Punjab-Haryana High Court
Tirath Singh vs Jasvir Singh @ Rana And Another on 6 November, 2012
Author: Rameshwar Singh Malik
Bench: Jasbir Singh, Rameshwar Singh Malik
Criminal Misc. A-303-MA of 2011 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Misc. A-303-MA of 2011 (O&M)
Date of Decision: 06.11.2012
Tirath Singh
.....Applicant
Versus
Jasvir Singh @ Rana and another
.....Respondents.
2. Criminal Misc. No. 57250 of 2011 In/and
Criminal Misc. A-891-MA of 2011 (O&M)
State of Punjab
.....Applicant
Versus
Jasvir Singh @ Rana
.....Respondents.
CORAM : HON'BLE MR. JUSTICE JASBIR SINGH
HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK
Present : Mr. Sudhir Sharma, Advocate
for the applicant.
****
1. To be referred to the Reporters or not?
2.Whether the judgment should be reported in the Digest? RAMESHWAR SINGH MALIK J.
The applicants, vide these two applications, one filed by the first informant-complainant and the second by the State of Punjab, seek leave to file appeal against the same judgment of acquittal dated 15.10.2010. Both these applications are proposed to be decided along with an application Criminal Misc. A-303-MA of 2011 (O&M) 2 under Section 5 of the Limitation Act filed by the State of Punjab, seeking condonation of delay of 271 days, by this common order. However, the facts are being culled out from Crl. Misc. A-303-MA of 2011.
Facts first. The criminal law was set into motion by Tirath Singh-complaint, PW2, getting his statement recorded to SI Devraj PW4, alleging that on 3.10.2008 at about 5:15 p.m., respondent Jasvir Singh @ Rana, his wife Amarjit Kaur and Gurdev Kaur have caused injuries to his father Gurdev Singh.
In order to avoid repetition and also for the sake of brevity, it would be appropriate to refer to the facts noted by the learned trial court and the same read as under:-
As per the facts of the case, on 4.10.2008 a telephonic message was received from Oxford Hospital, Jalandhar regarding admission of Gurdev Singh son of Satnam Singh in injured condition. On this SI Dev Raj along with police party went to Oxford Hospital, jalandhar and moved an application to know about the condition of Gurdev Singh, injured, but the injured was declared unfit to make statement. Tirath Singh son of the injured met the investigating office, in the hospital and the statement of Tirath Singh was recorded. Tirath Singh gave his statement to the police that he is an agriculturist by profession. His father Gurdev Singh is having six killas of land. They have taken land on lease and do agriculture work. On 3.10.2008 at about 5:15 Criminal Misc. A-303-MA of 2011 (O&M) 3 p.m., his father Gurdev Singh had gone to the fields on his motorcycle for irrigation the fields. Gurdev singh came to his land near the land of Comrade Meet Singh and went to the tubewell Motor Room. At about 6:15 p.m., when his father did not return he called his father on his Mobile Phone. Both the times, the telephone was connected and he heard muffled sound. On hearing this, the complainant got confused and went towards the fields on his motorcycle. On reaching the tube-well Motor Room he saw the motorcycle of his father parked on one side. The Turban and the pair of sleepers of Gurdev Singh wee lying scattered. He saw blood on the ground. The paddy crop was also damaged on 2-3 places and there was blood on it. He called other people on telephone. People of the village reached on the spot and started searching for his father. After some time they reached near the boundary wall of paper Mill, where they saw Gurdev Singh lying in injured condition. He made arrangement for a conveyance and brought Gurdev Singh to Civil Hospital, Nakodar. His father was referred to Jalandhar. He had suffered injuries on his head and other parts of body. He was admitted in Patel Hospital, Jalandhar and further taken on Oxford Hospital, Jalandhar. His father was operated upon and was under treatment. The complainant further stated Criminal Misc. A-303-MA of 2011 (O&M) 4 that his father Gurdev Singh was having enmity with Jasvir Singh son of Gurnam Singh. His aunt (Massi) Parmjit Kaur was married with Balbir Singh in the year 1989-90 who was brother of Jasvir Singh. Out of this wedlock Parmjit Kaur was having a daugher namely Inderjit Kaur. Balbir Singh died in the year 1992. His father Gurdev Singh wanted Jasvir Singh to marry Parmjit Kaur, however, the family of Jasvir Singh performed marriage of Jasvir Singh with other lady. In the year 1995, his father performed marriage of Parmjit Kaur with his younger brother Lashkar Singh, so Parmjit Kaur and her daughter Inderjit Kaur started residing in their family. Thereafter, his father Gurdev Singh had filed a civil case against Jasvir Singh for getting the share of land which came to the share of Inderjit kaur. His fatehr filed another cas for getting share in the house and the plot. His father had a dispute with Jasvir Singh regarding lambardari. About ten days before this occurrence his father became Lamberdar of the village. Because of above said reasons Jasvir Singh, his wife Amarjit Kaur and his Chachi/aunt Gurdev Kaur, got his father injured with the intention to kill him. On the basis of this statement, the investigation was done by the police and the present case was registered. Investigation was carried out by SI Devraj. An application was Criminal Misc. A-303-MA of 2011 (O&M) 5 moved by Gurmail Singh for inquiry. During the course of investigation, Amarjit Kaur and Gurdev Singh were found to be innocent. On another application having been moved by accused-Jasvir Singh before Superintendent of Police (D), Jalandhar, another inquiry was got conducted but as per the report of Superintendent of Police (D), Jalandhar, respondent Jasvir Singh was found to be the accused whereas Amarjit Singh and Gurdev Kaur were again found to be innocent. During the course of investigation, accused could not be arrested and the report under Section 173 of the Code of Criminal Procedure ('Cr.P.C.' for short), was presented to the court in his absence. The offence under Section 307 of the Indian Penal Code ('IPC' for short), having been found to be exclusively triable by the court of Sessions, the case was committed to the learned trial court.
A prima facie case was found to be made out for the offence punishable under Sections 307 and 324 IPC. The accused was charge sheeted accordingly. The accused-respondent pleaded not guilty and claimed trial.
The prosecution, in order to prove its case, examined as many as 11 PWs, besides tendering the relevant documents in evidence. After conclusion of the prosecution evidence, statement of the accused- respondent was recorded under Section 313 Cr.P.C. All the incriminating material brought on record was put to him. Accused pleaded false implication and claimed complete innocence. Opting to lead the defence evidence, the accused examined Lachhman Dass Sarpanch as DW1 and Surjit Singh Member Panchayat DW2, besides tendering some documents in his defence evidence.
Criminal Misc. A-303-MA of 2011 (O&M) 6
After hearing the counsel for the parties and going through the record of the case, the learned trial court, vide its judgment of acquittal dated 15.10.2010, held that the prosecution has failed to prove its case. Giving the benefit of doubt, the accused was ordered to be acquitted.
Feeling aggrieved against the above said impugned judgment of acquittal, the complainant as well as the State of Punjab have approached this Court, by way of these applications, seeking leave to file appeal. That is how, this Court is seized of the matter.
It is also pertinent to note here that State of Punjab has filed Crl. Misc. No. 57250 of 2011 in Crl. Misc. A-891-MA of 2011 under Section 5 of the Limitation Act for condonation of delay of 271 days in filing the application, seeking leave to file appeal against the judgment of acquittal.
Learned counsel for the applicants vehemently contended that prosecution has proved its case by leading cogent evidence. The guilt was brought home against the respondent-accused. The delay in lodging the FIR has also been sufficiently explained. However, the learned trial court has miserably failed to appreciate the convincing evidence and committed a serious error of law, while passing the impugned judgment of acquittal which was not sustainable in law. Thus, learned counsel for the applicants contended in one voice that the applications, seeking leave to file appeal against the judgment of acquittal, deserve to be accepted.
Having heard the learned counsel for the applicants, after going through the record of the case and giving thoughtful consideration to the contentions raised, this Court is of the considered opinion that applications filed by the first informant-complainant as well as the application filed by Criminal Misc. A-303-MA of 2011 (O&M) 7 the State of Punjab, seeking leave to file appeal are bereft of any merit and without any substance. Similarly, application under Section 5 of the Limitation Act for condonation of delay of 271 days is liable to be dismissed because the inordinate delay of 271 days has not been properly explained. Reasons are more than one, which are being recorded hereinafter.
Admittedly, the alleged incident took place on 3.10.2008 at about 5 p.m., whereas statement of Tirath Singh-complainant came to be recorded for the first time by the police on 4.10.2008 at 4 p.m, i.e. after 23 hours. It does not appeal to reason that had the incident been based on the truth then why the complainant-Tirath Singh would be keeping silent for such a long time. Since the delay was inordinate and unexplained, in the given fact situation of the present case, it has caused a serious doubt in the prosecution story, which has been rightly appreciated by the learned trial court while passing the impugned judgment of acquittal. Further, till recording of his statement Ex.PA, Tirath Singh-complainant was not aware as to who had caused injuries to his father Gurdev Singh. So far as Gurdev Singh is concerned, his statement was recorded by the police for the first time on 10.10.2008 i.e. after a gap of seven days.
The prosecution has tried to explain this delay pleading that Gurdev Singh was declared unfit to make statement and he was declared fit to make statement only on 10.10.2008. However, this stand taken by the prosecution has been belied by the statement of Dr. Naveen Chitkara PW6, who admitted in his cross examination that on 4.10.2008, as per his record, Gurdev Singh was conscious oriented and following the commands. His condition never deteriorated in the hospital. Further SI Dev Raj PW5 Criminal Misc. A-303-MA of 2011 (O&M) 8 admitted in his cross examination that after 4.10.2008, he did not move any application before the Doctor from 5.10.2008 to 9.10.2008 to take the opinion of the Doctor regarding the fitness of Gurdev Singh. This fact gains importance because when the injuries were allegedly caused to Gurdev Singh, he was alone. Thus, he was the best person to give the necessary details about the occurrence. No justification has come on record from the investigating/prosecuting agency that as to why the statement of Gurdev Singh was not recorded on 4.10.2008 itself or immediately thereafter. In view of this material aspect of the matter, unexplained delay in recording the statement of Tirath Singh-PW2 and also the statement of Gurdev Singh- injured has created a doubt in the prosecution story.
Again, there is no eyewitness account to the alleged occurrence. Tirath Singh-complainant had suspected the respondent-Jasvir singh @ Rana and his family members. Out of three suspects, two were found to be innocent after repeated inquiries held during the course of investigation. Challan was presented only against Jasvir Singh-respondent. Since there was no eyewitness, it was only Gurdev Singh-injured himself, who could have disclosed about the identity of the assailants, who might have caused injuries to him. His statement was recorded after seven days and till then the police was not aware about the accused persons. The prosecution has also failed to prove as to how Gurdev Singh-injured reached near the wall of paper mill which was at a distance of two killas from the place of occurrence. Thus, the prosecution could not establish even the identity of the accused as well as manner in which the occurrence took place.
Similarly, the medical evidence also does not support the case of Criminal Misc. A-303-MA of 2011 (O&M) 9 the prosecution. It is equally important to note that there was an old enmity between the family of Gurdev Singh-injured and respondent Jasvir Singh. It has come on record that by way of a complaint Ex. D1 and certified copy of the summoning order Ex. D-2. Complainant-Tirath Singh as well as injured-Gurdev Singh have admitted in their cross examination that Gurdev Kaur had filed a complaint (Ex. D1) against them in which summoning order Ex. D-2 had been issued. Civil litigation was also going on between the parties.
In the given peculiar fact situation of the present case, this Court is of the considered view that so far as motive is concerned, it is double edged weapon and, as a matter of fact, has worked against the applicant- complainant in the instant case. Defence witnesses have supported the version given by respondent Jasvir Singh about his non availability at the time and place of occurrence. Thus, this Court has no hesitation to conclude that prosecution has failed to prove the charge against the accused- respondent by leading cogent and convincing evidence.
Learned counsel for the applicants could not point out any substantive piece of cogent evidence which might have been ignored or not properly appreciated by the learned trial court, with a view to convince this court to take a different view than the one taken by the learned trial court.
Further, it is the settled proposition of law that whenever two views are possible, the view which goes in favour of accused, is to be followed. Having said that, it is unhesitatingly held that the view taken by the learned trial court was unassailable, having been based on the sound reasoning and cogent findings.
Criminal Misc. A-303-MA of 2011 (O&M) 10
The view taken by this Court also finds support from the judgment of the Hon'ble Surpeme 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 No.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 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 Criminal Misc. A-303-MA of 2011 (O&M) 11 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 A " n 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."
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 Criminal Misc. A-303-MA of 2011 (O&M) 12 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."
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 Criminal Misc. A-303-MA of 2011 (O&M) 13 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 while dealing with Criminal Misc. A-303-MA of 2011 (O&M) 14 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.
In view of the totality of facts and circumstances of the case noted above, coupled with the reasons aforementioned, it is unhesitatingly held that the learned trial court has not committed any error of law, while passing the impugned judgment of acquittal. No patent illegality or perversity has been pointed out by the learned counsel for the applicants, which is sine qua non for interference in the judgment of acquittal.
So far as the application under Section 5 of the Limitation Act is concerned, no satisfactory explanation has been given by the learned counsel for the applicant to explain the inordinate long delay of 271 days. The reasons given in the application have not been found to be sufficient to condone the delay of 271 days. No case for interference has been made out. Criminal Misc. A-303-MA of 2011 (O&M) 15
Resultantly, the application under Section 378 (4) Cr.P.C. filed by first informant Tirath Singh-complainant, the application under Section 378 (3) Cr.P.C. as well as the application under Section 5 of the Limitation Act filed by the State of Punjab, being devoid of any merit and without any substance, are ordered to be dismissed.
(JASBIR SINGH) (RAMESHWAR SINGH MALIK)
JUDGE JUDGE
06.11.2012
Ak Sharma