[CASE NUMBER] (O&M) 1 In the Punjab and Haryana High Court at Chandigarh CRM No.A. No.922-MA of 2011 (O&M) Date of decision: 31.1.2013 [ENTITY] Applicant Versus [ENTITY] and others Respondents Coram: Hon'ble Mr.Justice [ENTITY] Hon'ble Mr.Justice [ENTITY] Present: Mr.[ENTITY], Advocate for the applicant [ENTITY], J.
This application has been filed by applicantunder Section 378 (4) [ACT] seeking leave to file an appeal against judgment dated 16.9.2011 vide which respondent Nos.2 and 3 were acquitted of the charges framed against them.
The process of law was started on a criminal complaint filed by the applicant in the Court of JMIC at Gidderbaha. After recording preliminary evidence and on summoning of the respondents/accused the trial Judge committed the case for trial vide order dated 25.2.2011.
It is necessary to note here that respondent No.2 is real sister of the applicant and respondent No.1 is brother-in-law (sister's husband). It is an allegation against the respondents that they, in furtherance of their common intention, had committed murder of [ENTITY] (mother of the applicant) on 21.6.2009.
Qua death of [ENTITY] on a statement made by respondent No.2, an FIR bearing No.47 dated 21.6.2009 was recorded against [ENTITY] son of [ENTITY], [ENTITY] son of [ENTITY], [ENTITY] son of [ENTITY], [ENTITY] son of [ENTITY], [ENTITY] wife of [ENTITY] etc. It was allegation against them that they committed murder of [ENTITY]. The trial was going on when complaint in dispute was filed by the applicant against his sister and brother-in-law. It is necessary to mention here that the applicant [ENTITY] is married to daughter of above [ENTITY] and [ENTITY], who were named as acused in the above said FIR. It has also come on record that relations between the applicant and his mother [ENTITY] were strained and litigation was pending inter-se the parties.
The trial Judge has noted the following facts regarding case of the prosecution:-
" that the complainant [ENTITY] has one brother [ENTITY] and two sisters namely [ENTITY] accused of this case and one [ENTITY] wife of [ENTITY]. That [ENTITY] accused was married to accused No.1 [ENTITY] about eight years ago and they resided at Kotbhai. That the other sister of the complainant namely [ENTITY] was married at village Chotala to [ENTITY]. That the father of the complainant is [ENTITY] and mother of the complainant was [ENTITY] and the parents of the complainant resided with the complainant and his brother [ENTITY]. That accused [ENTITY] and her husband accused [ENTITY] are greedy type of persons and they are ready to do anything to satisfy their lust of greed. That on 13.6.2009, accused [ENTITY] and her husband accused [ENTITY] came to Ganeshgarh and demanded money from the parents of the complainant, complainant and his brother. That after staying for two nights at Ganeshgarh, they returned when they were assured that they would be given money after making arrangement therefore. That accused became adamant to take mother of complainant [ENTITY] with them to village Kotbhai and mother of complainant declined to accompany them because she was not willing to stay out side beyond two days. That the complainant and his family members sent their mother [ENTITY] with the accused after persuading her. That [ENTITY] was particular to take care of jewellary of gold and silver. That firstly she wanted to leave the box of jewellary behind and thereafter took it with her. That after two days, accused [ENTITY] left [ENTITY] at Ganeshgarh and went back forthwith without taking any refreshment treat. That when [ENTITY] checked her box by breaking open the lock, she started crying because the cash amount of Rs.29,000/- and gold ornaments of 6 tolas in weight and the silver ornaments of 13 tolas in weight were disappearing therefrom. That the complainant and his mother went to Kotbhai and demanded the return of the cash amount of Rs.29,000/- and gold and silver ornaments as stated above. That the brother of the complainant [ENTITY] also reached there on the next day. That the complainant side even asked the accused to convene a panchayat in case they were not willing to return the jewellary and cash amount of [ENTITY]. That the accused requested the complainant not to defame them as they would return the cash amount and jewellary in short period. That the complainant and his mother came back persuaded by assurance of the accused to return the same. That on 21.6.2009, [ENTITY] went to Kotbhai from Ganeshgarh by informing her family members to reach there after two three days when the accused would return her jewellary and cash amount. That on 23.6.2009, the complainant and his brother reached Kotbhai and they were taken a back there on knowing the death of their mother [ENTITY]. That the accused neither informed the complainant regarding injuries to [ENTITY] nor about her post mortem or her cremation. That the mother of the complainant never remained away from the house for more than one or two days. That on inquiry by complainant, it was found that [ENTITY] was demanding her cash amount and jewellary, but the accused made her to be silent. That after having offended with [ENTITY], accused [ENTITY] gave blow of some weighty article on the head of [ENTITY] and thereby injured her. That the accused shifted the blame of inflicting of injuries on the neighbourers."
It is case of the complainant that he had moved an application to the SSP concerned for investigation. When nothing was done, a criminal complaint was filed. Vide order dated 25.2.2011, case was committed to the Court of Sessions for trial of the accused, both the respondents were charge sheeted to which they pleaded not guilty and claimed trial. The prosecution produced seven witnesses and also brought on record documentary evidence to prove its case. On conclusion of prosecution's evidence, statements of both the respondents-accused were recorded under [SECTION] [ACT] Incriminating evidence on record was put to them which they denied, claimed innocence and false implication. Respondent No.2 specifically explained that he had not caused any injury to his mother-in-law [ENTITY]. Before the trial Judge he put up the following defence:-
"That in fact, his mother-in-law [ENTITY] came to his house at village Kotbhai on 21.6.2009 at about 1 PM. That he alongwith his wife [ENTITY] and [ENTITY] and his [ENTITY] were present in their house. That [ENTITY] son of [ENTITY] armed with [ENTITY], [ENTITY] son of [ENTITY] armed with dang, [ENTITY] son of [ENTITY] armed with dang, [ENTITY] son of [ENTITY] armed with dang, [ENTITY] wife of [ENTITY] armed with dang, [ENTITY] wife of [ENTITY] armed with dang, [ENTITY] wife of [ENTITY] armed with brickbat and [ENTITY] son of [ENTITY] forcibly entered their house and raised [ENTITY] to teach them a lesson for selling pots at cheap rate.
That all the above said persons started causing injuries to him and his wife [ENTITY] and when his mother-in-law, [ENTITY] came forward to save them, then [ENTITY] gave kulhari blow from the reverse side on her head. That [ENTITY] and [ENTITY] also caused injuries to [ENTITY]. That then they raised raula Marta-Marta and all the above said persons ran away therefrom alongwith their respective weapons. That he and his wife [ENTITY] and his mother-in-law [ENTITY] were got admitted in Civil Hospital Muktsar, where his mother-in-law [ENTITY] succumbed to her injuries. That he and his wife were medico legally examined at Civil Hospital Muktsar and his statement was recorded by the police, upon which FIR No.47 dated 21.6.2009 under [SECTION], [SECTION], [SECTION], [SECTION] and [SECTION] [ACT] was registered at the Police Station Kotbhai against [ENTITY] etc. That in that case his statement alongwith the statement of his wife has been recorded as prosecution witnesses. That the motive behind this murder was that they were selling pots at cheaper rates and customers started purchasing pots from them and the above said persons were suffereing economic losses. That his mother-in-law had a dispute with his father-in-law [ENTITY] and his brother-in-laws and she had been neglected by them and she used to reside with him for some time and some time with her brother [ENTITY] at Gharsana Mandi at Rajasthan. That his brothers-in-law [ENTITY] and [ENTITY] are married to the daughters of [ENTITY] and [ENTITY] who are accused in the murder case of [ENTITY]. That his brother-in-law compelled them to compromise with [ENTITY] etc. and not to give statement as prosecution witnesses in the murder case, but they refused to oblige [ENTITY] etc. And this false complaint was filed against him and his wife [ENTITY] by [ENTITY] to save [ENTITY] etc."
Respondent No.3 also denied allegations leveled against her, also led evidence in defence.
It is on record that postmortem on the dead body of [ENTITY] was conducted by Dr.[ENTITY] (PW1) on 22.6.2009. At that time following injury was found on the person of the deceased:-
"A lacerated wound measuring 5 cm x 2.6 cm on left occipito parietal region. The underlying bone fractured and depressed. On further dissection underlying coverings of brain and brain matter lacerated. The cranial cavity was full of fluid and clotted blood, compressing the brain matter."
It is an allegation of the complainant that [ENTITY] was carrying with her Rs.29,000/-, and a jewellery box. It has come on record that [ENTITY] was an illiterate villager. Taking note of the same the trial Judge rightly observed that it was not expected at her part to carry huge amount and jewellery with her when paying visit to her daughter. At the time of cross-examination of this witness, it was admitted that postmortem report was signed by respondent No.3 and one [ENTITY] (another sister of the applicant). This witness further admitted that he was not having good relations with both of his sisters. It was further admitted that [ENTITY] his mother filed a civil suit against him and his brother [ENTITY] for ousting them from the house and for seeking maintenance from them. On 24.1.2004 [ENTITY] had also filed one application before SHO police station Gharsana in Rajasthan for taking action against the applicant. The said application was brought on record as Ex.DW1/A. It has also come on record that [ENTITY] before her death had not withdrawn any amount from the bank. The trial Judge has rightly disbelieved statements made by [ENTITY] (PW3) and [ENTITY] (PW5). Giving valid reasons in paragraph No.8 of judgment, the trial Judge has disbelieved the above witnesses. The trial Judge has rightly relied upon statements made by Dr.[ENTITY] (PW1) to say that injuries on the person of the [ENTITY] were possible from reverse side of a [ENTITY] and not with an earthern flower pot. Delay in filing complaint was also rightly taken against the prosecution. Occurrence had taken place on 21.6.2009, complaint was filed on 8.12.2009. Injuries on the person of both the accused were not explained by the complainant/ prosecution. Dr.[ENTITY] (DW1) has specifically stated that the above persons were admitted in the hospital on 21.6.2009 and were discharged on 22.6.2009. There is nothing on record to say that the injuries were possible with a friendly hand. [ENTITY] (father- in-law of the applicant) was facing trial for committing murder of [ENTITY]. Respondent Nos.2 and 3 were the witnesses in that case. It appears that to pressurize them, not to depose against [ENTITY] (PW6), this complaint was filed by the applicant.
This Court feels that the finding given is as per evidence on record. The trial Judge has examined evidence of the prosecution in a threadbare manner. Opinion expressed is as per law.
The law of interfering in a judgment of acquittal is well settled. It is only in those cases where there are compelling circumstances and judgment under challenge is perverse, the appellate Court can interfere with an order of acquittal. The appellate Court is supposed to bear in mind the presumption of innocence of the accused and that the trial Court's acquittal order further strengthen that presumption. Interference in a routine manner, where other view may be possible, should be avoided unless there are good reasons to do the same.
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 [ENTITY] v. Hansa Singh, 2001(1) RCR (Criminal) 775, 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."
Counsel for the applicant has failed to indicate any misreading of oral as well as documentary evidence on record by the trial Court. No case is made out for interference.
Dismissed.
([ENTITY]) Judge 31.01.2013 ([ENTITY] ) gk Judge