Ashwani Sharma vs State of Punjab and Others

Jasbir Singh, Acting Chief Justice

CRM No. 9284 of 2012

In view of reasons mentioned in this application, which is accompanied by an affidavit, it is allowed and 95 days delay in filing the application seeking leave to file an appeal stands condoned.

CRM A-124-MA -2012

The applicant has filed this application u/s 378(4) Cr.P.C. seeking leave to file an appeal against judgment of acquittal dated 10.6.2011.

An FIR bearing No. 180 was registered against respondent Nos. 2 and 3 on 16.12.2007 for commission of offences under Sections 307/34 IPC and Section 27 of the Arms Act, 1959 in police station Malerkotla.

The process of law was set in motion on a statement (Ex.PA) made by PW1 complainant/ applicant, on the basis of which, formal FIR (Ex.PC) was recorded against respondent Nos.2 and 3 as stated above.

The trial Judge has noted the following contents from the statement made by PW1 Ashwani Sharma:-

a female namely Manjit Kaur @ Guddi and an elderly person namely Amar Singh (the accused facing trial) were residing in the area of Old Income Tax Street, Malerkotla for the last about two years. On 16.12.2007 at about 4 PM Manjit Kaur was having an altercation, at a loud pitch with Shiv Shanker and his wife (neighbours of Ashwani Sharma) and when the complainant went to the roof top of the house of Shiv Kumar and asked them reasons for their altercation, both of Manjit Kaur and Amar Singh started abusing him with Manjit Kaur saying that let a lesson be first taught to the supporter of Shiv Kumar. Frightened Ashwani Sharma came down stairs and stood in the door of Baithak of his house. His mother Radha Rani and other women from the neighbourhood also came there. Manjit Kaur and his companion kept on hurling abuses. Manjit Kaur went on the Chobara of her house and exhorted her co-accused to not to let Ashwani Sharma, a bahman, escape unhurt, whereupon Amar Singh fired a shot from the window of Chobara towards Ashwani Sharma with his.12 gun with the intention of killing Ashwani Sharma but the shot missed the target and after scratching frame of mesh-wire door it pierced through mesh-wire of another door. The shot so fired by Amar Singh caused panic in whole of the street and all of the inhabitants of the street went indoors and bolted their doors.

It is further case of the complainant/ applicant that he has informed about the incident to his brother Sanjay Kumar, who also reached at the spot. It was also submitted that the occurrence was witnessed by Wazir Chand etc. Motive behind the incident was stated a previous altercation between the applicant and Manjit Kaur regarding parking of a motor vehicle in the street.

The investigating officer SI Swaranjit Singh (PW3) on receipt of information reached at the spot. After recording the statement of PW1 (the applicant), he inspected the place of occurrence, got the photographs clicked through Pawan Kumar a photographer. He also prepared a rough site plan (Ex.PD) with correct marginal notes. The investigating officer also recovered empty cartridge of.12 bore gun (Ex.P1) from the rooftop of house of respondent No. 2. He also recovered four small sized pieces of cardboard and a piece of rubber propelled by a firing instrument (Ex.P3). Above offending articles were taken in possession against a recovery memo. Respondent No. 2 was arrested on 27.12.2007..12 bore gun (Ex.P4) and 12 live cartridges were also recovered from him.

On completion of investigation, final report was put in Court. Copies of the documents were supplied to respondent Nos.2 and 3 as per norms. The case was committed for trial to the competent Court on 23.7.2008. The prosecution produced seven witnesses and also brought on record documentary evidence to prove its case.

On conclusion of prosecution''s evidence, statements of respondent Nos.2 and 3 were recorded u/s 313 Cr.P.C., wherein material existing on record was put to them which they denied, claimed innocence and false implication. However, they led no evidence in defence.

The trial Court on appraisal of evidence, found both the respondents not guilty and accordingly they were acquitted of the charges framed against them. Hence, this application.

Counsel for the applicant has vehemently contended that the trial Judge has not appreciated the evidence on record in a proper manner. Eye witness account has been ignored on the basis of technicalities only. An attempt to commit murder by firing a shot at the complainant was proved on record. He prayed that application be allowed, leave to file an appeal be granted.

After going through the paper book, we are not inclined to accept prayer made by the applicant. The trial Court rightly noted that there is no independent corroboration to the case of the prosecution, which has been supported only by the applicant PW1 and his mother. Both were interested witnesses. There is no independent account of the above incident. The witness, namely, Shiv Shanker was not brought into the witness box. No resident of the locality has come forward to support case of the prosecution. It was case of the prosecution that immediately after the alleged occurrence, investigating officer PW3 SI Swaranjit Singh came to the spot and from rooftop of the house of respondent No. 2, he picked up an empty cartridge allegedly of a shot fired by respondent No. 2. He also took into his possession some offending articles. The empty of the cartridge was sent to the Forensic Science Laboratory, Punjab, Chandigarh along with licenced gun of Amar Singh. As per report, no definite opinion was given regarding firing of the above cartridge from the gun in question. By noting as above, the trial Judge rightly opined that the prosecution has failed to connect the alleged empty of the cartridge with the firing allegedly committed by Amar Singh respondent No. 2. It was case of the prosecution that shot which was fired at PW1 Ashwani Sharma had brushed frame of mesh wire door and pierced through another mesh wire door. At the time of investigation, the investigating officer failed to detect any mark at the spot. The trial Judge has also noted contradictions in the statements of the witnesses in paragraph No. 23 of the judgment under challenge. The investigating officer SI Swaranjit Singh (PW3) has stated that an empty of the cartridge was recovered from rooftop of the house of respondent No. 2, whereas PW4 ASI Pritpal Singh had stated that pieces of cardboard and rubber were recovered from the street and not from the rooftop.

Counsel for the applicant has vehemently contended that the trial Court has not rightly appreciated the evidence on record, however, he has failed to indicate any flaw in the judgment passed. The judgment passed is 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 Vs. State of Rajasthan, which are that interference in an appeal against acquittal would be called for only if the judgment under appeal were perverse 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 Vs. Sanjay Thakran and Another, and in Chandrappa and Others Vs. State of Karnataka, 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 reverse the decision of the trial Court depending on the materials placed.

Similarly, in the case of State of Rajasthan Vs. Shera Ram @ Vishnu Dutta, , the Hon''ble Supreme Court has observed as under:-

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.

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:

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 indicate any misreading of oral as well as documentary evidence on record by the trial Court. No case is made out for interference. Dismissed.