In the High Court of Punjab and Haryana, at Chandigarh [CASE NUMBER] (O&M) Date of Decision: 19.2.2013 [ENTITY] Applicant Versus [ENTITY] and Another Respondents
CORAM: Hon'ble Mr. Justice [ENTITY].
Hon'ble Mr. Justice [ENTITY] Present: Mr. [ENTITY], Advocate for the applicant.
[ENTITY], Judge Criminal Misc. No. 55268 of 2012 In view of the averments made in the application, the same is allowed. Delay of 415 days in filing an application seeking leave to file an appeal stands condoned.
[CASE NUMBER] Applicant-[ENTITY] has filed this application under [SECTION] [ACT] seeking leave to file an appeal against a judgment passed by the Juvenile Justice Board, Jhajjar, on 1.3.2011 acquitting respondent No.2-[ENTITY] of the charges framed against him. Admittedly respondent No.2 was a juvenile at the time when alleged offence was committed by him on 14.7.2007.
Initially, an FIR regarding commission of murder of [ENTITY], wife of the applicant, on 14.7.2007, was registered against unknown persons.
The trial Judge has noted following facts regarding case of the prosecution:-
"that complainant [ENTITY] s/o [ENTITY] stated to the police on 14.7.2007 that he is an agriculturist and he has two sons. [ENTITY] is eldest and [ENTITY] is younger. Mental condition of [ENTITY] is not fit. Eldest son [ENTITY] is residing in a separate house along with his children. Youngest son [ENTITY] along with his wife [ENTITY] and two children are residing with complainant and his wife. On 14.3.2007 at about 7.30 AM, [ENTITY] went in the fields of patiwala for taking grass. At about 8.30 o'clock rain started and till 6 o'clock. [ENTITY] not returned to the house. When [ENTITY] came back to the house after working in the fields then [ENTITY] mother of [ENTITY] stated him that [ENTITY] who went in the morning for taking grass has not returned. Then [ENTITY] went in the fields of patiwala in search of [ENTITY] where [ENTITY] not found. When [ENTITY] was coming back to his house while searching [ENTITY] then [ENTITY] s/o [ENTITY] reached at the dol of fields then one bundle of grass was found lying there. [ENTITY] came at house and narrated the entire story of his mother, then [ENTITY] and his mother [ENTITY] in search of [ENTITY] went in the fields and during that search, dead body of [ENTITY] was found lying in the fields of [ENTITY] s/o [ENTITY], [ENTITY]. Both hands of [ENTITY] were tied with chunni and her salwar was not on her body and there were several on her person and blood was oozing from her neck. Complainant expressed his doubt that some unknown person after committing rape upon her daughter-in-law namely [ENTITY] has killed."
It was specifically stated by [ENTITY], complainant, that he had no enmity with anybody in the village.
During investigation, respondent No.2 was arrested. The Investigating Officer, on completion of the investigation, presented the final report in Court. Copies of the documents were supplied to the respondent/accused. His case was sent to the Juvenile Justice Board, Jhajjar, for enquiry, where he was charge sheeted on 16.5.2008 to which he pleaded not guilty and claimed trial.
To prove its case, the prosecution produced 16 witnesses and also brought on record documentary evidence. On conclusion of the prosecution evidence, statement of the respondent/accused was recorded under [SECTION] [ACT] Incriminating evidence was put to him, which he denied, claimed innocence and false implication. He tendered some documents in defence.
The trial Judge, on appraisal of evidence, came to a conclusion that the prosecution has failed to establish guilt of the respondent/accused. The prosecution witnesses have virtually not stated anything against him. It has come on record that alleged eye- witness [ENTITY] has turned hostile. To convict the respondent/accused, reliance was placed upon a confessional statement Ex.PW.8/A made by the respondent/accused. The trial Court found that the prosecution's reliance upon that statement was not justified. While giving benefit of acquittal to the respondent/accused, it was observed as under:-
"15. Admittedly case in hand bearing FIR No. 43 dated 16.2.2008 was registered on the complaint of complainant [ENTITY]. Admittedly [ENTITY] not stepped into the witness box as during course of enquiry he died. PW13 [ENTITY], husband of deceased stepped into the witness box and he simply proved initial complaint of his father ad (sic) he not attributed any word against present juvenile [ENTITY]. Material witness namely Smt. [ENTITY] not produced by prosecution and she was given up.
16. The entire case of prosecution stands upon one confessional statement Ex.PW8/A, which is not admissible in the eyes of law because it is a settled law that any confessional statement made by juvenile during course of police custody is not admissible in the eyes of law specially when no other corroborative evidence produced on behalf of prosecution. Alleged confessional statement Ex.PW8/A duly bears signatures of witnesses namely [ENTITY] and [ENTITY]. These two witnesses were not produced by prosecution and were given up by prosecution best known to prosecution. As attesting witness of the alleged confessional statement Ex.PW8/A not produced by prosecution, so confessional statement Ex.PW8/A is not reliable at all.
17. Except alleged confessional statement Ex.PW8/A not a single evidence on behalf of prosecution produced on case file which could reveals (sic) that it is juvenile [ENTITY] who committed murder of said [ENTITY].
18. PW.6 [ENTITY] turned hostile from his statement given to police such as Ex.PW6/A."
It has come on record that applicant-[ENTITY], in Court, has not stated anything against the respondent/accused. Counsel for the applicant has failed to indicate any lacuna in the judgment, under challenge. The view expressed by the trial Court is perfectly justified and is as per evidence on 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 [PRECEDENT], 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."
The trial Judge has noted the entire evidence on record in a proper manner. Counsel for the applicant has failed to show any misreading of evidence by the Court below which may necessitate interference of this Court.
Dismissed.
([ENTITY]) Judge ([ENTITY]) Judge February 19, 2013 "DK"