IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH [CASE NUMBER] Date of decision: 15.12.2011 [ENTITY] Applicant versus [ENTITY] and another Respondents CORAM: Hon'ble Mr.Justice [ENTITY] Hon'ble Mrs.Justice [ENTITY] Present: Mr.[ENTITY], Advocate for the applicant [ENTITY], J.
This application has been filed under [SECTION] [ACT] with a prayer to grant leave to file an appeal against judgment dated 14.6.2011. Vide the impugned judgment, both the respondents were acquitted of the charges framed against them.
Regarding death of [ENTITY] on 30.5.2002, an FIR No.162 was recorded on 31.5.2002 against the respondents. Process of law was set in motion on a statement made by [ENTITY] son of [ENTITY]. The police, after investigation, found the accused innocent and accordingly, cancellation report was filed in Court. A protest application was filed by above [ENTITY], which led to criminal prosecution of the respondents.
The trial Court has noted the following facts regarding case of the complainant as projected by him in his protest application:-
"that on 30.5.2002 he was present at his house. It was around 9.30 p.m. when [ENTITY] son of [ENTITY] came to his house and informed him that his nephew namely; [ENTITY] son of [ENTITY] was lying at [ENTITY] [ENTITY] road near New Diwana turn, who was crying. On that information he reached at the spot on his tractor and found that [ENTITY] was lying on the ground and [ENTITY] son of [ENTITY] was giving him water and on other side of road cycle of said [ENTITY] was lying. Complainant and [ENTITY] put [ENTITY] on tractor. On inquiry, [ENTITY] told that accused [ENTITY] son of [ENTITY] and [ENTITY], Commission Agent, [ENTITY], [ENTITY] had administered some poison in the liquor to him at Kakrala Nala Bridge and he was abusing both the accused. He was intending to take him to village and then to Hospital after arranging jeep etc. when [ENTITY] and [ENTITY] reached over there and said [ENTITY] in dangerous condition was taken to Mission Hospital, [ENTITY] in the jeep of [ENTITY] son of [ENTITY] but there Dr.[ENTITY] of Mission Hospital refused to admit or give treatment and, thereafter, [ENTITY] was taken to Civil Hospital, [ENTITY]. After ten minutes of reaching in Civil Hospital, [ENTITY], [ENTITY] died at 11.30 p.m. [ENTITY] brother of [ENTITY] was also present in the hospital. Also when [ENTITY] was being taken to the hospital, he was stating as to what wrong he had done to the aforesaid accused and why they administered poison to him in the liquor. Thereafter information was given to the police and case was registered. The police of [ENTITY] visited the village of the complainant and also obtained the signatures and thumb impressions of the villagers and complainant on some blank papers and did not ask even a single question from the complainant and other witnesses about the occurrence. The accused were taken to police station on 30.5.2002 but they were released on the very next day due to political interference as the accused were rich persons and they had political approach. The case was not investigated properly by the police. The police recorded statement of some henchman of the accused and on the basis of those statements cancellation report was prepared and submitted in the court."
It is also on record that during pendency of trial, an application was moved by the applicant [ENTITY] to substitute her as a complainant in place of [ENTITY]. That application was allowed by the trial Court vide order dated 25.8.2006.
To prove its case, the complainant produced five witnesses and also brought on record documentary evidence. On perusal of evidence on record, the trial Magistrate summoned the respondents to face trial vide order dated 13.3.2010 for commission of an offence punishable under [SECTION] [ACT]. The respondents were enlarged on anticipatory bail by the competent Court. The case was committed for trial on 5.6.2010. The respondents were charge sheeted to which they pleaded not guilty and claimed trial. The prosecution produced six witnesses and also brought on record documentary evidence to prove its case. On conclusion of prosecution's evidence, statements of the respondents were recorded under [SECTION] [ACT] They claimed innocence and pleaded not guilty. It was further stated by them that [ENTITY] deceased used to remain under depression due to his family circumstances and also he was under debt which led him to commit suicide. They also produced evidence in defence.
The trial Court on appraisal of evidence, came to a conclusion that the prosecution has failed to prove its case. Accordingly, giving benefit of doubt, the respondents were acquitted of the charges framed against them. Hence, this application.
Counsel for the applicant has vehemently contended that death of [ENTITY] was unnatural. He was taken to the hospital by [ENTITY] (PW2) where he died. PW3 [ENTITY] applicant had stated that [ENTITY] was administered poison by the respondents by mixing it in the liquor. It was so said by [ENTITY] to [ENTITY] (PW2). Counsel argued that the trial Judge has misread the evidence when passing the judgment under challenge. Prayer is to allow this application, grant leave to file an appeal and to set aside the judgment under challenge, ordering conviction of the respondents for the offence with which they were charges.
This Court after hearing counsel for the applicant is not inclined to interfere in the judgment under challenge.
It is a case of blind murder. Nobody has seen the respondents committing any criminal act upon the deceased. As per case of the prosecution [ENTITY] deceased was found lying on the ground by PW1 [ENTITY], who intimated [ENTITY] (PW2). PW2 reached at the spot and took [ENTITY] to the hospital. In the witness box, PW2 [ENTITY] has specifically stated that [ENTITY] was lying unconscious on [ENTITY]-[ENTITY] road and he had not disclosed anything to him when he was shifted to the hospital. This version of PW4 is contrary to his protest application, wherein it was stated that [ENTITY] informed him that he was administered poison by the respondents. This witness was declared hostile and cross-examined by the Public Prosecutor. In the same manner, PW5 [ENTITY] has failed to support case of the prosecution.
As per deposition made by PW4 Dr.[ENTITY], death was the result of poison aluminium phosphide. It was case of the prosecution that above poison was mixed in the liquor and given to [ENTITY] deceased. There is nothing on record to show that at the time of post-mortem examination, any smell of alcohol was coming out from the dead body. Furthermore, DW2 Dr. [ENTITY], Chemical Examiner has specifically stated that above poison, when mixed with liquor or came in contact with moisture emits gases and foul smell. It is not possible to consume the same. DW1 [ENTITY] has deposed that [ENTITY] used to be under depression on account of family circumstances and he had committed suicide. In a meeting of the Gram Panchayat on 29.5.2007, it was also so said. DW3 [ENTITY] has also supported version given by [ENTITY] (DW1).
In the face of above evidence on record, the Court is not inclined to pass verdict of guilty against the respondents on statements made by [ENTITY] (PW3) and [ENTITY] (PW6). PW3 had stated that she was intimated by [ENTITY] (PW2) that poison was given to [ENTITY] deceased by the respondents whereas it was not so said by [ENTITY] (PW2). Out of the prosecution witnesses, only [ENTITY] (PW6) has stated that he met the deceased in the hospital and he told him that poison was given to him by the respondents. The solitary statement of [ENTITY] cannot be believed especially, when [ENTITY] (PW2), who took the deceased to the hospital, had stated that the deceased was unconscious and did not make any statement. It has also come on record that [ENTITY] (PW6) has also some dispute regarding payment of money with one of the respondents. Order passed is perfectly as per law. No interference is possible.
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], 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:
"8) It is clear that in an appeal against acquittal in the absence of perversity in the judgment and order, interference by this Court exercising its extraordinary jurisdiction, is not warranted. However, if the appeal is heard by an appellate court, being the final court of fact, is fully competent to re-
appreciate, reconsider and review the evidence and take its own decision. In other words, law does not prescribe any limitation, restriction or condition on exercise of such power and the appellate court is free to arrive at its own conclusion keeping in mind that acquittal provides for presumption in favour of the accused. The presumption of innocence is available to the person and in criminal jurisprudence every person is presumed to be innocent unless he is proved guilty by the competent court. If two reasonable views are possible on the basis of the evidence on record, the appellate court should not disturb the findings of acquittal. There is no limitation on the part of the appellate court to review the evidence upon which the order of acquittal is found and to come to its own conclusion. The appellate court can also review the conclusion arrived at by the trial Court with respect to both facts and law. While dealing with the appeal against acquittal preferred by the State, it is the duty of the appellate court to marshal the entire evidence on record and only by giving cogent and adequate reasons set aside the judgment of acquittal. 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." In this case, misreading of evidence by the trial Court is not indicated.
Dismissed.
([ENTITY]) Judge 15.12.2011 ([ENTITY]) gk Judge