CRM A-314-MA of 2012 1 PUNJAB & HARYANA HARYANA HIGH COURT AT CHANDIGARH CRM A-314-MA of 2012 Date of decision:23.11.2012 Amarjit Kaur Applicant Versus The State of Punjab and others Respondent(s) CORAM: HON'BLE MR.JUSTICE JASBIR SINGH HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK 1. To be referred to the Reporters or not ? 2. Whether the judgment should be reported in the Digest ? Present: Mr.S.P.S.Sidhu, Advocate, for the applicant. RAMESHWAR SINGH MALIK, J.
The instant application under Section 372 of the Code of Criminal Procedure (`Cr.P.C.' for short), has been filed by the applicant, seeking leave to file appeal against the judgment of acquittal dated 28.3.2012 passed by the learned Sessions Judge, Bathinda, whereby giving the benefit of doubt, the accused-respondents were acquitted of the charges framed against them.
Facts first. The criminal law was set into motion by Daljit Kaur by getting her statement Ex. PW12/A recorded. However, 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, which read as under:-
Tersely put, the prosecution version, as coming out from the statement Ex.PW12/A of Smt. Daljit Kaur wife of Rachhpal Singh dated 16.9.2010, is that she is resident of Village Chathewala and was married with Rachhpal Singh about 12 years back. They were blessed with two children. During the days of terrorism, her father in law was murdered by the terrorist. Her in-law's family being effected from terrorism, her husband joined Punjab Police. Being effected from terrorism, her husband was issued a pistol by the Government and he was posted as constable in Police Lines, Bathinda.
In the morning of 8.9.2010, her husband Rachhpal Singh had gone on duty and on the said date at about 3.15 p.m., Rachhpal Singh talked to her from his mobile phone No.94170-79159 at her mobile phone No. 94638-91273, with regard to some domestic affairs. Rachhpal Singh was also having another mobile phone connection bearing SIM No. 97796-83798. He was also having one more mobile phone connection, the number of which she does not remember. Since 8.9.2010, her husband Rachhpal Singh did not talk to her or any other member of the family. On enquiry, she came to know that since 9.9.2010 her husband had not gone on duty, regarding which she gave the information in Police Station, Civil Lines, Bathinda on 10.9.2010 by appearing before the higher police officers. Till date, they tried their level best to search out her husband Rachhpal Singh from the relations, but he was not traceable.
Subsequently, from the search of the Trunk (iron box) of her husband lying in the house, she recovered two photographs of a lady. Afterward, she came to know that the said photographs were of only lady, namely Upinderjit Kaur alias Kinder alias Aarti wife of Sukhwinder alias Seera Maan, resident of Gidderbaha. The complainant is of the firm belief that the said lady along with her her husband Seera Maan and her father in law Gurmail Singh, with a conspiracy has kidnapped her husband Rachhpal Singh somewhere.
Consequent upon the statement Ex.PW12/A of complainant Smt. Daljit Kaur, the machinery of law was set into motion. SI Kulwinder Singh made his endorsement Ex.PW12/B, underneath the statement made by Daljit Kaur and sent the same to Police Station, Civil Lines, Bathinda, through Constable Baltej Singh for registration of the case, on the basis of which formal First Information Report Ex.PW.12/C under Sections 365 and 120-B of the Indian Penal Code was registered by ASI Kanwar Jaswinder Pal Singh.
Thereafter, the investigation of this case was conducted by SI Rajinder Kumar, Incharge CIA staff, Bathinda, who during the course of investigation, recorded the statement of Ajit Singh alias Happy son of Gurdarshan Singh, resident of Ferozepur on 21.9.2010 to the effect that his cousin brother Rachhpal Singh was serving in police department at Bathinda. Usually Rachhpal Singh used to come on duty in the morning from village Chathewala and after performing his duty, he used to return to village Chathewala, in the evening. Rachhpal Singh was also issued a pistol by the government. On 8.9.2010 he went to Bathinda to meet Rachhpal Singh and at about 1.30/2.00 p.m., when he reached District Courts, Bathinda, he noticed that Harpreet Singh alias Peeta and Gurdarshan Singh alias Darshan, brother-in-laws of Rachhpal Singh, along with their friend Amrinder Singh alias Makhan son of Daan Singh, were standing there and were having conversation with each other and on seeing him(Ajit Singh), they got aside. When Rachhpal Singh came out of the court, Gurdarshan Singh at once called Rachhpal Singh and did not allow Rachhpal Singh to have a talk with him. Thereafter, all the said three persons made Rachhpal Singh to sit in a white colour Car make Alto bearing registration No. PB-22B-7503 and went towards Bus Stand. Thereafter, he returned to Ferozepur and on the next day he came to know that Rachhpal Singh did not return to his house since then. On 16.9.2010, he went to village Chathewala to know the well being of Rachhpal Singh, where Harpreet Singh alias Peeta, Gurdarshan Singh, brother in laws of Rachhpal Singh and Gurmit Kaur, mother- in-law of Rachhpal Singh asked him to accompany Daljit Kaur to the police station and got her statement recorded before the police regarding the missing of Rachhpal Singh and if he (Ajit Singh) dillydally the matter, he will be treated like Rachhpal Singh. Accordingly out of fear, he went to Bathinda alongwith Daljit Kaur and Daljit Kaur got her statement recorded before the police. He further got it recorded that Harpreet Singh alias Peeta, Gurdarshan Singh alias Darshan and Amrinder Singh alias Makhan had kidnapped Rachhpal Singh with an intention to kill him and in the said incident, Gurmit Kaur mother-in-law and Maninder Kaur sister-in-law (SALEHAR) of Rachhpal Singh are also connived with them. The said persons either killed Rachhpal Singh or kidnapped him because Rachhpal Singh was very stickler and he used to beat the family members of his in-laws.
On the basis of the statements made by Ajit Singh alias Happy son of Gurdarshan Singh, accused Harpreet Singh alias Peeta, Gurdarshan Singh alias Darshan and Amrinder Singh alias Makhan were nominated. SI Rajinder Kumar visited the place of occurrence i.e. Court complex, Bathinda and prepared rough site plan Ex.PW20/A with correct marginal notes on the demarcation of Ajit Singh alias Happy. Accused Harpreet Singh alias Peeta, Gurdarshan Singh alias Darshan and Amrinder Singh alias Makhan were arrested on 21.9.2010 by SI Rajinder Kumar, on the identification of PW Ajit Singh alias Happy in the area of village Bhullar when they were found sitting in Alto Car bearing No. PB-22B- 7503, after supplying the grounds of arrest vide memo Ex.PW.19/E. From the personal search of accused Amrinder Singh alias Makhan, one mobile phone, make Samsung-0168 was recovered and the same was taken into police possession through recovery memo Ex.PW.19/B. From the personal search of accused Gurdarshan Singh, currency notes of Rs.150/- and one mobile phone make Nokia-1650 were recovered and the same were taken into police possession through recovery memo Ex.PW.19/C. However, from the personal search of accused Harpreet Singh nothing was recovered and memo Ex.PW.19/D was prepared in this regard. From the search of the Car, one 9 mm pistol alongwith 16 lives cartridges, six live cartridges were in the holster and ten live cartridges were in the magazine of the pistol, were recovered from the dashboard of the Car. The same were converted into a parcel by the Investigating Officer and was sealed with his seal bearing impression 'RK'. Seal, after use, was handed over to Ajit Singh alias Happy, independent witness. Said articles along with Alto Car bearing registration No. PB-22B-7503 and the registration certificate of the car were taken into police possession through recovery memo Ex.PW.19/A, witnessed by ASI Kirpal Singh and PW Ajit Singh alias Happy. Rough site plan Ex.PW.20/B regarding the place of recovery of car as well as pistol was prepared by the Investigating Officer. On interrogation, accused Gurdarshan Singh alias Darshan suffered a disclosure statement Ex.PW.19/F to the effect that he had kept concealed an iron rod, used in the murder of Rachhpal Singh, in the cotton crop of his fields under a Neem tree in the area of village Pakan, figuring on the way to village Nandgarh, underneath the waste grass, regarding which he knew alone and could the same recovered. Thereafter, accused Gurdarshan Singh, in pursuance of his disclosure statement, led the police party to the disclosed place and got effected the recovery of iron rod, which was stained with blood. The said iron rod was converted into a sealed parcel bearing impression "RK" and took into police possession through recovery memo Ex.PW.19/G, attested by ASI Kirpal Singh and PW Ajit Singh alias Happy. Rough site plan Ex.PW.20/C, with regard to the place of recovery of iron rod, was also prepared by the Investigating Officer. On return to the police station, SI Rajinder Kumar handed over the case property to MHC in intact condition. Vide DDR No.25 dated 21.9.2010, having been made in the Roznamcha, offence under Section 364 of the Indian Penal Code was added.
On 22.9.2010, during the course of investigation, Harjinder Singh son of Gurbachan Singh, resident of village Budhlade Wala, got his statement recorded before SI Rajinder Kumar to the effect that Constable Rachhpal Singh was his close friend. Occasionally he visited the in-law's house of Rachhpal Singh, situated in Kirat Nagar, Muktsar. He also knows the brother in laws of Rachhpal Singh. On 8.9.2010 at about 7.00 p.m., he visited the in-laws house of Rachhpal Singh, where Harpreet Singh alias Peeta, Gurdarshan Singh alias Darshan and their friends Amrinder Singh alias Makhan, were taking liquor alongwith Rachhpal Singh and he (Harjinder Singh) also started taking liquor with them. After about half an hour, Gurmit Kaur and Manjinder Kaur, mother in law and sister-in-law of Rachhpal Singh, came inside the room and took Harpreet Singh alias Peeta outside and told him that it is appropriate time to finish 'Rachhpal Singh. Thereafter, Gurdarshan Singh asked him (Harjinder Singh) to sit quietly, as they have to kill Rachhpal Singh because he has made their lives hell. Saying so, Gurdarshan Singh and Amrinder Singh caught-hold Rachhpal Singh and Harpreet Singh alias Peeta after picking an iron rod lying nearby, gave 2-3 blows of the same on the head of Rachhpal Singh. As a result of which, Rachhpal Singh fell down. When he raised alarm "NA MARO, NA MARO, Gurdarshan Singh and Harpreet Singh asked him to run away or otherwise be prepared to face the same fate. In his view, Rachhpal Singh breathed his last and out of fear he ran away from the spot. He did not disclose the said episode to anybody due to fear. However, his conscience asked him to narrate the entire version to the police.
Accordingly, on the basis of the statement made by Harjinder Singh, offence under Section 302 and 201 of the Indian Penal Code was added after making an entry in the Daily Diary Register Ex.PM, against the aforesaid three accused as well as against Gurmit Kaur and Maninderjit Kaur. Thereafter, SI Rajinder Kumar went to the house of accused Gurdarshan Singh alongwith Harjinder Singh and prepared rough site plan Ex.PW.20/D of the place of occurrence with correct marginal notes on the demarcation of PW Harjinder Singh. Accused Gurdarshan Singh led the police party to Ganga canal, in the area of Anupgarh and shown the place from where they had thrown the dead body of Rachhpal Singh. SI Rajinder Kumar prepared rough site plan Ex.PW.20/E of the place from where the accused had thrown the dead-body of Rachhpal Singh in the canal. The police party kept on searching the dead body of Rachhpal Singh. On 23.9.2010 when the police party along with PW Ajit Singh and his father Gurdarshan Singh reached near canal minor in the area of Anupgarh, leading from the main canal, a police party, headed by ASI Ayuwan Singh of Rajasthan police was found present along with a dead body, which was identified to be that of Rachhpal Singh by PWs Ajit Singh and Gurdarshan Singh. ASI Ayuwan Singh handed over the dead body of Rachhpal Singh to SI Rajinder Kumar. Thereafter, SI Rajinder Kumar conducted the inquest proceedings Ex.PW.20/F with regard to the dead body of Rachhpal Singh, on the identification of Ajit Singh son of Gurdarshan Singh and Gurdarshan Singh son of Gurmail Singh, residents of Ferozepur City. Rough site plan Ex.PW.20/G of the place of recovery of the dead body of Rachhpal Singh was prepared by the Investigating Officer with correct marginal notes. The dead-body of Rachhpal Singh was subjected to post mortem examination vide police request Ex.PA, addressed to Medical Officer, Civil Hospital, Anupgarh. Accordingly, the dead body of Rachhpal Singh was subjected to autopsy. Thereafter, the dead body of Rachhpal Singh was handed over to PW Ajit Singh vide receipt Ex.PW.20/H. On 24.9.2010, on further, interrogation, accused Gurdarshan Singh suffered a disclosure statement Ex.PW.20/I that after murdering Rachhpal Singh, he put off his uniform and kept the same concealed underneath the roots of "KIKKAR" tree near the embankment of canal minor from where the dead body was thrown, after wrapping the same in a polythene bag, regarding which he knew alone and could get the same recovered. Thereafter, accused Gurdarshan Singh, in pursuance of his disclosure statement, led the police party to the disclosed place and got effected the recovery of one polythene bag containing uniform of Rachhpal Singh, including pent, shirt, belt alongwith buckle bearing No.1373 and blood-stained pair of socks. From the right side pocket of the pent, one gold ring having engraved words 'Laali' was recovered. The said gold ring and other articles were taken into police possession after converting the same into separate parcels, sealed with seal bearing impression RK, vide recovery memo Ex.PW.20/J, attested by ASI Kripal Singh and HC Jaspal Singh. Seal, after use, was handed over to ASI Kirpal Singh. Rough site plan Ex.PW.20/K with regard to the place of recovery of the aforesaid articles was prepared by the Investigating Officer.
During the course of investigation, vide entry No.29 dated 18.11.2010 Ex.PW.20/L made in the rozmancha, offence under section 25 of the Arms Act was added. Accordingly, sanction Ex.PF of Additional District Magistrate, Bathinda regarding the prosecution of the accused under section 25 of the Arms Act, 1959 was obtained. Statements of the relevant witnesses were recorded by the Investigating Officer under section 161 of the Code of Criminal Procedure. Consequently on the receipt of the report of the Forensic Science Laboratory, Punjab, Chandigarh Ex.PW.20/M and after the completion of all other necessary formalities of the investigation, the challan against accused Gurdarshan Singh alias Darshan, Harpreet Singh alias Peeta and Amrinder Singh alias Makhan, was presented in the court of learned Illaqa Magistrate, which in due course of time and after performance of the necessary formalities, was committed to this court, however, accused Gurmit Kaur and Maninderjit Kaur could not be arrested." The relevant documents were supplied to the accused, in accordance with law. Having found a prima facie case, charge was framed against the accused under Sections 364, 302 read with Section 34 and 201 of Indian Penal Code and Sections 25, 54 and 59 of the Arms Act. The accused pleaded not guilty and claimed trial.
In order to prove its case, the prosecution examined as many as 20 prosecution witnesses, besides tendering the relevant documents in its evidence. After conclusion of the prosecution evidence, statements of the accused were recorded under Section 313 Cr.P.C. Entire incriminating material brought on record was put to the accused. The accused alleged false implication and claimed themselves to be innocent. Opting to lead defence evidence, the accused examined three defence witnesses, besides tendering the relevant documents in evidence.
After hearing both the parties and considering the evidence brought on record, the learned trial Court vide its impugned judgment dated 28.3.2012, held that the prosecution has failed to prove its case. Giving benefit of doubt to the accused-respondents, they were acquitted of the charges framed against them.
Feeling aggrieved against the impugned judgment, 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 contended that the learned trial Court has proceeded on an erroneous approach while not appreciating the evidence in the right perspective. He further submitted that sufficient and cogent evidence has been brought on record for the conviction of the accused-respondents. He concluded by submitting that the impugned judgment of acquittal, being based on a misconceived approach, was not sustainable in law.
Having heard the learned counsel for the applicant, after going 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 an appeal against the judgment of acquittal. The reasons are more than one, which are being recorded hereinafter.
Firstly, the star witness of the prosecution Harjinder Singh (PW-9), who claimed himself to be the eye-witness, has not supported the prosecution story. Further, material witnesses produced by the prosecution have contradicted themselves to such an extent that serious doubt has been created in the prosecution version. The discrepancies in the case of prosecution are of such a serious nature, which go to the root of the case. The prosecution witnesses have tried to make material improvements. Thus, the statements of prosecution witnesses, when read together, do not inspire confidence.
The present applicant also appeared as PW-18. She was not an eye-witness to the occurrence. From a close perusal of her statement, it becomes clear that when she was examined in the Court, she tried to make material improvements in her statement, which again goes to the root of the case. After giving our anxious consideration to the evidence brought on record by the prosecution, this Court feels no hesitation to conclude that the prosecution has failed to prove its case beyond reasonable doubt.
The learned trial Court, before arriving at the judicious conclusion for acquitting the accused-respondents, has recorded the cogent reasons and and the same read as under:-
"Further the prosecution has relied upon the testimony of Amarjit Kaur PW.18. However, the statement of this witness also does not prove the case of the prosecution against the accused. Amarjit Kaur is not the eye-witness of the occurrence. From the perusal of the statement of Amarjit Kaur, it further transpires that when she was examined in the Court, she made lot of material improvements in her statement, which strike at the root of the case. In the case of Yudhistir vs. State of M.P., (supra), it has been held that when a particular fact, deposed to by the witness, does not find mention in the FIR and the statement, under Section 161 Cr.P.C., it is an improvement and it cannot be considered. As such no reliance can be placed on the testimony of Amarjit Kaur PW.18."
Since on account of the aforesaid discussion, the prosecution case is doubtful, there is no need of entering into further discussion so far as defence version put-forth by the accused persons is concerned.
Thus, the net result is that whole of the case of the prosecution hinges upon conjectures and surmises. It is the cardinal principle of Criminal Law that in criminal cases, the guilt of the accused is to be proved by indubitable evidence and the conjecture and surmise, however, strong may be, cannot take place of proof. The benefit of doubt as and when the same arises, however, marginal the same may be, is bound to tilt in favour of the accused.
In the light of what is discussed above and without elaborating further, it is held that the prosecution has not been able to bring home guilt to the accused at least beyond reasonable doubt."
Learned counsel for the applicant could not point out any piece of cogent evidence, which might have been ignored by the learned trial Court so as to convince this Court to take a different view than the one taken by the learned trial Court. 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 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 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.
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 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:-
"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 present case noted above, coupled with the reasons aforementioned, this Court is of the considered view that the prosecution has failed to bring home guilt against the accused-respondents by leading cogent and convincing evidence. The learned trial Court has not committed any error of law while passing the impugned judgment of acquittal. No patent illegally or perversity has been pointed out, which is sine qua non to interfere in a judgment of acquittal. No case for interference has been made out.
Resultantly, the present application stands dismissed.
(JASBIR SINGH) (RAMESHWAR SINGH MALIK) JUDGE JUDGE 23.11.2012 mks