State of Punjab vs Kailash Nath

Jasbir Singh, Acting Chief Justice

CRM No.23390 of 2012

In view of reasons mentioned in this application, which is accompanied by an affidavit, it is allowed and 81 days delay in filing the application seeking leave to file an appeal stands condoned. CRM A-241-MA -2012 The State of Punjab has filed this application u/s 378 (3) Cr.P.C.,seeking leave to file an appeal against judgment dated 29.9.2011, vide which, respondent was acquitted of the charge framed against him.

Against the respondent, an FIR was registered on 12.10.2010 for commission of offences under Sections 364, 307 IPC. It was an allegation against him that he kidnapped Sunny son of Dharminder (PW2) with an intention to kill him on 2.6.2010.

The trial Court has noted the following facts regarding case of the prosecution:

that Ex Sarpanch Balwant Singh, alleged that on 2.6.2010, while he was walking with Gej Ram member panchayat, along the canal of village Waryana, in the morning, they heard the noise of weeping of a child from the canal side. They went down the dry canal and noticed some movement in a gunny bag tied with jute string. When they opened it a child aged about 5 years was recovered therefrom. The child was very scared. It was 8.30 pm at that time. Water was arranged for the child. On asking, child disclosed his name as Sunny son of Dharminder. He also disclosed that accused Kailash s/o Ram Dulara, who is residing above the residence in a room had thrown him in the canal after putting him in the Jute bag. He has further alleged that accused Kailash kidnapped and thew (threw?) the child in the canal with an intention to kill him. He has further alleged that had they not seen the child, he would have been killed. Thereafter, they themselves searched the parents of child, but could not find them.

The process of law was started on a statement made by PW1 Balwant Singh. The investigating officer ASI Dilbag Singh recorded statements of the witnesses u/s 161 Cr.P.C. Respondent-accused was arrested and on completion of investigation final report was put in Court for trial on 31.7.2010. Copies of the documents were supplied to the respondent-accused as per norms. Vide order dated 12.8.2010, case was committed to the competent Court for trial. The respondent-accused was charge sheeted to which he pleaded not guilty and claimed trial. The prosecution produced four witnesses and also brought on record documentary evidence to prove its case.

On conclusion of prosecution''s evidence, statement of the respondent was recorded u/s 313 Cr.P.C. Incriminating material existing on record was put to him, which he denied, claimed innocence and false implication. He led no evidence in defence.

The trial Court on appraisal of evidence, found that the prosecution has failed to prove guilt of the respondents beyond a shadow of reasonable doubt, benefit of which, was given to him and he was acquitted.

It is case of the prosecution that child was recovered on 2.6.2010 at 8.10 a.m. Admittedly, at that time, respondent-accused was residing in the same building, on the first floor, where parents of the child were also residing.

After taking note of the facts on record, the trial Court rightly held that the presence of the complainant and Gej Ram at the spot was doubtful when the child was recovered. To say so, distance between the villages/ residences of the above persons was noticed. It has also come on record that father of the child had deposed that child was not kidnapped rather he went missing on the above date. He has further stated that accused Kailash Nath was with him and made efforts to trace the child. By noting contradictions between the deposition made by father of the child and other witnesses, the trial Court rightly gave benefit of doubt to the respondents. Reliance was also placed upon statements made by the child to say that the complainant was not present at the spot when child was recovered. The prosecution has also failed to prove any motive to commit the crime. It is a case of circumstantial evidence. The prosecution has failed to complete chain of the circumstances to pin-point the respondent as an accused. Father of the child has virtually exonerated the respondent of any accusation in the present case.

This Court feels that the view taken by the trial Court in acquitting the respondent 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 show any lacuna in the judgment and also misreading of evidence by the trial Judge.

Dismissed.