Punjab-Haryana High Court
Gurjeet Kaur vs Sukhdev Singh @ Sukha And Others on 25 April, 2013
Author: Sabina
Bench: Sabina
CRM-A No. 340-MA of 2011 (O&M) 1
In the High Court of Punjab and Haryana at Chandigarh
CRM-A No. 340-MA of 2011 (O&M)
Date of decision:25.4.2013
Gurjeet Kaur
....... Applicant
Versus
Sukhdev Singh @ Sukha and others
.......Respondents
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr.Sanjay Tangri, Advocate,
for the applicant.
Mr.V.P.Arora, Advocate,
for respondents No.1 to 4.
Mr.K.D.S.Sidhu, Addl.A.G.Punjab.
****
SABINA, J.
Respondents No.1 to 4 had faced trial in complaint/ FIR No.65 dated 28.7.2011 under Sections 364/34 of the Indian Penal Code, 1860 registered at Police Station Bassi Pathana.
The investigating agency, after investigating the case, had presented the cancellation report. When notice was issued of the said cancellation report to the applicant, he filed a protest petition and the same was ordered to be registered as a criminal complaint. Thereafter, complainant led his preliminary evidence and respondents No.1 to 4 were ordered to be summoned to face the trial.
The trial Court, vide impugned judgment dated CRM-A No. 340-MA of 2011 (O&M) 2 14.8.2010, acquitted respondents No.1 to 4 of the charges framed against them. Hence, the application under Section 378 (4) of the Code of Criminal Procedure, 1973 (Cr.P.C. for short) has been filed by the applicant with a prayer for grant of leave to file an appeal against the judgment dated 14.8.2010.
Accused Jang Bahadur @ Channi had died during the pendency of the trial.
After hearing learned counsel for the applicant, I am of the opinion that the present application deserves to be dismissed.
Prosecution story, in brief, is that Shine J.Reen was kidnapped by his friends Jang Bahadur @ Channi and respondents No.1 to 4 and his whereabouts were not known since 26.6.2001. During investigation, it transpired that Shine J.Reen had drowned in canal while taking bath. The matter was duly investigated by the police and cancellation report was submitted and thereafter, on a protest petition filed by the applicant, cognizance of the matter was taken by the Court. The trial Court, while acquitting respondents No.1 to 4 of the charges framed against them has observed as under:-
"12. I have considered the rival contentions raised on behalf of both the sides and carefully scrutinized the evidence available on file. Admittedly, it is a case of no evidence. 5 witnesses have been examined by the prosecution. PW 1 is Gurjit Kaur, mother of Shine J. Reen, who was allegedly kidnapped. Her statement is only relevant to this effect that Jang Bahadar came to her house and inquired about her CRM-A No. 340-MA of 2011 (O&M) 3 son and her son and Jang Bahadar had gone on scooter on 29.6.2001. Her other statement is hear say evidence. There is not an iota of .evidence against the accused, who are facing trial. Similarly, the statement of PW3 Jagjit Singh father of Shine J. Reen is also of hear say evidence. He has not said anything against the accused facing trial. His statement is to the effect that PW2 Devinder Singh told him something about the occurrence and one Kuldeep Singh told him about extra judicial confession allegedly made by the accused, but said Kuldeep Singh before whom the allegedly the accused made extra judicial confession has not been examined or produced in the court. He was not given up as having been won over by the accused. No reason has put forth for not examining this witness. Statement of PW2 Devinder Singh does not inspire confidence. He remained silent from 29.6.2001 to 19.8.2001. He is also from Sirhind. He has allegedly been knowing the parents of Shine J. Reen. He has not taken any step to inform the police. Even if for arguments sake, it is taken that he has seen the accused giving beatings to Shine J. Reen or that when he tried to intervene to rescue him, then the accused had threatened him, yet he could have informed the police about the incident, particularly when he noted down the number of the car in which Shine J. Reen was taken by the accused after giving him beating and making him unconscious. He did not approach the CRM-A No. 340-MA of 2011 (O&M) 4 police. He did not try to tell anyone about the incident between 29.6.2001 to 19.8.2001. No reason has been given for this. His per-chance meeting on 19.8.2001 with PW3 Jagjit Singh also does not inspire confidence, going of Jagjit Singh on 19.8.2001 without any previous knowledge of that place is also doubtful. PW 5 SI Gurdial Singh, who has investigated this case has specifically stated that no incriminating evidence has come on file, even during the inquiry before DSP Balwinder Singh upto the period, investigation remained with him. He admitted that Juring the entire period of investigation, for which it remained with him, no evidence could be collected or came on file holding the accused guilty of the offence for which FIR has been recorded. The police has also filed the cancellation report. Even after filing the protest petition, no evidence was led by the complainant to connect the accused with the offence."
The reasons given by the trial Court, while ordering the acquittal of respondents No.1 to 4 are sound reasons as the prosecution had failed to prove its case.
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: CRM-A No. 340-MA of 2011 (O&M) 5
"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.
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 CRM-A No. 340-MA of 2011 (O&M) 6 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 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"
Thus, no ground is made out to grant leave to file an CRM-A No. 340-MA of 2011 (O&M) 7 appeal to the applicant. Accordingly, this application is dismissed. Since, the application under Section 378 (4) Cr.P.C. has been dismissed on merits, the application seeking condonation of delay in filing the appeal is rendered merely academic and is disposed of as such.
(SABINA) JUDGE April 25, 2013 anita