[CASE NUMBER] (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH [CASE NUMBER] (O&M) Date of decision : 16.10.2012 [ENTITY] Applicant/Appellant Vs. [ENTITY] and another Respondent CORAM: Hon'ble Mr. Justice [ENTITY] Hon'ble Mr. Justice [ENTITY] Present:- Ms. [ENTITY], Addl. A.G. Punjab for the applicant-appellant [ENTITY], J. (Oral)
This application has been filed under Section 378(3) [ACT] by the [ENTITY] seeking leave to file an appeal against judgment of acquittal dated 14.09.2011, vide which respondents were acquitted of the charge framed against them.
Both the respondents were named as accused in FIR No.118 dated 20.05.2006, registered at Police Station Sadar Abohar for commission of offences under [SECTION] [ACT] and 27 of the [ACT]. There was an allegation against them that on 19.05.2006 one of them, namely, [ENTITY] fired a shot on the complainant party with an intention to kill them. [ENTITY] was injured in the said firing. The process of law was initiated on a statement Ex.PW2/A [CASE NUMBER] (O&M) -2- made by [ENTITY] complainant.
The trial Judge has noted the following facts regarding case of the complainant :-
"That on 19.05.2006 at about 9.00 P.M. [ENTITY], brother in law of complainant [ENTITY] along with his friends [ENTITY], [ENTITY] and [ENTITY] had come to meet complainant [ENTITY] at his dhani. They were talking with each other while sitting in their outer gate. Electric light was switched on. In the meantime, accused [ENTITY] along with his son [ENTITY] came there in red color Maruti Car, which was being driven by [ENTITY] and [ENTITY] armed with a .12 bore DBBL gun was sitting on the rear seat. [ENTITY] alighted from the Car and exhorted a lalkara to teach them (complainat) a lesson for forcibly sowing the land and also started abusing them. In the meanwhile [ENTITY] came out from the Car and fired a short from his .12 bore DBBL gun aiming at the complainant. Its pallets struck against [ENTITY] son of [ENTITY] on his left shoulder, left side of chest, left thigh and to [ENTITY] son of [ENTITY] on his eye brow, forehead, left shoulder, left side of chest and left thigh. One of those pallets also hit on the little finger of [ENTITY]. Upon this, they tried to turn back to save themselves, but [ENTITY] fired another shot from his gun and its pallets hit on the left leg, left thigh, left side of backbone and shoulder of [ENTITY]. Some pallets also hit against [ENTITY] and [ENTITY]. On seeing so, [ENTITY], brother in law of the complainant raised alarm 'namaro-namaro'. Thereafter, accused boarded on their Car and along with weapon tried to run away, but the car hit against 'Karaha' (an agricultural implement) which broke the window panes of the car, but [CASE NUMBER] (O&M) -3- they were able to flee away. After some time, complainant party heard voice of two more gun shots."
It was a case of the prosecution that besides the complainant occurrence was also witnessed by [ENTITY]. To prove motive, it was stated that [ENTITY] respondent No.1 and his son respondent No.2 wanted to forcibly cultivated 3 killas of land owned by the complainant. The said move was being resisted. Due to that the respondents accused made an attempt to kill the complainant and his companions.
It has come on record that the injured were got admitted at Civil Hospital, Abhor. They were medico legally examined. On receipt of communication from the hospital, SI [ENTITY] along with other police officials went there. Injured were declared unfit to make their statement. The Investigating Officer recorded statement of [ENTITY], an eye witness, of the occurrence on the basis of which an FIR was registered. The Investigating Officer went to the place of occurrence and prepared rough site plan Ex.PW12/2 with correct marginal notes. He also took into his possession broken pieces of glass of car and two empty cartridges of .12 bore gun against recovery memo. He recorded statements of the witnesses. During investigation [ENTITY] respondent No.2 was found innocent and final report was put in court against respondent No.1 only. Thereafter, on moving an application under [SECTION] [ACT] respondent No.2 [ENTITY] was also summoned to face the trial. On their appearance, copies of the documents were supplied to them [CASE NUMBER] (O&M) -4- as per norms. The case was committed to the competent Court for trial vide order dated 23.11.2006. The respondents accused were charge sheeted to which they pleaded not guilty and claimed trial. The prosecution produced 15 witnesses and also brought on record documentary evidence to prove its case.
On conclusion of prosecution's evidence, statements of the both the accused were recorded under [SECTION] [ACT], wherein the incriminating material existing on record was put to them, which they denied, claimed innocence and false implication. Respondent No.1 [ENTITY], in his defence, has stated as under :-
"I am innocent. [ENTITY] complainant entered into agreement to sell of land measuring 3 acres 7 marlas to his son [ENTITY] on 01.04.2003 and on the same day, he got full and final payment of the land and possession of the land was also delivered and power of attorney was given in my favour by [ENTITY] to execute the sale deed. There was a loan of bank on the said land and it was agreed by [ENTITY] that after repayment of loan to the bank, he got entry in the Jamabandi regarding land and after that you can get executed sale deed. Complainant did not repay bank loan. As the rates of the land increased, so [ENTITY] wanted to sell the same land to somebody else about which my son filed suit of specific performance and vide order dated 01.04.2006, learned Addl. Civil Judge, Senior Division, Abohar, [ENTITY] was restrained from further alienating the disputed land. To pressurize me to withdraw the case and hand over the possession of the same to complainant, he filed this false case against me. I am innocent."
[CASE NUMBER] (O&M) -5- [ENTITY] respondent No.2 also deposed in the same terms in his defence. They also led evidence in defence. It is also necessary to mention here that [ENTITY] who was seriously injured at the time of alleged occurrence did not support case of the prosecution and was declared hostile.
The trial Judge on appraisal of evidence found case of the complainant doubtful, benefit of which was given to the respondents and they were acquitted of the charges against them. Hence, this application.
The trial Judge has righty noted that the plea taken by the defence is believable. Further the PW2 [ENTITY] complainant has deposed contrary to the statement made by him, on an affidavit, during investigation. In his cross examination this witness had admitted that affidavit Ex.P2 dated 17.06.2006 was executed by him.
It is specifically stated that on hearing voice of a gun shot, fired in the air, he along with others came out of his house. He further stated that due to darkness the assailants could not be identified and names of the respondents accused were mentioned in the statement earlier made on the basis of suspicion. It has also come on record that in his statement Ex.D1 complainant [ENTITY] has also so stated as is mentioned above. In that statement he exonerated respondent No.2 by stating that his name was wrongly mentioned in the statement.
To the same effect is the statement made by [ENTITY] PW3 and [ENTITY] injured PW4. Both the witnesses have admitted their signatures on affidavits Ex.D3 and Ex.D6 respectively and also [CASE NUMBER] (O&M) -6- admitted correctness of the contents of the affidavits, wherein it is specifically stated that the assailants could not be identified due to darkness. The trial Judge has rightly noted that it is not a case of the prosecution that the above affidavits of the witnesses were obtained by the police under duress. It has also come on record that as per case of the prosecution shots were fired from a distance of 40 karams.
It was dark night and there is nothing on record to show that the electric light was available. It is rightly said that the name of the assailants was given only on the basis of suspicion. To prove motive it was stated by the complainant that the assailants wanted to take forcible possession of the land owned by him. At the time of trial it came on record that possession of the land in dispute was already with the alleged assailants on the basis of an agreement executed by the complainant with respondent No.2. It has also come on record that [ENTITY] PW2 has not received any injury. He has failed to give explanation as to why he has not gone to the police station to report the matter. After analysing the entire evidence in a threadbare manner, the trial Judge has rightly came to conclusion that the prosecution has failed to prove its case on record beyond shadow of reasonable doubts.
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.
[CASE NUMBER] (O&M) -7- 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."
[CASE NUMBER] (O&M) -8- 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 [CASE NUMBER] (O&M) -9- 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 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.
Application is also barred by limitation. There is no cogent explanation for condonation of delay.
Accordingly, both the applications are dismissed.
([ENTITY]) Judge ([ENTITY]) Judge 16.10.2012 Anand