Punjab-Haryana High Court
Satpal vs State Of Haryana And Another on 9 October, 2012
Author: Rameshwar Singh Malik
Bench: Jasbir Singh, Rameshwar Singh Malik
Crl.Misc. No.A-927-MA of 2011 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl.Misc. No.A-927-MA of 2011
Date of decision : 9.10.2012
Satpal .......Applicant-Appellant
Vs.
State of Haryana and another ....Respondents
....
CORAM : HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK Present : Ms. Kiran Bala Jain, 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(3) of the Code of Criminal Procedure (`Cr.P.C.' for short), has been filed for leave to file appeal against the judgement of acquittal dated 30.7.2011, whereby respondent no.2 was acquitted of the charge framed against him.
The criminal law was set into motion by the applicant by making his statement Ex.P-4. The allegation against the accused-respondent no.2 was that on the intervening night of 2/3.9.2010, he kidnapped the prosecutrix, who was minor being aged about 17 years, from the lawful guardianship, without her consent. It was further alleged that respondent no.2 induced prosecutrix to marry with him. It was also alleged that the accused forced the prosecutrix to have undesirable relation with him and he sexually assaulted the prosecutrix from 3.9.2010 to 5.12.2010.
For the sake of brevity, it would be appropriate to refer to the facts recorded by the learned trial court, in para 2 of the impugned judgement and the same read, as under :-
Crl.Misc. No.A-927-MA of 2011 2
" 2. Sat Pal PW-5 is resident of Hari Palace Road, Ambala City. Besides the prosecutrix, he has two sons. The prosecutrix was a student of B.Com. Ist Year at Deve Samaj College, Ambala City. On the intervening night of 2/3.9.2010 and in between the time of 12.00 to 2.00 A.M. some unknown person induced and took away his daughter on the pretext of marriage. A search for her was made with relatives as well as at different places but with no positive result. So, a complaint Ex.P-4 was made with the police and which led to registration of formal FIR Ex.P-3 after making an endorsement Ex.P-4/1. Investigations commenced. The police collected birth as well as 5th class certificates of the prosecutrix as Ex.P-8 and Ex.P-9 respectively and which were taken into possession vide seizure memo Ex. P-10. The prosecutrix was recovered and found in the company of the accused and was identified by the complainant as his daughter vide memo Ex.P-5. The accused was arrested and suffered disclosure statement Ex.P-6 and on the basis of which he pointed towards the place of occurrence vide memo Ex.P-7. A rough site plan of that place Ex.P-19 besides the scaled site plan Ex.P-18 were prepared. The police also got prepared site plan Ex.P-20 of the place of occurrence. The prosecutrix was got medicolegally examined vide MLR Ex.P-13 by moving an application Ex.P-12 from Dr. Balwinder Kaur PW-6. On an application Ex.P-22, the police also got recorded statement Ex.P-15 of the prosecutrix under Section 164 of the Code of Criminal Procedure and which led to passing of orders Ex.P-14, Ex.P-14/1 and Ex.P-14/2 respectively. The custody of the Crl.Misc. No.A-927-MA of 2011 3 prosecutrix was handed over to her parents vide memo Ex.P-11. Statements of the witnesses were recorded. After usual investigations, police found sufficient grounds to proceed against the accused and as such a charge-sheet was filed against him in the Court of Illaqa Magistrate to face trial and which was received on commitment for trial on 14.2.2011."
The investigation was started on the basis of above said allegations. The accused was arrested, who suffered disclosure statement Ex.P-6. On the basis of disclosure statement, the Investigating Officer visited the place of occurrence. A rough site plan Ex.P-19 was prepared with correct marginal notes. The prosecutrix was medico legally examined, vide MLR Ex.P-13, from Dr. Balwinder Kaur PW-6. Statement of the prosecutrix was got recorded under Section 164 Cr.P.C., as Ex.P-15 Statements of other witnesses were also recorded. After completing the investigation, report under Section 173 Cr.P.C. was presented to the learned court of competent jurisdiction. Relevant documents were supplied to the accused, as per law. Since the offence was exclusively triable by the learned court of Sessions, the case was committed to the learned court of competent jurisdiction for trial thereof.
Having found a prima facie case, charge was framed against the accused for the offences, punishable under Sections 363,366 and 376 of the Indian Penal Code (`IPC' for short). The accused pleaded not guilty and claimed trial.
The prosecution, in order to prove its case, examined as many as thirteen PWs, besides tendering the relevant documents Exs. P-1 to P-22, in the evidence. After closing of the prosecution evidence, statement of the accused under Section 313 Cr.P.C. was recorded. The entire incriminating material brought on record was put to the accused, who alleged false implication and claimed complete innocence. Opting for leading defence evidence, he examined three DWs and also Crl.Misc. No.A-927-MA of 2011 4 tendered in evidence documents Exs.R-1 to R-13 as well as Mark R-1 to R-10, before closing his evidence.
After hearing both the parties and examining the record of the case, the learned trial court acquitted the accused of the charge framed against him, vide impugned judgement dated 30.7.2011. Feeling aggrieved against the impugned judgement, the applicant-complainant has approached this court by way of instant application. That is how, this court is seized of the matter.
Learned counsel for the applicant vehemently contended that the learned trial court has fell into serious error of law, while passing the impugned judgement. The documentary as well as oral evidence has not been properly appreciated by the learned trial court. Sufficient and convincing evidence has been brought on record by the prosecution. She concluded by submitting that since the prosecution was successful to bring home the guilt against accused-respondent no.2, the impugned judgement was not sustainable in law.
We have heard the learned counsel for the applicant and with her able 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 case, this court is of the considered opinion that 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 the own pleaded case of the prosecution that the prosecutrix was a student of B.Com Ist year. She went with accused-respondent no.2, on her own. The accused and the prosecutrix remained together from 2/3.9.2010 upto 5.12. 2010 i.e. about three months. The prosecutrix and the accused visited number of places and stayed together. Further, while making statement before the police as well as in the court, prosecutrix has stated her age to be less than 18 years. However, her ossification test conducted by Dr. Vijay Kapoor, DW-1 shows her age as 18 years. Crl.Misc. No.A-927-MA of 2011 5 Prosecutrix claimed herself to be more than 18 years, while filing affidavits R-10 and R-11 before Punjab State Human Rights Commission at Chandigarh. In this view of the matter, it is clearly established that the prosecutrix was a consenting party.
It is the specific and pleaded case of respondent-accused that the prosecutrix performed marriage with him, on her own sweet will on 9.9.2010, at Shri Gurudwara Mata Sahib Kaur Ji Mansoorwal Dona, Distt. Kapurthala. Since the parents of the prosecutrix was against the marriage, a complaint for protection was moved by them, before Punjab State Human Rights Commission, Chandigarh. The Senior Superintendent of Police, Kapurthala, was directed to provide them security. Parents of the prosecutrix visited the village of the accused and tried to persuade the prosecutrix to accompany them to Ambala, but she refused to go with them. Thus, the learned trial court has rightly appreciated the evidence, before recording the judgement of acquittal.
The learned trial court discussed each and every material aspect of the matter, while passing the impugned judgement. Relevant finding recorded by the learned trial court, in this regard read, as under :-
" 11. When it is proved that the prosecutrix had attained the age of discretion at the time of occurrence and accompanied the accused at her own to different places, travelled in public transport and did not raise any alarm either on the way or at the places where she resided alongwith the family members of the accused the all this points towards her consent. There is another fact showing her consent for accompanying the accused. After she was recovered on 5.12.2010, she was got medicolegally examined from Dr.Balwinder Kaur PW-6 vide MLR Ex.P-13. Neither any external nor internal injury on any part of her body Crl.Misc. No.A-927-MA of 2011 6 was found. Rather, it was opined by the doctor that she was habitual to sexual intercourse. Though complainant namely Sat Pal PW-5 pleaded ignorance about the whereabouts of her daughter i.e. prosecutrix and her marriage with the accused but that fact came during investigation of PW-13 SI Pawan Kumar who proved document Ex.R-2. Thus, the act of the prosecutrix in accompanying the accused at her own without any threat, not complaining about the same to any one while travelling on public transport and residing with his family members at his native place, performing marriage with him at Shri Gurudwara Mata Sahib Kaur Ji, Village Mansoorwal, Jalandhar Road, District Kapurthala, filing complaint (copy) Ex.R-9 before the Punjab State Human Rights Commission at Chandigarh and affidavits (copies) Ex.R-10 and R-11 shows that she was a consenting party. The ratio of law laid down in cases S.VaradaranjanVersus State of Madras, Vinod Versus The State of Haryana, Sagar Kumar Versus State of Haryana and Alamelu and another Vs. State Represented by Inspector of Police (supra) is fully applicable to the facts of the present case."
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 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 Crl.Misc. No.A-927-MA of 2011 7 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 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. Crl.Misc. No.A-927-MA of 2011 8
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 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 Crl.Misc. No.A-927-MA of 2011 9 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, 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:-
Crl.Misc. No.A-927-MA of 2011 10
41."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."
No other argument was raised.
Considering the totality of facts and circumstances of the case noted above, coupled with the reasons aforementioned, we are of the considered view that the learned trial court has rightly come to the conclusion that prosecution has failed to prove its case. Thus, it is unhesitatingly held that the learned trial court has not committed any error of law.
No patent illegality or perversity in the impugned judgement, has been Crl.Misc. No.A-927-MA of 2011 11 pointed out by the learned counsel for the applicant, which is sine-quo-non for granting leave to file appeal, against the judgement of acquittal. No case for interference has been made out.
Resultantly, the instant application under Section 378(3) Cr.P.C., for 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