 9 with respect to both facts and law. While dealing with the appeal against acquittal preferred by the State, it is the duty of the appellate court to marshal the entire evidence on record and only by giving cogent and adequate reasons set aside the judgment of acquittal. 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"
Hence, no ground is made out to grant leave to file an appeal. Accordingly, this application is dismissed.
(SABINA) JUDGE January 11, 2013 anita