Jasbir Singh, Acting Chief Justice
CRM No.18032 of 2012
1. In view of reasons mentioned in this application, which is accompanied by an affidavit, it is allowed and 43 days delay in filing the application seeking leave to file an appeal stands condoned. CRM A-216-MA -2012 The State of Haryana has filed this application u/s 378(3) Cr.P.C., seeking leave to file an appeal against judgment of acquittal dated 21.10.2011. Vide the above judgment, the respondent -accused was acquitted of the charge framed against him.
2. Process of law was started on a statement made by Smt.Bimla Devi wife of Ranbir Singh the respondent, whereupon an FIR bearing No.301 was registered against the respondent Ranbir Singh and his brother Sumer Chand on 9.12.2008.
3. The trial Court has noted the following facts regarding case of the prosecution:
that on 9.12.2008 one telephonic message was received from Gaba Hospital in the Police Station Farakpur regarding admission of Smt.Bimla Devi wife of Ranbir Singh in the hospital for treatment due to the injuries suffered by her in the fight. On this information, ASI Bhag Singh reached at Gaba Hospital and recorded the statement of injured Smt.Bimla Devi, wherein she has stated that she is resident of village Gobindpura and is a house wife. She has further stated that her marriage was solemnised with Raghubir Singh son of Daya Ram, about 40 years ago and from this wed lock, two girls were born out and her husband Raghubir Singh had died suddenly after three years. She has further stated that her husband has two elders brothers namely Sumer Chand and Ranbir Singh, who are residing with them and both were married. She has further stated that the biradari and her relatives had solemnised her Karewa marriage with Ranbir Singh and from this wed lock between her and Ranbir Singh, one boy namely Rakesh Kumar was born. She has further stated that her Jeth (brother-in-law) namely Sumer Chand, used to live as Ghar Jamai at village Sili Khurd. She has further stated that they had purchased the land in village Nagal in the year 1991 where previous wife of her husband Ranbir Singh are living, along with her son Sushil Kumar. She has further stated that they have some land, bara and residential house at village Gobind Pura, in which she and her son are living along with his family. She has further stated that her husband Ranbir Singh in order to grab the land, bara and residential house oftenly come to village Gobind Pura and used to take articles forcibly. She has further deposed that on 9.12.2008 at about 10.30 am, she, her son and wife of her son, namely Parvesh Rani were present in their house, then Ranbir Singh and his elder brother came there and Ranbir Singh was having a knife in his hands and Ranbir Singh started abusing her and stated that he is the owner of the land. Then she stated that the partition has already been effected and then why they have come there. On this Sumer Chand caught hold her and Ranbir Singh with the intention to kill her gave a knife blow, which fell on her index finger of hand. She has further stated that Ranbir Singh also gae knife blows on the different parts of her body. She has further stated that when she raised hue and cry, then Jasmer Singh son of Rattan Singh and Parvesh Rani @ Pinki rescued her from the clutches of the accused. She has further stated that Parvesh Rani called her son by making a telephonic call to him (her son). She has further stated tehat the accused had threatened her with dire consequences and left the spot. She has further stated that thereafter, one Parveen Kumar and other villagers came at the spot and got her admitted in the hospital.
4. On receipt of an intimation, the investigating officer went to the hospital and recorded statement of Bimla Devi (Ex.PW3/B). Initially, an FIR was recorded for commission of offences under Sections 323, 324, 452, 506 IPC read with Section 34 IPC. However, subsequent thereto, an offences under Sections 325 and 307 IPC were also added. The injured Rakesh Kumar was got medico legally examined through PW4 Dr.Vandana. The complainant Smt.Bimla Devi was also examined by the above witness, who found six injuries at her person.
5. On completion of evidence, final report was put in Court. Copies of the documents were supplied to the accused as per norms. Case was committed to the competent Court for trial. The accused were charge sheeted to which they pleaded not guilty and claimed trial. Prosecution produced 15 witnesses and also brought on record documentary evidence to prove its case.
6. It is necessary to mention here that Sumer Chand a co-accused died during pendency of trial on 26.9.2009.
7. On conclusion of prosecution''s evidence, statement of the respondent-accused was recorded u/s 313 Cr.P.C. Incriminating material existing on record was put to him, which he denied, claimed innocence and false implication. He also led evidence in defence.
8. The trial Judge on appraisal of evidence found respondent Ranbir Singh not guilt and accordingly by giving him benefit of doubt he was acquitted of the charge framed against him. To give benefit of doubt to the respondent, the trial Judge rightly noted the material contradictions in the statements made by PW5 - Smt.Bimla Devi and PW7 Smt.Parvesh Rani. After analyzing those statements, it was observed as under:
17. Now, a close shifting of statements of PW-5 Smt.Bimla Devi, complainant and PW-7 Smt.Parvesh Rani shows that as per Smt.Bimla devi, Ranbir Singh and Sumer Chand, after coming to her, had stated that they wanted the possession of the house, in which they were residing and, then Sumer Chand caught hold of her. However, as per PW-7 Smt.Parvesh Rani, her father in law Ranbir Singh and his brother Sumer Chand after coming to their house told them that they would take bicycle with him and also started picking up other articles from the back side of the house and when her mother-in-law objected and retorted then Ranbir Singh took out a knife and said that he had every right to pick up his articles and his wife could not prevent him for doing so. Now, PW-5 Smt.Bimla Devi, complainant who is the prime witness, has no where stated that her husband Ranbir Singh had also started picking up other articles after telling her that he was to take the bicyle and when he objected and retorted, then Ranbir Singh took out a knife and assaulted her.
18. Then, as per PW-5 Smt.Bimla Devi, Sumer Chand caught hold of her and Ranbir Singh had assaulted her on various parts of her body. She has further stated that first of all, accused Ranbir Singh had caused injuries on her left cheek and then she escaped the hold of Sumer Chand and ran towards the public street, where Sumer Chand again caught her and Ranbir Singh assaulted her with knife on her left arm, left hand, left shoulder and also on her back and also on her breast and abdomen. Thus, as per above statement of PW-5 Smt.Bimla Devi, complainant, one injury on his left cheek was caused in the house and when she after freeing herself from Sumer Chand ran towards the public street then in the street the injuries on her left arm, left hand, left shoulder, on her back, on her breast and abdomen with a knife were caused by accused Ranbir Singh.
19. However, PW-7 Smt.Parvesh Rani in this regard has deposed that when her mother-in-law objected and retorted then Ranbir Singh has stabbed her mother-in-law in the stomach, breast, hand, shoulder and face and then her mother-in-law ran into street and her father in law also followed her in the street and caused injuries on her person with the same knife. Thus, as per staement of PW-7 Smt.Parvesh Rani, the injuries on stomach, breast, hand, shoulder and face on the person of PW-5 Smt.Bimla Devi, complainant/ injured were caused in the house itself. Whereas, as discussed above as per PW-5 Smt.Bimla Devi, only one injury of knife on her cheek was caused by accused Ranbir Singh in the house.
20. Then, PW-5 Smt.Bimla Devi has deposed that their car driver namely Jasmer Singh came at the spot and her daughter-in-law Parvesh Rani came down stairs from the roof and on seeing them, accused managed to flee. She has also deposed that PW-7 Smt.Parvesh Rani had come at the spot after 5-10 minutes. Thus, by the statement of PW-5 Smt.Bimla Rani, PW-7 Smt.Parvesh Rani is not proved to be an eye witness.
21. Moreover, it has come in the statement of PW-5 Smt.Bimla Rani, complainant that their car driver Jasmer Singh had come at the spot and who as per Bimla devi had seen Ranbir Singh causing injuries to her and one Parvesh was also attracted at the spot and many villagers had also gathered there. PW-7 Smt.Parvesh Rani has also admitted that a large number of people gathered at the spot when she raised hue and cry. Jasmer Singh has been given up by the prosecution and Parveen who had also taken Bimla Devi to the Gaba Hospital has not been either cited as a witness nor produced as a witness in this case. Now, none of the villagers, who had gathered at the spot has been produced by the prosecution. When, as per PW-5 Smt.Bimla Devi, she was assaulted in the public street, then many villagers in the vicinity of her house must have come there but none has come forward to support her version.
22. Then, as per PW-7 Smt.Parvesh Rani, her husband (PW-9 Rakesh Kumar) was at Court when he received her call and from there itself, he reached the Gaba Hospital, However, PW-9 Rakesh Kumar, who is son of complainant PW-5 Smt.Bimla devi, has altogether a different version to tell. He has deposed that on 9.12.2008 he was present at Jagadhri Court and he received a telephonic call from his wife, who was present at home that his mother had been attacked by Ranbir Singh and Sumer Chand and he has then deposed that he reached home and he found that both the accused had already fled from the house. He has then again deposed that when he reached home, his told that both the accused fled from the house and had gone towards Ratouli. He has then deposed that he followed them towards Ratouli road and then he has deposed that when he tried to stop them at T point Sector 18 HUDA, they fell down on the road from the motorcycle and when he tried to balance himself, in the mean time Sumer Chand gave danda blow on his right hand and Ranbir Singh gave knife blow on right side of chest. He has then deposed that one Sanjeev Kumar brought him to the hospital. It may be added here that as per PW-5 Smt.Bimla Devi, she was taken to Gaba Hospital and as per PW-7 Parvesh Rani her husband Rakesh Kumar on receiving the telephonic call, had reached the Hospital i.e. naturally the Gaba Hospital.
23. Thus, as per PW-7 Smt.Parvesh Rani, her husband reached Gaba Hospital, after receiving her telephonic call, whereas as per PW-9 Rakesh Kumar himself, he had come to home and then, after coming to know that Ranbir Singh and Sumer Chand had fled away from the house, he followed them and in this process, he also received injuries with Danda and knife caused by Sumer Chand and Ranbir Singh respectively.
9. The trial Judge has rightly found fault with the process of investigation. The delay in recording the statements of Rakesh Kumar was held fatal to the case of the prosecution. The trial Court also noticed that as per statement made by Rakesh Kumar (PW9) Ranbir Singh respondent and Sumer Chand his brother were old and ailing persons on the date of occurrence. This witness has further stated that his wife and his mother were strong as compared to them. It was also so said by PW7 Smt.Parvesh Rani. It was also noted that relations between Smt.Bimla Devi and his son Rakesh Kumar were strained with the respondent. The parties were locked in civil litigation. By taking note of above facts, the trial Court rightly discarded testimony of Smt.Bimla Devi (PW5) having not been corroborated by any independent witness.
10. The view taken by the trial Court is perfectly justified and is as per evidence on record.
11. 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.
12. 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
13. Similarly, in
14. 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 reverse the decision of the trial Court depending on the materials placed.
Similarly, in the case of
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.
15. 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 has failed to show any lacuna in the judgment and also misreading of evidence by the trial Judge.
Dismissed.
