Punjab-Haryana High Court
Palwinder Kaur vs State Of Punjab And Others on 7 February, 2011
Author: Jasbir Singh
Bench: Jasbir Singh, Sabina
CRM A -841 -MA of 2011 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM A -841 -MA of 2011
Date of decision: 07.02.2013
Palwinder Kaur
......Applicant
versus
State of Punjab and others
...Respondents
Coram: Hon'ble Mr.Justice Jasbir Singh
Hon'ble Mrs.Justice Sabina
Present: Mr.Arvind Thakur, Advocate for the applicant
Jasbir Singh, J.
This application has been filed by Palwinder Kaur wife of Rupinder Singh alias Lalli (deceased).
Respondent Nos.2 to 5 were arrayed as accused in FIR No.71 dated 25.7.2009 police station Kahnuwan for commission of offences under Sections 302, 201/ 34 IPC. It was an allegation against them that they, in furtherance of their common intention, had committed murder of Rupinder Singh on the intervening night of 24th /25th July 2009.
Process of law was started on a statement (Ex.PA) made by PW1 Ujjal Didar Singh (brother of the deceased). His statement was recorded by SI Azad Davinder Singh (PW20) whereupon above FIR was recorded in police station Kahnuwan through ASI Mohan Singh. After CRM A -841 -MA of 2011 2 recording above statement, the investigating officer went to the place of occurrence, prepared inquest report (Ex.PW20/C) on the dead body and sent it for postmortem examination. He also got prepared a rough site plan with correct marginal notes. The investigating officer recorded statements of the witnesses. Blood stained earth was taken into possession against recovery memo. The accused were arrested in the meantime. They suffered disclosure statements which led to the recovery of weapon of offence and other offending material. The investigating officer submitted final report in Court. Copies of the documents were supplied to the respondents-accused as per norms. Case was committed to the competent Court for trial vide order dated 8.12.2009. The respondents-accused were charge sheeted to which they pleaded not guilty and claimed trial.
The trial Court has noted the following facts regarding case of the prosecution:-
"...that on 25.7.2009 SI/SHO Azad Davinder Singh along with police party was present at Sathiali bridge when complainant Ujjal Didar Singh son of Hansa Singh, caste jat, resident of village Sahaipur got recorded his statement to the effect that on 24.7.2009 at about 3.00 p.m. his elder brother Rupinder Singh @ Lalli was present at his house. He further alleged that his house is adjacent to the house of his brother Rupinder Singh. His brother received a call on his mobile phone no.98143- 50295 and after receiving the call, his brother Rupinder Singh at once went away on his motorcycle, Discover bearing no.PB- 18L-6604. When he did not return for a long time, his wife CRM A -841 -MA of 2011 3 Palwinder Kaur made a call from phone no.99886-48450 to Rupinder Singh who replied that he is standing at Sidhwan brick kiln and he will return home soon. On hearing this, his wife went to sleep. Complainant further alleged that next day morning Palwinder Kaur told him that her husband Rupinder Singh did not come to home last night. Then, the complainant made a call to Rupinder Singh from his mobile phone number 98767-01543 but his phone was out of coverage area. Then, complainant along with Mangal Singh s/o Tara Singh, Balwinder Singh s/o Sardool Singh, Sukhwinder Singh s/o Nagina Singh went away in search of his brother Rupinder Singh and when while searching, they reached in their fields, complainant saw that sleepers of his brother were lying near the cot in the fields. He further alleged that when they were going towards Sathiali bridge, they saw a dead body in the river. They took it out from the river, the same was the dead body of Rupinder Singh. The complainant further alleged that there were injuries on the head and forehead of his brother Rupinder Singh which seemed to be caused by some sharp- edged weapon. Motorcycle and mobile phone of Rupinder Singh were also not recovered from the spot. He further alleged that some unknown persons have killed his brother Rupinder Singh with sharp edged weapon and threw him in the river."
In his statement Ex.PA Ujjal Didar Singh (PW1) has not raised CRM A -841 -MA of 2011 4 any suspicion against the respondents-accused for committing murder of his brother. To bring home their guilt, the prosecution relied upon statement made by Sukhdev Singh (PW3), mentioning that he had seen the deceased in the company of the respondents-accused in the evening on 24.7.2009. Further reliance was placed upon statement made by Mangal Singh (PW8), stating that all the respondents-accused came to him after about 25 days of the date of occurrence and made extra judicial confession, admitting their guilt in committing murder of Rupinder Singh @ Lalli.
It is on record that Mangal Singh's statement was recorded on 29.8.2009.
After presentation of the final report, the respondents-accused were charge sheeted to which they pleaded not guilty and claimed trial. The prosecution produced 21 witnesses and also brought on record documentary evidence to prove its case. On conclusion of prosecution's evidence, separate statements of all the respondents -accused were recorded under Section 313 Cr.P.C. Incriminating material existing on record was put to them which they denied, claimed innocence and false implication. They also led evidence in defence.
The trial Judge on appraisal of evidence found case of the prosecution doubtful, benefit of which was given to the respondents- accused, ordering their acquittal. Hence, this application.
The trial Court has noted that dead body of Rupinder Singh @ Lalli was discovered early in the morning on 25.7.2009. Statement of PW1 Ujjal Didar Singh (Ex.PA) was recorded at 4.00 PM. Special report reached the concerned Magistrate at 10.00 PM. For delay in getting the FIR CRM A -841 -MA of 2011 5 recorded no explanation was furnished by the prosecution. It was case of the prosecution that Rupinder Singh deceased had left his house on 24.7.2009, on receipt of a telephone call at about 8.00 PM, when he failed to come back, his wife rang him up, he replied that he would come soon to his house. Applicant -wife was not named as a witness in this case. Report regarding missing of the deceased from his house was not conveyed to the police immediately. It was case of the prosecution that on 25.7.2009, PW1 alongwith Mangal Singh, Balwinder Singh, Sukhwinder Singh went in search of Rupinder Singh @ Lalli. They discovered his dead body lying in a canal. It has also come on record that the above named persons were available when the police reached at the spot. It is admitted by PW1 that the police remained in contact with Mangal Singh, Sukhdev Singh etc. for 5-6 days after the date of occurrence. Theory of last seen the deceased with the respondents-accused, as depicted by PW3 Sukhdev Singh was also not believed by the trial Court.
The present case rests upon circumstantial evidence. In such like cases, the accused cannot be convicted unless chain of the circumstances is complete and it indicates towards guilt of the accused only and not anything else. PW3 Sukhdev Singh was available when dead body was recovered. He remained in contact with the investigating officer for 5-6 days as stated by PW1. In the FIR, none is named as an accused. The trial Court has rightly said that there is no explanation as to why he failed to make a statement, disclosing the factum of last seen of the deceased with the respondents-accused during that period. His statement was recorded only on 29.7.2009.
CRM A -841 -MA of 2011 6
So far as making of extra judicial confession by the respondents-accused before Mangal Singh (Pw8) is concerned, it has been disbelieved by giving valid reasons by the trial Court. It has come on record that the above witness was interrogated by the police during investigation of this case. It has also come on record that this witness along with the complainant and other witnesses were taking liquor on the fateful day with the deceased, who was later on found dead. The respondents-accused do not have any special connection with Mangal Singh (PW8) to make confessional statement before him. Statement of Sukhdev Singh (PW3) was recorded on 29.7.2009. Statement of PW8 Mangal Singh was recorded one month after the date of occurrence. After recording statement of PW3 why the respondents-accused were not interrogated is a great mystry. Respondents-accused were not produced before the police by PW8. The trial Court has elaborately discussed the reasons to discard his statement in paragraph No.39 of the judgment under challenge. The trial Judge by making reference to the medical evidence on record has said that the version given by the witnesses was not correct. In the inquest report, which was prepared at 4.00 PM on 25.7.2009, it is stated that the wounds on the dead body were bleeding. The doctor has also mentioned the time of death as 3.30 PM on 25.7.2009. Postmortem on the dead body was conducted on 26.7.2009. Rigor mortis was found present at the dead body. This was also taken as a circumstance against the case of the prosecution.
Recovery of the offending material was also disbelieved. By giving reasons in paragraph No.41 of the judgment under challenge, it has been observed the prosecution has also failed to prove motive to commit the CRM A -841 -MA of 2011 7 crime.
This Court feels that the finding given is as per evidence on record. The trial Judge has examined evidence of prosecution in a threadbare manner. Opinion expressed is as per law.
The law to interfere in a judgment of acquittal is well settled. It is only in those cases where there are compelling circumstances and judgment under challenge is perverse, the appellate Court can interfere with an order of acquittal. The appellate Court is supposed to bear in mind the presumption of innocence of the accused and that the trial Court's acquittal order further strengthen that presumption. Interference in a routine manner, where other view may be possible, should be avoided unless there are good reasons to do the same.
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:-
"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 CRM A -841 -MA of 2011 8 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."
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 CRM A -841 -MA of 2011 9 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 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 CRM A -841 -MA of 2011 10 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 the applicant has failed to indicate any misreading of oral as well as documentary evidence on record by the trial Court. No case is made out for interference.
Dismissed.
(Jasbir Singh)
Judge
07.02.2013 (Sabina)
gk Judge