[CASE NUMBER] and [CASE NUMBER] in/and [CASE NUMBER] -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH [CASE NUMBER] and [CASE NUMBER] in/and [CASE NUMBER] Date of decision : 8.4.2013 [ENTITY] Applicant-appellant Vs. [ENTITY] and another Respondents CORAM: Hon'ble Mr. Justice [ENTITY] Hon'ble Mr. Justice [ENTITY] Present:- Mr. AGS Dhillon, Advocate, for the applicant-appellant Mr. [ENTITY], Addl. AG, Punjab [ENTITY], J.
Allowed as prayed for. Document is taken on record. This application has been filed to recall an order dated 12.3.2013 vide which [CASE NUMBER] was dismissed for non prosecution. In the application, which is accompanied by an affidavit, it is stated that due to ill health, counsel for the applicant has failed to appear on the date fixed.
Counsel for the non-applicant has failed to controvert the averment made in the application.
[CASE NUMBER] and [CASE NUMBER] in/and We feel that the ground taken is justified. Accordingly, we allow this application, recall order dated 12.3.2013 and restored the criminal miscellaneous application to its original number.
On request made by counsel for the parties, criminal miscellaneous application is taken up for hearing today itself. [CASE NUMBER] Allowed as prayed for. Documents are taken on record. After hearing counsel for the parties, application is allowed. Delay of 18 days in filing the appeal stands condoned. [CASE NUMBER] This application has been filed by the applicant under [SECTION] [ACT] seeking leave to file an appeal against judgment dated 15.9.2012, acquitting respondent No.2 of the charges framed against him.
The above respondent along with [ENTITY], [ENTITY] and [ENTITY] (proclaimed offender) were made to face trial in FIR No. 37 dated 12.2.2011, Police Station Patran, for commission of offences punishable under [SECTION], [SECTION], [SECTION] and [SECTION] [ACT]. It was an allegation against them that they, after hatching a conspiracy and in furtherance of their common intention had caused murder of [ENTITY] son of the applicant.
The trial Judge has noted the following facts regarding case of the prosecution :-
"That on 11.2.2011 at about 8.30 P.M. first informant [ENTITY] (O & M) and [CASE NUMBER] in/and [ENTITY] along with his relative [ENTITY] were present in the Cycle Chowk of village Shutrana. In the meanwhile his son [ENTITY] had passed therefrom. [ENTITY] enquired from [ENTITY] the purpose of going out of home at that time and the latter had replied that he is going to recharge his mobile phone and he proceeded further. In the short while [ENTITY] and said [ENTITY] had seen that six persons, who came on three motor cycles had surrounded [ENTITY] and started altercation with him. On seeing them [ENTITY] ran towards them and he had identified three persons who had surrounded [ENTITY] as [ENTITY], [ENTITY], [ENTITY] and two unidentified young men were with them.
3. [ENTITY] took out a kirch (a sharp edged weapon) and raised lalkara that he will teach a lesson to [ENTITY] for opposing the tournament organized by them and also for insulting [ENTITY]. He asked his associates to finish [ENTITY]. In the meanwhile [ENTITY] had caught hold him from his right arm whereas [ENTITY] caught hold [ENTITY] from left arm. Then two unidentified young men started beating him. In the meanwhile [ENTITY] had given a kirch blow in the left thigh of [ENTITY] and the kirch pieced through the thigh. The complainant raised alarm and on hearing the same, [ENTITY] accompanied by his associates had ran away from the spot along with the kirch in his hand."
It is further case of the prosecution that thereafter, injured was taken to Civil Hospital at Patran. Taking note of his serious condition, he was referred to Rajindra Hospital, Patiala where he was declared brought [CASE NUMBER] and [CASE NUMBER] in/and dead by a doctor.
The allegation against respondent No.2 was that of conspiracy. It was stated that murder of [ENTITY] was committed at his instance because [ENTITY] has opposed [ENTITY] respondent No.2 in organising a Sports Tournament.
The process of law was started on a statement Ex.PE made by the applicant on 12.2.1011. The Investigating Officer SI [ENTITY] (PW-6) prepared inquest report on the dead body and sent it for post mortem examination, which was conducted by Dr. [ENTITY] (PW-1). This witness found the following injuries on the person of the deceased :-
"1. Stab wound (perforating in nature) wound of entry measuring 2.5 x 1.5 cm with sharp margins and clean ends, spindle shaped, present on posterior aspect of left thigh just below its middle, edges of wound are inverted, positioned vertically. Exit wound measuring 1.5 x 1 cm sharp margins and clean ends with averted edges present on anteromedial aspect of left thigh in its middle and is positioned vertically. On exploration the entry and exit wound are communicating with each other, cutting the intervening muscles and blood vessels in the track and the path is suffused with blood."
The Investigating Officer went to the place of occurrence, collected blood stained earth against a recovery memo. He also got prepared a rough site plan of that place with correct marginal notes. [ENTITY] co-accused was arrested on 16.2.2011. [ENTITY] another accused was also arrested on the same day. [ENTITY] could not be arrested and he was declared a proclaimed [CASE NUMBER] and [CASE NUMBER] in/and offender.
The Investigating Officer recorded statements of the witnesses and after completing other formalities, final report was put in Court. Copies of the documents were supplied to the accused as per norms. Case was committed to the competent Court for adjudication on 15.6.2011. The accused were charge sheeted, to which they pleaded not guilty and claimed trial. The prosecution produced 8 witnesses and also brought on record documentary evidence to prove its case.
On conclusion of the prosecution's evidence, separate statements of all the accused were recorded under [SECTION] [ACT] Incriminating evidence on record, was put to them, which they denied, claimed innocence and false implication. They also led evidence in defence.
In this case the main accused namely; [ENTITY] is a proclaimed offender. Trial was concluded against respondent No.2 and his co-accused namely; [ENTITY] and [ENTITY]. Vide judgment under challenge, they were convicted for committing an offence punishable under [SECTION] B [ACT] and sentenced to undergo rigorous imprisonment for a period of 10 years with fine and default clause. Respondent No.2 was acquitted of the charges framed against him.
Counsel for the applicant while taking us through the judgment under challenge and the documents placed on record, has made an attempt to say that respondent No.2 was the main conspirator so far as [CASE NUMBER] and [CASE NUMBER] in/and murder of [ENTITY] is concerned. [ENTITY] (proclaimed offender) has committed the crime at his instance along with other accused named above. He has tried to show to the Court that there exist sufficient evidence on record to pin point respondent No.2 as an accused, however, the trial Judge has ignored the evidence on record in a very arbitrary manner.
After hearing counsel for the applicant, this Court is not inclined to interfere in the judgment under challenge. As per case of the prosecution, respondent No.2 was not present at the spot when injuries were caused to the deceased by [ENTITY]. It was only allegation against him that he conspired with other accused persons to commit the crime.
Regarding his presence at the spot, it was noted by the trial Court as under :-
"28. So far as [ENTITY] is concerned, he was not present at the spot. The Investigating Officer PW 6 [ENTITY] had categorically admitted that he had conducted the investigation with regard to the non presence of [ENTITY] in the village. It has come to his notice that [ENTITY] was not in the village rather he had gone to Dehradun where he was studying law. On 11.2.2011 [ENTITY] had attended his classes in Dehradun. This fact was verified during investigation conducted by PW6 [ENTITY] that [ENTITY] was not present at the spot, rather it has come into evidence that he was at Dehradun on the day of occurrence. There is neither any evidence nor any circumstance to suggest that he participated in the criminal [CASE NUMBER] and [CASE NUMBER] in/and conspiracy prior to the occurrence. In these circumstances, the prosecution has failed to connect accused [ENTITY] with the crime."
It has also come on record that respondent No.2 was not office bearer of the Club, which had organised a tournament in the village, to which allegedly an objection was raised by the deceased.
The trial Judge has thrashed the entire evidence in a proper manner. Counsel for the applicant has failed to show any evidence of hatching a criminal conspiracy by respondent No.2 with other accused to commit the crime. The view taken by the Court below is as per law.
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 [ENTITY], 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."
[CASE NUMBER] and [CASE NUMBER] in/and 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 [CASE NUMBER] and [CASE NUMBER] in/and 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."
[CASE NUMBER] and [CASE NUMBER] in/and Counsel for the applicant-appellant has failed to show any error in law on the basis of which interference can be made by this Court in the judgment under challenge.
Accordingly, the application is dismissed.
([ENTITY]) Judge ([ENTITY]) Judge 8.4.2013 [ENTITY]