Crl. Appeal No.988-SBA of 2000 -1- In the High Court of Punjab and Haryana at Chandigarh Date of Decision: March 22, 2013 Crl. Appeal No.988-SBA of 2000 State of Punjab ---Appellant versus Krishaan Dutt and others ---Respondents Crl. Revision No.206 of 2000 Housefed, Punjab ---Petitioner versus Retd. Col.Puran Singh and others ---Respondents Coram: Hon'ble Mrs. Justice Rekha Mittal Present: Mrs. Vandana Malhotra, Addl. Advocate General, Punjab for State of Punjab Mr. R.S.Sihota, Senior Advocate, with Mr. Ashok Kumar Sharma, Advocate, for the respondents (In CRA No.988-SB of 2000) Mr. Ravinder Singh, Advocate for Mr. S.S.Narula, Advocate, for the complainant-Housefed, Punjab *** REKHA MITTAL, J.By way of this order I shall dispose of CRA No.988-SB of 2000 (State of Punjab vs. Krishaan Dutt and others) and Crl. Revision No.206 of 2000 (Housefed, Punjab vs. Retd. Col. Puran Singh and others) as Crl. Appeal No.988-SBA of 2000 -2- they have arisen out of the common judgment dated 5.8.1999 passed by the Court of Sub Divisional Judicial Magistrate, Kharar whereby the respondents/accused have been acquitted of the offence charged against them. Briefly stated, on 29.12.1995, the Managing Director of Punjab Housefed made a complaint to the police inter alia alleging that Punjab Housefed ( in short “Housefed”.) is the owner of Flats bearings No.1333/G, 1361/G, 1379/G, 1381/G, 1328/1, 1349/1, 1371/1, 1383/1 and 1389 /1 of Shri Guru Teg Bahadur Housing Complex, Sector-70, Phase-12 Mohali, and the same are occupied by the Housefed. In these flats, articles belonging to the Housefed were stored. The flats were put to auction by Housefed on 30.10.1995 but the auction was stayed by the Sub Judge, Kharar. On the night of 28.12.1995, Col Puran Singh resident of Flat No.1215/1 and Sh. K.D Sharma resident of Flat No.1381/G, office bearers of the society alongwith other accused committed lurking house tresspass by breaking open the locks with an intention to commit theft and retain property unlawfully. FIR No.157 dated 30.12.1995 for offence under Sections 447, 448, 456, 457 and 120-B IPC was registered in Police Station Mohali. During investigation, statements of the witnesses were recorded. The accused were arrested. After completion of necessary investigation formalities, a report was submitted to the Court of Magistrate concerned for trial of the accused. Finding a prima facie case, charge for offence punishable under Sections 427, 447, 448, 456, 457 and 120-B IPC was framed against all the accused except Col. Puran Singh (since declared as Proclaimed Offender) to Crl. Appeal No.988-SBA of 2000 -3- which the accused did not plead guilty and claimed trial. To prove its case, prosecution examined Rajinder Singh PW-1, ASI Abdul Rashid PW-2, Suman Rani Bansal PW-3, Manohar Lal Soni PW- 4, Manjit Singh PW-5 and Som Pal PW-6. The prosecution also tendered into evidence documents Ex, PW2/A to Ex. PW6/A. Statements of the accused in terms of Section 313 Cr.P.C. were recorded wherein they pleaded their innocence and false implication while denying the incriminating circumstances put to them. However, they examined Santokh Singh DW-1, Om Parkash DW-2 , Prem Singh DW-3, Darshan Kumar DW-3 and Didar Singh DW-4 in their defence. The learned trial Court, on appreciation of the evidence adduced by the prosecution and the accused recorded a finding that the prosecution has failed to bring home guilt of the accused for any of the offences charged against them and as a consequence, they were ordered to be acquitted of the charge framed against them. Feeling dissatisfied with the verdict of the trial Court, an appeal has been preferred by the State and a criminal revision has been filed by complainant-Housefed. Counsel for the State and the Housefed submit that the learned trial Court failed to appreciate the evidence in right perspective and fallen into grave error in recording an acquittal in favour of the respondents. It is submitted that 168 flats were constructed in the Housing complex of Guru Teg Bahadur Co-operative House Building Society, Sector-70, SAS Nagar Mohali. Out of these, 148 flats were allotted by the concerned society but 20 flats belonging to the Housefed were left to the discretion of the Crl. Appeal No.988-SBA of 2000 -4- Housefed for allotment. It is argued that as the Housefed was the owner of these flats, six out of 20 flats were allotted by the Housefed and the remaining 14 flats were yet to be allotted out of discretionary quota of the Housefed. The Housefed took over possession of these flats and put their locks thereon but the accused, office bearers or members of the aforesaid co-operative society illegally broke open the locks, took over possession of the flats and committed theft of articles of the Housefed lying in those flats. It is submitted that the witnesses examined by the prosecution have led sufficient evidence on record to prove guilt of the accused beyond shadow of reasonable doubt. The learned trial Court mis-directed itself in holding that the prosecution has failed to prove any of the offences allegedly committed by the accused. Counsel for the respondents, refuting the contentions of the appellant/petitioner submits that there was a serious dispute between Housefed and the office bearers of Guru Teg Bahadur Co-operative House Building Society in regard to 20 flats out of 168 flats constructed in Guru Teg Bahadur Housing Complex, Sector-70 Mohali. The dispute between the parties led to filing of a civil writ petition before this Court, which was dismissed and the Letters patent appeal preferred by the Housefed was also rejected and even the Special Leave Petition filed before the Hon'ble Supreme Court was dismissed rejecting the claim of Housefed for allotment of 16 flats being of their discretionary quota. It is argued that the discretionary quota of Housefed was scrapped by the Government and feeling offended and aggrieved against the order of the Government taking away the rights of the Housefed to allot those 16 flats, as per their Crl. Appeal No.988-SBA of 2000 -5- discretion, the Housefed involved the office bearers as well as members of the aforesaid housing society in both civil and criminal litigation. It is argued with vehemence that as the Housefed was neither the owner of these flats not ever took over possession thereof, the learned trial Court on a correct appreciation of the evidence has held in favour of the respondent that the prosecution has miserably failed to prove its case. According to counsel, there is no error much less illegality committed by the trial Court as would call for interference by this Court. Before this Court proceed to appraise the submissions and counter submissions made by counsel for the parties, it is appropriate to recapitulate the legal position in regard to dealing with cases where an order of acquittal has been recorded by the trial Court. The Hon'ble Supreme Court of India in Arulvelu and another vs. State represented by the Public Prosecutor and another 2009 (10)SCC 20.has culled out certain principles in para (C ) which are quoted thus:- “C. 1.The accused is presumed to be innocent until proved guilty. The accused possessed this presumption when he was before the trial court. The trial court’s acquittal bolsters the presumption that he is innocent.
2. The power of reviewing evidence is wide and the appellate court can re-appreciate the entire evidence on record. It can review the trial court’s conclusion with respect to both facts and law, but the Appellate Court must give due weight and consideration to the decision of the trial court.
3. The appellate court should always keep in mind that the trial court had the distinct advantage of watching the demeanot of the witnesses. The trial court is in a better Crl. Appeal No.988-SBA of 2000 -6- position to evaluate the credibility of the witnesses.
4. The appellate court may only overrule or otherwise disturb the trial court’s acquittal if it has “very substantial and compelling reasons”. for doing so.
5. If two reasonable or possible views can be reached - one that leads to acquittal, the other to conviction - the High Courts/appellate courts must rule in favour of the accused.
6. An order of acquittal should not be lightly interfered with even if the Court believes that there is some evidence pointing out the finger towards the accused.
7. The trial court judgment cannot be set aside because the appellate Court’s view is more probable- The appellate court would not be justified in setting aside the trial court judgment unless it arrives at a clear finding on marshaling the entire evidence on record that the judgment of the trial court is either perverse or wholly unsustainable in law. With regard to appreciation of evidence by the High Court in appeal against acquittal, the Hon'ble Supreme Court in Shivaji Sahebrao Bobade and another vs. State of Maharashra 1973 AIR (SC) 2622 has laid down certain guidelines which read as follows:- “ 5. Before dealing with the merits of the contentions, we may perhaps make a few preliminary remarks provoked by the situation presented by this case. An appellant aggrieved by overturning of his acquittal deserve, the final court’s deeper concern or fundamental principles of criminal justice. The present accused, who have suffered such a fate, have hopefully appealed to us for a loaded approach against guilt in consonance with the initial innocence presumed in their favour fortified by the Crl. Appeal No.988-SBA of 2000 -7- acquittal that followed. We are clearly in agreement with this noble proposition, stated in American Jurisprudence at one time (not now, though) as implied in the rule against double jeopardy, in the British system as a branch of the benefit of reasonable doubt doctrine and in our own on the more logical, socially relevant and modern basis, that an acquitted accused should not be put in peril of conviction on appeal save where substantial and compelling grounds exist for such a course. In Indicate it is not a jurisdictional limitation on the appellate court but a judge-made guideline of circumspection. But we hasten to add even here that, although the learned judges of the High Court have not expressly stated so, they have been at pains to awed at length on all the points relied on by the trial court as favourable to the prisoners for the good reason that they wanted to be satisfied in their conscience whether there was credible testimony warranting, on a fair consideration, a reversal of the acquittal registered by the court below. In law there are no fetters on the plenary power of the Appellate Court to review the whole evidence on which the order of acquittal is founded and, indeed, it has a duty to scrutinise the probative material de novo, informed however, by the weighty thought that the rebuttable innocence, attributed to the accused having been converted into an acquittal the homage our jurisprudence owes to individual liberty constrains the higher court not to upset the holding without very convincing reasons and comprehensive consideration. In our view the High Court’s judgment survives this exacting standard.
7. This Court had ever since its inception considered the correct principle to be applied by the Court Crl. Appeal No.988-SBA of 2000 -8- in an appeal against an order of acquittal and held that the High Court has full power to review at large the evidence upon which the order of acquittal was founded and to reach the conclusion that upon that evidence the order of acquittal should be reversed. The Privy Council in Sheo Swarup v. King Emperor. 61 Ind App.398(2) negatived the legal basis for the limitation which the several decisions of the High Courts had placed on the right of the State to appeal under Section 417 of the Code. Lord Russel delivering the judgment of the Board pointed out that there was "no indication in the Code of any limitation or restriction on the High Court in the exercise of its powers as an appellate tribunal", that no distinction was drawn "between an appeal from an order of acquittal and an appeal from a conviction", and that "no limitation should be placed upon that power unless it be found expressly stated in the Code". He further pointed out at p. 404 that, "the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been, acquitted at his trial, (3) the right of the accused lo the benefit of any doubt, and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses". In Sanwat Singh v. State of Rajasthan, (1961) 3 SCR 12.after an exhaustive review of cases decided by the Privy Council as well as by this Court, this Court considered the principles laid down in Sheo Swarup’s case and held that they afforded a correct guide for the appellate court’s approach to a case against an Crl. Appeal No.988-SBA of 2000 -9- order of acquittal. It was again pointed out by Das Gupta, J.delivering the judgment of five Judges in Harbans Singh v. State of Pubjab (1962) Supp 1 SCR 104."In many cases, especially the earlier ones the Court has in laying down such principles emphasised the necessity of interference with an order of acquittal being based only on 'compelling and substantial reasons’ and has expressed the view that unless such reasons are present an Appeal Court should not interfere with an order of acquittal (vide Suraj Pal Singh v. The State,(1952) S.C.R. 193; Ajmer Singh v. State of Punjab (1953) S.C.R.418; Puran v. State of Punjab A.I.R. 1953 S.C. 459). The use of the, words 'compelling reasons’ embarrassed some of the High Courts in exercising their jurisdiction in appeals against acquittals and difficulties occasionally arose as to what this Court had meant by the words compelling reasons’. In later years the Court has often avoided emphasis on 'compelling reasons’ but nonetheless adhered to the’ view expressed earlier that before interfering in appeal with an order of acquittal a Court must examine not only questions of law and fact in all their aspects but must also closely and carefully examine the reasons which impelled the lower courts to acquit the accused and should interfere only if satisfied after such examination that the conclusion reached by the lower court that the guilt of the person has not been proved is unreasonable. (Vide Chinta v. The State of Madhya Pradesh,Criminal Appeal No.178 of 1959 decided on 18-11-1960 (SC); Asharafkha Haibatkha Crl. Appeal No.988-SBA of 2000 -10- Pathan v. The State of Bombay, Criminal Appeal No.38 of 1960 decided on 14-12-1960 (SC). "...... On close analysis, it is clear that the principles laid down by the Court in this matter have remained the same. What may be called the golden thread running through all these decisions is the rule that in deciding appeals against acquittal the Court of Appeal must examine the evidence with particular care, must examine also the reason on which the order of acquittal was based and should interfere with the order only when satisfied that the view taken by the acquitting Judge is clearly unreasonable. Once the appellate court comes to the conclusion that the view taken by the lower court is clearly an unreasonable one that itself is a "compelling reason" for interference. For, it is a court’s duty to convict a guilty person when the guilt is established beyond reasonable doubt, no less than it is its duty to acquit the accused when such guilt is not so established."
In the case in hand, the criminal law was set in motion on the basis of a complaint made by the then Managing Director of the Housefed against office bearers and members of Guru Teg Bahadur Co-operative House Building Society, Sector-70, Mohali for which the housing complex was constructed in Phase XII, Mohali. Admittedly, Crl. Appeal No.988-SBA of 2000 -11- out of 168 flats, constructed in the said complex, 148 flats were allotted by the society. There remained a dispute in regard to 20 flats which were claimed by the Housefed for allotment out of their discretionary quota. Indisputably, the dispute with regard to discretionary quota of the Housefed became the subject matter of writ petition before this Court which was decided against the Housefed and the matter was carried unsuccessfully in the letters patent appeal as well as special leave to appeal and the decision of the writ court was affirmed up to the Hon’ble Supreme Court. The Housefed lodged criminal case primarily on the plea that the Housefed is the owner of the flats in question and the same were under its possession but the accused committed lurking house tresspass by breaking open the locks of the flats with an intention to commit theft of the articles lying therein and to retain that property unlawfully. There is no evidence on record to establish the ownership of Housefed of the flats in dispute. Even if the Housefed was given the discretionary quota for allotment, at the most, the flats belonging to the society could be allotted by the Housefed exercising its discretionary power. Admittedly, the discretionary power of the Housefed was scrapped by the Government. The learned trial Court has rightly held that the prosecution has failed to lead any evidence worthy of credence and weightage to establish that Housefed ever took over possession of these flats or fixed its locks thereon. Complainant-Suman Rani, the Managing Director of the Housefed, stepped into the witness box to prove the contents of the complaint Crl. Appeal No.988-SBA of 2000 -12- made by her. During her cross examination, she has stated that she did not knot whether locks on the flats, in question, were of the society or of the Housefed. No witness from the Housefed or otherwise has been examined to prove any material in regard to possession of Housefed on the flats. No evidence has been led that the Housefed ever put its locks on the flats which were to be allotted by it in exercise of discretionary power. However, it is proved on record that the flats in question have been allotted by the President of the society and the amount in regard to sale consideration/allotment money has been deposited in a bank account of the Housefed. The prosecution has failed to prove as to what articles belonging to Housefed were kept in these flats much less recovery thereof from any of the accused. The learned trial Court has rightly held that the prosecution has failed to prove any of the offences charged against the accused. It appears that as there was dispute between the Housefed and the society in regard to allotment of these flats, the present complaint was filed by the Housefed as a measure of pressure tactic. A scrutiny of the present case in the light of various principles laid down by the Hon’ble Supreme Court as mentioned hereinabove, I do not find any reason to interfere in the order passed by the learned trial Court. In view of what has been discussed hereinabove, the appeal filed by the State and the revision filed by the Housefed are ordered to Crl. Appeal No.988-SBA of 2000 -13- be dismissed. No order as to costs. ( REKHA MITTAL) JUDGE March 22, 2013 PARAMJIT