[CASE NUMBER] (O & M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH [CASE NUMBER] (O & M) Date of decision : 12.10.2012 [ENTITY] Applicant/Appellant Vs. [ENTITY] and others Respondents CORAM: Hon'ble Mr. Justice [ENTITY] Hon'ble Mr. Justice [ENTITY] Present:- Mr. [ENTITY], Advocate, for the applicant-appellant [ENTITY], J. (Oral)
This application has been filed under [SECTION] [ACT] seeking leave to file an appeal against judgment dated 16.4.2012 vide which respondents No. 1 and 2 were acquitted of the charge framed against them.
In FIR No. 216 dated 5.9.2010 Police Station Shahkot, District Jalandhar, it was an allegation against the above respondents that they had killed [ENTITY]-brother of the applicant on the intervening night of 4/5.9.2010. The trial Judge has noted the following facts regarding case of the prosecution :-
"the FIR in this case was registered on the basis of the statement of [ENTITY] that he has three brothers and one sister and all of them are married. His elder brother, [ENTITY], aged about 38 years works as Electrician at Jalandhar. Every day, he goes to Jalandhar for work and returns in the evening. On 4.9.2010 at about 8.00 p.m. after [CASE NUMBER] (O & M) -2- taking his dinner, his brother [ENTITY] went for a walk but when he did not return even late at night, then he alongwith his sister-in-law i.e. wife of [ENTITY], namely, [ENTITY] tried to locate him but they were unable to find him. On 5.9.2010 at about 8.00 p.m. he was approached by Smt. [ENTITY] wife of [ENTITY] that dead body of his brother [ENTITY] is lying in their Bajra Crop. He alongwith his sister-in-law, [ENTITY] immediately rushed to the fields, where they found the dead body of his brother [ENTITY]. His brother has been killed by some unidentified persons."
In the FIR, none was named as an accused. Statement of the applicant-complainant was recorded by SI [ENTITY] PW-10. On an intimation sent, the above FIR was recorded. The Investigating Officer got prepared a rough site plan of the place of occurrence with correct marginal notes. He also prepared inquest report on the dead body and sent it for post mortem examination, which was conducted by Dr. [ENTITY] PW-1 on 5.9.2010. He has noted the following injuries on the person of the deceased :-
"Severely incised wound neck, whole neck severed from the body, only muscles were attached with posteriority, Trachea/vertebra crushed, esophagus smeared. Large blood vessels badly cut."
It was observed that two legature marks were found around the neck. Ethyl alcohol was also detected in the viscera. Above injury was found sufficient to cause death in ordinary course of nature. In the meantime, private respondents were arrested. It was stated against them that they were last seen with the deceased by [ENTITY] PW-3 and also that they had made an extra judicial [CASE NUMBER] (O & M) -3- confession before [ENTITY] PW-9 admitting their guilt in killing [ENTITY]. The Investigating Officer recorded statements of the witnesses and on completion of investigation, final report was put in Court. Copies of the documents were supplied to the respondents- accused as per norms. The case was committed to the competent Court for trial vide order dated 22.7.2011. The respondents-accused were charge sheeted to which they pleaded not guilty and claimed trial. The prosecution produced 12 witnesses and also brought on record documentary evidence to prove its case.
On conclusion of the prosecution's evidence, statements of respondents-accused were recorded under [SECTION] [ACT] All the incriminating material appearing against them in the prosecution evidence, was put to them. They denied all those circumstances and pleaded their innocence. It was specifically stated by them that they have falsely been implicated on account of party faction in the village. They were taken into custody from their houses and later on they were shown to have been arrested on 12.4.2011. They led no defence in evidence. The trial Judge on appraisal of evidence has found them not guilty and accordingly they were acquitted of the charge framed against them. Hence, this application.
None was named in the FIR as an accused. It was a case of blind murder. Dead body was seen lying in the fields by a witness. To convict the accused-respondents, prosecution relied upon the statement made by [ENTITY] PW-3 stating that he had last seen both the accused with the deceased on 4.9.2010. The trial Judge [CASE NUMBER] (O & M) -4- noting lacuna in the deposition made by above witnesses, discarded it by giving valid reasons which reads as under :-
"From the perusal of the statement of PW3 [ENTITY], I find that his version of last seen cannot be believed. If he has seen the accused alongwith the deceased taking liquor together at night time, then the natural course for him was to disclose this fact to the police or to the brothers of the deceased or to the villagers regarding the same. There is no explanation why he kept mum till 17.1.2011. It becomes more suspicious when he came to village Billi Jharam on the very next day at about 9.00/9.30 a.m. after knowing the murder of [ENTITY]. He also did not disclose this fact of last seen theory to the police, who was present there. He also deposed that he had been visiting the Police Station in order to know about the progress of the case but he did not make any statement to the police. All this cross examination makes his statement doubtful. Further, I find that in his statement, he has stated that [ENTITY], deceased was his cousin. PW2 [ENTITY] has also stated that [ENTITY] is son of his paternal uncle. He also stated that [ENTITY] joined the cremation and had been attending all the condolence meetings in the house. During this period, police had been visiting the village. He and [ENTITY] and other family members had been meeting them but the assailants could not be traced as till that time, they had no suspicion about any body. Therefore, statement of PW3 [ENTITY] cannot be believed as [ENTITY] is not a reliable witness. There is nothing on the record why he has not disclosed this suspicion to any body else for about 4-5 months. PW2 [ENTITY] in the cross examination stated that the accused were arrested on 30.3.2011 and he had visited the Police Station to identify the assailants. This version also creates reasonable doubt in [CASE NUMBER] (O & M) -5- the prosecution version. As per prosecution, the accused were apprehended on 12.4.2011. This fact also creates reasonable doubt in the prosecution version. Further, I find that PW3 [ENTITY] was not knowing the assailants in the village as he himself stated that he has left the Village about 20 to 22 years back and was knowing only the old persons. No identification parade has been got conducted from him to identify the person."
The trial Court has also rightly not believed recovery of articles allegedly made by the Investigating officer from the respondents-accused. It was noted by the trial Judge that [ENTITY] PW-3 was closely related to the deceased despite that he had not disclosed his version to the police or to the complainant till 17.1.2011. His statement was recorded after about 4 months of the date of occurrence. Under such circumstances, it was rightly ignored. The trial Judge also ignored the testimony of [ENTITY] PW-9 regarding 'extra judicial confession' made by the accused before him, by giving valid reasons. It has been noted that the respondents- accused were not on friendly terms with the above witness. They belong to different communities and there was no occasion for the respondents-accused to make confessional statement before the above witness. The trial Judge has discarded statement made by the above witness by stating as under :-
"Firstly, the extra judicial confession as stated by PW9 was joint confession. Secondly, I find that the extra judicial confession is a weak type of evidence. Accused belongs to other village. PW9 belongs to jatt community, whereas [ENTITY], accused belongs to Balmiki community, while [CASE NUMBER] (O & M) -6- [ENTITY] belongs to Bazigar community, which means that they do not belong to the same community nor they were from the relations of the PW. Further, I find that these accused were not produced by PW9. As per his statement, both the accused came to him on 2.4.2011 at 11.00 a.m. A landline telephone is installed in his house and he has also one mobile phone but he has not informed the police immediately nor informed any body else. He stated that he did not inform the police before 9.4.2011 about the visiting of the accused to his house. He did not talk with any body about the confession made by the accused except the police. This statement creates reasonable doubt in the prosecution version whether the accused came to him or made any statement. The witness was also confronted with his statement, where it is recorded that he was Ex.Sarpanch at the time of confession of the accused and actually his wife [ENTITY] was Sarpanch on that day. The PW has stated that he has also produced 10/15 persons before the police in such like cases but the Investigating Officer has specifically denied that he has produced any such person. Further I find that conduct of this witness is also unnatural that he will not disclose any body including the police regarding the confession of the accused and there is no reason or ground has been given why he has not disclosed this fact for seven days to the police, especially, when he was having telephone at his residence and has mobile phone with him. His conduct that he has no disclosed this fact to any person in the village also creates doubt and is not believable."
It was case of the prosecution that the deceased after taking his dinner had gone for a walk. As per medical evidence on record, un-digested food was not found in the stomach of the deceased in the [CASE NUMBER] (O & M) -7- post mortem. This Court feels that the view taken by the trial Judge is perfectly justified and as per evidence 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:
[CASE NUMBER] (O & M) -8- "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."
[CASE NUMBER] (O & M) -9- 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 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 12.10.2012 [ENTITY]