Punjab-Haryana High Court
Krishan Chander vs Sunder Lal And Others on 9 January, 2013
Author: Jasbir Singh
Bench: Jasbir Singh, Inderjit Singh
CRM No. 68483 of 2012 in/and
CRM-A No. 911-MA of 2012 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
*****
CRM No. 68483 of 2012 in/and
CRM-A No. 911-MA of 2012
Date of decision : 9.1.2013
Krishan Chander ........Applicant-appellant
Vs.
Sunder Lal and others .......Respondents
CORAM: Hon'ble Mr. Justice Jasbir Singh
Hon'ble Mr. Justice Inderjit Singh
Present:- Mr. R.S. Budhwar, Advocate, for the applicant-appellant
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Jasbir Singh, J.
CRM No. 68483 of 2012 After hearing counsel for the applicant, application is allowed. Delay of 534 days in filing the appeal stands condoned. CRM-A No. 911-MA of 2012 Respondents No.1 to 3 along with two more namely; Rajender and Bijender alias Virender sons of Pale Ram were made to face trial in FIR No. 173 dated 3.8.2006 Police Station Kundli for commission of offences under Sections 323, 324, 326, 302/34 IPC.
It was an allegation against them that they, in furtherance of their common intention had committed murder of Sanjay son of the complainant/applicant on 3.8.2006 by giving him injuries. After trial, Rajinder and Bijender @ Virender were convicted for commission of CRM No. 68483 of 2012 in/and CRM-A No. 911-MA of 2012 -2- offences under Sections 323, 324, 326 and 302 read with Section 34 IPC and sentenced accordingly. Respondents No.1 to 3 were acquitted. Hence, this application has been filed under Section 378 (4) Cr.P.C. seeking leave to file an appeal against judgment dated 22.3.2011 to the extent of acquittal of above respondents.
The process of law was initiated on a statement Ex.PA made by PW 2 Krishan Chander-father of the deceased. The trial Judge has noted the following facts regarding case of the prosecution :-
"The complainant was resident of Nangal Kalan and was belonging to Harijan caste. He was working in DESU, Buwana District, Delhi. The accused Rajender as well as Sanjay, son of the complainant, used to work in Delhi and used to do the typing work on computers. There had been a dispute between two regarding their customers. On account of that dispute, there was ill will between two.
On 03.08.2006, the complainant and his son Sanjay were present at home and they came out of their house in the street at around 7.30 p.m. The accused Rajender, Bijender and Govind came there. The accused Rajender was having Balam, Bijender was having iron Dav and Govind @ Panda was having a lathi in his hand. The accused Rajender told Sanjay that he was taking away his customers in Alipur and used to disturb him unnecessarily and he would be taught a lesson for the same and he would be killed. The accused Rajender gave a blow of Balam in stomach of Sanjay towards right side. The complainant tried to rescue his son when Bijender caught hold of him and the accused Rajender gave two blows of Balam on the complainant which hit the gender of the complainant. Govind @ Pandu gave two blows of CRM No. 68483 of 2012 in/and CRM-A No. 911-MA of 2012 -3- Lathi on the head and hands of the complainant. The complainant raised alarm on which Madan (PW10) and several other persons came at the spot. On seeing them the three accused Rajender, Bijender and Govind @ Pandu fled away from there."
After the above occurrence Sanjay deceased was taken to the Government Hospital, Sonepat where he was declaread dead. ASI Ramesh on receipt of a telephonic message, went to the Hospital, took into his possession medico legal report of the complainant-applicant and a ruka regarding death of Sanjay. Thereafter, he recorded statement of the complainant Ex.PA, whereupon above FIR was recorded against respondents No.1 to 3 and three other persons. It is necessary to mention here that Govind alias Pandu was found juvenile and during trial his case was separated and sent before Juvenile Justice Board for enquiry. The Investigating Officer prepared inquest report on the dead body of Sanjay and sent it for post mortem examination, which was conducted by Dr. Adarsh Sharma (PW-7) on 4.8.2006. Accused Rajender, Bijender alias Virender and Govind alias Pandu were arrested from village Bakner on 10.8.2006. They were interrogated, whereupon they suffered disclosure statements which led to the recovery of weapons of offence. The Investigating Officer recorded statements of the witnesses and on receipt of Chemical Examiner's Report, final report was put in Court. Copies of the documents were supplied to the respondents/accused as per norms. Vide order dated 20.11.2006 their case was committed to the competent Court for trial. The respondents / accused were charge sheeted CRM No. 68483 of 2012 in/and CRM-A No. 911-MA of 2012 -4- to which they pleaded not guilty and claimed trial. During pendency of trial, an application was moved under Section 319 Cr.P.C. by the prosecution whereupon respondent-accused Pale Ram and Sheela were also summoned to face trial.
The prosecution produced 19 witnesses and also brought on record documentary evidence to prove its case. On conclusion of the prosecution's evidence, separate statements of all the accused were recorded under Section 313 Cr.P.C. They denied all the allegations appearing against them in evidence, claimed innocence and false implication. They further pleaded that they were not present at the time of alleged occurrence. It was specifically stated by them as under :-
"In fact Neeraj, grand daughter of the complainant Krishan Chander, had affair with Govind (Juvenile) and there was a dispute between the family members of the complainant Krishan and the accused Pale regarding that affair and on the date of the occurrence, Gulab had come in the street, where the occurrence took place. They further stated that the deceased Sanjay and the witnesses encircled the juvenile Govind @ Pandu in the street and the complainant Krishan armed with Balam tried to give a blow to Govind but that blow incidentally hit his son Sanjay and thereafter Govind snatched the Balam from the complainant Krishan and he caused injuries with that Balam to the complainant in his self defence. They further alleged that Krishan complainant picked up lathi of the deceased Sanjay and he tried to cause injuries to Govind with that lathi on which Govind caused injuries to the complainant Krishan in his self defence. They further alleged that the complainant Krishan called Gulab CRM No. 68483 of 2012 in/and CRM-A No. 911-MA of 2012 -5- through telephonic message from Jhajjar and after his arrival concocted story and they were falsely implicated in this case."
The respondents also led evidence in defence.
The trial Judge, on appraisal of evidence found Rajender and Bijender alias Virender sons of Pale Ram guilty and they were punished accordingly vide the judgment under challenge, whereas the others were acquitted. When giving benefit of doubt to the present respondents, the trial Judge has observed as under :-
"The most important testimony in this case is that of the complainant Krishan Chander, father of the deceased. He has stated that on 03.08.2006 he alongwith his son Sanjay were standing in the street and at around 7.30 p.m., the accused Rajender, Bijender, Govind @ Pandu came there and Rajender asked his son Sanjay as to why he used to break his customers and he would be taught a lesson and then the accused Rajender gave a Balam blow in the stomach of his son Sanjay and when he tried to rescue him Rajender gave two blows of Balam on his gender and thereafter Govind @ Pandu gave two blow of lathi on his head and both hands and when he raised alarm Madan son of Dharampal came there.
It is, thus, clear from the complaint Ex.PA which was lodged at around 10 p.m. i.e. immediately after the incident, that the names of the accused Sunder, Pale and Sheela with the accused are not there and not even the names of the witness Kavita @ Pavita.
While appearing into the witness box, the complainant has not only named those three accused Rajender, Bijender and Govind @ Pandu but also the accused Sunder, Pale and Sheela. The explanation given by the complainant is that the CRM No. 68483 of 2012 in/and CRM-A No. 911-MA of 2012 -6- Station House Officer, Police Station Kundi, SI Raj Singh Lakra had recorded his statement Ex.PA but was not recorded correctly by him and he left the names of three accused in his statement Ex.PA due to which he had cut his signatures at Mark-A on Ex.PA but on the asking of SI Raj Singh Lakra, he had affixed his signatures on Ex.PA.
So far as the making of complaints by the complainant to higher authorities are concerned, it has come in the statement of Constable Rajbir Singh (PW3) that complaint was made by the complainant but after enquiry the complaint was found false which was moved for false implication of the remaining family members of the accused persons. The explanation given by the complainant does not appear to be having any merit. If after the complaint Ex.PA was written and the complainant had cut his signatures at Mark-A on noticing that the names of three other accused were not mentioned by the person writing the complaint Ex.PA, he would not have signed again on the same statement at Mark- B. Secondly, the statement Ex.PA was not written by the Station House Officer SI Raj Singh Lakra rather it was recorded by ASI Ramesh of Police Station Kundi, since deceased. No motive has been attributed by the complainant to the police as to why while recording the complaint Ex.PA immediately after the occurrence, the police would have not recorded the names of three accused Sunder, Pale and Sheela in Ex.PA if they were named by the complainant Krishan Chander.
Admittedly Gulab, son of the complainant, was posted in Haryana Police in Jhajjar. Kavita @ Pavita has stated in her cross-examination that Gulab had also arrived at the spot after the occurrence and he had accompanied the injured to the hospital. If Gulab had reached at the spot after the CRM No. 68483 of 2012 in/and CRM-A No. 911-MA of 2012 -7- occurrence and he had accompanied his father Krishan Chander to the hospital and if the statement of the complainant had been recorded as Ex.PA by the police at that time, there was no question of the police official ASI Ramesh having recorded the version of the complainant incorrectly or ASI Ramesh could dare to leave the names of the three accused Pale, Sunder and Sheela in the complaint Ex.PA.
Therefore, it is apparent and appears to be more probable that the names of these three accused persons Sunder, Pale and Sheela were added later on, may be in order to implicate all the family members of the accused Rajender, once the incident had taken place. This normally happens also, when such type of incident takes place. The injured party sometimes tries to implicate more members of the family of the accused, who were not even involved in the crime."
This Court feels that the finding recorded by the trial Judge is perfectly justified. Counsel for the applicant has failed to show any misreading of evidence on the part of the trial Court connecting the respondents-accused with the alleged offence. All the three were not named in the FIR and further respondents No.2 and 3 were also put in Column No.2 of the final report. They were summoned to face trial when an application was moved by the prosecution under Section 319 Cr.P.C. The findings given by the trial Judge 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.
CRM No. 68483 of 2012 in/and CRM-A No. 911-MA of 2012 -8- 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 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 No. 68483 of 2012 in/and CRM-A No. 911-MA of 2012 -9- 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 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 CRM No. 68483 of 2012 in/and CRM-A No. 911-MA of 2012 -10- 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 9.1.2013 Ashwani