In the High Court of Punjab and Haryana, at Chandigarh [CASE NUMBER] (O&M) Date of Decision: 6.10.2012 [ENTITY] Applicant Versus [ENTITY] Respondent
CORAM: Hon'ble Mr. Justice [ENTITY].
Hon'ble Mr. Justice [ENTITY].
Present: Mr. [ENTITY], Additional Advocate General, Punjab, for the applicant.
[ENTITY], Judge The respondent was named as an accused in FIR No. 83 dated 21.10.1996, Police Station Bhadson, for commission of offence under [SECTION], [SECTION] and [SECTION] [ACT].
The process of investigation was started on a statement made by respondent-[ENTITY], wherein he has stated that he was working as a Salesman in Co-operative Agriculture Service Society (hereinafter referred to as "the Society") at village Saholi. He used to operate ration depot run by the Society from 9.00 A.M. to 5.00 P.M. On 19.10.1996 i.e. Saturday, he locked the store as per routine. On the next day, when he reached the depot, [ENTITY] informed him that shutter of the depot was lying open and articles from the store had been stolen. Detail of the missing articles was also given in his statement.
In the meantime, on 4.11.1996, information was received by Assistant Sub Inspector [ENTITY] that complainant [ENTITY] had got registered a false case to save himself, infact he himself had taken away/embezzled the articles from store of the Society, whereupon, respondent/accused was arrested. On 19.11.1996, he made a confessional statement. The Investigating Officer went to the spot and prepared a rough site plan with correct marginal notes. After recording the statements of all the witnesses and completing all the formalities, final report was put in the Court.
It was an allegation against the respondent that he had embezzled the articles worth ` 13,945.85. It has also come on record that he has also deposited some amount in the bank towards price of the missing articles. The respondent was charge sheeted to which he pleaded not guilty and claimed trial.
To prove its case, the prosecution produced 16 witnesses and also brought on record the documentary evidence. On completion of the prosecution evidence, statement of the accused/respondent was got recorded under [SECTION] [ACT] Incriminating evidence appearing on record was put to him which he denied, claimed innocence and pleaded false implication. It was his case that on account of serious party faction in the village, he had been named as an accused. It was specifically stated by him that during investigation, he was found innocent vide report dated 25.5.2007 and cancellation report was also filed in Court by the police. The Society had also started arbitration proceedings against him. He also led evidence in defence.
The trial Judge, on appraisal of evidence, vide judgment and order dated 14.3.2007 found him guilty for commission of offences under [SECTION], [SECTION] and [SECTION] [ACT]. He was sentenced to undergo rigorous imprisonment for a period of two years and a fine of ` 1,000 for the offence under [SECTION] & [SECTION] [ACT] and to undergo rigorous imprisonment for a period of three month for the offence under [SECTION] [ACT]. The respondent went in appeal which was accepted vide order dated 22.9.2011. Hence, this application.
The Appellate Court below found that after conducting an enquiry through a senior police official, cancellation report was put in Court by the Investigating Agency. The Appellate Court has given valid reasons in paragraph No. 16 of its judgment to say that alleged recovery of missing articles, effected from the respondent, was doubtful. To say so, reference has been made to the statement made by Assistant Sub Inspector [ENTITY] (PW.2). As per his statement, 25 packets of ghee were shown to have been recovered from the respondent, whereas in the Court, the above witness stated that only five pouches of 1 liter ghee were recovered. It has also come on record that date of manufacturing on the pouches was mentioned as September, 2000, whereas the recovery was found to have been effected in the year 1996. The Appellate Court has rightly come to a conclusion that the recovery was foisted upon the respondent. By giving valid reasons in paragraph No. 17 of the judgment under challenge, the Appellate Court has rightly discarded the depositions made by the prosecution witnesses. The Appellate Court, in the concluding paragraphs of the impugned judgment, has observed as under:-
"23. Therefore, from the above evidence, it emerges that the prosecution has implicated the accused in this case for the reason that there was some shortage during audit in the year 1995-1996 and 1996-1997. Prosecution has also produced receipt dated 7.11.1996 regarding deposit of Rs.5708/- by the accused, but as mentioned above, the name of [ENTITY] as accused surfaced on 15.11.1996 after recording statement of [ENTITY]. The audit notes were already in existence. The accused has already undertaken to deposit amount by 23.6.1994, therefore, the accused was already aware of the fact that he has been found liable to make good the shortage. In these circumstances, the accused was having no reason to manipulate theft, as his liability was not going to be exonerated by this theft. More over no report was got registered by the departmental authorities for any shortage detected during audit notes. The prosecution witnesses have also produced the award which prove that the department has already taken appropriate action against accused [ENTITY] for shortage of the store articles."
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 error in passing the judgment on the part of the trial Court which may necessitate interference by this Court.
This application is also barred by 174 days in filing. No ground is made out to condone the delay in filing the application as well.
Hence, both the applications viz. [CASE NUMBER] and [CASE NUMBER] are dismissed.
$ ([ENTITY]) Judge $ ([ENTITY]) Judge October 6, 2012 "DK"