Punjab-Haryana High Court
Baljeet Singh vs State Of Punjab And Others on 2 November, 2012
Author: Rameshwar Singh Malik
Bench: Jasbir Singh, Rameshwar Singh Malik
Criminal Misc. No. 16003 of 2011 In/and 1
Criminal Misc. A-284-MA of 2011 (O&M)
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Misc. No. 16003 of 2011 In/and
Criminal Misc. A-284-MA of 2011 (O&M)
Date of Decision: 02.11.2012
Baljeet 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. Preetwinder Singh Dhaliwal, 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 complainant, seeking leave to file appeal against the judgment of acquittal dated 13.5.2010. Another application under Section 5 of the Limitation Act has been filed seeking condonation of delay of 221 days in filing the application under Section 378 (4) Cr.P.C. Criminal Misc. No. 16003 of 2011 In/and 2 Criminal Misc. A-284-MA of 2011 (O&M) A complaint under Sections 325, 323, 459 read with Section 34 of the Indian Penal Code ('IPC' for short), was filed by the applicant against respondents No. 2 to 4 with the allegations that during the panchayat elections, accused-respondents caused grievous injuries to Ballam Singh and others.
In order to avoid repetition and also for the sake of brevity, it would be appropriate to refer to the facts noted by the learned trial court and the same read as under:-
Brief facts of the complaint are that on 29.5.2003 Panchayat Elections were held in his village Hasanpur and complainant was supporting Gurpiar Singh's party, as a result of which there used to be dispute between complainant and accused persons, who were supporters of Harbans Singh and Kartar Singh's party. When complainant celebrated victory of Gurpiar Singh, accused could not tolerate it and on 20.06.2003 at about 11:00 PM, Buta Singh, Paramjit Singh, Major Singh, Moja Singh and Nachhatar Singh, in connivance with each other, armed with soties and gandasas, broke into the house of complainant. On hearing noise, wife of complainant woke up and switched on light.
Above named persons started giving gandasa and soti blows to the complainant. On persistent requests of complaint's wife and his children they Criminal Misc. No. 16003 of 2011 In/and 3 Criminal Misc. A-284-MA of 2011 (O&M) left complainant and said that if "Dhed" goes against them in future, they will kill him. In the next morning complainant was got admitted in Civil Hospital, Bhikhi by his wife and cousin brother Kala Singh. Information about said occurrence was given to police of Police Station, Bhikhi. Police had obtained his thumb impression on blank papers and did not take action against accused persons. About seven days after occurrence complainant went to Police Station for knowing about action taken against accused persons, but police refused to take action against accused persons. Hence, he has filed the present complaint against accused persons under Sections 325, 323, 459/34 of the Indian Penal Code, without any delay.
The complainant-applicant produced the preliminary evidence, based on which the learned Illaqa Magistrate found a prima facie case under Sections 325, 323, 459 read with Section 34 IPC and accordingly, all the accused were summoned. Having been served, accused persons appeared before the learned Illaqa Magistrate. However, the learned Illaqa Magistrate dismissed the complaint qua accused Nos. 1 and 4 namely Buta Singh and Moja Singh. After going through the complaint and the evidence produced by the complainant, the learned Illaqa Magistrate found sufficient grounds to proceed against accused. However, finding the offence Criminal Misc. No. 16003 of 2011 In/and 4 Criminal Misc. A-284-MA of 2011 (O&M) under Section 459 IPC exclusively triable by the court of Sessions, the learned Illaqa Magistrate committed the case to the learned court of Sessions for trial thereof.
Having found a prima facie case against the accused for the offences punishable under Sections 325, 323, 459 read with Section 34 IPC, charge was framed against the accused- respondents who pleaded not guilty and claimed trial.
The complainant, in order to prove his case, examined as many as 4 PWs, besides tendering some documents in evidence. After conclusion of the prosecution evidence, statement of the accused-respondents were recorded under Section 313 Cr.P.C. All the incriminating material brought on record was put to the accused. Accused pleaded false implication and claimed complete innocence. Opting to lead the defence evidence, the accused examined DW-1 H.C. Ragbir Singh, besides tendering some documents in their defence evidence.
After hearing the counsel for the parties and going through the record of the case, the learned Sessions Judge, Mansa, held that the prosecution has failed to prove its case beyond the reasonable doubt. Accordingly, the accused were acquitted of the charge framed against them, vide impugned judgment of acquittal dated 13.5.2010.
Feeling aggrieved against the above said impugned judgment of acquittal, the complainant-applicant has approached this Court, by way of instant application. That is how, this Court is seized of the matter.
Criminal Misc. No. 16003 of 2011 In/and 5Criminal Misc. A-284-MA of 2011 (O&M) Learned counsel for the applicant vehemently contended that the applicant has brought on record sufficient and convincing evidence, bringing home guilt against the accused. Learned trial court has misdirected itself, while not appreciating the cogent evidence, in the right perspective. He further submits that since the learned trial court has ignored the clinching evidence while passing the impugned judgment, the same was not sustainable in law. Learned counsel for the applicants concluded by submitting that since the applicant was a poor and illiterate person, he could not pursue the matter in time and the delay of 221 days, which has occurred in filing the application seeking leave to file appeal, was bonafide and deserves to be condoned.
We have heard the learned counsel for the applicant and with his able assistance, have gone through the record of the case.
After giving our thoughtful consideration to the contentions raised and keeping in view the peculiar fact situation of the case, we are of the considered opinion that present one is not a fit case for granting leave to file appeal. Similarly, an application under Section 5 of the Limitation Act for condonation of delay of 221 days, is also liable to be dismissed because the inordinate and long delay of 221 days has not been properly explained. We say so for more than one reasons, being recorded hereinafter.
Firstly, PW-1, Dr. Nishan Singh, who medico legally examined the injured-Ballam Singh, found the following injures on his person:-
Criminal Misc. No. 16003 of 2011 In/and 6
Criminal Misc. A-284-MA of 2011 (O&M)
1. Diffused tendered swelling left forearm. Needs X-rays study and orthopaedician opinion.
2. An abrasion 1x1 cm on left knee joint in its anterior and just lateral to midline.
It is the own pleaded case of the prosecution that on the date of occurrence, panchayat elections were to be held in the village. The complainant party was supporting one candidate and the other candidate was being supported by the accused party. After result of the elections, when one party was celebrating its victory and the quarrel took place at the spur of moment The learned trial court has rightly come to the conclusion that evidence led by the prosecution was not inspiring confidence. The learned trial court concluded that the prosecution has failed to prove its case beyond reasonable doubt. The material witnesses of the prosecution were PW-3, Gurmeet Kaur and her husband Baljeet Singh, who appeared as PW-4. When their statements are read together, it becomes crystal clear that both these PWs have deposed just in contradiction with each other, creating serious doubt in the prosecution story. It is also pertinent to note that Buta Singh, to whom the main injury has been attributed, was discharged by the learned court on 6.6.2007. No appeal or revision was filed against that order by the complaint-applicant herein. This material fact also shows that the complainant has put forth a concocted story.
Secondly, Baljeet Singh PW-4 stated that no proceedings were conducted by the police in the hospital and only his thumb Criminal Misc. No. 16003 of 2011 In/and 7 Criminal Misc. A-284-MA of 2011 (O&M) impressions were taken on some papers. This statement of PW-4 clearly contradicts the statement made by his wife PW-3, Gurmeet Kaur, who has stated that the statement of her husband was recorded by the police and he thumb marked the same after admitting it to be correct. The statement of PW-4, Baljeet Singh, is also contrary to the office record in the form of Rapat Roznamch Ex. D-1, which shows that police conducted the proceedings in the hospital on 1.7.2003. Thus, again a serious doubt has been created in the story of prosecution. The complainant had failed to connect the accused-respondents with the crime.
Thirdly, the medical evidence also belies the case of the prosecution. PW-2, Dr. Trilok Singh, in his cross examination, clearly stated that when he asked about history of the fracture, the patient did not disclose anything. Thus, conduct of the patients with Doctor also clearly shows that the actual truth was being concealed by the alleged injured at the time of his treatment from Dr. Trilok PW-2, for the reasons best known to the complaint and the injured. Again PW- 1, Dr. Nishan Singh, deposed that while examining the patient on 1.7.2003 he did not observe any fracture on his ulna. Further, the complainant himself left the hospital and got himself examined on the next day from PW-2, Dr. Trilok Singh. This conduct of the complainant also does not appeal to reason. In this view of the matter, this Court has no hesitation to conclude that prosecution has failed to prove its case.
Learned counsel for the applicant could not point out any Criminal Misc. No. 16003 of 2011 In/and 8 Criminal Misc. A-284-MA of 2011 (O&M) cogent evidence which might have not been appreciated by the learned trial court, to persuade this Court for taking a different view than the one taken by the learned trial court, while passing the impugned judgment of acquittal.
Further, it is the settled proposition of law that whenever two views are possible, the view which goes in favour of the accused, is to be followed. Having said that, it is unhesitatingly held that the view taken by the learned trial court was unassailable, having been based on the sound reasoning and cogent findings.
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 Criminal Misc. No. 16003 of 2011 In/and 9 Criminal Misc. A-284-MA of 2011 (O&M) 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 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 Criminal Misc. No. 16003 of 2011 In/and 10 Criminal Misc. A-284-MA of 2011 (O&M) (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 Criminal Misc. No. 16003 of 2011 In/and 11 Criminal Misc. A-284-MA of 2011 (O&M) 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 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 Criminal Misc. No. 16003 of 2011 In/and 12 Criminal Misc. A-284-MA of 2011 (O&M) 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 Criminal Misc. No. 16003 of 2011 In/and 13 Criminal Misc. A-284-MA of 2011 (O&M) 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.
In view of the totality of facts and circumstances of the case noted above, coupled with the reasons aforementioned, it is unhesitatingly held that the learned trial court has not committed any error of law, while passing the impugned judgment of acquittal. No patent illegality or perversity has been pointed out by the learned counsel for the applicant, which is sine qua non for interference in the judgment of acquittal.
So far as the application under Section 5 of the Limitation Act is concerned, no satisfactory explanation has been given by the learned counsel for the applicant to explain the inordinate long delay of 221 days. The reasons given in the application have not been found to be sufficient to condone the delay of 221 days. No case for interference has been made out.
Resultantly, the application under Section 378 (4) Cr.P.C., as well as application under Section 5 of the Limitation Act, being Criminal Misc. No. 16003 of 2011 In/and 14 Criminal Misc. A-284-MA of 2011 (O&M) devoid of any merit and without any substance, are ordered to be dismissed.
(JASBIR SINGH) (RAMESHWAR SINGH MALIK)
JUDGE JUDGE
02.11.2012
Ak Sharma