[CASE NUMBER] -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRM No. 31342 of 2012 in/and [CASE NUMBER] Date of decision : 27.7.2012 [ENTITY] Applicant/Appellant Vs. [ENTITY] and others Respondents CORAM: Hon'ble Mr. Justice [ENTITY], Acting Chief Justice Hon'ble Mr. Justice [ENTITY] Present:- Mr. [ENTITY], Advocate, for the applicant-appellant
[ENTITY], Acting Chief Justice [CASE NUMBER] Allowed as prayed for.
[CASE NUMBER] This application has been filed under [SECTION] [ACT] seeking leave to file an appeal against judgment dated 14.11.2011 acquitting respondents No. 2 and 3 of the charge framed against them. Respondents No.2 and 3 were arrayed as accused in FIR No. 75 registered on 23.7.2007 for commission of offences under [SECTION], [SECTION] [ACT], Police Station Division No.2, Pathankot.
Heard.
It was an allegation against the accused that they had kidnapped and murdered [ENTITY]-wife of the complainant. The trial Judge has noted the following facts regarding case of the prosecution :-
"that on 23.7.2007 the SI/SHO along with other police [CASE NUMBER] -2- officials regarding patrolling was present at CIA Chowk, Pathankot. Complainant [ENTITY] along with [ENTITY] son of [ENTITY], resident of Patel Chowk, Pathankot, met them and got recorded his statement that he was running a shop under the name and style of M/s Khanna Sales Corporation at Railway Road, Pathankot and his wife [ENTITY], aged about 44 years serving in Telephone Department in the mobile section. On 22.7.2007 it was a holiday for her, but due to inaugural ceremony of Computer Centre of the son of her senior officer at Mission Road, Pathankot, at about 1.00 P.M. she went on her scooter Activa bearing No. PB-35G-1137 to attend the said ceremony at the house of [ENTITY]. On returning back at about 2.15 P.M. his sister-in-law (sallehaar/wife of his brother-in-law) wife of [ENTITY], who was sitting at Sagar Electronics, Kali Mata Mandir Road, Railway Line, she made wish but she not return back to house. At about 4.00 P.M. he along with his brother-in-law [ENTITY] son of [ENTITY], resident of Patel Chowk, Pathankot, started search of her, then in front of the kothi of [ENTITY], Chartered Accountant, Patel Chowk, they found scooter of her wife, which was unlocked but without key. Regarding which they inquired from the nearby shopkeepers and the relatives also but no all in vain. Thereafter on 22.7.2007 they made complaint at Police Station Division No.2, Pathankot, regarding missing of his wife. He has suspicion that [ENTITY] son of [ENTITY], resident of backside Venus Hotel, Pathankot and [ENTITY] son of late Shri [ENTITY], resident of Mohalla Aryian with common intention kidnapped his wife [ENTITY] or they got kidnapped her from sone one else. The grudge is that the daughter-in-law, namely, [ENTITY]-wife of [ENTITY], daughter of [ENTITY], resident of Gurdaspur had illicit relation [CASE NUMBER] -3- with [ENTITY] and about 15/20 days prior she ran away with said [ENTITY] and in this connection they informed the parents of said [ENTITY] and they threatened and also quarrelled with us and they also threatened and told his wife ([ENTITY]) that she has to be ready for the result of the same and due to said grudge, above said accused themselves or through some one kidnapped his wife ([ENTITY])."
On complaint the case was registered under [SECTION] read with [SECTION] [ACT] on 23.7.2007. Dead body of [ENTITY] was recovered on 19.8.2008, whereupon [SECTION] were added in the FIR.
It is necessary to mention here that [ENTITY] and [ENTITY] against whom, initially suspicion was raised, were found innocent during investigation.
Post mortem on the dead body was got conducted. Death shown to have been caused due to a cut on the neck of [ENTITY] about 2/4 weeks earlier to the discovery of dead body. After DNA Test, identity of the deceased was established. It is case of the prosecution that on 25.6.2010 both the respondents; namely, [ENTITY] and [ENTITY] made an extra judicial confession for committing murder of [ENTITY] on 22.7.2007, before [ENTITY], in a shop and thereafter, dead body was thrown into the bushes near Village Meerthal from where it was recovered.
On 27.6.2010 statement of [ENTITY] was recorded stating that on 22.7.2007 he had seen [ENTITY] entering into a [CASE NUMBER] -4- shop being run by respondent No.2. Both the accused were arrested on 29.7.2010. The investigating Officer, in the meantime, recorded statements of all the witnesses. On completion of investigation, final report was put in Court. Copies of the documents were supplied to the accused as per norms. Case was committed to the competent Court for trial on 24.9.2010. The accused were charge sheeted under [SECTION], [SECTION] [ACT] to which they pleaded not guilty and claimed trial. Prosecution produced 20 witnesses and also brought on record documentary evidence to prove its case.
On conclusion of the prosecution's evidence, separate statements of accused were recorded under [SECTION] [ACT] Incriminating material existing on record was put to them, which they denied, claimed innocence and false implication. They also led evidence in defence.
[ENTITY] (PW-1), before whom it was alleged that both the respondents had made an extra judicial confession, did not support case of the prosecution.
It is a case of blind murder. There is no eye witness account to the occurrence. Case of the prosecution rests merely on circumstantial evidence. In such like situation, the Court is supposed to look into the matter in a threadbare manner separating truth from falsehood. The same was done in this case by the trial judge. The trial Judge has rightly noted that both the respondents were arrayed as accused only after recording statement of [ENTITY] on 26.6.2010. Above witness failed to support case of the prosecution.
[CASE NUMBER] -5- Despite cross examination, the prosecution failed to get support to its case. [ENTITY]-complainant- (PW-2 - husband of the deceased) in the witness box has stated that the respondents No.2 and 3 have not committed murder of his wife. In the same fashion [ENTITY] (PW-16) has also not supported case of the prosecution. The statement made by PW-11 [ENTITY] (brother of the deceased) was also rightly found to be incorrect. The story of making extra judicial confession before him was rightly termed as concocted one. It was also noted by the trial Court that the statement made by the accused was made in police custody which, as per law, is not admissible. The recoveries etc. were also rightly disbelieved by the trial Court. This Court feels that the trial Judge has properly appreciated the evidence on record while giving verdict of acquittal in favour of the respondents.
This Court feels that order passed by the trial Court 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 '[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 [CASE NUMBER] -7- 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 [CASE NUMBER] -8- 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.
The application is also barred by 107 days delay in filing the appeal. Explanation furnished is flimsy. No ground is made out to condone delay as well.
Both applications are dismissed.
([ENTITY]) Acting Chief Justice ([ENTITY]) Judge 27.7.2012 Ashwani