Darshan Singh vs State of Punjab and Others

Rameshwar Singh Malik, J.

Crl. Misc. No. 45665 of 2012

The applicant seeks condonation of delay of 28 days in filing the application u/s 378(4) of the Code of Criminal Procedure (''Cr. P.C.'' for short), for leave to file an appeal against the judgment of acquittal. After hearing the Learned Counsel for the parties, we are satisfied that the reasons given in the application are sufficient to condone the delay.

In view of the above, the instant application is allowed for the reasons stated therein and delay of the 28 days is condoned.

Criminal Misc. No. 660-MA of 2012

This application has been filed u/s 378(4) Cr. P.C., seeking leave to file appeal against the judgment dated 27.4.2012, passed by the learned Additional Sessions Judge, Patiala.

The criminal law was set into motion, on the statement of the applicant-complainant Darshan Singh. The allegation against respondent Nos. 2 to 5 was that they caused the murder of Jarnail Singh, who was younger brother of the complainant. The dead body of the deceased was found in a mutilated condition, in the ditches close to the main road, near petrol pump on Bahadurgarh Highway.

In order to avoid repetition and also for the sake of brevity, it would be appropriate to refer to the factual background of the matter, recorded by the learned trial court, in para 2 of the judgment and the same reads, as under:-

In brief facts of the case are that FIR was registered on the basis of the statement of Darshan Singh complainant. He stated that he is resident of H. No. 253, Street No. 3, Guru Nanak Nagar, Bahadurgarh and is electrician. They are two brothers. His younger brother Jarnail Singh was employed as electrician in railway department at Ludhiana. He was married to Sarabjit Kaur and had two issues one boy and one daughter. Jarnail Singh was addicted to wine and smack. On 23.3.2011 at about 7:30 pm his brother had left the house and when neither returned home nor joined duty for days together, his sister in law Sarabjit Kaur lodged a missing report with Police Post Bahadurgarh. On 11.4.2011 dead body of Jarnail Singh was found in mutilated condition under the bushes in the ditches near the main road on Bahadurgarh highway near petrol pump. At that time he had no doubt on any one regarding the death of Jarnail Singh because at that time they were under shock. They have been making enquiries regarding the death of Jarnail Siongh at their own level. Now he has doubt and is of firm view that Jarnail Singh has been murdered by his nephew (Sister''s son) Malkiat Singh, Dharampal and Ram Adhar by administering some poisonous substance. The motive behind the occurrence is that Sarabjit Kaur had developed illicit relations with Malkiat Singh about which Jarnail Singh had come to know due to which Jarnail Singh used to resist the visiting of Malkiat Singh in his house. Due to said grudge Malkiat Singh in connivance with Dharampal and Ram Adhar at the instigation of Sarabjit Kaur murdered Jarnail Sing on 23.3.2011 and in order to destroy the dead body they threw the same under the bushes near the petrol pump Bahadurgarh. On that day he along with Malak Singh was going to inform the police when the police party met him at Kasba Bahadurgarh. Action be taken. Upon this ruqa was sent to the police station on the basis of which FIR was recorded. On the basis of statement of Darshan Singh regarding the death of Jarnail Singh got recorded on 11.4.2011, proceedings u/s 174 Cr.P.C. were conducted by ASI Vasdev Singh and same were presented before ASI Jarnail Singh along with viscera report as well as report of Dr. Didar Singh Walia in which the cause of death was mentioned as Organo phosphorus compound pesticide poisoning. I.O. along with other police officials visited the spot and prepared the rough site plan. Statements of witnesses were recorded. Site plan of the place where accused administered poisonous substance to the victim was prepared. On 1.10.11 Sarpanch Lakhwinder Singh produced all the accused in PP Bahadurgarh. Accused also produced hand cart used by them in the crime. Accused were arrested. Hand cart was taken into police possession vide recovery memo. On 2.10.2011 during interrogation accused Malkiat Singh suffered disclosure statement that he had kept concealed purse taken out from the pocket of Jarnail Singh near petrol pump Rajpura road Bahadurgarh about which he has the exclusive knowledge and could get the same recovered. In pursuance of said statement purse was got recovered which contained driving licence of the deceased which was taken into police possession. Site plan of place of recovery was prepared. Statements of witnesses u/s 161 Cr.P.C. were recorded. After completion of the investigation, the challan against the accused was presented in the Court.

After registration of FIR (Ex. P-14/B) by ASI Jarnail Singh PW-14, he started the investigation. Inquest report was prepared u/s 174 Cr.P.C., by ASI Vasdev Singh and the same was presented before the Investigating Officer, along with viscera report as well as report of Dr. Didar Singh Walia PW-5. Statement of witnesses were recorded. Investigating Officer inspected the place of occurrence. Rough site plan of the place of occurrence was prepared with correct marginal notes. Dr. Didar Singh Walia, PW-5, found cause of death as organo phosphorus compound pesticide poisoning.

Investigation was carried out and on completion thereof, report u/s 173 Cr. P.C., was presented to the learned court of competent jurisdiction. The relevant documents were supplied to the accused persons, as per law. Having found a prima facie case, charge under Sections 320, 201, 120B of the Indian Penal Code (''IPC'' for short), were framed against the respondents who pleaded not guilty and claimed trial.

In order to prove its case, prosecution examined as many as 16 PWs, besides tendering the relevant documents in evidence. After conclusion of the prosecution evidence, statements of the accused-respondents were recorded u/s 313 Cr.P.C. The incriminating evidence brought on record was put to the accused persons, who pleaded false implication and claimed complete innocence. However, accused did not lead any defence evidence.

After hearing the counsel for the parties and examination of the evidence brought on record, the learned trial court came to conclusion that the prosecution has failed to prove its case beyond shadow of reasonable doubt. Giving benefit of doubt, the accused-respondents No. 2 to 5 were acquitted of the charges framed against them, vide impugned judgment dated 27.4.2012.

Feeling aggrieved against the above said judgment of acquittal, the applicant has filed the present application u/s 378 (4) Cr.P.C., seeking leave to file appeal. That is how, this Court is seized of the matter.

Learned counsel for the applicant vehemently contended that the learned trial court has committed serious error of law, while not appreciating the prosecution evidence in the right perspective. He further submits that sufficient and cogent evidence was brought on record, bringing home the guilt against the accused-respondents, but the learned trial court misdirected itself, while not giving due weightage to the testimony of witnesses, who were trustworthy.

It was next contended by the Learned Counsel for the applicant that the learned trial court has failed to record any cogent finding, while passing the impugned judgment of acquittal. Finally, he submitted that since the overwhelming and plausible evidence brought on record by the prosecution has not been properly appreciated, the impugned judgment was liable to be set aside.

Having heard the Learned Counsel for the applicant and after going through the record of the case, we are of the considered opinion that present one is not a fit case for granting leave to file appeal. We say so for more than one reasons, being recorded hereinafter.

It is a matter of record that PW-1, Lakhwinder Singh, the then Sarpanch of village Guru Nanak Nagar, Bahadurgarh, PW-2 Gurjant Singh and also PW-3 Malak Singh, were declared hostile. None of these three PWs supported the case of the prosecution. They were cross examined by the learned Public Prosecutor but nothing substantial could be elicited from them. The complainant-applicant Darshan Singh, PW-4, tried to support the prosecution story, but halfheartedly. He admitted it to be correct that the dead body of deceased Jarnail Singh was recovered on 11.4.2011 at 6:30 p.m., in the presence of Malak Singh PW-3. However PW-3 has not supported this version. He has also admitted it to be correct that at the time of getting his statement recorded on 11.4.2011 as Ex. PO, he did not raise suspicion against accused-respondents. Although he alleged that accused-Malkiat Singh was having undesirable relations with accused-Sarbjit Kaur (wife of deceased Jarnail Singh) but he failed to prove this allegation. Very many serious discrepancies were found in the statement of this PW, which has been recorded by the learned trial court in para 10 of the impugned judgment. Thus, prosecution has failed to proved either motive or the recovery.

The inordinate delay of more that 51/2 months in getting the FIR registered, has gone totally unexplained. The reason seems to be obvious that the complainant had not doubted the involvement of the accused, even after recovery of the dead body of his brother, on 11.4.2011, whereas FIR came to be recorded on 29.9.2011.

The learned trial court has recorded cogent finding, after discussing each and every aspect of the matter, before arriving at its conclusion. The learned trial court observed as under:-

Darshan Singh complainant deposed in his examination in chief that on 23.3.2011 Sarabjit Kaur came to him at about 6:30 pm and told that Jarnail Singh has gone outside the house and asked him to give her one bottle of insecticide. She gave him Rs. 200/- and then went away. Therefore she again came and told him that she has purchased the same from the market. He also deposed that on 30.3.2011 Sarabjit Kaur came to his house and told that his younger brother is missing and report is to be lodged. He along with Sarabjit Kaur went to the police to lodge the missing report. He also told that Sarabjit Kaur told him that Jarnail Singh was in the habit of consuming smack and he might have died due to excess dose. Thereafter police told him that his brother Jarnail Singh has died due to consumption of intoxicant. Then he lodged the FIR only on 29.9.2011 which was recorded on his statement Ex. PN. The perusal of the testimony of this witness shows that his entire statement is improvement. He also admitted that Sarabjit Kaur was living in the house of entire house was joint and they all were living jointly. Sarabjit Kaur used to live in two rooms. The main story of the prosecution is that insecticide was given at the instance of Sarabjit Kaur by Malkiat Singh, Ram Adhar and Dharampal. It is totally unbelievable that Sarabjit Kaur would have purchased insecticide from the shop of her brother in law in order to give intoxicant to her husband. This witness admitted that he did not give application to the police for not recording his statement correctly. He was confronted with the statement Ex. PN wherein it was not mentioned that on 11.4.2011 police officials came to his house and told him that one dead body was lying. In the present case the FIR has been recorded after 6 months of the date of incident and there is no explanation as to why Darshan Singh kept mum for 6 months although he has admitted that he was living in the same house. He also admitted that he did not sign the blank papers and he was also confronted with statement Ex. PN where the fact that his brother Jarnail Singh used to go to the shop of Dharampal and Pappu Mochi is not mentioned. The prosecution has not proved on record that there was any complaint by deceased Jarnail Singh against Sarabjit Kaur. Even otherwise the police has recorded the extra judicial confession of Sarpanch Lakhwinder Singh in which it was submitted that deceased was killed as deceased used to give beatings to Sarabjit Kaur. But the perusal of testimony of Darshan Singh shows that he nowhere deposed that Jarnail Singh used to beat Sarabjit Kaur and he only deposed that Sarabjit Kaur told that Jarnail Singh used to beat her. It is admitted by Darshan Singh that he is living in the same house and had Jarnail Singh been beating Sarabjit Kaur then this fact would have been certainly in the notice of Darshan Singh. Thus even the motive for killing Jarnail Singh has not been proved by the prosecution. Sarwan Singh who was also cited witness and the present case also did not support the prosecution and stated that he never recorded to the police that on enquiry he came to know that Jarnail Singh has been killed by Malkiat Singh, Dharampal and Ram Adhar. Apart from above it is also totally unbelievable that any person would disclose to any stranger that today they have to kill one person. The prosecution has tried to connect Malkiat Singh with the commission of the crime by the recovery of purse. However prosecution has not been able to prove the said recovery as Malak Singh PW denied that any confessional statement was recorded in his presence. Even otherwise as per prosecution version purse was stated to have been concealed for the more than 6 months but there was no dust or mud on the same. Even no amount of money was recovered from the purse and it is not the case of the prosecution that Malkiat Singh had taken out the said amount. Even otherwise it is totally unbelievable that accused would have taken out purse in order to conceal the same just near the dead body. Sukhbir Singh another witness examined by the prosecution also did not support its version and he denied that he told to the police that on enquiry they came to know that Jarnail Singh was killed by Malkiat Singh, Dharampal and Ram Adhar. From the testimony of aforementioned PWs it is clear that prosecution has not been able to prove its case against the accused at all. The testimony of the complainant is not corroborated and rather it is suspicious and it seems that he has concocted the entire version when the material witnesses did not support the prosecution version. It is not the case of the prosecution or the complainant that accused had exerted pressure on the witnesses or threatened the witnesses to depose in their favour. Thus it is held that the prosecution has not been able to prove its case against the accused beyond shadow of reasonable doubt.

After careful perusal of the record of the case, we have no hesitation to conclude that the learned trial court has not committed any error of law, while passing the impugned judgment of acquittal. The Learned Counsel for the applicant failed to point out any material on record, on the basis of which a different view than the one taken by the learned trial court, might have been taken by this Court. Further, it is the settled proposition of law that whenever two views are possible, the view which goes in favour of accused, is to be preferred.

Having said that, it is unhesitatingly held that the view taken by the learned trial court was based on the sound reasoning and cogent findings, while passing the impugned judgment of acquittal.

The view taken by this Court also finds support, from the judgment of the Hon''ble Supreme Court, in the case of Arulvelu & anr. vs. State represented by the Public Prosecutor and anr. 2009 (4) RCR (Crl.) 638. The relevant observations made by the Hon''ble Supreme Court in para No. 39, 40 and 41 in the case of Arulvelu''s case (Supra) read as under:

In Ghurey Lal Vs. State of U.P., , a two Judge Bench of this Court of which one of us (Bhandari, J.) was a member had an occasion to deal with most of the cases referred in this judgment. This Court provided guidelines for the Appellate Court in dealing with the cases in which the trial courts have acquitted the accused. The following principles emerge from the cases above:

The accused is presumed to be innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court''s acquittal bolsters the presumption that he is innocent.

The power of reviewing evidence is wide and the appellate court can re-appreciate the entire evidence on record. It can review the trial court''s conclusion with respect to both facts and law, but the Appellate Court must give due weight and consideration to the decision of the trial court.

The appellate court should always keep in mind that the trial court had the distinct advantage of watching the demeanour of the witnesses. The trial court is in a better position to evaluate the credibility of the witnesses.

The appellate court may only overrule or otherwise disturb the trial court''s acquittal if it has "very substantial and compelling reasons" for doing so.

If two reasonable or possible views can be reached-one that leads to acquittal, the other to conviction-the High Courts/appellate courts must rule in favour of the accused.

This Court in a recently delivered judgment State of Rajasthan v. Naresh @ Ram Naresh 2009 (11) SCALE 699 again examined judgments of this Court and laid down that "An order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger towards the accused. This Court has dealt with the scope of interference with an order of acquittal in a number of cases.

Careful scrutiny of all these judgments lead to the definite conclusion that the appellate court should be very slow in setting aside a judgment of acquittal particularly in a case where two views are possible. The trial court judgment can not be set aside because the appellate court''s view is more probable. The appellate court would not be justified in setting aside the trial court judgment unless it arrives at a clear finding on marshalling the entire evidence on record that the judgment of the trial court is either perverse or wholly unsustainable in law.

In ''Mrinal Das & others, V. The State of Tripura'', 2011 (9) SCC 479, decided on September 5, 2011, the Hon''ble Supreme Court, after referring to many earlier judgments, has laid down parameters, for interference against 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.

No other argument was raised.

Considering the totality of facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that there is no illegality or perversity in the impugned judgment, which is sine qua non for interference by this Court, in the impugned judgment of acquittal.

In view of the above, the present application is bereft of any merit and without and substance. No case for interference has been made out. Resultantly, the application u/s 378(4) Cr. P.C., seeking leave to file appeal against impugned judgment of acquittal, is ordered to be dismissed.