Neha @ Sushil vs Brahamjit Singh and Others

Jasbir Singh, J.

CRM No. 53567 of 2012

After hearing counsel for the applicant, application is allowed. Delay of 30 days in filing the appeal stands condoned.

CRM No. 53568 of 2012

Allowed as prayed for.

CRM-A-748-MA of 2011

Applicant has filed this application seeking leave to file an appeal u/s 378(4) Cr. P.C. against judgment of acquittal dated 10.02.2011. Criminal complaint filed by the applicant was dismissed by the trial Judge on 10.02.2011. Her appeal was dismissed by the Appellate Court vide order dated 16.05.2012 on technical ground. Thereafter, this application has been filed.

The trial Judge has noted following facts regarding case of the complainant :-

That her marriage was solemnized with accused No. 1 Brahamjit on 23.1.98 at Karnal according to Hindu Rites and ceremonies and thereafter they cohabited with each other as husband and wife and out of this wedlock one male child namely Prikshat was born on 8.1.99. It is further submitted that from the very beginning the behaviour of her husband and other family members namely Daryao Singh, Gian Kaur, Nirmal Singh, Shakuntla and Rajwanti was very cruel towards her over a demand of dowry. They raised a demand of more dowry. Due to this cruel and unwanted behaviour of the accused persons, the father of the complainant got a first information report bearing No. 205 dated 10.3.2000 u/s 406, 498 and 506 of Indian Penal Code registered. Since the accused are strong headed persons and accordingly, they in connivance with the local police managed to cancel the said First Information Report and request of her father for re-investigation of the case was cancelled by the police. Feeling aggrieved by the act and conduct of the police, her father filed a protest petition against the accused persons which is pending in the court of Shri J.S. Sidhu, the then learned Judicial Magistrate 1 Class, Karnal and accused No. 1 Brahamjit Singh was ordered to be summoned by the learned Judge for commission of offence punishable u/s 406, 498A and 506 of Indian Penal Code vide order dated 30.09.2003. It is further submitted that during the investigation of aforementioned First Information Report the police who has already connived with the accused persons put pressure on her father to compromise the matter and in order to achieve success in their evil act and design the accused person hatched a conspiracy in the house No. 38, Sector 6, Urban Estate, Karnal of accused Raj Wanti and prepared a false and fabricated affidavit of the complainant dated 28.03.2000 which was got attested by Shri Dalip Singh, Notary Public mentioning there that the complainant is agree to cancel the aforementioned First Information Report. It is further submitted that the signatures of the complainant on the said affidavit are forged whereas no such agreement was sworn by the complainant in presence of any Panchayat. It is further submitted that on the basis alleged forged affidavit, the police submitted the cancellation report in First Information Report No. 205 dated 10.03.2000. Thereafter, father of the complainant moved an application before the DSP (Hq) who referred the matter to Women Cell on dated 01.05.2001 but there also no fruitful purposes was served. It is further alleged that said affidavit was sent to Forensic Science Laboratory, Madhuban (Karnal) for comparison and the father of the complainant was assured that action will taken after receipt of the said report. It is further submitted during the pendency of the litigation''s accused Satya Vart on 03.03.2002 made a telephonic call at the residence of the complainant on phone No. 980076 threatening the father of the complainant that if he is not going to compromise the case then in that eventuality he along with other accused finish them. Feeling aggrieved by the action of the police, the complainant finding no other alternative filed the present complaint.

It appears to be a matrimonial dispute. Complainant married to respondent No. 1 in the year 1998. One child has taken birth out of the wedlock. It is a case of the complainant that in the process, some documents were forged and fabricated by the respondents accused with a view to wriggle out the pending FIR against them.

In preliminary evidence, complainant produced two witnesses. Respondents-accused was summoned vide order dated 09.02.2004. Upon their appearance, documents were supplied to them. The complainant then produced four witnesses and also brought on record the documentary evidence to prove its case.

On conclusion of prosecution''s evidence, statements of the respondents accused were recorded u/s 313 Cr.P.C., wherein the incriminating material existing on record was put to them, to which they denied, claimed innocence and false implication. They also led evidence in defence.

It was a case of the complainant that the FIR lodged by her was got cancelled by presenting a forged affidavit alleged to have been executed by her. It was noted by the trial Judge that Chander Bhan PW3 had admitted his signatures on compromise Ex. D3 dated 26.03.2000. It was specifically stated by this witness that others had also signed the documents in his presence. It was also admitted by him that on the basis of compromise he had left his daughter in the company of the accused. This witness also admitted the signatures on document Ex. D4. The trial Judge has given sufficient reasons in favour of the respondents accused in para No. 10 of the judgment under challenge. It was rightly opined that forging of the document has not been proved on record to justify the application seeking leave to file an appeal. Nothing is stated on the basis of which interference can be made by this Court except making bald assertion. It is nowhere stated that the trial Judge has misread the vital evidence on record.

Their Lordships of the Supreme Court in ''Allarakha K. Mansuri v. State of Gujarat, 2002 (1) RCR (Cri.) 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 (Cri.) 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 applicant-appellant has failed to show any error in law on the basis of which interference can be made by this Court in the judgment under challenge. Accordingly, the application is dismissed.