Punjab-Haryana High Court
Usha Rani vs State Of Punjab & Others on 5 December, 2012
Author: Rameshwar Singh Malik
Bench: Jasbir Singh, Rameshwar Singh Malik
Criminal Misc. No.A-535-MA of 2012 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Misc. No.A-535-MA of 2012 (O&M)
Date of Decision: 5.12.2012
Usha Rani
.....Applicant
Versus
State of Punjab & Others
.....Respondents.
CORAM : HON'BLE MR. JUSTICE JASBIR SINGH
HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK
Present : Mr. S.P.S.Sidhu, 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 present application under Section 378 (4) of the Code of Criminal Procedure ('Cr.P.C.' for short), has been filed by the applicant, seeking leave to file appeal against the judgment of acquittal dated 1.5.2012 passed by the learned Sessions Judge, Ferozepur, whereby the accused-respondents were acquitted of the charge framed against them.
The criminal law was set into motion by one Deepak Sethi son of Kharaiti Lal, alleging that the accused have committed the offence in question. However, in order to avoid repetition and also for the sake of brevity, it would be appropriate to refer to the facts, as Criminal Misc. No.A-535-MA of 2012 (O&M) 2 recorded by the learned trial court and the same read as under:-
"This case was registered at the instance of complainant Deepak Sethi son of Kharaiti Lal resident of Makhu Gate, Ferozepur City. Deepak Sethi complainant made a statement in the form of First Information Report and the same is re- produced below in verbatim:-
I am resident of Outside Makhu Gate, Ferozepur City. My father had died about 10/12 years ago. I and my younger brother Sandeep Sethi are running the shop of Sanitary ware, whereas my other younger brother Amandeep Sethi who was studying in BA Part-I, RSD College, Ferozepur City went out of the house for a walk after taking meals on 19.2.2011 at 7:30 p.m. But he did not come back. We searched for him, but could not find any clue. I had reported the matter to the police regarding the missing of my younger brother. We have been searching for my younger brother Amandeep Sethi @ Johny. During inquiry, it came to our notice and we became sure that my brother Amandeep Singh Sethi @ Johny has been concealed after kidnapping by Varinder Kumar @ Babbu son of Chunni Lal, resident of Outside Makhu Gate, Ferozepur City, who is a junk-dealer and Teetu son of Amar, resident of Gaushala Criminal Misc. No.A-535-MA of 2012 (O&M) 3 Ahata, Amritsari Gate, Ferozepur City, with an intention to kill him. They have either killed my brother Amandeep or Amandeep would be killed. Action be taken against them "Deepak Sethi suffered statement Ex.P1 and on the basis of the statement of the complainant, ruqa was sent to the police station which led to the registration of formal FIR. During investigation, statement of Mohit son of Roshal Lal was recorded regarding telephonic conversation between accused and deceased Amandip Sethi on the day of occurrence. On 26.2.2011, Munish son of Rattan Lal came to the police station and told that the dead body of Amandip Sethi, who was his cousin, was lying near the canal of Mandi Roran Wali and in this regard, rapat bearing No. 28 dated 26.2.2011 was entered and offence under Section 302 IPC was added. ASI Sukhdev Singh visited the spot and took the photographs of the dead body of Amandeep Sethi as well as the place of occurrence. Inquest report of the dead body of the deceased was prepared and after getting the post mortem conducted on the dead body, the same was handed over to the relative of the deceased.
Site plan of the place from where the dead body was recovered was also prepared. On 28.2.2011, Criminal Misc. No.A-535-MA of 2012 (O&M) 4 Mangal Singh Ex. Sarpanch of village Palla Megha came to the police station and produced both accused Varinder Kumar alias Babbu and Titu before Inspector Ajmer Singh and they were accordingly arrested in the present case. On the completion of the necessary investigation formalities, the challan was presented in the court of Ilaqa Magistrate for trial of the accused." The report under Section 173 Cr.P.C. having been presented to the learned court of competent jurisdiction, the relevant documents were supplied to the accused persons, in accordance with law. However, since the offence under Sections 302/364 of the Indian Penal Code ('IPC' for short), was exclusively triable by the learned Court of Sessions, the learned Illaqa Magistrate, vide his order dated 18.7.2011, committed the case to the learned court of Sessions, for its trial.
Having found a prima facie case to be made out, the accused were charge sheeted for the offences punishable under Sections 364/302/201 IPC. The accused pleaded not guilty and claimed trial.
In order to prove its case, the prosecution examined as many as 12 PWs, besides tendering relevant documents in evidence. After conclusion of the prosecution evidence, separate statements of the accused-respondents were recorded under Section 313 Cr.P.C. All the incriminating material brought on record, was put to the accused persons. The accused denied the allegations. They alleged Criminal Misc. No.A-535-MA of 2012 (O&M) 5 false implication and claimed themselves to be innocent. However, accused did not lead any defence evidence.
After hearing the parties and considering the evidence brought on record, the learned trial court came to the conclusion that the prosecution has failed to prove its case beyond reasonable doubt. Accordingly, both the accused-respondents were ordered to be acquitted of the charge framed against them, vide impugned judgment of acquittal dated 1.5.2012.
Feeling aggrieved against the above said judgment of acquittal dated 1.5.2012, the applicant has approached this Court, by way of instant application. That is how, this Court is seized of the matter.
Learned counsel for the applicant submits that learned trial court has proceeded on erroneous approach while not appreciating the evidence, in the right perspective. He further submits that sufficient and convincing evidence has been proved, so as to record the conviction of the accused-respondents. He concluded by submitting that since the impugned judgment was based on 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 appeal against the impugned judgment. To say so, reasons are more than one, which are being recorded hereinafter.
Admittedly, the present case was based on circumstantial Criminal Misc. No.A-535-MA of 2012 (O&M) 6 evidence. In such a situation, a heavier burden lies upon the prosecution to prove its case meticulously completing the chain of events, so as to bring home the guilt against the accused. However, a combined reading of the evidence brought on record would show that the witnesses produced by the prosecution have contradicted themselves to such an extent that serious discrepancies have come to light. These discrepancies were so serious which go to the root of the case. The last seen evidence could not be proved by the prosecution. Similarly, link evidence was also conspicuously missing. In this view of the matter, this Court feels no hesitation to conclude that prosecution has failed to prove its case beyond reasonable doubt.
The prosecution could not prove on record the chain of events connecting the accused-respondents with crime in question. The incident allegedly took place on 19.2.2011 at 7:30 p.m., but the FIR came to be recorded on 22.2.2011. Further, the medical evidence also did not support the case of the prosecution. Thus, it is unhesitatingly held that the prosecution was not able to prove its case beyond reasonable doubt. The learned trial court has committed no error of law while passing the impugned judgment of acquittal.
The learned trial court, before arriving at a judicious conclusion, has recorded cogent finding, which reads as under:-
"I have myself gone through the police file and police zimnis available for the perusal and appreciation of the court. From the perusal of the Criminal Misc. No.A-535-MA of 2012 (O&M) 7 police file, it becomes a fact that in the month of May, 2011, some objections were raised by the concerned prosecutor with regard to the non availability of evidence of extra judicial confession. It appears to me that in order to meet the said objections of the prosecutor, the Investigating Officer of the case manufactured this evidence of extra judicial confession in the month of May, 2011 before the preparation of the challan in the court. As a matter of fact, this was the reason that there is contradiction in the version of PW Ratan Lal and Mangal Singh with regard to the time when the accused were actually available with the police. Furthermore, since Mangal Singh has been introduced as a witness in this case at a later stage just to create the evidence of extra judicial confession, for what reason the accused were neither produced by PW Mangal Singh before the police, nor there could by any possibility of obtaining the signatures of Mangal Singh at the time of preparation of documents in respect of the arrest and search of the accused on 28.2.2011. The evidence of extra judicial confession is treated to be of weak type unless the testimony of the concerned witness inspires confidence in the mind of the court. In the instant case, keeping in view Criminal Misc. No.A-535-MA of 2012 (O&M) 8 the facts and circumstances mentioned hereinabove, the evidence of extra judicial confession is not at all admissible in evidence on its examination from any angle whatsoever. Rather the Investigating Officer has fabricated this piece of evidence in an effort to put up a challan against the accused. The Investigating Officer did not go deep into the investigation of this case. He has tried to fabricate evidence to complete the proceedings and to present the challan before the court. However, before recording any stricture or adverse remarks against the said Investigating Officer, the propriety demands that he should be given an opportunity of being heard. Evern the SHO of the concerned police station i.e. City Ferozepur at that time Inspector Ajmer Singh who also partly investigated this case cannot have an escape in respect of this type of investigation. Therefore, notice to both Inspector Ajmer Singh, the then SHO Police Station City Ferozepure and ASI Sukhdev Singh No. 589 then posted in police station City Ferozepur is being separately issued by this Court. Learned counsel for the applicant could not point out any piece of cogent evidence, which might have been altogether ignored by the learned trial court, so as to convince this Court to take a different view than the one taken by the learned trial court. Further, it Criminal Misc. No.A-535-MA of 2012 (O&M) 9 is the settled proposition of law that whenever two views are possible, the view which goes in favour of accused, is to be preferred by the Court.
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 Criminal Misc. No.A-535-MA of 2012 (O&M) 10 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."
41. Careful scrutiny of all these judgments lead to Criminal Misc. No.A-535-MA of 2012 (O&M) 11 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 Criminal Misc. No.A-535-MA of 2012 (O&M) 12 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 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 Criminal Misc. No.A-535-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 Criminal Misc. No.A-535-MA of 2012 (O&M) 14 case noted above, coupled with the reasons aforementioned, this Court is of the considered view that there is no illegality or perversity in the impugned judgment, which is sine qua non for interference by this Court, in a judgment of acquittal.
In view of the above, the present application is bereft of any merit and without any substance. No case for interference has been made out.
Resultantly, the instant application under Section 378 (4) Cr.P.C., seeking leave to file appeal against the impugned judgment of acquittal, is ordered to be dismissed.
(JASBIR SINGH) (RAMESHWAR SINGH MALIK)
JUDGE JUDGE
5.12.2012
Ak Sharma