IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Misc.No.A-609-MA of 2011 Date of decision: 14.10.2011 State of Haryana …..Applicant versus Satbir Singh ……Respondent CORAM: Hon’ble Mr.Justice Jasbir Singh Hon’ble Mrs.Justice Sabina Present: Mr.Pardeep Singh Poonia, Addl.A.G. Haryana Jasbir Singh, J. This application has been filed under Section 378(3) with a prayer for grant of leave to file an appeal against judgment of acquittal dated 21.4.2011, passed by the Additional Sessions Judge at Sirsa. On the basis of an FIR No.3 dated 6.1.2010, respondent –Satbir Singh was charge sheeted to face trial for commission of offences under Sections 363, 366, 376 IPC. It is story of the prosecution that on 6.1.2010, ESI Dharambir (PW13) was posted with PS Ding and on the said date, he alongwith Krishan Kumar EHC was present at Ding Turn for investigation of the case bearing FIR No.2/10, under Section 392 IPC and 25 of the Arms Act registered with Police Station Ding. In the meanwhile, complainant Milakh Raj (PW2) met ESI Dharambir and produced a written complaint Ex.P3 before him, which was addressed to SHO, Police Station Ding. The said written complaint disclosed the commission of cognizable offences punishable under Section 363 and 366 IPC and accordingly, ESI Dharambir Crl.Misc.No.A-609-MA of 2011 made endorsement Ex.P3/A on the foot of the written application Ex.P3 and sent the application to the police station Ding through Krishan Kumar EHC for registration of an FIR. At the police station, formal FIR Ex.P22 was registered by ASI Raj Mahender (PW6) and said ASI Raj Mahender also made endorsement Ex.P23 on the application Ex.P3. In the written application Ex.P3 it was mentioned by the complainant Milakh Raj that he is a resident of village Patli Dabar and was running a grocery shop. The complainant stated that his eldest daughter Suman is student of 10+1 standard, his daughter, younger to her (name not being disclosed) was a student of 10th standard and she was aged about 16 years. The complainant also mentioned in the written application Ex.P3 that his two sons Harpreet and Deepak were younger to his daughters. It was disclosed by him that on 6.1.2010 at about 8.00 AM, his above said two daughters had gone to Senior Secondary Schook, Patil Dabar for studying. After the School hours at 2.00 PM, his daughter Suman returned home but his younger daughter did not come back. Suman told the complainant Milakh Raj that her sister had accompanied her upto the class room in the morning however after the closure of the school, she failed to locate her. The classmates of the said daughter of the complainant apprised Suman that the girl had not attended any class and was missing since morning. Thereafter, the complainant made searches for his younger daughter, but she could not be located. On inquiries, it was revealed to the complainant that accused Satbir Singh alias Alla son of Maan Singh, resident of village Patli Dabar, aged about 18-19 years was also missing from his house. The complainant also got mentioned in the complaint Ex.P3 that he had reason to believe that his younger daughter has been enticed away by the accused and request for taking action against the accused was made. After sending 2 Crl.Misc.No.A-609-MA of 2011 the complaint Ex.P3 to the police station, ESI Dharambir accompanied by the complainant Milakh Raj, went to village Patli Dabar, where he recorded the statement of Suman as well as wife of the complainant. The search for the accused was carried out but without success. The investigating officer ESI Dharambir (PW13) then recorded statements of the witnesses and continued to search for the accused/respondent. He also took into his possession birth certificate of the younger daughter of the complainant against a recovery memo. Respondent alongwith the prosecutrix was arrested on 20.1.2010 by SHO Ram Roop (PW11). On information supplied by the prosecutrix, offence under Section 376 IPC was added into the FIR. The investigating officer completed the investigation as per norms, got the prosecutrix medico-legally examined. Statement of the prosecutrix was also got recorded under Section 364 Cr.P.C. before JMIC at Sirsa on 21.1.2010. On completion of investigation, final report was put in Court under Section 173 Cr.P.C. Copies of the documents were supplied to the respondent. The respondent was charge sheeted for commission of offences under Sections 363, 366, 376 IPC to which he pleaded not guilty and claimed trial. The prosecution produced fifteen witnesses and also brought on record documentary evidence to prove its case. On conclusion of prosecution’s evidence, statement of the respondent was recorded under Section 313 Cr.P.C. Incriminating material existing on record was put to him, which he denied, claimed innocence and false implication. It was further stated by him that the prosecutrix had a love affair with him and she accompanied the respondent of her own sweet will. It was further averred that, as told by the prosecutrix, she was more than 18 years of age. He also deposed that he along with the prosecutrix was apprehended at Ganganagar 3 Crl.Misc.No.A-609-MA of 2011 Railway Station on 19.1.2010. It was also stated that the prosecutrix had performed marriage with him in a Gurdwara at Delhi and they lived as husband and wife at various places. The respondent is a member of scheduled caste community and as per his case on account of that, he has falsely been implicated in the present case. He also led evidence in defence. The trial Court on appraisal of evidence, came to a conclusion that the prosecution has failed to prove guilt of the respondent and accordingly, by giving him benefit of doubt, he was acquitted of the charges framed against him. It was noted by the trial Court that the prosecutrix had eloped with the respondent on 6.1.2010. Both had gone to different places and ultimately, they were apprehended on 20.1.2010. In her statement before JMIC at Sirsa, recorded under Section 164 Cr.P.C. (Ex.P2), the prosecutrix has specifically stated that she was in deep love with the respondent and want to spend her life with him. It was further stated by her that she had gone with the respondent of her own free will to Sirsa and then they had gone to Dabwali, Hanumangarh and to Delhi, where they stayed at Gurdwara Shish Ganj. Thereafter, both had gone to Ganganagar, where they were apprehended by the police. She had further stated that no immoral act was committed with her by the respondent. She further deposed that her parents were not willing to perform her marriage with the accused, she of her own had performed marriage with the respondent and her age is more than 18 years. However, the prosecutrix when appearing in the witness box had taken a summer-salt and denied that she had made a statement (Ex.P2) before a magistrate. By taking note of above facts, the trial Court rightly disbelieved story of the prosecution that the prosecutrix was taken from one place to another under a threat. It has also come on record that before going 4 Crl.Misc.No.A-609-MA of 2011 away with the respondent, the prosecutrix had written many letters to the respondent (mark D1 to mark D13). The trial Court rightly came to a conclusion that the prosecutrix was more than 16 years of age at the time of alleged occurrence and she had gone with the respondent with her consent. The trial Court has also not punished the respondent for violation of Sections 363 and 366 IPC, by noting discrepancies and improvements made by the prosecution in its story. Finding in that regard has been given in paragraph Nos.19 to 22 of the judgment under challenge. This Court is of the opinion that in view of above, no interference is called for in the impugned judgment. The view formed by the trial Court was justified and is as per evidence on record. Their Lordships of the Supreme Court in Allarakha K.Mansuri v. State of Gujarat, 2002(1) RCR (Criminal) 748, 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 State of Punjab 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 Ashok Kumar v. State of Rajasthan, 1991(1) SCC 166, 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.” 5 Crl.Misc.No.A-609-MA of 2011 Similarly, in State of Goa v. Sanjay Thakran (2007) 3 SCC 755 and in Chandrappa v. State of Karnataka, (2007) 4 SCC 415, 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 Mrinal Das & others v. The State of Tripura, (Criminal Appeal No. 1719 of 2011), 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: “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 6 Crl.Misc.No.A-609-MA of 2011 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.” Counsel for the applicant has failed to indicate any misreading of evidence on the part of the trial Court or any other factual error in the judgment, which may necessitate any interference by this Court. The opinion expressed by the trial Court was possible in view of evidence on record. In view of above, no case is made out for interference. Dismissed. (Jasbir Singh) Judge 14.10.2011 (Sabina) gk Judge 7