Crl.Appeal No.205-DB of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Appeal No.205-DB of 2010 DATE OF DECISION: APRIL 01, 2010 Smt. Ram Kaur @ Jaswinder Kaur .....APPELLANT Versus Jagbir Singh alias Jabi and others ....RESPONDENTS CORAM: HON'BLE MR.JUSTICE SATISH KUMAR MITTAL HON'BLE MR.JUSTICE JORA SINGH --- Present: Mr.A.P.S. Deol, Senior Advocate, with Ms. Manpreet Kaur, Advocate, for the appellant. .. SATISH KUMAR MITTAL, J. Smt. Ram Kaur @ Jaswinder Kaur (complainant), claiming herself as a victim, has filed the instant appeal against the judgment dated 29.9.2009 passed by the Sessions Judge, Ambala, whereby the respondents Jagbir Singh alias Jabi and Surinder Singh alias Rinku have been acquitted of the charge framed against them under Section 302 read with Section 34 IPC, for committing the murder of Rajinder Singh (son of elder brother of the husband of the complainant). As per the prosecution version (which is based upon the statement of the aforesaid Smt. Ram Kaur, made by her to the Investigating Crl.Appeal No.205-DB of 2010 -2- Officer), on 20.9.2008 at about 7.00 p.m. when complainant Smt. Ram Kaur along with her son Manjit Singh (PW9) was coming back to their village Chhajal Majra, they noticed that on the road near Village Sain Majra Rajinder Singh was caught by accused Jagbir Singh alias Rinku and Surinder Singh. They were assaulting him. In the meanwhile, a car came from the side of Naraingarh, and with intention to kill Rajinder Singh, both the accused pushed him before the running car. Rajinder Singh suffered multiple injuries on his head and other parts of his body. In the meanwhile, Sukhwinder Singh (PW11), brother of Rajinder Singh, by chance, arrived at the spot. He after arranging the conveyance, shifted Rajinder Singh to Civil Hospital, Naraingarh from where he was referred to PGI, Chandigarh, but instead he was admitted in Fortis Hospital, Mohali, where he died on 4.10.2008. Regarding motive, it was stated by the complainant that father of accused Jagbir Singh had borrowed a sum of Rs.50,000/- from Mahinder Singh, father of the deceased. Despite repeated demands, he was not paying the said amount. A month prior to the alleged occurrence, Mahinder Singh had gone to the house of Kuldeep Singh and demanded the said amount. Accused Jagbir Singh was also present there at that time. He felt humiliated and told Mahinder Singh that on his repeated visits, they were being humiliated and he would take revenge for the same. The aforesaid statement of Smt. Ram Kaur was recorded on 26.9.2008 after six days of the occurrence, and on the basis of the said statement, initially the FIR was registered against both the accused under Section 307 read with Section 34 IPC. Later on, after the death of Rajinder Singh, it was converted into under Section 302 IPC. Crl.Appeal No.205-DB of 2010 -3- After investigation, the challan was filed against both the accused and finding prima-facie case, the trial Court framed charge under Section 302/34 IPC against both the accused to which they pleaded not guilty and claimed trial. In support of its case, the prosecution examined 13 witnesses, including PW6-Smt. Ram Kaur (complainant), PW9-Manjit Singh, PW11- Sukhwinder Singh, PW4-Dr.Harpreet Singh, who conducted the post mortem examination of deceased Rajinder Singh and PW7-Dr.Vikas Paul, the then Medical officer, General Hospital, Naraingarh. After closure of the prosecution evidence, statements of both the accused were recorded under Section 313 Cr.P.C., who denied the prosecution allegations and pleaded their innocence by stating that they were falsely implicated in this case. In support of their defence, the accused examined DW1-Satpal Singh, DW2-Dr. Neeraj Singla, Fortis Hospital, Mohali and DW3-Iqbal Singh. The trial Court after considering the evidence led by the prosecution and the defence, acquitted both the accused while coming to the conclusion that Rajinder Singh was not murdered by the respondents, rather from the evidence led by the prosecution, it appears that he had died in a road accident. The statements of PW6-Smt. Ram Kaur and PW9-Manjit Singh were held to be not reliable and trustworthy. Not only their statements were found contradictory, but it has also been found that they were not present at the time of the alleged occurrence. They could not explain the delay in lodging the FIR against the accused. Even PW11-Sukhwinder Singh, real brother of the deceased, has admitted that he had made a Crl.Appeal No.205-DB of 2010 -4- statement to the police on 20.9.2008 itself and police has also recorded his statement. According to him, the accused were also arrested on 20.9.2008, whereas the accused were arrested subsequently on 27.9.2008. The trial Court has further noticed that PW4-Dr. Harpreet Singh, who conducted the post mortem examination of the deceased, stated that as per the history sheet given, the deceased was admitted in General Hospital, Naraingarh as a case of road accident. The history was given by the brother of the deceased, namely, Sukhwinder Singh (PW11). Similarly, PW7-Dr. Vikas Paul medico-legally examined Rajinder Singh on 20.9.2008 with the history of a road side accident case. The patient was brought by PW11-Sukhwinder Singh. As per the statement of PW13-Inspector Pardeep Kumar, on the day of the occurrence, a V.T. message was received in Police Station, Naraingarh from Police Station, Phase-8, Mohali regarding admission of Rajinder Singh as a case of road side accident near Naraingarh. The trial Court has also considered the defence version and the statements of DW1-Satpal Singh and DW3-Iqbal Singh. According to those witnesses, the deceased Rajinder Singh had received injuries in the road accident. DW2-Dr.Neeraj Singla, who initially admitted Rajinder Singh, stated that relatives of the patient told him that the deceased was moving on bicycle when he met with an accident with one Maruti car near Naraingarh. Against the aforesaid judgment of acquittal, the complainant has filed the instant appeal under Section 372 of the Code of Criminal Procedure (hereinafter referred to as `the Code') claiming herself to be the victim without moving any application for grant of leave to file appeal under Section 378(3) of the Code. On a query put to the learned counsel for Crl.Appeal No.205-DB of 2010 -5- the appellant about maintainability of the instant appeal, learned counsel argued that a Proviso to Section 372 has been inserted by the Code of Criminal Procedure (Amendment) Act, 2008, which confers a right on the victim of the crime to prefer an appeal against an order passed by the trial Court acquitting the accused. He further argued that Clause (wa) was also inserted in Section 2 of the Code by the aforesaid amendment, which defines “victim” means a person, who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged. According to the learned counsel, the complainant being near relative of the deceased has suffered a loss, therefore, she falls under the definition of “victim” and is, thus, entitled to file an appeal against the order/judgment of acquittal. Learned counsel further argued that under Section 372 of the Code, the victim can directly file an appeal against the order/judgment of acquittal without seeking leave to appeal from the Court as the provisions of sub-section (3) of Section 378 of the Code will not apply to an appeal filed by the victim under Section 372 of the Code. We have heard the learned counsel for the appellant on the aforesaid issue and have also taken the assistance from Shri S.S. Randhawa,Additional Advocate General, Haryana. In 154th Report of Law Commission (Chapter XV), it has been observed that crimes often entail substantive harm to people and not mere symbolic harm to the social order. Consequently, the needs and rights of victims of crime should receive priority attention in the total response to crime. Initially in the Code the right to prosecute the offender was given to the State, but later on the right was also conferred on the aggrieved person Crl.Appeal No.205-DB of 2010 -6- to file the private complaint for the alleged offence, if the State does not prosecute the offender. Against the order/judgment of acquittal of offender, the right of appeal was given to the State. Sub-section (3) of Section 378 of the Code further provides that no appeal to the High Court by the State against acquittal shall be entertained except with the leave of the High Court. Similarly, in a complaint case, the right of appeal against the order/judgment of acquittal was also given to the complainant under sub- Section (4) of Section 378 of the Code and the complainant is further required to make an application to the High Court for grant of special leave to appeal from the order of acquittal. But in the police case, the right of appeal was only given to the State and not to the complainant or the victim. However, in case the State chooses not to file an appeal, the complainant or the victim has been provided the remedy of revision before the High Court for permitting the complainant or the victim for grant of leave to appeal against the order of acquittal. Keeping in view the difficulties and injustice in certain cases to the victim, Law Commission in its 154th Report suggested for the amendment in the Code for providing judicial and administrative mechanisms to enable victims to obtain redress through formal or informal procedure that are expeditious, fair, inexpensive and accessible. On the basis of the aforesaid recommendations, vide Code of Criminal Procedure (Amendment) Act, 2008, Proviso to Section 372 of the Code was inserted and the definition of “victim” was also added under Clause (wa) of Section 2 of the Code. With the added Proviso, Section 372 of the Code reads as under:- “372. No appeal to lie unless otherwise provided.- No appeal shall lie from any judgment or order of a Criminal Court except Crl.Appeal No.205-DB of 2010 -7- as provided for by this Code or by any other law for the time being in force: [Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court]” (Emphasis added) The definition of “victim” has been provided in sub-section(wa) of Section 2 of the Code, which reads as under:- “[(wa)“victim” means a person,who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression “victim” includes his or her guardian or legal heir.]” (Emphasis added) A bare perusal of the definition of “victim” reveals that the victim means a person, who has suffered any loss or injury caused by reason of the act or omission of the offender, and further expression “victim” includes his or her guardian or legal heir. The General Assembly of the United Nations in its 96th plenary meeting on 29th November, 1985, made a Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, recognising that millions of people throughout the world suffer harm as a result of crime and the abuse of power and that the rights of these victims have not been adequately recognised and also that frequently their families witnesses and other who aid them are unjustly subjected to loss, damage or injury. The Assembly affirmed the necessity of adopting national and international norms in order to secure universal and effective recognition of and respect for, the rights of victims of crimes and abuse of Crl.Appeal No.205-DB of 2010 -8- power. In the said Declaration, the word “victim” was defined as under:- “6.2 The Declaration defines victims as “persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative within Member States, including those laws prescribing criminal abuse of power.” The aforesaid definition of victim has been discussed in 154th Report of the Law Commission, but the legislation has not adopted the said definition and have given a restricted meaning to the word “victim” means only a person, who has suffered any loss or injury caused by reason of the act or omission of the offender and victim includes his or her guardian or legal heir. In the instant case, the complainant, who is a near relation of the deceased, cannot be said to be a person who has suffered any loss or injury caused by reason of the act or omission of the offender. Undisputedly, she is neither guardian nor legal heir of the deceased. Therefore, in our view, the complainant in the instant case is not the `victim' who can prefer an appeal under Section 372 of the Code against the order/judgment of acquittal passed by the Court of Session. Only the State has a right to file an appeal along with an application for grant of leave to appeal. Therefore, she cannot prefer an appeal under Section 372 of the Code in the police case. Even otherwise, if the appellant is supposed to be covered by the definition of “victim” under sub-section (wa) of Section 2 of the Code, having right to prefer an appeal against the order of acquittal, in our opinion, she is required to file an application for grant of leave to appeal from Crl.Appeal No.205-DB of 2010 -9- the order of acquittal and if the High Court considers the case as a fit case for grant of leave, then his appeal will be entertained. Section 372 of the Code only provides that no appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force. Section 378 of the Code deals with the appeals in cases of acquittal. Sub-section(1)(b) of Section 378 provides that the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court, and sub-section (3) further provides that no appeal to the High Court under sub-section (1) or sub- section (2) shall be entertained except with the leave of the High Court. Even against an order of acquittal passed in a case instituted upon a complaint, the complainant has been provided the right to appeal, and he can file such an appeal with an application for grant of special leave to appeal from the order of acquittal. Thus, under the Code, the appeal against acquittal could have been preferred only with the permission of the High Court on an application filed for grant of leave to appeal against the order in appeal. By Proviso to Section 372 of the Code, a right has been conferred upon the victim to prefer an appeal against the order of acquittal being sufferer from the act or omission of the offender. But such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court. The main provision of Section 372 provides that no appeal shall lie from the order of acquittal except as provided for by this Code or by any other law for the time being in force. So, by the Proviso, a right to file an appeal has been conferred on the victim against the order of Crl.Appeal No.205-DB of 2010 -10- acquittal, but the procedure for filing such appeal will be the same as provided under Section 378 of the Code. Therefore, even if the victim has a right to prefer an appeal against the order of acquittal, he has to seek the leave of the High Court to prefer such appeal. He cannot directly file the appeal against the order of acquittal as a first appeal. In the instant case, the complainant has filed the appeal, though, which, in our opinion, is not maintainable, without any application for grant of leave. Therefore, in our opinion, without first fully complying with the provisions contained in Section 378 of the Code, the instant appeal, which has been directly filed by the victim, without any application for grant of leave, cannot be entertained. In case we assume that the appellant can orally pray for grant of leave to appeal, we have even examined that situation separately. We are of the opinion that by treating the appeal filed by the victim as a revision, the instant case is not a fit case where leave to appeal should be granted to the applicant. We have thoroughly gone through the impugned judgment of the trial Court. In our opinion, the trial Court has rightly come to the conclusion that the prosecution has miserably failed to prove the charge levelled against the respondents. In our opinion, in the instant case, a simple road accident death has been given the colour of a murder by the prosecution witnesses, who all are related to the deceased and their statements, which are contradictory, have rightly not been relied upon by the trial Court. The trial Court while taking into consideration the ample evidence, which clearly indicate that the instant case was a case of road accident, has rightly come to the conclusion that the prosecution has failed Crl.Appeal No.205-DB of 2010 -11- to prove that both the accused in furtherance of their common intention did commit the murder by intentionally causing the death of Rajinder Singh. In our opinion, the view taken by the trial Court in the case, on the basis of the evidence led by the prosecution, is the only possible view and no second view can be taken. In view of the aforesaid reasons, the appeal is dismissed. (SATISH KUMAR MITTAL) JUDGE April 01, 2010 ( JORA SINGH ) vkg JUDGE Refer to Reporter