IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Misc. No. A-1071-MA of 2010 ( O&M ) DATE OF DECISION : 15.12.2010 Joginder Singh .... APPLICANT Versus Gurjeet Singh and another ..... RESPONDENTS CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE JORA SINGH Present: Mr. P.P.S. Duggal, Advocate, for the applicant. * * * SATISH KUMAR MITTAL , J. Joginder Singh, who is complainant as well as father of deceased Kirpal Singh, has filed this appeal along with the instant application seeking leave to appeal against the judgment dated 1.2.2008, passed by the court of Sessions Judge, Ferozepur, whereby accused Gurjit Singh (respondent No.1 herein) has been acquitted of the charge framed against him. This appeal is barred by limitation and the applicant- complainant has also filed an application (Crl. Misc. No. 50395 of 2010) for condoning the delay of 845 days in filing the appeal. In this case, respondent No.1 Gurjit Singh was tried by the court of learned Sessions Judge, Ferozepur, under Section 302 IPC for committing the murder of Kirpal Singh son of the applicant-complainant. Against him, the prosecution was launched on the statement made by the Crl. Misc. No. A-1071-MA of 2010 -2- applicant-appellant. In brief, the case of the prosecution, which is based upon the statement of applicant Joginder Singh, is that his son Kirpal Singh used to sell vegetables in the village on his cycle. On 31.3.2005 at about 12 noon, Kirpal Singh went to see the festival of Peer Bali near his village, on his bicycle, but during the whole night, he did not return. The complainant and his relatives tried to search him, but they could not trace him. On the next day at 9 AM, they came to know that the dead body of Kirpal Singh was lying in the Pucca water course on the eastern side of the bridge of the canal, about one Kilometer away from the village. On receiving this information, the applicant and his son Krishan Singh went there and found the dead body of Kirpal Singh lying in the Pucca khal, adjoining the road. There were marks of injuries on the left side of his head and left cheek. His bicycle was also lying in the said khal. The matter was reported to the police, upon which the FIR was registered. The police visited the spot, prepared the inquest report (Ex.P6), lifted the blood stained earth and simple earth from the spot and took the same into possession vide memo Ex.P7. The bicycle of the deceased was also taken into possession vide separate memo Ex.P16. One pair of chappal, were also lifted from separate places from the spot, which were made into parcel, duly sealed by SI Darshan Singh, and were taken into possession vide memo Ex.P15. One Parna (piece of cloth) and one ball pen were also lifted, made into parcel, duly sealed and were taken into possession vide separate memo Ex.P9. The dead Crl. Misc. No. A-1071-MA of 2010 -3- body of deceased Kirpal Singh was sent to Civil Hospital, Abohar for post mortem examination. On 7.4.2005, the accused was arrested and in pursuance of his disclosure statement (Ex.P4), one wallet (purse) containing currency notes of ` 1,100/- with the photograph, alleged to be of deceased, was recovered from the fields of wheat near the boundary line, which was taken into possession vide memo Ex.P5. On 19.5.2005, moulds of footprints of the accused were taken in the Central Jail, Ferozepur, which were taken into possession vide memo Ex.P13. Moulds of two naked feet i.e. right and left were lifted from the spot and were taken into possession vide memo Ex.P8. After completion of investigation, challan was filed against respondent No.1-accused and he was charge sheeted, to which he did not plead guilty and claimed trial. In support of its case, the prosecution examined fourteen witnesses and after tendering into evidence reports of FSL (Ex.P25 and Ex.P26), the prosecution evidence was closed. In his statement under Section 313 Cr.P.C., respondent No.1- accused denied all the allegations appearing against him in the prosecution evidence and pleaded innocence. He pleaded that he along with other 4/5 persons was taken into custody by the police on the next day of the recovery of the dead body and he was compelled by the police to give his foot moulds and he has been falsely implicated in this case. However, he did not lead any evidnce in defence. Crl. Misc. No. A-1071-MA of 2010 -4- The trial court, after considering the evidence and the documents available on the record, has come to the conclusion that the the prosecution has miserably failed to prove the guilt of the accused beyond shadow of reasonable doubt, therefore, by giving benefit of doubt, he has been acquitted of the charge. Against the said judgment of acquittal, the complainant has filed this appeal with the instant application for grant of leave to appeal. We have heard learned counsel for the applicant and have gone through the impugned judgment. The case of the prosecution is based upon circumstantial evidence, wherein the prosecution has basically relied upon three types of circumstantial evidence, i.e. (i) moulds lifted from the place of occurrence are tallying with the moulds of footprints of the accused taken in the Central Jail, Ferozepur; (ii) the accused was last seen by PW.4 Sahib Singh with the deceased prior to the occurrence; and (iii) recovery of the wallet (purse) containing currency notes of ` 1,100/- and photograph of the accused in pursuance of his disclosure statement. The trial court has considered and appreciated the entire evidence in detail. Regarding the comparison of foot print moulds taken from the spot with that of the accused taken in the Central Jail, Ferozepur, it has been held that the foot print moulds at the spot were not secured. It has been further held that dead body of the deceased was spotted at 9 AM, but the foot print moulds from the spot were taken at 4 PM, and there were so Crl. Misc. No. A-1071-MA of 2010 -5- many persons present at the spot, therefore, the very presence of the foot print moulds on the spot becomes doubtful. In this regard, it has been further held that since the moulds lifted from the spot and those of the accused were not sealed, therefore, there was every possibility of their being tampered with. It has been further held that the accused was apprehended on the next day after the recovery of dead body. Therefore, it was very easy for the police to take the accused to the spot and lift the moulds from the spot. Regarding the last seen evidence of PW.4 Sahib Singh, it has been held by the trial court that this witness is not acquainted with the accused and the deceased, therefore, his statement to the effect that he had last seen the deceased and the accused together on 31.3.2005 in a fair is not believable. He has given the name of the accused as Surjit Singh instead of Gurjit Singh. Moreover, this witness has specifically admitted that his counsel had told him his statement which was written on that day. With regard to the third circumstantial evidence of recovery of the wallet (purse) containing currency notes of ` 1,100/- and photograph of the accused in pursuance of his disclosure statement, it has been rightly held by the trial court that recovery of the alleged wallet (purse) itself is doubtful. Regarding the motive, it has been held by the trial court that as per the case of the prosecution, the motive in this case is the amount of ` 1,100/-, and this motive is very weak, as if this was the motive for the accused to commit murder of the deceased, then there was no need for him to keep the wallet and photograph buried. Crl. Misc. No. A-1071-MA of 2010 -6- After perusing the impugned judgment and considering all the aforesaid factors, we are of the opinion that the trial court has rightly held that all these three types of circumstantial evidence have not been proved by the prosecution. PW.1 Dr. M.L. Madan opined that possibility of the injuries on the person of the deceased having suffered by a fall on solid hard surface cannot be ruled out and it is the case of the prosecution that dead body of the deceased was found lying in the Pucca khal, adjoining the road. In our opinion, the entire circumstantial evidence led by the prosecution, if taken cumulatively, does not form a complete chain, on the basis of which a definite conclusion, pointing towards the guilt of the accused, can be drawn. In order to convict an accused, the circumstantial evidence must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused, and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. On the basis of the evidence led by the prosecution in this case, we are unable to arrive at such a conclusion. Thus, in our opinion, the prosecution has failed to prove its case against the accused beyond shadow of a reasonable doubt and the view taken by the trial court is one of the possible view, which can be taken from the evidence led by the prosecution in the instant case. It cannot be said that the view taken by the trial court, while acquitting respondent No.1-accused, is totally perverse, which cannot be taken, at all, in the given circumstances. It is settled law that the judgment of acquittal is to be interfered only when there are compelling and Crl. Misc. No. A-1071-MA of 2010 -7- substantial reasons for doing so. It has been held by the Supreme Court in State of Rajasthan v. Sohan Lal and others, (2008) 2 SCC (Cri) 53 that the High Court should interfere in the judgment of acquittal only when it finds that the evidence on record clearly and absolutely indicate the guilt of the accused. The High Court should not interfere merely on the basis that from the evidence on record a different view as to the trial Court is possible. Thus, we do not find any ground to grant leave to appeal. Dismissed. ( SATISH KUMAR MITTAL ) JUDGE December 15, 2010 ( JORA SINGH ) ndj JUDGE