Punjab-Haryana High Court
Satnam Singh vs State Of Punjab And Others on 9 October, 2012
Author: Rameshwar Singh Malik
Bench: Jasbir Singh, Rameshwar Singh Malik
Crl.Misc. No.A-953-MA of 2011 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl.Misc. No.A-953-MA of 2011
Date of decision : 9.10.2012
Satnam Singh .......Applicant-Appellant
Vs.
State of Punjab and others ....Respondents
....
CORAM : HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK Present : Mr. Amit Dhawan, Advocate for the applicant-appellant.
...
1. Whether Reporters of local papers may be allowed to see the judgement ?
2. To be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest ? RAMESHWAR SINGH MALIK,J The instant application under Section 378(4) of the Code of Criminal Procedure (`Cr.P.C.' for short), has been filed by the complainant, for leave to file appeal against the judgement of acquittal dated 30.8.2011, whereby respondents no.2 to 4 were acquitted of the charge framed against them.
The applicant-complainant sought to set the criminal law into motion by registration of FIR No.93 dated 15.7.2006 levelling allegations against respondents no.2 to 4 that they caused grievous injuries to him. However, the investigating agency did not find sufficient evidence, during the investigation. Feeling aggrieved against the action of the prosecuting agency, applicant moved a complaint on 24.10.2006 and the accused were summoned by the Illaqa Magistrate.
To avoid repetition and also for the sake of brevity, it is appropriate to refer to the facts noted by the learned trial court in para 1 of the impugned Crl.Misc. No.A-953-MA of 2011 2 judgement and the same read, as under :-
" By way of commitment proceedings accused Raghbir Singh, Kartar and Neeta were sent for trial on the allegations that complainant is an agriculturist and is having about 8.1/2 acres of land and besides this, he was taking agricultural land of adjoining area on contract basis. At present,he was cultivating the land of Mohinder Singh Khuhiwala and before him Raghbir Singh was cultivating that land and as such accused were having grudge against him. Complainant was also having some dispute with said Raghbir Singh with regard to boundary of fields and as such they were not having good terms. On the intervening night of 12/13.7.2006 at about 1.30 A.M., when the power for electric motor was supplied, he alongwith his son went to his fields for starting electric motor. When he reached near the room of electric motor and his son was parking the scooter, in the meantime, three persons with muffled faces came there, who were armed with kirpan and Datters attacked them. He identified all those three persons in the light of bulb which was on at the outer side of room of electric motor. His son also identified them. Raghbir Singh is his cousin brother and Kartar accused is resident of his village and third accused Neeta is known to Raghbir Singh and he is on visiting terms with Raghbir Singh. Accused started beating them. First kirpan blow hit him on his head and on the upper side of forehead and second blow of kirpan hit him on the left eye brow. Third blow of kirpan hit him on the right hand side of his forehead. Fourth blow from sharpen side of kirpan hit him on the upper lip. Fifth blow of Datter from Crl.Misc. No.A-953-MA of 2011 3 sharp edged side hit him near the left ear. Thereafter two blows with Datter hit him on the jaw and cheek. Complainant further stated that the accused tried to kill him. He called his son but out of fear he did not come forward and he saw the whole occurrence. He raised alarm "Maar Ditta-Maar Ditta" and thereafter the accused ran away from the spot alongwith their weapons. After arranging vehicle, he was taken to civil hospital, Barapind, where he was medically examined and then referred to DMC, Ludhiana, where he remained admitted for about 25 days. After discharging from the hospital, he alongwith his son approached the police for lodging the report and FIR No.93 dated 15.7.2006 was got registered but the police did not pursue the case and tried to dispose of the matter by way of compromise, which could not be matured but the police did not take any action against the accused and hence the complainant filed this complaint on 24.10.2006. After recording preliminary evidence of complainant, learned Illaqa Magistrate has summoned the accused under section 307/326/323 read with section 34 of IPC."
In compliance of the summoning order, the accused appeared before the learned Illaqa Magistrate. Relevant documents were supplied to the accused, as per law. The offence alleged having been found to be exclusively triable by the learned court of Sessions, the case was committed to the learned court of competent jurisdiction, vide order dated 5.8.2009. Having found a prima facie case, charge was framed against the accused for the offences punishable under Sections 307, 326,324 and 323 of the Indian Penal Code (`IPC' for short). The accused Crl.Misc. No.A-953-MA of 2011 4 pleaded not guilty and claimed trial. The prosecution, in order to prove its case, produced as many as five PWs, besides tendering the relevant documents in evidence. After closing the evidence by the prosecution, statements of the accused were recorded under Section 313 Cr.P.C. All the incriminating material brought on record was put to the accused. Refuting all the allegations levelled against them, the accused claimed complete innocence. Opting to lead defence evidence, the accused examined two DWs, besides tendering the relevant documents in defence evidence.
After hearing the parties and going through the evidence brought on record of the case, the learned trial court, vide its impugned judgement dated 30.8.2011, held that the prosecution has failed to prove its case. It was held that the story put forth by the prosecution was not plausible. There was insufficient evidence against the accused. Giving the benefit of doubt, the accused were acquitted of the charge against them.
Feeling aggrieved against the above said impugned judgement of acquittal, the applicant-complainant has approached this court by way of instant application, seeking leave to file the appeal. That is how, this court is seized of the matter.
Learned counsel for the applicant vehemently contended that the learned trial court has committed serious error of law, while not appreciating the prosecution evidence in the right perspective. He submitted that sufficient and cogent evidence has been brought on record against the accused-respondents, which has not been properly appreciated by the learned trial court. He concluded by submitting that since the learned trial court has failed to record its cogent finding, while acquitting the accused, the impugned judgement was not sustainable in law.
We have heard the learned counsel for the applicant and with his able Crl.Misc. No.A-953-MA of 2011 5 assistance, have gone through the record of the case.
Having given our thoughtful consideration to the contentions raised and in view of the peculiar fact situation of the present case, we are of the considered opinion that the present one is not a fit case, for granting leave to file appeal against the impugned judgement of acquittal. We say so for more than one reasons.
It is an undisputed fact on the record that after registration of FIR No.93 dated 15.7.2006, the investigating agency declared the accused as innocent, because there was no sufficient evidence available against them. Feeling aggrieved, the applicant-complainant filed the complaint before the learned court of competent jurisdiction. The parties led their respective evidence. The learned trial court has rightly held that the prosecution has failed to prove its case. The accused- respondents were rightly acquitted by the learned trial court, while passing the impugned judgement of acquittal.
We have scanned through the impugned judgement of acquittal. It seems that the accused as well as the complainant were known to each other. Inspite of this fact, the complainant did not name any of the accused in the FIR. This fact has created serious doubt in the prosecution story. The learned trial court, while passing the impugned judgement, recorded cogent findings, which are as under :-
" DW2 SHO Rajinder Kumar proved the statement of Gurnek Singh Ex.DW2/A. Ex.D1 of Gurmit Ram Member Panchayat, Ex.DW2/2 Gurmail Ram Member Panchayat and he gave the zimni No.12 dated 15.11.2006 Ex.DW2/3 and he found in the investigation, the accused innocent. Thereafter the investigation was conducted by SH Parminder Singh and he also declared the accused innocent vide his report Ex.DW2/4. Crl.Misc. No.A-953-MA of 2011 6
All the accused are known to the complainant party and Rabhbir Singh is closely related being cousin. The complainant was cultivating the land of Mohidner Singh alongwith his brother Ajit Singh and prior to that the said land was being cultivated by Rabgbir Singh. So it is clear that the identity of Raghbir Singh was clearly known to the complainant and his son and he also being related to them. At the time of lodging of FIR by Gurnek Singh son of Satnam Singh lodged the same promptly. He further stated that he can identify them if came in front of him, which shows that he has not named any one in the FIR. The accused party was known to them, which shows that the identity has not been established is doubtful in this case and the complainant party has failed to prove the identity of the accused as they were muffled faces and it is highly improbable that when the blows were given with sharp edged weapons by the accused, he used to look to unmuffled the accused which is highly improbable and his son has also witnessed the occurrence and he has also improved the story and as such the accused were rightly declared innocent by the police. Hence the second point is held in favour of the accused and against the prosecution." After careful perusal of the judgement, we have no hesitation to conclude that the learned trial court has not committed any error of law.
Learned counsel for the applicant could not point out any material on the record, so as to convince this court for taking a different view than the one taken by the learned trial court. Further, it is also the settled proposition of law that whenever two views are possible, the view which goes in favour of the accused, is Crl.Misc. No.A-953-MA of 2011 7 to be followed by the court.
The view taken by this court also finds support from the judgement of the Hon'ble Supreme 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:
39. 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 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 Crl.Misc. No.A-953-MA of 2011 8 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 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 Crl.Misc. No.A-953-MA of 2011 9 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 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 Crl.Misc. No.A-953-MA of 2011 10 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 prevent miscarriage of justice, where interference is imperative and the ends of justice so require and it is essential to appease the judicial conscience."
Keeping in view the totality of facts and circumstances of the case noted above, coupled with the reasons aforementioned, we are of the considered view that the impugned judgement of acquittal does not suffer from any patent Crl.Misc. No.A-953-MA of 2011 11 illegality or perversity, which is sine-quo-non for interference in the judgement of acquittal. No case for interference has been made out.
Resultantly, the instant application under Section 378(4) Cr.P.C., seeking leave to file appeal, being bereft of any merit and without any substance, is ordered to be dismissed.
(JASBIR SINGH ) ( RAMESHWAR SINGH MALIK )
JUDGE JUDGE
9.10.2012
GS