Malkiat Singh vs Nirmal Singh and Others

Paramjeet Singh, J.

CRM-22724-2014

Having heard learned counsel for the applicant and in view of grounds mentioned in application, delay of 15 days in filing the application for leave to appeal is condoned.

Application stands allowed.

CRM-A-1196-MA-2014

The instant application has been filed under Section 378(4) of the Code of Criminal Procedure (in short ''Cr.P.C.'') for grant of leave to appeal against the impugned judgment dated 08.05.2014 passed by the Judicial Magistrate Ist Class, Talwandi Sabo whereby complaint filed by applicant under Sections 505/506/447/323/324/148/149 of the Indian Penal Code (in short, ''IPC'') has been dismissed and respondents-accused have been acquitted of charges framed against them.

Brief facts of the case are that a complaint was filed by the applicant-complainant with the averments that on 03.12.2009, at about 4.00 P.M., complainant along with his brothers Baljit Singh and Babu Singh went to their fields near village Jodhpur Pakhar. They came to know that Nirmal Singh, Lachhman Singh, Ram Singh, Darshan Singh and Harnek Singh had demolished the common ''watt'' of the field. When they reached on the spot they saw that the ''watt'' was demolished. Accused Nirmal Singh, Ram Singh and Lachhman Singh were present in the field when they made complaint to accused regarding this, the accused started fighting with them. Accused Nirmal Singh called his brothers Darshan Singh, Harnek Singh and Gursewak Singh. Darsan Singh was armed with spade, Nirmal Singh was armed with Karsauli and Ram Singh was armed with Hairon. All the other accused were armed with sticks. Accused-Ram Singh stated that they should be taught a lesson for making complaint. Ram Singh gave blow with Hairon on left cheek of Baljit Singh, accused Nirmal Singh gave Karsauli blow on back side of his head. Accused Darshan Singh gave spade blow on right shoulder of his brother Baljit Singh. Harnek Singh gave stick blow on right ear of his brother Baljit Singh. Lachhman Singh and Gursewak Singh slapped him as well as his brother Baljit Singh. His brother Babu Singh raised alarm of marta-marta. After that all the accused fled away along with their respective weapons and threatened that next time, they would kill them. His nephew after arranging for vehicle got him and his brother Baljit Singh in Civil Hospital, Maur where they underwent treatment. The police officials got his statement recorded but the same was not as per his version and he had objected to the same. The police officials had registered false case at the instance of accused under Sections 324/34 IPC against him and his brother. The police officials refused to take any action against accused. Therefore, the complaint was filed.

On the basis of preliminary evidence, the respondents-accused were summoned for committing the offence punishable under Sections 323/148 read with Section 149 IPC.

In pre-charge evidence, the complainant, in order to prove his case, examined himself as CW4 besides examining Dr. Avtar Singh as CW 1, Kundan Lal as CW 2, HC Karnail Sigh as CW 3, Baljit Singh as CW 5.

Finding, prima facie, the accused were charge-sheeted under Sections 148 and 323 read with Section 149 IPC, to which they pleaded "not guilty" and claimed trial.

Thereafter, statements of the respondent-accused under Section 313 Cr.P.C. were recorded wherein they pleaded complete innocence and false implication.

The trial Court, after appreciating the evidence, acquitted the respondents of the charges framed against them, vide impugned judgment dated 08.05.2014.

I have heard learned counsel for the applicant and gone through the impugned judgment.

The trial Court, after appreciating the evidence on record, observed as under:-

"20. As per the facts of complaint and from the evidence of complainant witnesses it is clear that nephew of complainant Nirbhay Singh got them in hospital and Babu Singh brother of complainant was also present on the spot. However, neither Babu Singh eye witness has been examined by the complainant nor Nirbhay Singh who got them admitted in hospital has been examined by the complainant. The best evidence has been withheld by the complainant. Further in complaint it has not been mentioned that Harnek Singh attacked with stick on head of the complainant, however, in his evidence Baljit Singh has stated that Harnek Singh gave stick blow on his head but in complaint he has mentioned that the blow was given on his right ear contrary to medical evidence. As per the evidence of Dr. Avtar Singh, three injuries were caused upon the person of Baljit Singh, however, Malkiat Singh in his evidence has stated that two injuries were caused upon the person of his brother. Baljit Singh in his statement has stated that 4-5 injuries were caused upon his person. It is also material contradiction which is fatal to the case of the complainant.

In view of my above discussion, the complainant has failed to prove the guilt of accused under Section 148, 323 read with Section 149 IPC beyond the shadow of reasonable doubt. So the accused stands acquitted of the charge framed against them. Case property, if any, is ordered to be disposed of under rules, after the expiry of period of appeal or revision. The case file be consigned to the record-room."

The Hon''ble Supreme Court in Muralidhar @ Gidda and Another Vs. State of Karnataka, AIR 2014 SC 2200 : (2014) AIRSCW 2278 : (2014) CriLJ 2365 : (2014) 4 SCALE 693 : (2014) 5 SCC 730 has held as under:

"10. Lord Russell in Sheo Swarup and Others vs. The King-EmperorAIR 1934 227 (Privy Council) highlighted the approach of the High Court as an appellate court hearing the appeal against acquittal. Lord Russell said, "the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses." The opinion of the Lord Russell has been followed over the years.

As early as in 1952, this Court in Surajpal Singh and Others Vs. The State, AIR 1952 SC 52 : (1952) CriLJ 331 : (1952) 1 SCR 193 , while dealing with the powers of the High Court in an appeal against acquittal under Section 417 of the Criminal Procedure Code observed, "the High Court has full power to review the evidence upon which the order of acquittal was founded, but it is equally well settled that the presumption of innocence of the accused is further reinforced by his acquittal by the trial court, and the findings of the trial court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and compelling reasons."

The approach of the appellate court in the appeal against acquittal has been dealt with by this Court in Tulsiram Kanu Vs. The State, AIR 1954 SC 1 , Madan Mohan Singh Vs. State of Uttar Pradesh, AIR 1954 SC 637 , Atley Vs. State of Uttar Pradesh, AIR 1955 SC 807 : (1955) CriLJ 1653 , Aher Raja Khima Vs. The State of Saurashtra, AIR 1956 SC 217 : (1956) CriLJ 426 : (1955) 2 SCR 1285 , Balbir Singh Vs. State of Punjab, AIR 1957 SC 216 : (1957) CriLJ 481 , M.G. Agarwal Vs. State of Maharashtra, AIR 1963 SC 200 : (1963) 2 SCR 405 , Noor Khan Vs. State of Rajasthan, AIR 1964 SC 286 : (1964) CriLJ 167 : (1964) 4 SCR 521 , Khedu Mohton and Others Vs. State of Bihar, AIR 1971 SC 66 : (1971) CriLJ 20 : (1970) 2 SCC 450 : (1970) 1 SCC(Cri) 479 : (1971) 1 SCR 839 , Shivaji Sahabrao Bobade and Another Vs. State of Maharashtra, AIR 1973 SC 2622 : (1973) CriLJ 1783 : (1973) 2 SCC 793 : (1973) SCC(Cri) 1033 : (1974) 1 SCR 489 , Lekha Yadav Vs. State of Bihar, AIR 1973 SC 2241 : (1973) 2 SCC 424 : (1973) SCC(Cri) 820 , Khem Karan and Others Vs. The State of U.P. and Another, AIR 1974 SC 1567 : (1974) CriLJ 1033 : (1974) 76 PLR 677 : (1974) 4 SCC 603 : (1974) SCC(Cri) 639 : (1974) 3 SCR 863 : (1974) 6 UJ 389 , Bishan Singh, Gurdial Singh, Hardial Singh, Surjit Singh, Harbans Singh and Hazur Singh Vs. The State of Punjab, AIR 1973 SC 2443 : (1973) CriLJ 1596 : (1974) 3 SCC 288 : (1973) SCC(Cri) 914 : (1973) 5 UJ 755 , Umedbhai Jadavbhai Vs. The State of Gujarat, AIR 1978 SC 424 : (1978) CriLJ 489 : (1978) 1 SCC 228 : (1978) SCC(Cri) 108 : (1978) 2 SCR 471 , K. Gopal Reddy Vs. State of Andhra Pradesh, AIR 1979 SC 387 : (1980) CriLJ 812 : (1979) 1 SCC 355 : (1979) SCC(Cri) 305 : (1979) 2 SCR 363 : (1979) 11 UJ 52 , Tota Singh and Another Vs. State of Punjab, AIR 1987 SC 1083 : (1987) CriLJ 974 : (1987) 2 Crimes 54 : (1987) 2 JT 20 : (1987) 1 SCALE 657 : (1987) 2 SCC 529 : (1987) 2 SCR 747 , Ram Kumar Vs. State of Haryana, AIR 1995 SC 280 : (1994) CriLJ 3836 : (1994) 3 Crimes 633 : (1994) 6 JT 502 : (1994) 4 SCALE 484 : (1995) 1 SCC 248 : (1994) 4 SCR 335 Supp , Madan Lal Vs. State of Jammu & Kashmir, AIR 1998 SC 386 : (1998) CriLJ 667 : (1997) 7 JT 357 : (1997) 5 SCALE 461 : (1997) 7 SCC 677 : (1997) 3 SCR 337 Supp , Sambasivan and Others Vs. State of Kerala, (1998) 1 AD 505 : AIR 1998 SC 2107 : (1998) CriLJ 2924 : (1998) 3 JT 742 : (1998) 3 SCALE 462 : (1998) 5 SCC 412 : (1998) 3 SCR 280 : (1998) AIRSCW 1986 : (1998) 4 Supreme 562 , Bhagwan Singh and Others Vs. State of Madhya Pradesh, AIR 2002 SC 1621 : (2002) CriLJ 2024 : (2002) 2 Crimes 42 : (2002) 3 JT 387 : (2002) 3 SCALE 169 : (2002) 4 SCC 85 : (2002) AIRSCW 1532 : (2002) 2 Supreme 567 , Harijana Thirupala and Others Vs. Public Prosecutor, High Court of A.P., Hyderabad, AIR 2002 SC 2821 : (2002) CriLJ 3751 : (2002) 3 Crimes 87 : (2002) 5 JT 551 : (2002) 5 SCALE 434 : (2002) 6 SCC 470 : (2002) 1 SCR 379 Supp : (2002) AIRSCW 3199 : (2002) 5 Supreme 229 , C. Antony Vs. K.G. Raghavan Nair, AIR 2003 SC 182 : (2006) 4 BC 295 : (2002) 112 CompCas 611 : (2003) CriLJ 411 : (2003) 1 SCC 1 : (2003) 1 UJ 36 , State of Karnataka Vs. K. Gopalakrishna, AIR 2005 SC 1014 : (2005) CriLJ 1436 : (2005) 1 DMC 245 : (2005) 2 JT 389 : (2005) 9 SCC 291 : (2005) AIRSCW 949 : (2005) 1 Supreme 735 , State of Goa Vs. Sanjay Thakran and Another, (2007) 5 JT 146 : (2007) 3 SCALE 740 : (2007) 3 SCC 755 : (2007) 3 SCR 507 and Chandrappa and Others Vs. State of Karnataka, (2007) CriLJ 2136 : (2007) 3 JT 316 : (2007) 3 SCALE 90 : (2007) 4 SCC 415 : (2007) 2 SCR 630 . It is not necessary to deal with these cases individually. Suffice it to say that this Court has consistently held that in dealing with appeals against acquittal, the appellate court must bear in mind the following: (i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court, (ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal, (iii) Though, the power of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanor of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified, and (iv) Merely because the appellate court on re-appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court."

Learned counsel for the applicant has failed to show any error in law or on facts on the basis of which interference can be made by this Court in the judgment under challenge.

As such, application for leave to appeal is dismissed on merit.