In the High Court of Punjab and Haryana, at Chandigarh [CASE NUMBER] (O&M) Date of Decision: 6.10.2012 [ENTITY] Applicant Versus [ENTITY] and Others Respondents
CORAM: Hon'ble Mr. Justice [ENTITY].
Hon'ble Mr. Justice [ENTITY]. Present: Mr. [ENTITY], Advocate for Mr. [ENTITY], Advocate for the applicant.
[ENTITY], Judge Criminal Misc. No. 13546 of 2012 In view of the reasons mentioned in the application, it is allowed and a delay of 8 days in filing the appeal stands condoned. [CASE NUMBER] This application has been filed under [SECTION] [ACT] seeking leave to file an appeal against the judgment of acquittal dated 31.10.2011 Respondents No.1 to 5 were arrayed as accused in FIR No. 81 dated 25.4.2006, Police Station Adampur, for commission of offences under [SECTION] & [SECTION] [ACT] read with [SECTION] [ACT].
On receipt of a copy of medicolegal report on 25.4.2006 qua [ENTITY], [ENTITY] (applicant) and other, the process of investigation was started by Assistant Sub Inspector [ENTITY], who went to the Civil Hospital, Adampur and recorded a statement of [ENTITY].
The trial Judge has noted the following facts from his statement:-
"that he is running his shop of Grocery. At around 12.30/1 pm at 25.04.2006, [ENTITY] armed with [ENTITY], his brother [ENTITY] armed with [ENTITY], his brother [ENTITY] bare handed and [ENTITY] armed with iron rod along with [ENTITY] armed with knife entered his shop. [ENTITY], [ENTITY], [ENTITY],[ENTITY], [ENTITY], [ENTITY], Bagga all resident of Alawalpur alongwith [ENTITY] R/o [ENTITY] and [ENTITY] R/o [ENTITY] kept standing out side his shop. [ENTITY] exhorted lalkara that he should taught a lesson for demanding Rs.3100/- for the grocery goods. He also told him to give the entire money, failing which he would be killed. He then got into the STD booth which was in his shop and bolted the door and gave a call to his family members. In the mean time, all of them started causing damage to his shop. Thereafter his brother [ENTITY] and his nephew [ENTITY] also came. [ENTITY] again exhorted [ENTITY] that his relatives will also be caught up. All of them came out of the shop and he also came out of the STD booth. Then [ENTITY] and [ENTITY] came in the shop and then [ENTITY] gave a [ENTITY] blow upon [ENTITY], which fell on his head, [ENTITY] gave a knife blow upon his nephew, which fell on his forehead. [ENTITY] gave iron rod blow upon [ENTITY], which fell on his right wrist. [ENTITY], who was standing out side gave a brick blow, which fell on glass of his counter. In the mean time, all of the locality people gathered and on seeing them, all the accused fled away from the scene of occurrence on their vehicles."
It was reported that the assailants/respondents No.1 to 5 had taken away a sum of ` 10,000 form a safe lying in the shop of [ENTITY]. The said amount was received by the complainant for selling of wheat. It was stated that motive to commit crime was the demand raised by the complainant for an amount of ` 3,100 from [ENTITY], which was due to him against the purchase of grocery items. During investigation, [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY] and [ENTITY], who were named as accused, were found innocent. The Investigating Officer recorded the statement of the witnesses and after completing all the formalities, put final report in the Court for trial. The case was committed to the competent Court for trial on 17.5.2008. The respondents/accused were charge sheeted to which they pleaded not guilty and claimed trial.
The prosecution produced ten witnesses and also brought on record the documentary evidence to prove its case. On completion of the prosecution evidence, separate statements of the respondents were got recorded under [SECTION] [ACT] Incriminating evidence appearing on record was put to them which they denied, claimed innocence and pleaded false implication. It was stated by them that the complainant party had caused injuries to [ENTITY], respondent No.5 and one [ENTITY] on the night of 24.4.2006 and in order to save themselves, the injuries were fabricated by the members of their party. They also led evidence in defence.
The trial Judge on appraisal of evidence, came to a conclusion that case of the prosecution was doubtful, benefit of which was given to the respondents/accused and accordingly, they were acquitted of the charges framed against them. When giving above benefit to the accused, the trial Judge has observed as under:-
"10. Now, as per version of prosecution complainant [ENTITY] was present in his shop on 25.04.2006 when the accused came there. It is alleged that [ENTITY] was armed [ENTITY] and [ENTITY] was armed with knife who gave blow in the forehead of [ENTITY]. Injuries on the nose of [ENTITY] was found grievous. He had called his brother [ENTITY] and nephew [ENTITY]. In his cross-examination, he stated that his shop if 6ft x 8 ft and STD booth is also installed measuring 4ft x 4ft and there is a counter in front of the shop. He has alleged that all the accused entered his shop. It is not possible for so many accused to enter such a small shop. There is force in argument of ld. Counsel for accused that such allegations have been made to make graver offence punishable u/[SECTION], [SECTION] of [ACT]. The police had not mentioned about any damage to the property to the shop. Even the photographs placed on file do not depict any damage by use of criminal force. IO has admitted that no recovery was effected from the accused. No arrest memo of any of the accused was on file. He admitted that so many persons cannot enter such a small shop. There are allegations that [ENTITY] had played an important role in getting the FIR registered and this fact has been admitted by the [ENTITY] in his cross examination. Wife of [ENTITY] and wife of said [ENTITY] are councilors. [ENTITY] had also mentioned differently about the amount allegedly taken away by the accused form shop of [ENTITY]. However, [ENTITY] in his subsequent statement to the police stated that no amount was taken away by the accused. [ENTITY] stated that telephone call was made to his father, while his father stated that he does not keep telephone. He denied knowledge if [ENTITY] has caused injuries to [ENTITY] and [ENTITY] on the night of 24.04.2006. Dr. [ENTITY] PW8 proved on record the injuries on the person of [ENTITY], [ENTITY], [ENTITY] and [ENTITY], who were cited as accused by the complainant but were found innocent during the enquiry. PW10 Dr. [ENTITY] stated that she had sent the report on 30.04.2007. this may be wrongly stated as X-ray was conducted on 27.04.2006. However, she stated that possibility of fracture on the person of [ENTITY] being old cannot be ruled out. Counsel for accused argued that infact [ENTITY] had an old injury which he aggravated by self- inflicting injury to make out a case against the accused. The accused have also examined two witnesses [ENTITY] and [ENTITY], who have supported the case of accused. They have also examined DSP [ENTITY] who in his enquiry found accused [ENTITY] also as innocent. However, challan was present before the said enquiry."
Sufficient reasons have been given by the trial Judge to say that the occurrence had not taken place in the manner in which it was alleged by the prosecution. It was further noticed that the fracture on the person of applicant-[ENTITY] appears to be an old one. The prosecution has also failed to explain the injuries on the person of the accused, namely [ENTITY], [ENTITY], [ENTITY] and [ENTITY]. To give benefit of acquittal to the respondents/accused from the charge under [SECTION] [ACT], the trial Court gave valid reasons in paragraph No.11 of its judgment. The trial Court has rightly concluded that version of the complainant party that the accused had entered into the shop of the complainant, was not proved on the record.
Their Lordships of the Supreme Court in [PRECEDENT], 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 [PRECEDENT], 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 [ENTITY] 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 [PRECEDENT] and in [PRECEDENT], 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 [PRECEDENT], 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 [PRECEDENT], 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:-
"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."
Counsel for the applicant has failed to indicate any error in passing the judgment on the part of the trial Court which may necessitate interference by this Court.
Dismissed.
$ ([ENTITY]) Judge $ ([ENTITY]) Judge October 6, 2012 "DK"