CRM A-1008-MA of 2011 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM -A 1008-MA of 2011 (O&M) Date of Decision: April 29, 2013 State of Haryana ... Petitioner Versus Kabal Singh and others ... Respondents CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH 1) Whether Reporters of the local papers may be allowed to see the judgment? 2) To be referred to the Reporters or not? 3) Whether the judgment should be reported in the Digest? Present: Mr. Sandeep S. Mann, Sr. DAG, Haryana, for the petitioner. None for the respondents. Paramjeet Singh, J. CRM No.66928 of 2011 For the reasons indicated in the Crl. Misc. application, the same is allowed. Delay of 81 days in filing the appeal is condoned. CRA S-1008-MA of 2011 The instant application has been filed under Section 378(3) Cr.P.C. for grant of leave to appeal against the impugned judgment dated 28.05.2011 passed by the learned Additional Sessions Judge, Kurukshetra, whereby respondents have been acquitted of the charge framed against CRM A-1008-MA of 2011 (O&M) 2 them under Sections 399 and 402 of the Indian Penal Code. Brief facts of the case as recorded in the impugned judgment are as under:- “According to complainant Balbir Singh on 11.4.2010 he, along with ASI Jagdish Chand, ASI Kuldeep Singh, HC Subhash Chand, HC Jaspal Singh, Constable Sushil Kumar, Constable Mandeep Singh, was present at bus stand Teora G.T. Road in Govt. vehicle No. HR-65-2056 driven by Constable Inder Singh, in connection with patrolling and detecting crime, when ASI Daljit Singh along with ASI Ranbir Singh, ASI Dharambir Singh, HC Jagpal Singh, Constable Dharam Singh and Constable Parveen Kumar came from Shahbad side in Govt. vehicle No. HR-07J-3806 driven by EHC Ram Kumar and when he was talking to ASI Daljit Singh, then secret informer met him and the secret informer informed him that Kabal Singh resident of Mandiphal, Manjit Singh alias Bobby resident of Agra, Jagtar Singh alias Ram Sarif resident of Jidda, Nihal Singh alias Hadamba resident of Jalandhar and Tarsem Singh alias Kaka resident of Delhi were habitual of looting the trucks loaded with iron scrap on G.T. Road and earlier also they had committed such offences and they were present at Jhilmil Dhaba in the area of Teroa, which was lying abandoned and they were planning to loot the truck of iron scrap on the strength of weapons. If a raid was conducted, then, they could be caught red handed. The information was believable. The persons of public were tried to be joined in the raiding party but they showed their compulsion. Thereafter, Balbir Singh SI prepared four raiding parties. ASI Daljit Singh, ASI Ranbir Singh and EHC Jagpal Singh were sent to southern side of dhaba. ASI Dharambir Singh, Constable Dharam Singh and Constable Parveen CRM A-1008-MA of 2011 (O&M) 3 Singh was sent towards eastern side of dhaba and Balbir Singh SI himself along with ASI Jagdish Chander and ASI Kuldip Singh went towards northern side of dhaba and remaining officials were sent on western side of dhaba towards G.T. Road along with vehicles and the dhaba was cordoned. Thereafter, SI Balbir Singh went near the dhaba without making a noise and he heard the conversation of the persons sitting inside the dhaba. One of the person was stating that whatever duty to loot the truck of scrap would be assigned by Kabal Singh to the one of them, that would be fulfilled by that person. Thereafter, Kabal Singh stated that generally the trucks of scrap were stopped by drivers at the dhabas situated in front of bus stand Teora for taking meals and as soon as the truck of scrap would depart from the dhaba then, they would take a lift and would sit in the truck. After travelling some distance, he would pass a signal, upon which, the driver would be overpowered and Tarsem would take the driver seat and rest of them would tie the truck driver and in case any resistance was put by the driver, then, he would try to overawe the driver with his pistol and in case of any need, he would open fire also. Thereafter on the way, the driver would be thrown at some abandoned place and they would take the truck to Delhi and would sell the scrap and truck and would share the booty. After hearing the conversation, SI Balbir Singh raised a lalkara that those persons had been surrounded by the police and their conversation had been heard and they were asked to hand over themselves to the police. On hearing the lalkara the accused persons started fleeing but they were apprehended by him with the help of his companions. The person apprehended by SI Balbir Singh disclosed his name Kabal Singh son of Darshan Singh and he was carrying a country made pistol CRM A-1008-MA of 2011 (O&M) 4 315 bore, which was loaded. The person apprehended by ASI Jagdish disclosed his name Manjit Singh alias Bobby son of Gurdev Singh and he was carrying a sword. The person apprehended by ASI Kuldip Singh disclosed his name Jagtar Singh alias Ram Sarif and he was carrying a danda in his hand. The person apprehended by ASI Daljit Singh disclosed his name Nihal Singh alias Sunny alias Haddamba son of Sukhdev Singh and he was carrying a sword in his hand. The person apprehended by ASI Ranbir Singh disclosed his name Tarsem Singh alias Kala son of Hardev Singh and he was carrying a Gudala whose handle was of wood. The sketches of the weapons were prepared and the same were taken into police possession vide recovery memo.....” After completion of investigation, challan against the accused was presented in the Court. Finding prima facie case against the accused- respondents under Sections 399 and 402 of the Indian Penal Code and 25 of the Arms Act, 1959, they were charge-sheeted to which they pleaded not guilty and claimed trial. The prosecution, in order to prove its case, examined 10 prosecution witnesses. Thereafter, statements of the accused were recorded under Section 313 Cr.P.C. All the incriminating circumstances were put to the accused. They denied the same and pleaded innocence. The learned Trial Court, after appreciating the evidence, acquitted the accused-respondents of the charge framed against them vide impugned judgment dated 28.05.2011. Hence, this application for grant of leave to appeal. CRM A-1008-MA of 2011 (O&M) 5 I have heard learned State counsel and gone through the impugned judgment. The learned trial Court, after appreciating the evidence on record, observed as under:- “18. As per the case of prosecution, a secret information was received at bus stand Teora by Balbir Singh SI PW10 when he was talking to ASI Daljit Singh and secret informer told SI Balbir Singh that five persons namely; Kabal Singh resident of Mandiphal, Manjit Singh alias Bobby resident of Agra, Jagtar Singh alias Ram Sarif resident of Jidda, Nihal Singh alias Hadamba resident of Jalandhar and Tarsem Singh alias Kala resident of Delhi, were sitting in an abandoned Jhilmil Dhaba and were planning to rob a truck of scrap and PW10 in his cross-examination has admitted that he received secret information at 7.30 P.M. and the place was raised and accused were over powered at 8.00 P.M. Thus at least 25/30 minutes must have been consumed in receiving the information and then making efforts to join independent witnesses and thereafter, preparing raiding parties by SI Balbir Singh under himself, under ASI Daljit Singh and under ASI Dharambir and fourth party consisting of other members of the police, which were deputed on the western side of dhaba and they must have taken time in reaching Jhilmil Dhaba after they left the bus stand Teora for the place at Jhilmil Dhaba and after parking the vehicles,SI Balbir Singh and his teams must have surrounded Jhilmil Dhaba and enough time must have been consumed in this process and the informed who passed the information to SI Balbir Singh must have taken some time in hearing planning of accused persons and thereafter, passing that information to SI Balbir Singh, CRM A-1008-MA of 2011 (O&M) 6 who was standing with his police party at bus stand Teora. PW-8 has stated that he heard the conversation going on amongst them while sitting inside the dhaba. According to him one of the accused was saying that whatever work would be allotted by accused Kabal Singh t others, they would obey the same. He further heard that the vehicles which take halt at Dhaba in the area of Teora Theh and if any truck loaded with scrap would start from that Dhabad, Tarsem would drive the truck and others would help in trying the driver and if the driver would make protest then Kabal Singh would show country made pistol to him and thereafter, he gave a lalkara that they had been surrounded. So, for this small planning, the accused would not time and again repeat the conversation and for such planning 5/10 minutes were enough. The accused were not expected to wait for arrival of the police party and it is not expected that only after arrival of police they would said that the truck of scrap would be looted under the leadership of Kabal Singh. So, version of the prosecution does not appear to be probable. Moreover, three accused persons are from Punjab, one is from Agra and one is from Delhi and it is not expected that they would come together to make a plan in the area of Village Teora. 19. Further more recovery of weapons has been shown to be effected from the accused persons on 11.4.2010 and on 12.4.2010 they were interrogated and they suffered their disclosure statements i.e. Ex.P19 by Kabal Singh, Ex.P20 by Nihal Singh, Ex.P21 by Manjit Singh, Ex.P22 by Jagtar Singh and Ex.P23 by Tarsem Singh but no recovery has been shown to be effected in pursuance of those disclosure statements. Even the truck number which was alleged to be robbed as per disclosure statement one and half month prior to the said incident has not been tried to be recovered. Also the driver of CRM A-1008-MA of 2011 (O&M) 7 that truck has not been joined in the investigation to ascertain the truth. So, mere disclosure statement made before the police is not admissible as per Section 25 of the Indian Evidence Act, 1872. 20. The material witness examined in this case are PW6 SI Jagdish Chander, PW9 ASI Jagdish Kumar and PW10 SI Balbir Singh. PW9 SI Jagdish Kumar was asked to identify accused Manjit Singh but this witness identified Nihal Singh as Manjit Singh, which further shows that disclosure statements Ex.P19 to Ex.P23 are merely a paper work and no disclosure statement was ever suffered by the accused persons. 21. Though PW10 SI Balbir Singh the Investigating Officer of this case has stated that he tried to join independent witnesses from the public at the time of conducting raid but persons of public showed their compulsion but this version does not appear to be truthful as this witness has fairly admitted that he did not mention the names of those persons in his case diary who showed their compulsion. So, version of PW10 that he tried to join independent witness from the public cannot be believed and is an after thought. Further in this case, it has been stated by PW6 Jagdish Chander SI that accused were apprehended at 8.15 p.m. and sketches of weapons recovered from the accused as well as recovery memos were prepared at 8.45 p.m. A perusal of ruqqa which runs in more than three pages and other written papers like recovery memos, sketches, site plan etc. can be completed within a span of 30-45 minutes. 22. Even otherwise, the witnesses of prosecution does not appear to be reliable, truthful and believable because of their contradictory versions. 23. In this case, after alleged recovery of weapons, i.e. CRM A-1008-MA of 2011 (O&M) 8 country made pistol from Kabal Singh, swords from Manjit Singh and Nihal Singh, Gudala from Tarsem Singh and danda from Jagtar Singh, these weapons were returned into parcels of clothes and according to PW6 there was cloth in the investigating bag and parcel from that cloth was got prepared by SI Balbir Singh after sending Dharam Singh for that purpose and Dharam Singh was sent immediately when the accused were apprehended and Dharam Singh had come back at the spot at around 9.00 p.m. but Dharam Singh has not been examined and it is not expected that Dharam Singh would go from abandoned place and would be able to locate the tailor in that area during night time and would got stitched the parcels immediately and then would come back on the spot within one hour. So, version of PW6 on this court is not trustworthy. Even otherwise, PW10 SI Balbir Singh has made a contradictory statement as according to him Dharam Singh never left the spot and he remained throughout at the spot with them. Also according to this witness clothes were already in the investigating bag. So, the testimony of this witness PW6 and PW10 who are star witnesses, cannot be relied upon. Also according to PW6 Jagdish Chander written work was completed at the spot by SI Balbir Singh in halogen light, which was in their vehicle, whereas as per PW10 the written work was done with the help of vehicles headlights. Also according to PW6 there was no door affixed on dhaba as it was a shed, whereas, according to PW10, there were doors at Dhabd which were half closed and windows were lying closed. If version of PW6 is believed that it was a shed then, shed is not expected to carry any doors and windows. So, the version of PW10 that he had heard conversion after placing his ear against the window cannot be believed. Thus, in view of the aforementioned discussion, this court is of the opinion CRM A-1008-MA of 2011 (O&M) 9 that the prosecution has failed to prove that accused persons were making preparation for committing dacoity and it is not proved that the accused persons were planning in the abandoned dhaba for committing dacoity. When the version of the prosecution is highly doubtful then recovery of country made pistol from Kabal Singh also become doubtful. On the basis of sanction order proved by PW5 Jai Parkash Ex.p5 and test report of armourer Sher Singh Constable Ex.P4, it cannot be said that country made pistol was recovered from accused Kabal Singh.” 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. This view has been reiterated in State of Goa v. Sanjay Thakran, (2007) 3 SCC 755', and 'Chandrappa v. State of Karnataka, (2007) 4 SCC 415'. 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 CRM A-1008-MA of 2011 (O&M) 10 a reason calling for interference.” In 'Mrinal Das & others v. The State of Tripura, 2011(9) SCC 479', decided on September 5, 2011, the Hon'ble 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 'State of Rajasthan v. Shera Ram alias Vishnu Dutta , (2012) 1 SCC 602', 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 CRM A-1008-MA of 2011 (O&M) 11 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.” CRM A-1008-MA of 2011 (O&M) 12 Learned State counsel has failed to show any error of law or on facts on the basis of which interference can be made by this Court in the judgment under challenge. As such, this application for leave to appeal is dismissed. April 29, 2013 [Paramjeet Singh] vkd Judge