Punjab-Haryana High Court
Col. R.K.S. Mann vs State Of Haryana And Another on 11 December, 2012
Author: Rameshwar Singh Malik
Bench: Jasbir Singh, Rameshwar Singh Malik
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
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Crl. Misc. No.26431 of 2012 and
Crl. Misc. No. A-289-MA of 2012
Date of Decision:11.12.2012
Col. R.K.S. Mann
.....Applicant
Vs.
State of Haryana and another
.....Respondents
CORAM:- HON'BLE MR. JUSTICE JASBIR SINGH
HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK
Present:- Mr. J.S. Mehndiratta, Advocate for the applicant.
Mr. Kshitij Sharma, AAG, Haryana.
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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 8.11.2011 passed by the learned Additional Sessions Judge, Nuh thereby acquitting the accused- respondent of the charge framed against him, along with an application under Section 5 of the Limitation Act seeking condonation of delay of 102 days, in filing the application under Section 378(4) Cr.P.C.
The applicant- complainant put the criminal law into motion by submitting his complaint Ex.PB on the basis of which FIR Ex.PC was registered alleging that the accused- respondent committed the offence in question. However, in order to avoid repetition and also for the sake of brevity, it would be appropriate to refer to the facts, as noticed by the Crl. Misc. No.26431 of 2012 and Crl. Misc. No. A-289-MA of 2012 -2- learned trial Court in the impugned judgment, and the same read as under:-
"In nutshell, the facts of the prosecution case are that on 21.12.2007 when the police party headed by SI Gopal Singh of P.S. Taoru along with C. Ved Parkash was present at Taoru along with C. Ved Parkash was present at Taoru market at Sohna Taoru road in connection with patrolling, in the meantime, complainant Col. R.K.S. Mann appeared before him and presented a written application to him, while he was accompanied by his driver Ashok Kumar in his vehicle bearing No. HR-27A-0901. Thereafter said Gopal Singh SI (I.O.) sent rukka through C. Ved Parkash for the registration of the case for the commission of aforesaid offences.
In brief the allegations leveled by the complainant in his application are that after doing his duty in Classic Golf Resort, he was on his way back to his house in his vehicle No. HR 27A-0901 with his driver Ashok Kumar via Mohd.pur Pachgaon Road. It is alleged that at an isolated place between village Mohd.pur and village Hassanpur, a m/cycle was found parked on the left side of the road and two persons, out of which one was having milk can and other was having iron rod, came and it was at about 6 p.m. It is alleged that one of them having milk can, who is not known to him, threw his can at his vehicle, which hit him after smashing the wind screen of his vehicle, whereas another assailant, who was previously known to him, who is accused Mahender Singh facing trial, attacked Crl. Misc. No.26431 of 2012 and Crl. Misc. No. A-289-MA of 2012 -3- him with an intention to kill him and by his said rod blow, the rear pane of his car was smashed and the complainant immediately laid down on the vacant place in front of his seat. It is alleged that said assailants tried to open the window of the car, which was locked. It is further alleged that immediately thereafter two other persons riding on m/cycle came, parked their motorcycle in front of his vehicle and blocked his way. However, on the left side two other persons having m/cycle were seen. It is further alleged that in the meantime, the driver of his car reversed the car and accused Mahender threatened to get the matter compromised and said that today he (complainant) has been saved but in future he will be done to death. It is further alleged that driver of the complainant sped away towards Pachgaon side. All the motorcycle borne persons chased him. However, while approaching village, they all went away. Thus, it was reported that it is accused Mahender and his aides, who assaulted the complainant with intention to kill him and if the complainant would not have been an army officer, then he could have sustained injuries by iron rod and he could have been killed. It is further stated by him that he apprehends danger to his life and property from accused Mahender. It is further stated that till the time, he kept consulting his officers and thereafter when he was on his way to police station, then I.O. met him near Taoru market. Hence, action in the matter was sought.
Crl. Misc. No.26431 of 2012 and Crl. Misc. No. A-289-MA of 2012 -4- However, it is pertinent to mention here that the police investigating agency arrest only accused facing trial, whereas remaining aides of the accused were not found involved in the occurrence during verification of the facts ascertained by DSP Headquarter. Hence it is accused Mahender who was only challaned in this case for the aforesaid offences. The I.O arrested the accused on the same night, before that he rushed to the place of occurrence, took into possession the broken glasses of car and milk can, prepared the site plan of the place of occurrence and accused suffered his disclosure statement as regards his having concealed m/cycle and iron rod in the house of some known person and on the next day, i.e., 22.12.07, the motorcycle bearing No. HR-26-2092 along with iron rod was taken into possession from constructed building vide recovery memo. The site plan of the place of recovery was also prepared by I.O. The statements of witnesses were recorded and after completion and collection of entire incriminating evidence, the accused has been sent up to face his trial and challan u/s 173 Cr.P.C was submitted in the court of Sh. Ashwani Kumr JMIC, Nuh, who vide order dt. 8.9.09 committed the case to Addl. Sessions Judge, Nuh for trial of the accused."
Having found a prima-facie case to be made out, the respondent accused was charge-sheeted for the offence punishable under Sections 341, 323, 307, 427 and 506 of the Indian Penal Code (`IPC' for short). The accused did not plead guilty and claimed trial. Crl. Misc. No.26431 of 2012 and Crl. Misc. No. A-289-MA of 2012 -5- In order to prove its case, the prosecution examined as many as 9 PWs, besides tendering the relevant documents in its evidence. On conclusion of the prosecution evidence, the statement of the accused- respondent was recorded under Section 313 Cr.P.C. The entire incriminating material brought on record was put to the accused. He denied the allegations and alleged false implication claiming himself to be completely innocent. However, no defence evidence was led by him.
After hearing the parties and appreciating the evidence brought on record, the learned trial Court vide its judgment dated 8.11.2011, held that the prosecution had failed to prove its case beyond reasonable doubt. Thus, giving benefit of doubt, the accused- respondent was ordered to be acquitted of the charge framed against him.
Feeling aggrieved against the above said impugned judgment of acquittal, the applicant 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 proceeded on erroneous approach while not appreciating the cogent evidence, in the right perspective. He further contended that sufficient and convincing evidence was brought on record for recording the conviction of the accused- respondent. He concluded by submitting that since the impugned judgment was based on misconceived approach, the same was liable to be set aside. Learned counsel for the applicant next contended that the delay of 102 days has been sufficiently explained and the same deserves to be condoned.
Having heard the learned counsel for the applicant, after going Crl. Misc. No.26431 of 2012 and Crl. Misc. No. A-289-MA of 2012 -6- through the record of the case and giving thoughtful consideration to the contentions raised, this Court is of the considered opinion that the present one is not a fit case for granting leave to file appeal against the impugned judgment of acquittal. To say so, reasons are more than one which are being recorded hereinafter.
A careful perusal of the record would show that the applicant- complainant has put up a concocted story and the prosecution remained unsuccessful in proving its case. It is a matter of record that no medical opinion was sought from Dr. S.K. Verma by the Investigating Officer PW9, on the nature of injuries. Thus, without verifying the nature of injuries, the case was registered under Section 307 IPC. It is also a matter of record that PW5 Dr. S.K. Verma vide his affidavit Ex.PO tendered in evidence, proved the copy of MLR Ex.PE wherein both the injuries were declared to be simple, having been caused by blunt weapon. Thus, a serious doubt had been created in the prosecution story, benefit of which has to go to the accused.
The specific case put by the prosecution was that the alleged incident took place at 6:00 P.M on 21.12.2007 whereas the photographs Ex.P1 to Ex.P5 proved by PW3 Basant Sharma Photographer, clearly show that the photographs were clicked during day time. In this view of the matter, again serious doubt has been created in the prosecution story. The prosecution witnesses have contradicted themselves and the serious discrepancies go to the root of the case. In such a situation, this Court feels no hesitation to conclude that the prosecution has failed to prove its case beyond reasonable doubt.
Crl. Misc. No.26431 of 2012 and Crl. Misc. No. A-289-MA of 2012 -7- Before arriving at judicious conclusion, the learned trial Court recorded cogent findings which read as under:-
"Now let me advert to the another doubtful circumstance, which points out towards the police padding. A perusal of photographs of the car Ex.P6 to P10 would go to show that two photographs of the car have been taken at time, when there is adequate sun light on the road, which falsifies the version of PW9 that he got the car photographed in the night time and thus the statement of photographer PW3 Basant Sharma that he took the photos on 21.12.07 of the car cannot be accepted as gospel truth. As per PW8, he came back to the police with complainant in the same car. If that is so, then what was the occasion for the car, having remained parked at the spot.
Now turning to the recovery of iron rod and motorcycle from the possession of accused. In this regard, a perusal of disclosure statement Ex.PA would go to show that the accused suffered disclosure statement, having concealed motorcycle and iron rod used in the offence, in the house of some known person. However, the recovery memo Ex.PG of the car and iron rod would go to show that the said articles were not recovered from the house of some person rather the same have been recovered from an under constructed building as m/cycle has been recovered from inside the said building, whereas iron rod has been recovered from under the heap of sand lying Crl. Misc. No.26431 of 2012 and Crl. Misc. No. A-289-MA of 2012 -8- nearby. On the other hand PW7 Ved Parkash created doubt regarding the recovery of iron rod and m/cycle as he states that m/cycle and iron rod were recovered from the possession of accused from turning point of Manesar on the road.
From the above discussion, it is clear that the arrest of accused on 21.12.207 at 11.45 p.m by PW9 shrouds in mystery because he had no occasion to arrest him at that time because as per him he remained busy throughout in the investigation after receipt of this information till one a.m., when he freed the complainant after investigation."
Learned counsel for the applicant has failed to point out any piece of cogent evidence which might have been altogether ignored by the learned trial Court while passing the impugned judgment of acquittal, so as to convince this Court for taking a different view than the one taken by the learned trial Court. Further, it is the settled proposition of law whenever two views are possible, the view which goes in favour of the accused is to be preferred by the Court.
The view taken by this Court also finds support from the judgment 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 Nos.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 Crl. Misc. No.26431 of 2012 and Crl. Misc. No. A-289-MA of 2012 -9- 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.26431 of 2012 and Crl. Misc. No. A-289-MA of 2012 -10-
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 Crl. Misc. No.26431 of 2012 and Crl. Misc. No. A-289-MA of 2012 -11- 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 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 Crl. Misc. No.26431 of 2012 and Crl. Misc. No. A-289-MA of 2012 -12- 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 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."
Crl. Misc. No.26431 of 2012 and Crl. Misc. No. A-289-MA of 2012 -13- No other argument was raised.
Considering the totality of facts and circumstances of the case noted above, coupled with the reasons afore-mentioned, this Court is of the considered view that the learned trial Court has committed no error of law while passing the impugned judgment of acquittal. No patent illegality or perversity has been pointed out in the impugned judgment, which is sine quo non for interference in the judgment of acquittal.
In view of what has been observed hereinabove, both the applications are bereft of any merit and without any substance. No case for interference has been made out. Resultantly, both the applications stand dismissed.
(JASBIR SINGH) (RAMESHWAR SINGH MALIK)
JUDGE JUDGE
11.12.2012
renu