Full Judgment
CRM-A No.64-MA of 2013 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH ***** CRM-A No.64-MA of 2013 Date of decision :
2. 5.2013 Ramesh ........Applicant-appellant versus State of Haryana and others .......Respondents CORAM: Hon'ble Mr.Justice Jasbir Singh, Acting Chief Justice.
Hon'ble Mr.Justice Rakesh Kumar Jain Present:- Mr.S.K.Tripathi, Advocate, for the applicant/appellant --- Jasbir Singh, ACJ.
Respondents No.2 to 4 were made to face trial in FIR No.2 dated 3.1.2012, Police Station Sadar Jind, for commission of offences punishable under Sections 323, 325 and 307/34 IPC.
It was an allegation against them that, they had caused injuries to the applicant-complainant with an intention to kill him.
The investigation process was started on receipt of a telephonic message on 11.11.2011 in Police Station Sadar Jind, intimating that the applicant-complainant (PW-5) was lying admitted in General Hospital at Jind on account of injuries received by him.
SI Azad Singh went to the hospital, however, he failed to record statement of the applicant-complainant.
On 13.11.2011 ASI Basau Ram went to PGIMs.Rohtak, and got opinion regarding fitness of the injured to make the statement.
Even on that day, the statement of the applicant-complainant CRM-A No.64-MA of 2013 -2- could not be recorded.
The Investigating Officer recorded statement of the applicant-complainant on 18.11.2011.
In his statement Ex.PK, it was stated by the applicant- complainant that “he had taken the land of Sunehara on lease for one year.
On 11.11.2011 at about 5.00 P.M.he was present in the field to take care of paddy crop.
In the meantime two unknown boys came there armed with gandasi and knife respectively and started abusing him.
Naresh son of Ramdiya exhorted both the assailants to finish the complainant whereupon one of the boys inflicted gandasi on left side of his head while another boy inflicted lathi blow and they fled away.
He remained lying at the spot in injured condition.
After sometime his brother Naresh and his wife Kala Devi (PW-6) reached at the spot and shifted him to general hospital, Jind from where he was referred to PGIMs.Rohtak.”
It is necessary to mention here that statement of the injured- applicant was recorded at his house, after his discharge from PGIMs.Rohtak.
After recording statement Ex.PK, of the applicant- complainant, only a DDR Ex.PO was recorded.
The facts given by the complainant found suspicious and on that account, FIR was not registered on 18.11.2011.
On 3.1.2012 after getting opinion from a doctor regarding injuries received by the applicant-complainant, FIR Ex.PO/2 was recorded.
The Investigating Officer went to the place of occurrence, prepared a rough site plan with correct marginal notes.
During investigation, the respondents-accused were arrested and on interrogation, respondent No.2 suffered a disclosure statement, which led to the recovery CRM-A No.64-MA of 2013 -3- of a brick, which was used to cause injuries to the applicant-complainant.
The Investigating Officer after recording statements of the witnesses and on completing other formalities, submitted the final report in Court.
Copies of the documents were supplied to the respondents-accused as per norMs.Their case was committed to the competent Court for trial.
The respondents-accused were charge sheeted on 3.8.2012, to which, they pleaded not guilty and claimed trial.
The prosecution produced 12 witnesses and also brought on record documentary evidence to prove its case.
On conclusion of prosecution's evidence, statements of the respondents-accused were recorded under Section 313 Cr.P.C.Incriminating evidence on record was put to them, which they denied, claimed innocence and false implication.
However, they led no evidence in defence.
As per statement made by Dr, Anuj Sharma (PW-2).who medico legally examined the applicant-complainant, following injury was found at the person of the applicant :- “Lacerated wound of size 6 x 0 cms MD on left parietal region.
H/O LOC and vomiting present.
Advice CT Scan, Head/X-ray skull AP/LAT and surgeon's opinion.”
After looking into the X-ray report and CT Scan report, above injury was declared dangerous to life.
X-ray film and CT Scan report was proved on record by Dr.
Amrish (PW-3).ASI Basau Ram (PW-8) has detailed the process of investigation on record.
It has also come on record that as per report CRM-A No.64-MA of 2013 -4- Ex.PS Ethyl alcohol was detected in blood sample of the injured Ramesh to the extent of 28.75 mg%.
After perusing evidence on record, the trial court found case of the prosecution doubtful, benefit of which was given to the respondents- accused by ordering their acquittal.
Hence, this application.
The trial Judge has rightly taken delay, in reporting the matter to the police, fatal to the case of the prosecution.
It is on record that injuries were allegedly caused to the applicant-complainant on 11.11.2011.
FIR was got registered only on 3.1.2012.
Despite repeated visits of the police officials to the hospital, the applicant-complainant failed to give his statement.
His brother Naresh also did not got his statement recorded.
There is nothing on record to show that during this period, the applicant- complainant was not fit to make a statement.
It is on record that after treatment, as per statement made by Dr.
Vineet Bhai (PW-12).the injured was discharged from the hospital on 16.11.2011.
His statement was recorded thereafter on 18.11.2011 in his house.
In the FIR except Naresh, Sunil and Ram Mehar respondents were not named as accused and no identification parade was conducted after their arrest.
How the injured came to knot about their names, is a great mystery.
It was case of the complainant that injury was caused to him with a gandasi, however as per medical evidence on record, no sharp edged weapon injury was found on the person of the injured.
It was not stated by the injured that the gandasi was used from its reveRs.side.
In this case, neither gandasi not any wooden stick was recoverd from any of the accused.
To the contrary, a brick was recovered CRM-A No.64-MA of 2013 -5- and it is no body's case that injury was caused to the applicant-complainant with a brick.
In the witness box, the applicant-complainant took a specific stand that prior to the above occurrence, he had not consumed any liquor but blood sample examined indicated otherwise.
By noting above facts, the trial Court has rightly observed that an attempt has been made to conceal true facts from the Court.
It has also come on record that only Naresh-respondent accused was named in the FIR.
However, there is nothing on record to show that he had caused any injury to the complainant.
The view taken by the Court below is perfectly justified and 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 perveRs.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.”
Similarly, in State of 'Goa v.
Sanjay Thakran, (2007) 3 SCC CRM-A No.64-MA of 2013 -6- 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, 2011(9) SCC 479', 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: “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 reveRs.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 presumed to be CRM-A No.64-MA of 2013 -7- 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.”
Counsel for the applicant-appellant has failed to show any error in law on the basis of which interference can be made by this Court in the judgment under challenge.
CRM-A No.64-MA of 2013 -8- Accordingly, the application is dismissed.
(Jasbir Singh) Acting Chief Justice (Rakesh Kumar Jain) Judge 2.5.2013 Ashwani