Judgment:
CRM-A No.283-MA of 2012 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH ***** CRM-A No.283-MA of 2012 Date of decision :
6. 2.2013 State of Punjab ........Applicant-appellant versus Gurjit Singh alias Geetu .......Respondent CORAM: Hon'ble Mr.Justice Jasbir Singh Hon'ble Mr.Justice Inderjit Singh Present:- Mr.Rajesh Bhardwaj, Addl.
AG, Punjab for the applicant-appellant Mr.Surinder Garg, Advocate, for the respondent --- Jasbir Singh, J.
The State of Punjab has filed this application under Section 378 (3) Cr.P.C.seeking leave to file an appeal against judgment dated 7.4.2011 vide which respondent Gurjit Singh alias Geetu was acquitted of the charges framed against him.
The above named respondent was arrayed as an accused in FIR No.93 dated 23.9.2009 Police Station Gidderbaha for commission of an offence under Section 302 IPC.
It was an allegation against the respondent-accused that he, on 23.9.2009, had committed murder of his brother Sukhpal Singh alias Kala, by giving him injuries with a sharp edged weapon.
The process of law was started on a statement made by Buta Singh (PW-2) to SI Kulwinder Singh (PW-9).stating that he and Budh CRM-A No.283-MA of 2012 -2- Singh (PW-3) had seen the respondent-accused causing injuries to the Sukhpal Singh alias Kala, resulting into his death.
The trial Judge has noted following facts regarding case of the prosecution :- “That on 23.9.2009, the police party headed by SI Kulwinder Singh, Station House Officer of Police Station Gidderbaha was present at bus stand of village Thehri on patrol duty along with ASI Surjit Singh and other police officials in Government gypsy bearing not PB 30.5724 along with its driver Raj Bahadur Singh No.325.
That one Boota Singh son of Subhash Singh resident of village Deep Singh Wala District Faridkot came there and made his statement before SHO Kulwinder Singh.
The complainant stated in his statement that he had three sons and two daughteRs.That Chhinder Kaur, his eldest daughter, was married to Sukhpal Singh alias Kala son of Darshan Singh resident of village Fakkarsar about eight years ago.
That his son in law Sukhpal Singh was Chowkidar of the village.
That he took on annual lease the carcasses of dead animals of the village.
That on 23.9.2009,.
the complainant along with Budh Singh son of Karnail Singh resident of village Deep Singh wala, was proceeding to meet his daughter on motor cycle.
That they were proceeding to village Fakkarsar via Malout to Jandwala.
That at about 12.15 PM, when they reached near the place of storage of dead bodies of the animals in the area of Fakkarsar, they heard the noise.
That on stopping motor cycle, the complainant saw that his son in law Sukhpal Singh alias Kala and his brother Gurjit Singh alias Geetu were quarrelling with each other.
That Gurjit Singh alias Geetu was causing injuries to Sukhpal Singh with the dagger used for flaying the hides of the dead animals.
That Gurjit Singh gave dagger blows below the left CRM-A No.283-MA of 2012 -3- ear of Sukhpal Singh, on his neck at three places and on his neck beneath right ear and on the left flank near his liver.
That he also caused injuries on the backside of right hand of Sukhpal Singh and on his left wrist.
The complainant raised raula of Na-maro Na-maro, whereupon Gurjit Singh alias Geetu went away therefrom along with the weapon.
That when the complainant saw his son-in-law Sukhpal Singh, he found him dead.”
It is necessary to mention here that Buta Singh (PW-2) is father-in-law of deceased Sukhpal Singh alias Kala.
After recording statement of Buta Singh (PW-2).the Investigating Officer went to the place of occurrence, prepared rough site plan with correct marginal notes.
Inquest report on the dead body was prepared and it was sent for post mortem examination.
The Investigating Officer also took into his possession the offending material against a recovery memo.
Blood stained earth was also taken into possession from the spot.
A dagger, lying at 100 meters distance from the dead body, was also taken into possession.
SI Puran Singh, a Finger Print Expert, reached at the spot and he lifted the finger prints from that dagger.
The respondent-accused was arrested on 27.9.2009.
Samples of his finger prints were taken.
The Investigating Officer recorded statements of the witnesses and after completing other formalities, put the final report in Court for trial.
Copies of the documents were supplied to the respondent- accused as per norMs.Case was committed to the competent Court for trial vide order dated 28.1.2010.
The respondent-accused was charge sheeted, to which he pleaded not guilty and claimed trial.
The prosecution CRM-A No.283-MA of 2012 -4- produced 9 witnesses and also brought on record documentary evidence to prove its case.
On conclusion of prosecution's evidence, statement of the respondent-accused was recorded under Section 313 Cr.P.C.He denied allegations of the prosecution and pleaded his innocence.
In his statement under Section 313 Cr.P.C., it was stated as under :- “That he has been falsely implicated in this case by the complainant and her daughter Chhinder Kaur because Chhinder Kaur had illicit relations with one Pappu, resident of her parental village namely Deep Singh Wala.
That he and his brother Sukhpal Singh objected her from doing so.
That she fiRs.got murdered her husband Sukhpal Singh from some unknown persons and then she in connivance with her father got him (accused) involved in this false case of murder of his brother Sukhpal Singh.”
The respondent-accused also led evidence in defence.
It was case of the prosecution that murder of Sukhpal Singh alias Kala was committed by the respondent-accused within the area of village Fakkarsar on 23.9.2009 at about 12.15 P.M.The trial Judge has critically analyzed the statements made by Buta Singh (PW-2) and Budh Singh (PW-3) to opine that both the witnesses were not present at the spot when alleged occurrence had taken place.
Detailed reasons, to discard their testimonies, have been given in Para No.7 onwards of the judgment under challenge.
It was found by the trial Court that both were discrepant and contradictory to each other on all material issues.
In Para No.8 of the judgment under challenge, it has also been noticed that the above named two witnesses had also contradicted the CRM-A No.283-MA of 2012 -5- statements made by the Investigating Officer regarding time, at which the police party reached at the spot.
To say that above named witnesses were not present at the spot when offence was committed, reference was made to the inquest proceedings.
PW-2 Buta Singh has specifically stated that at the time of above proceedings, he has identified the dead body, whereas, as per documents on record, the dead body was identify by Surjit Singh, Ex- Sarpanch and one Bir Singh, both residents of village Fakkarsar and not by Buta Singh (PW-2).as alleged.
In the memos against which blood stained earth and a dagger were taken into possession, PW 2 Buta Singh's signatures do not exist.
It was also noticed by the trial Court that the prosecution has failed to establish any motive on the part of the respondent-accused to commit the crime.
The dagger, which was recovered from the spot, was not sent to the Forensic Science Laboratory for analysis.
Finger prints on the dagger were doubtful.
When it was recovered, finger prints of the respondent-accused were also taken, under order passed by the Court.
The trial Court noted that there is no report of the Finger Prints Bureau on record to say that both the finger prints matched each other.
As per statement made by Buta Singh (PW-2).the respondent- accused was arrested from the spot on the date of occurrence, whereas, SI Kulwinder Singh (PW-9) has deposed that the respondent-accused was arrested on 27.9.2009 when he was produced before him by one Mahender Singh.
Above fact was also taken against the prosecution.
Un-explained delay of 5/6 hours in recording the FIR was rightly taken against the prosecution by the Court below.
The view taken by the trial Court is CRM-A No.283-MA of 2012 -6- 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 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 CRM-A No.283-MA of 2012 -7- 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 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:- CRM-A No.283-MA of 2012 -8- “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 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.
Accordingly, the application is dismissed.
(Jasbir Singh) Judge (Inderjit Singh) Judge 6.2.2013 Ashwani