[CASE NUMBER] -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH [CASE NUMBER] (O & M) Date of decision: 19.09.2014 [ENTITY] Applicant/Appellant(s) Versus [ENTITY] and another Respondent(s) CORAM: HON'BLE MR. JUSTICE [ENTITY] 1) Whether Reporters of the local papers may be allowed to see the judgment? 2) To be referred to the Reporters or not? 3) Whether the judgment should be reported in the Digest? Present: Mr. [ENTITY], Advocate, for the applicant/appellant. [ENTITY], J.
The instant application has been filed under [SECTION] [ACT] for grant of leave to appeal against the impugned judgment dated 04.07.2013 passed by learned Judicial Magistrate Ist Class, Phul whereby complaint filed by applicant/appellant under [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], ,[SECTION] [ACT] has been dismissed and respondents have been acquitted of the charge leveled against them.
Brief facts of the case are that a complaint was filed by the applicant-complainant under [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION]-B ,[SECTION] [ACT] alleging that on 9.11.2007 he along with his family members was present in his house and his wife [ENTITY] was lighting lamp in the courtyard since it was Diwali. The accused [ENTITY] armed with [ENTITY] and [ENTITY] armed with [ENTITY] entered into his house and raised [ENTITY], tried to tear the cloth of his wife and attacked him and caused injuries upon his person. When he raised [ENTITY] (alarm), his brothers who reside in the adjoining house came out of their house and raised lalkara to the accused persons. The accused ran away from the spot along with their weapons. The complainant alleged that he was got admitted in the hospital on the next day by his relative [ENTITY] and the police also recorded his statement. However, as no action was being taken by the police, the complaint was filed.
On the basis of preliminary evidence, charge for commission of offence punishable under [SECTION] [ACT] read with [SECTION] [ACT], was framed against upon the accused-respondents to which they pleaded 'not guilty' and claimed trial.
The complainant, in order to prove his case, examined himself as CW1 and [ENTITY] as CW 3. Wife of the complainant expired before she could be examined as a witness. Thereafter, statement of the respondent-accused under [SECTION] [ACT] was recorded wherein they pleaded complete innocence and false implication.
The trial Court, after appreciating the evidence, acquitted the respondents of the charge leveled against them, vide impugned judgment dated 04.07.2013. Hence, this application for grant of leave to appeal.
[CASE NUMBER] have heard learned counsel for the applicant and gone through the impugned judgment.
The trial Court, after appreciating the evidence on record, observed as under:-
"11. After taking into consideration the submissions made by both ld. Counsel for the complainant and the learned defence counsel, I have observed that the complainant alleges that on 09.11.2007 on the day of Diwali, the accused persons forcibly entered into his house and at around 7 p.m, tore clothes of his wife and further caused injuries upon his persons with their respective [ENTITY]. The complainant has also stated that the house of his brother are adjoining his house and all of them along with their families were present in their houses at the time of said incident and came out on the first floor of their houses upon hearing the [ENTITY] raised by the complainant. However, the complainant has failed to state on oath that any of his brother reached at the spot to rescue him from the clutches of the accused persons. Further the complainant has stated that the incident took place at around 7.00 PM. However, due to fear of two accused persons, he and his wife shut themselves up in their house and did not inform any respectable person of the village regarding the incident. Further the complainant has stated that he rang up his relative [ENTITY] who came at their house in the morning of 10.11.07 and admitted him and his wife to the civil hospital Bhagta Bhaika at 12.00 noon. The complainant has failed to show as to why none of his brother took him to hospital immediately after the incident or during the night or why the complainant and his wife waited for said [ENTITY] to turn up in the morning and [CASE NUMBER] them in the hospital. This fact creates a major doubt in the story put up by the complainant. Furthermore, the complainant has alleged that the accused persons had torn of clothes of his wife. However, no evidence in this regard has been led by the complainant by producing the same in the court. The complainant has also alleged that his statement was recorded by the police on 10.11.07 but no action has been taken upon the same. However, except for placing on record Ex. PA i.e. Copy of rapat no. 14 of police station Dialpura, the complainant has failed to examine any official witness so as to prove the same and further even the doctor examined by the complainant in his preliminary and pre-charge evidence has not been examined by him in his after charge evidence so as to accord an opportunity to the accused persons to cross-examine him. In such circumstances the pre-charge evidence of this witness cannot be taken into consideration, since no opportunity for cross-examining this witness has been given by the complainant to shatter his veracity.
12. The story put up by the complainant seems quite improbable that his brothers who were having adjoining houses and were present in their houses only came out side the first floor of the house and raised [ENTITY] from there but did not dare to come to the rescue of the complainant immediately considering the seriousness of the situation. Furthermore the fact that neither the complainant nor any of his brother informed any one in the village regarding the alleged incident crate a major dent in the story of the complainant and also create doubt regarding the veracity of the story as put up by the complainant. Furthermore the final death knell to the story of the complainant is cause by the fact that the accused had allegedly attacked him and his wife at 7.00PM on 09.11.07 but instead of going to the [CASE NUMBER] hospital to get medical aid, the complainant and his wife remained in their house and waited for way relative namely [ENTITY] to come and to take to the hospital on the next day at around 12.00 PM. Also as alleged by the ld. Defence counsel the alleged eye witness [ENTITY] being the brother of the complainant is interested witness and his testimony also does not imbibe confidence of this court. From the perusal the complaint as well as the testimony led by the complainant it appears that as alleged by the ld. Defence counsel, the present complaint has been filed merely to avoid liability in the state case pending against the complainant which has been filed by the present accused persons. The complainant has thus failed miserably to bring home the guilt of the accused persons since there is no independent corroboration of the version of the complainant and same suffer from many inconsistencies and improbabilities."
The Hon'ble Supreme Court in [PRECEDENT] has held as under:
"10. Lord [ENTITY] in [PRECEDENT] highlighted the approach of the High Court as an appellate court hearing the appeal against acquittal. Lord [ENTITY] said, "the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses." [CASE NUMBER] The opinion of the Lord [ENTITY] has been followed over the years.
11. As early as in 1952, this Court in [PRECEDENT], while dealing with the powers of the High Court in an appeal against acquittal under [SECTION] of the [ACT] observed, "the High Court has full power to review the evidence upon which the order of acquittal was founded, but it is equally well settled that the presumption of innocence of the accused is further reinforced by his acquittal by the trial court, and the findings of the trial court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and compelling reasons."
12. The approach of the appellate court in the appeal against acquittal has been dealt with by this Court in [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], K. Gopal Reddy v. State of A.P. ; [(1979) 1 SCC [SECTION]], [PRECEDENT], [PRECEDENT]; [1994(3) R.C.R.(Criminal) 631 : 1995 Supp (1) SCC 248], Madan Lal v. State of J&K; [1997(4) R.C.R.(Criminal) 89:
(1997) 7 SCC 677], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT]; [2002(4) R.C.R.(Criminal) 750 : (2003) 1 SCC 1], [PRECEDENT]; [2005(2) R.C.R.(Criminal) 20 : (2005) 9 SCC 291], [PRECEDENT]; [2007(2) R.C.R.(Criminal) 458 : (2007) 3 SCC 755] and [PRECEDENT]; [2007(2) R.C.R.(Criminal) 92:
2007(1) Recent Apex Judgments (R.A.J.) 841: (2007) 4 SCC 415]. It is not necessary to deal with these cases individually. Suffice it to say that this Court has consistently held that in dealing with appeals against acquittal, the appellate court must bear in mind the following: (i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court, (ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal, (iii) Though, the power of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanor of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such [CASE NUMBER] conclusions is fully justified, and (iv) Merely because the appellate court on re-appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court." Learned counsel for the applicant has failed to show any error in law or on facts on the basis of which interference can be made by this Court in the judgment under challenge. There is also a delay of 61 days in filing the instant application. No cogent reasons have been mentioned in the application for condoning the delay.
As such, application for leave to appeal is dismissed on merit as well on account of delay.
([ENTITY]) 19.09.2014 JUDGE pa