Mukesh vs Puran and Others

Paramjeet Singh, J.

CRM No. 36415 of 2013

This is an application u/s 5 of the Limitation Act read with Section 482 Cr.P.C. for condoning the delay of 633 days in filing the appeal. Learned counsel for the petitioner contended that vide order dated 22.02.2010, learned Chief Judicial Magistrate, Gurgaon, acquitted the respondents in a complaint case and complaint was dismissed. Instead of approaching this Court u/s 378(4) Cr.P.C., the petitioner filed an appeal before the learned Additional Sessions Judge, Gurgaon on 08.05.2010, which was dismissed being not maintainable on 09.01.2012. Thereafter, the appeal has been filed in this Court on 23.01.2012. The delay has occurred due to filing of appeal in a wrong court which is not intentional.

For the reasons indicated above, the instant application is allowed. Delay of 633 days in filing the appeal is condoned.

CRM A-258-MA of 2012

The instant application has been filed u/s 378(4) Cr.P.C. for grant of leave to appeal against the impugned judgment dated 22.02.2010 passed by the learned Chief Judicial Magistrate, Gurgaon, whereby the respondents have been acquitted in a complaint case under Sections 148, 323, 506, 149 of the Indian Penal Code by extending benefit of doubt.

Brief facts of the case as mentioned in the impugned judgment are as under:-

Complainant Mukesh filed this complaint under Sections 323, 325, 148, 149 and 506 IPC against the accused alleging therein that complainant is a peace loving person and earns livelihood by driving a three wheeler. On 10.01.1999 at about 8 a.m., when complainant cleaning the drain which is outside his house and when he came there and objected the complainant to drain out the water and started abusing. On hearing noise, Hariom who was present at the house, came out and Satbir and Rajender also started abusing. He has that on which there was exchange or hot words between the complainant and accused. He has further stated that accused Satbir brought the lathi and gave a lathi blow on right eye of Hariom. It is further stated that when Hariom raised alarm, then Daya Nand, brother of Hariom, tried to know the reason of fight then Ranbir and Mukesh gave an iron rod blow on left arm of Daya Nand. He has further stated that after that Puran accused also reached at the spot and gave a lathi blow on left eye of complainant''s uncle Naresh. He has further stated that in the meantime, accused Mahender also reached at the spot and gave slaps and fists to complainant''s uncle Hariom. He has further on hearing noise of Mar Diya, Hans Raj and Jagram reached the spot and rescued them from clutches of accused. He has further stated that while going away, all accused threatened that they have been saved and would be killed whenever, an opportunity will arise. He has further stated that police did not paid any heed to his request. Hence, the present complaint.

After the preliminary evidence, vide order dated 24.02.2004 the accused were ordered to be summoned to face trial for the offences punishable under Sections 323, 148, 149, 506 IPC. Thereafter, charge was framed against the accused to which they pleaded not guilty and claimed trial.

The complainant, in order to prove his case, examined PW1 Daya Chand and himself as PW2.

Thereafter, statements of the accused-respondents u/s 313 Cr.P.C. were recorded. All incriminating facts and circumstances were put to the accused wherein they pleaded complete innocence and false implication. In their defence evidence, accused examined DW1 EHC-Shyam Chand, DW2 SI Satyabir Singh, DW3 Dr. B.B. Aggarwal and DW4 Dr. B.K. Rajora.

The learned Trial Court, after appreciating the evidence, acquitted the accused-respondents of the charges framed against them vide judgment dated 22.02.2010. Against judgment dated 22.02.2010, the petitioner preferred an appeal before the learned Additional Sessions Judge, Gurgaon which was also dismissed as not maintainable before that Court in view of provisions of Section 374(8) of the Code of Criminal Procedure vide judgment dated 09.01.2012. Hence, this application for grant of leave to appeal against the order dated 22.02.2010 passed by learned Chief Judicial Magistrate, Gurgaon.

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

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

PW1 Daya Chand admitted that with regard to this incident, a State case is also pending against the complainant''s party. Their case is that they caused no injuries to the accused party. However, the accused in their defence examined PW3 Dr. B.B. Aggarwal to prove x-ray examination of Rajender and Ranbeer on 11.11.99 vide Ex. DW3/6 and Ex. DW3/C. DW4 Dr. B.K. Rajora had also medico legally examined Leela, wife of Stabir accused, Rajender, Parveen and Satbir on 10.11.99 i.e. day of occurrence. Admittedly, as notice above, the complainant party is also facing trial with regard to those incident regarding causing injuries on the accused persons. So non explanation of the injuries on the person of the accused persons by the complainant''s party renders the complainant''s case doubtful. It shows that the complainant has concealed the true and material facts of the incident from the court and which makes the version of the complainant''s doubtful.

From the evidence of PW1 and PW2, it comes to light that the dispute started between the parties when Bhagwat etc. were draining out waste water which allegedly damaged under construction house of Ranbeer. Objection by Ranbir etc. led the altercation. The motive is double edged weapon on the one side where it gives a cause to the accused to cause injuries there is always reason with the complainant party on the other hand for false implication also. In these circumstances, this would make a room for possibilities of the false implication.

It is settled law that prosecution is required to prove the case against the accused beyond the shadow of all reasonable doubts. The complainant''s case may be true but the law requires "it must be true". There is a long distance between ''may be true'' and ''must be true''. A suspicion, howsoever grave cannot take place of the proof. In this view of the matter, the complainant has failed to prove its case against accused Puran, Ranhir, Satbir, Rajender, Mahender and Mukesh, they are entitled to acquittal and are accordingly acquitted by extending benefit of doubt in their favour....

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. This view has been reiterated in State of Goa Vs. Sanjay Thakran and Another, , and '' Chandrappa and Others Vs. State of Karnataka,

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 misreading of the evidence and merely because the appellate Court was inclined to take a different view, could not be a reason calling for interference.

In ''Mrinal Das & others v. The State of Tripura, 2011 (9) SCC 479'', decided on September 5, 2011, the Hon''ble 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.

Learned counsel for the petitioner has failed to show any error of law or on facts on the basis of which interference can be made by this Court in the judgment under challenge. As such, this application for leave to appeal is dismissed.