Present:- Mr. Bhrigu Dutt Sharma Advocate Vs. Sandeep Singh ........Applicant-appellant - Court Judgment

CRM No.51997 of 2012 in/and CRM-A No.729-MA of 2012 (O & M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH ***** CRM No.51997 of 2012 in/and CRM-A No.729-MA of 2012 (O & M) Date of decision :

29. 1.2013 Sandeep Singh ........Applicant-appellant versus State of Punjab and others .......Respondents CORAM: Hon'ble Mr.Justice Jasbir Singh Hon'ble Mr.Justice Inderjit Singh Present:- Mr.Bhrigu Dutt Sharma, Advocate for the applicant-appellant --- Jasbir Singh, J.

CRM No.51996 of 2012 Allowed as prayed for.

CRM No.51997 of 2012 After hearing counsel for the applicant, application is allowed.

Delay of 24 days in filing the appeal stands condoned.

CRM-A No.729-MA of 2012 The applicant/complainant has filed this application under Section 378 (4) Cr.P.C.seeking leave to file an appeal against judgment dated 2.6.2012 vide which respondents No.3 to 5 were acquitted of the charges framed against them, whereas, respondent No.2 was convicted for commission of offences under Sections 120B/302 IPC and 25 of the Arms Act, 1959 and sentenced accordingly.

It was an allegation CRM No.51997 of 2012 in/and CRM-A No.729-MA of 2012 (O & M) -2- against all the respondents/accused, mentioned above, that they, in furtherance of their common intention, after entering into a conspiracy, had committed murder of Kuldeep Kaur-wife of respondent No.2, on 5.3.2009.

The process of law was started on a statement Ex.

PA made by Sandeep Singh PW-3-the applicant.

His statement was recorded by SI Sukhminder Singh PW-12.

The trial Judge has noted the following facts regarding case of the prosecution :- “That on 5.3.2009, SI Sukhminder Singh along with other police officials were present near Chabbewal where he received information from police station that Kuldeep Kaur wife of Manjit Singh had been murdered by some unknown persons and she has been shifted to Civil Hospital, Hoshiarpur.

On receiving this information, SI Sukhminder Singh reached there and on 5.3.2009, he recorded the statement of Sandeep Singh son of Nihar Singh, resident of village Kukkar Pind, Police Station Sadar Jalandhar to the effect that he is resident of above mentioned address and he is an agriculturist.

They are two brothers and deceased Kuldeep Kaur daughter of Piara Singh, his maternal uncle resident of village Satiala, District Amritsar used to live with them since childhood and they treated her as their sister.

They performed her marriage with Manjit Singh son of Malkit Singh resident of village Lehli Khurd about 12/13 years ago.

Out of this wedlock two sons namely Jaspreet aged 9 years and Gurpreet aged 5 years had born.

Kuldeep Kaur used to live at Canada.

On 9.1.2009, Kuldeep Kaur, after returning from Canada visited village Kukkar Pind along with her husband and children and she had visited twice in last two months in village Kukkar Pind.

Kuldeep Kaur told him that her husband CRM No.51997 of 2012 in/and CRM-A No.729-MA of 2012 (O & M) -3- Manjit Singh is having illicit relations with some girl at Canada and Manjit Singh want divorce from her as he wanted to marry with that girl.

His uncle Gurmit Singh son of Bikkar Singh who is settled at Vancouver (Canada) also told him about the illicit relation of Manjit Singh.

On 5.3.2009, at about 7.00 A.M., his brother in law Manjit Singh inform him telephonically that some unknown persons had made fire shot on Kuldeep Kaur due to which she had died.

He has firm belief that his sister had been got murdered by his brother-in- law Manjit Singh because Manjit Singh wanted to get marry with other girl.”

In the FIR except respondent No.2, none was named as an accused.

After recording statement of Sandeep Singh PW-3, the Investigating Officer reached the hospital, prepared inquest proceedings on the dead body and sent it for post mortem examination.

The Investigation officer, then went to the place of occurrence, got prepared a rough site plan with correct marginal notes.

He also recorded the statements of the witnesses.

During investigation, respondents-accused were arrested.

On disclosure statements, weapon of offence was recovered.

The Investigating Officer, after completing all legal formalities, submitted the final report in Court.

Copies of the documents were supplied to the respondents/accused as per norMs.Case was committed to the competent Court for trial vide order dated 8.7.2009.

The respondents/accused were charge sheeted to which they pleaded not guilty and claimed trial.

The prosecution produced 17 witnesses and also placed on record documentary evidence to prove its case.

On conclusion of the prosecution's evidence, statements of the CRM No.51997 of 2012 in/and CRM-A No.729-MA of 2012 (O & M) -4- respondents/accused were recorded under Section 313 Cr.P.C.Incriminating evidence on record against them, was put to them, which they denied, claimed innocence and false implication.

It was stated by Manjit Singh-husband of the deceased that on 5.3.2009, he received a telephonic message from Harpreet Kaur PW-1 that some unidentified persons have given injuries to his wife.

He went to the place of occurrence, took his wife to a hospital but she died on the way.

It was further stated that he had paid ` 15 lakhs to Sandeep Singh PW-3 for purchase of land.

When money was demanded back, it was refused.

Due to this reason, he has falsely been implicated.

The trial Judge on appraisal of evidence found respondent No.2 guilty.

He was convicted and sentenced accordingly.

Other three accused i.e.respondents No.3 to 5 were found innocent and were acquitted.

Hence, this application.

It is on record that during trial, Harpreet Kaur PW-1, the alleged eye witness, and Shiv Singh PW-2, have not supported case of the prosecution.

No recovery was effected so far as respondents No.3 to 5 are concerned.

They had also not suffered any confessional statements.

As per facts on record, Harpreet Kaur PW-1 deposed that shot was fired at Kuldeep Kaur deceased by two unknown assailants.

She failed to identify the assailants in Court.

She was declared hostile.

Despite cross examination by the public prosecutor, nothing helpful to the prosecution, could be elicited from her.

Shiv Singh PW-2 also had not supported case of the prosecution.

CRM No.51997 of 2012 in/and CRM-A No.729-MA of 2012 (O & M) -5- The trial Judge on appraisal of evidence, came to a conclusion that there is no evidence of the prosecution to prove conspiracy between respondent No.2 and respondents No.3 to 5 to commit the crime.

It is a case of circumstantial evidence.

Unless there is sound evidence on record to pin point towards criminal action of an accused, verdict of conviction cannot be given.

In the present case, respondents No.3 to 5 were not identified as assailants in the Court, by the alleged eye witness.

No recovery was effected from them.

Virtually, there is no evidence of conspiracy.

Under the circumstances, we feel that the view taken is as per evidence on record and perfectly justified.

No case is made out to interfere in the sentence awarded to respondent No.2.

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 CRM No.51997 of 2012 in/and CRM-A No.729-MA of 2012 (O & M) -6- 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 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 CRM No.51997 of 2012 in/and CRM-A No.729-MA of 2012 (O & M) -7- 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:- “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 CRM No.51997 of 2012 in/and CRM-A No.729-MA of 2012 (O & M) -8- 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 29.1.2013 Ashwani