CRM A-173-MA -2012 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM A-173-MA -2012 Date of decision: 17.07.2012 [ENTITY] Applicant versus [ENTITY] etc. Respondents
CORAM: Hon'ble Mr.Justice [ENTITY], Acting Chief Justice Hon'ble Mr.Justice [ENTITY] Present: Mr.[ENTITY], Additional Advocate General [ENTITY], Acting Chief Justice This application has been filed under [SECTION] [ACT], seeking leave to file an appeal against judgment of acquittal dated 8.11.2011. Vide that judgment respondent Nos.1 and 2 were acquitted of the charge framed against them.
As per facts on record, an FIR bearing No.472 was registered against the respondents on 25.8.2009 for commission of offences under [SECTION], [SECTION], [SECTION], [SECTION] [ACT] at police station City Bhiwani. It was an allegation against them that they have committed murder of [ENTITY] son of [ENTITY] the complainant (PW2).
The trial Judge has noted the following facts regarding case of the prosecution:-
"[ENTITY] was missing from the house since 18.8.2009. [ENTITY] his father had got the FIR lodged on 25.8.2009 and mentioned that a call was received on the mobile phone from [ENTITY], who was related to their family. [ENTITY] was called out from the house. [ENTITY] did not return that night. The family searched for him. The family called on [ENTITY]'s mobile phone but it was found switched off. [ENTITY] spoke to [ENTITY] on his mobile on 19.8.2009 at 6.30 A.M. and [ENTITY] replied that [ENTITY] was not with him. At about 7.00 A.M. a call was received from the mobile phone of [ENTITY] and a person who sounded like [ENTITY] demanded a sum of rupees five lacs for releasing [ENTITY]. [ENTITY] asked the place of delivery, but the phone was disconnected. The family again started searching for [ENTITY], but he could not be found. The complainant suspected that [ENTITY] and [ENTITY] along with some other persons had murdered his son."
Initially, on receipt of the complaint, an FIR was recorded under [SECTION], [SECTION] [ACT]. Dead body of [ENTITY] was recovered on 25.8.2009, whereupon an offence under [SECTION] [ACT] was added in the FIR. It is case of the prosecution that dead body was recovered on a disclosure statement made by respondent No.1. It was further stated that respondent No.1 had suffered an extra judicial confession before [ENTITY] (PW4). Mobile phone and a driving licence were also got recovered on a statement made by respondent No.1. Respondent No.2 was taken in custody on 14.9.2009. On interrogation, he suffered a disclosure statement and led the police party for recovery of a mobile sim, however, the same could not be recovered.
On completion of investigation, final report was put in Court. Copies of the documents were supplied to the respondents as per norms. Case was committed to the competent Court for trial. Respondents were charge sheeted to which they pleaded not guilty and claimed trial. The prosecution to prove its case produced 20 witnesses and also brought on record documentary evidence.
On conclusion of prosecution's evidence, statements of the respondents were recorded under [SECTION] [ACT] They pleaded innocence and false implication. It was specifically stated by them that they had not suffered any disclosure statement as alleged by the prosecution. They led no evidence in defence.
The trial Judge on appraisal of evidence came to a conclusion that the prosecution has failed to prove its case beyond a shadow of reasonable doubt. Accordingly, benefit of acquittal was given to the respondents. Hence, this application.
Dead body of [ENTITY] was recovered on 25.8.2009. Postmortem on the dead body was conducted by Dr.[ENTITY] (PW5). He opined as under:-
"All clothes were soiled with sand. Body was also soiled with sand. Both hands were tied by means of metallic wire. Scalp hair of size 5 to 7 cms long easily plucked with slight traction. Scalp missing over the left side of frontal region, parietal and temporal region. Left side external pinna was missing. Eye balls softened and putrefied. Mouth was partially open anterior row of teeth were visible. Moustaches and beard were peeled off, Facial features were distorted but identifiable. Chest was compressed. Abdomen was distended. Body and axillary hair peeled off. Public hair of size 3 to 4cms black in colour and curly. Scrotem and penis were shriveled. Epidermis peeled off all over the body. Hands and feet were degloved."
The ligature mark was also found around the neck of the deceased. Strangulation was declared a cause of death. It was also detected that before death, the deceased had consumed ethyl alcohol.
It is a case of circumstantial evidence. None had seen the respondents committing murder of [ENTITY]. It was a case of the prosecution and as stated by [ENTITY] (PW2) that on 18.8.2009 at about 8.00 p.m., respondent No.1 called [ENTITY] on the mobile phone. [ENTITY] went out from the house and did not come back. PW2 contacted respondent No.1 to know the whereabouts of [ENTITY] but he was put off by respondent No.1 stating that [ENTITY] had not come to him. It is further case of the prosecution that a call for ransom of Rs.five lac was received to release [ENTITY]. Application stating above facts was given to the police on 25.8.2009 (Ex.PB).
In cases where direct eye witness account of the crime is not available, the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established. The facts need to be of a definite tendency, positively pointing towards guilt of the accused. All the circumstances taken together should form a complete chain so that there is no escape from a conclusion that within all human probability the crime was committed by the accused and not by anybody else. In cases where allegations of prosecution are based upon circumstantial evidence, the evidence should be inconsistent with the innocence of the accused and it should not be capable of two opinions.
Their lordships of the Supreme Court in [PRECEDENT], a case where accused was sought to be convicted on the basis of circumstantial evidence, after considering a large number of its earlier judgments, observed as under:-
"15 This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
(i)the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(ii)those circumstances should be of definite tendency unerringly pointing towards guilt of the accused;
(iii)the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. (See [PRECEDENT])."
It was also so said by the Supreme Court in the case of Babu v. State of Kerala, (2010) 9 SCC 189, and also in the case of [PRECEDENT].
In the present case, evidence of the prosecution needs to be examined on the basis of above parameters laid down by the Supreme Court.
The trial Judge has rightly discarded evidence of the prosecution regarding last seen of the deceased with the accused, extra judicial confession allegedly made by [ENTITY] before PW4, namely, [ENTITY] making of disclosure statements by the accused and recovery of weapon etc. When giving benefit of doubt to respondents, the trial Court has observed as under:-
"39. Now taking up each circumstance, the case of the prosecution is that [ENTITY] accused had called his son on his mobile number and [ENTITY] left the house and did not return that night. It is not the case of the prosecution that [ENTITY] had come to the house of the complainant and had taken [ENTITY] away and therefore, there is no evidence that [ENTITY] had gone along with [ENTITY]. The complainant had given two mobile numbers in his complaint Ex.PB. Therefore, to link [ENTITY] to the incident, the first and the foremost circumstance which was required to be proved was to show that a call had been made by [ENTITY] which was taken by [ENTITY] and thereafter [ENTITY] left the house. That evidence is missing. There is no evidence that [ENTITY] was carrying any mobile number. The prosecution has led no evidence to show that any mobile phone was in the name of the deceased. This fact has not been proved.
40. According to the prosecution accused [ENTITY] suffered an extra judicial confession before [ENTITY], Ex-sarpanch and [ENTITY] admitted the crime and [ENTITY] presented the accused before the police, but at the trial [ENTITY] has not supported the prosecution story. The witness has turned hostile, he failed to support the prosecution case.
41. According to the prosecution accused [ENTITY] made a disclosure statement Ex.PG and it was made in the presence of [ENTITY], Ex-sarpanch and a police official and he had stated that he could get the body recovered. The prosecution story is that [ENTITY] led the police party and got the body recovered. The body was recovered in the presence of [ENTITY] and [ENTITY]. But [ENTITY] and [ENTITY] were given up. A presumption can be drawn that had they been examined, both of them would not have supported the prosecution case. The reasons for giving up these witnesses was that they were unnecessary witnesses. The statement on the record is only of the investigating officer. It is not supported from any other source. [ENTITY] had stated that he was called and in his presence [ENTITY] had got the body recovered. If he was present there, there was no reason why his signatures were not obtained on the recovery memo. It appears that the document Ex.PA has been got prepared subsequently. The prosecution has failed to prove that the accused had suffered any disclosure statement or pursuant to that statement he had got the body recovered.
42. [ENTITY] had given a complaint to the police on 25.8.2009 at 7.00 P.M. and on the same day [ENTITY] produced accused [ENTITY] before the police and [ENTITY] blurted the truth and suffered a disclosure statement Ex.PG and the same evening he got the body recovered vide recovery memo Ex.PG/1. In the inquest report, the time regarding the receipt of information of the body is recorded as 9.30 P.M. which means that the entire proceedings i.e. from the time of lodging the complaint and production of the accused, the disclosure statement by the accused and the recovery is within 2 hours which is not believeable. The independent witnesses have not supported the prosecution. The whole case is doubtful.
43. There is a huge delay in lodging the FIR. [ENTITY] was missing from the house since 18.8.2009. The FIR was lodged on 25.8.2009 at 7.20 P.M. [ENTITY] had disclosed in his complaint that on 19.8.2009 at 7.00 A.M. he had received a call from [ENTITY] and he was demanding rupees five lacs for releasing his son. There is no explanation why [ENTITY] kept quite and did not report the incident to the police. The story regarding the ransom demand came only after a week. No person would keep quiet for seven days even if the demand was from one of the relatives. Had the demand been made the complainant would have immediately sounded the police."
It was further rightly noted that there is no independent corroboration to the case of the prosecution. Most of the independent witnesses fail to support case of the prosecution or were given up. The trial Court rightly held that investigation was faulty. The story of recovery of dead body at the instance of respondent No.1 was also rightly not believed by giving reasons in paragraph No.41 of the judgment under challenge.
The view taken by the trial Court is as per facts 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."
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]) Acting Chief Justice 17.07.2012 ([ENTITY]) gk Judge