Punjab-Haryana High Court
Chhota Singh vs State Of Punjab And Others on 2 November, 2012
Bench: Jasbir Singh, Rameshwar Singh Malik
In the High Court of Punjab and Haryana, at Chandigarh
Criminal Misc. No. A-638-MA of 2012 (O&M)
Date of Decision: 2.11.2012
Chhota Singh
... Applicant
Versus
State of Punjab and Others
... Respondents
CORAM: Hon'ble Mr. Justice Jasbir Singh.
Hon'ble Mr. Justice Rameshwar Singh Malik.
Present: Mr. S.C. Arora, Advocate for the applicant.
Jasbir Singh, Judge Criminal Misc. No. 44938 of 2012 In view of the reasons mentioned in the application, it is allowed and a delay of 58 days in filing the appeal stands condoned. Criminal Misc. No. A-638-MA of 2012 This application has been filed under Section 378(3) Cr.P.C. seeking leave to file an appeal against the judgment dated 14.2.2012, vide which respondent No.2-Gurlabh Singh was acquitted of the charges framed against him, whereas respondent No.3-Chhinder Singh was convicted for commission of offence under Section 302 IPC and sentenced to undergo imprisonment for life with fine.
Both the above named respondents were arrayed as accused in FIR No. 66 dated 30.5.2010, Police Station Sadar, Muktsar for commission of offence under Section 302/34 IPC. It was an allegation against them that they, in furtherance of their common intention, had Criminal Misc. No. A-638-MA of 2012 (O&M) 2 killed Balkaran Singh son of Chhota Singh (PW.1).
The trial Judge has noted the following facts regarding case of the prosecution:-
"The brief facts of the case of prosecution are that on 30.05.2010, a ruqa No. D/843 dated 29.05.2010 was received pertaining to death of Balkaran Singh son of Chhota Singh, resident of village Chauntra at Civil hospital, Muktsar. That on receipt of this ruqa, SI Iqbal Singh alongwith other police officials reached civil hospital Muktsar in Government gypsy No. PB-30-D-5725. That one Chhota Singh son of Hazura Singh and Chhota Singh son of Inder Singh residents of village Chauntra met the police party threat. That Chhota Singh son of Hazura Singh resident of Chauntra made statement before SI Iqbal Singh on 30.05.2010. That the complainant Chhota Singh son of Hazura Singh resident of village Chauntra stated in his statement that he had two sons and one daughter. That Harcharan Singh was his eldest son, who was married and he suffered from seizures. That his daughter Rani was next to him who was married at village Baam about nine years ago. That Balkaran Singh was his youngest son in the age group of 25 years, who was undergoing training at ITI Faridkot. That Balkaran Singh was married to Harpreet Kaur daughter of Pala Singh resident of village Roranwali about five years ago. That their relationship busted off due to some reasons and it ended into dissolution Criminal Misc. No. A-638-MA of 2012 (O&M) 3 of their marriage by a decree of divorce. That about 5-1/2 months back from dissolution of their marriage, Harpreet Kaur gave birth to a son. That on 30.05.2010, the complainant with his family took meal at their house at village Chauntra and Balkaran Singh went outside after taking meal for walking as usual. That the complainant was spraying water to cool down the courtyard as it was a season of hot summer. That Chhota Singh son of Inder Singh resident of Chauntra, who was the uncle of complainant Chhota Singh came there and narrated him that Chhinder Singh son of Malkiat Singh of village Chauntra inflicted kulhari injuries on the person of Balkaran Singh. That the complainant and his wife went out there after leaving his eldest son in the house. That when the complainant and Chhota Singh son of Inder Singh reached near Dharamshala of the village Chauntra, he found his son Balkaran Singh lying in injured condition and he was bleeding profusely from the head. That he was removed to civil hospital, Muktsar by making arrangement for a vehicle. That he was pronounced dead by the doctor thereat. That Chhinder Singh accused caused the murder of his son by inflicting kulhari blows on his head. That the case of occurrence was that Binder Kaur wife of Sukhdev Singh resident of village Chauntra, who was the parental aunt of Chhinder Singh accused had developed illicit relations with Balkaran Singh. That son of complainant Balkaran Singh and Binder Kaur left Criminal Misc. No. A-638-MA of 2012 (O&M) 4 their village about six-seven years ago and they returned by pressure on them by the complainant side in the village. That Sukhdev Singh husband of Binder Kaur committed suicide by consuming some poison out of that. That Chhinder Singh accused harboured malice against Balkaran Singh over this matter and he was stating in the village that he would not let to live Balkaran Singh and would dispose him off one day."
The statement of Chhota Singh son of Hajura Singh (PW.1) was recorded by Sub Inspector Iqbal Singh (PW.5) on the basis of which the above FIR was recorded. The Investigating Officer went to the place of occurrence, prepared inquest report on the dead body of Balkaran Singh, recorded statements of the witnesses and sent his body for post mortem examination. Post mortem examination on the dead body was conducted by Dr. Surinder Kumar (PW.4). The Investigating Officer got the place of occurrence photographed. He also took into his possession blood stained earth from the spot against a recovery memo. He recovered a pair of chappals from the place of occurrence which was also taken into possession against a recovery memo. The Investigating Officer recorded statement of the witnesses. On 3.6.2010, Chhinder Singh (respondent No.3) was arrested and on interrogation, he suffered a disclosure statement which led to the recovery of a kulhari (a weapon of offence) from his house. His disclosure statement was attested by Assistant Sub Inspector Darshan Ram (PW.6). Respondent No.2- Gurlabh Singh was arrested on 12.4.2010.
On completion of the investigation, final report was put in the Criminal Misc. No. A-638-MA of 2012 (O&M) 5 Court. Copies of the documents were supplied to the accused, as per norms. The case was committed to the competent Court for trial vide order dated 29.7.2010. The respondents/accused were charge sheeted to which they pleaded not guilty and claimed trial.
The prosecution produced nine witnesses and also brought on record documentary evidence to prove its case. On completion of the prosecution evidence, separate statements of respondents/accused were got recorded under Section 313 Cr.P.C. Incriminating evidence appearing on record was put to them which they denied, claimed innocence and pleaded false implication. Respondent No.3-Chhinder Singh stated that deceased-Balkaran Singh was indulging in selling of drugs and narcotics. He had many enemies, he was killed by unknown persons and due to enmity, he has wrongly been roped in this case. Similar, defence was taken by respondent No.2-Gurlabh Singh. They also led evidence in defence.
The trial Judge, on appraisal of evidence, found respondent No.2-Gurlabh Singh not guilty and accordingly he was acquitted of the charges, whereas respondent No.3-Chhinder Singh was convicted and sentenced as found mentioned in earlier part of this order. The trial Judge has thrashed entire evidence in a threadbare manner. Testimonies of the witnesses were analyzed very carefully. When giving benefit of acquittal to respondent No.2-Gurlabh Singh, it was observed as under:-
"17. The forceful contention of defence counsel is that accused Gurlabh Singh has been falsely implicated in this Criminal Misc. No. A-638-MA of 2012 (O&M) 6 case by the prosecution. That his name has not figured in the FIR of this case, which was recorded on the basis of statement of PW1 Chhota Singh Ex.PW.1/A given to the police. That accused Gurlabh Singh has been falsely implicated lateron in this case that no overt act regarding causing of any injuries has been attributed to him. This Court concurs with the submission of the defence counsel over this matter that the case of the prosecution is doubtful qua accused Gurlabh Singh. As per the case of prosecution, PW3 Chhota Singh son of Inder Singh retailed this narration to PW1 Chhota Singh son of Hazura Singh about this occurrence just after this occurrence by reaching at his house. From statement of PW1 Chhota Singh complainant, to whom first version was retailed by eye witness PW3 Chhota Singh son of Inder Singh, the name of Gurlabh Singh is nowhere stated to the complainant as co-accused of this case. From the statement of PW1 Chhota Singh complainant, he has not stated that the eye witness Chhota Singh (PW3) stated the name of Gurlabh Singh co-accused to him. In FIR of this case, there is no name of Gurlabh Singh recorded anywhere that he accompanied Chhinder Singh accused at the time of the occurrence. There is no disclosure statement of Gurlabh Singh nor any injury has been attributed to him in this case by the prosecution on the body of deceased Balkaran Singh. Now the statement of PW3 Chhota Singh is analysed by this Criminal Misc. No. A-638-MA of 2012 (O&M) 7 Court carefully. He has stated that Gurlabh Singh was standing at a distance of 20 feet only from the place of occurrence. That Gurlabh Singh was standing in the eucalyptus trees in the light near the wall at the time of occurrence. This witness has stated that Gurlabh Singh accused also stated to Chhinder Singh accused to hurry away as the matter was over. PW3 Chhota Singh has nowhere stated the name of Gurlabh Singh to complainant Chhota Singh son of Hazura Singh, who was the father of deceased Balkaran Singh soon after the occurrence. The name of Gurlabh Singh is not recorded in the FIR or in the first statement given by PW1 Chhota Singh complainant to the police. PW3 Chhota Singh stated the name of Gurlabh Singh to the police in this case. Had Gurlabh Singh been present, this witness must have stated his name to the father of deceased Balkaran Singh to whom he narrated the entire incident firstly. The name of Gurlabh Singh accused must have been mentioned in the FIR. He was not armed with any weapon nor any injury has been attributed to him. This Court finds that there is a growing tendency in this part of the country to implicate as many persons as possible. The case of the prosecution is, thus, found to be doubtful qua accused Gurlabh Singh by this Court on the ground that the name of Gurlabh Singh has not been stated by PW3 Chhota Singh to PW1 Chhota Singh complainant. There seems to be Criminal Misc. No. A-638-MA of 2012 (O&M) 8 embellishment and improvement in the case of prosecution qua accused Gurlabh Singh. The name of Gurlabh Singh is not recorded in the FIR of this case. No overt injury has been attributed to Gurlabh Singh nor he was armed with any weapon in this case as per the case of prosecution. This Court, thus, finds the case of the prosecution doubtful qua accused Gurlabh Singh in this case to whom no injury has been attributed in this case."
It was noted by the trial Judge that name of the above accused was not mentioned in the FIR. Furthermore, no overt act was attributed to him in causing injuries to the deceased. The trial Judge has rightly disbelieved the statement of Chhota Singh son of Inder Singh (PW.3) who allegedly had seen the occurrence and hereinafter narrated detail of the incident to Chhota Singh son of Hajura Singh (father of the deceased). The name of respondent No.2-Gurlabh Singh was not mentioned as an assailant. It has also come on record that after arrest, no disclosure statement was made by respondent No.2-Gurlabh Singh and nothing was recovered from him. This Court feels that the view expressed by the trial Judge in acquitting respondent No.2-Gurlabh Singh is perfectly justified. Furthermore, no case is made out for enhancement of sentence awarded to respondent No.3-Chhinder Singh.
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.
Criminal Misc. No. A-638-MA of 2012 (O&M) 9
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 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 Criminal Misc. No. A-638-MA of 2012 (O&M) 10 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 and/or law appearing in the judgment, Criminal Misc. No. A-638-MA of 2012 (O&M) 11 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."Criminal Misc. No. A-638-MA of 2012 (O&M) 12
Counsel for the applicant has failed to indicate any misreading of evidence on the part of the trial Judge which may necessitate interference by this Court.
Dismissed.
(Jasbir Singh) Judge (Rameshwar Singh Malik) Judge November 2, 2012 "DK"