Swaranjit Singh vs Karam Singh and Others

Naresh Kumar Sanghi, J.—Challenge in this appeal, by the complainant-appellant, Swaranjit Singh, is to the judgment dated 21.3.2001, passed by the learned Judicial Magistrate Ist Class, Jagraon, whereby the respondents were acquitted of the charges for the offences punishable under Sections 148, 323, 324, 342 and 365 read with Section 149, IPC. The brief facts of the case, as culled out from the combined reading of the complaint and the other material available on record, are that the complainant-appellant, Swaranjit Singh, filed a complaint dated 26.4.1997 before the learned Judicial Magistrate Ist Class, Jagraon, for prosecution of the respondents for the offences punishable under Sections 324, 325, 326, 365, 368 and 506 read with Section 34, IPC.

After recording of the preliminary evidence, the respondents were ordered to face trial vide order dated 26.4.1997 for the offences punishable under Sections 323, 324, 365 and 506 read with Section 34, IPC. After appearance of the accused, the appellant appeared as CW1 and produced Dr. Raj Kumar Kaura as CW2.

After hearing counsel for the parties, the learned Trial Court vide order dated 1.6.2000 ordered framing of the charges for the offences punishable under Sections 148, 323, 324, 342 and 365 read with Section 149, IPC, to which the accused-respondents pleaded not guilty and claimed trial.

In after-charge evidence, the complainant-appellant produced CW2 Dr. Raj Kumar Kaura for further cross-examination and thereafter vide order dated 24.8.2000 closed his evidence.

After closure of the complainant-appellant''s evidence, statements of the accused-respondents were recorded in terms of Section 313, Cr.P.C., in which they pleaded their false implication. In defence, the accused-respondents produced DW1 Constable Buta Singh and DW2 ASI Harbans Singh and closed the evidence vide order dated 14.3.2001.

After hearing learned counsel for the parties and perusing the material available on record, the learned Judicial Magistrate Ist Class, Jagraon, acquitted the accused-respondents; hence, the present appeal by the complainant-appellant.

Learned counsel for the appellant submitted that the evidence of the injured/complainant-appellant, Swaranjit Singh, by itself is overwhelming and sufficient for holding the accused-respondents guilty for the offences for which they have been charged. He further submitted that the evidence of the complainant-appellant has further been corroborated from the deposition of CW2 Dr. Raj Kumar Kaura, who had well proved that there were multiple injuries on the person of the injured-complainant, but the learned Trial Court without appreciation of the deposition of the appellant, Swaranjit Singh, and that of CW2 Dr. Raj Kumar Kaura, had acquitted the accused-respondents. Therefore, the impugned judgment of acquittal is liable to be set aside.

On the other hand, learned counsel for the accused-respondents submitted that it is a case of no evidence. In spite of affording an opportunity to the complainant-appellant, he failed to produce any evidence in post-charge evidence, except tendering of CW2 Dr. Raj Kumar Kaura for further cross-examination. The cross-examination of Dr. Raj Kumar Kaura by itself would not prove the offences for which the accused-respondents were charge sheeted. As per testimony of the appellant the wife of Gopal Singh had witnessed the occurrence, but she was withheld by the complainant from the witness box. He further submitted that the alleged occurrence had taken place on 4.4.1997, at about 9:00 p.m., while the complaint was presented before the learned Area Judicial Magistrate on 26.4.1997, i.e. after an un-explained delay of 22 days. He also submitted that in spite of every opportunity, the complainant-appellant did not report the matter to the police, which creates serious doubt on his testimony. He also submitted that the learned Magistrate in his wisdom referred the matter to the police for inquiry/investigation in terms of Section 202, Cr.P.C., during the pendency of the trial of the complaint, but after thorough inquiry/investigation, the police came to the conclusion that the allegations levelled by the complainant-appellant were not substantiated. Therefore, the learned Trial Court had rightly delivered the judgment of acquittal in favour of the accused-respondents. He further submitted that every accused is presumed to be innocent till he is held guilty and that the presumption of innocence is further strengthened from the judgment of acquittal. Therefore, the well reasoned judgment of acquittal should not be set aside on the ground that yet another view is possible.

I have heard learned counsel for the parties and with their able assistance gone through the material available on record.

While taking up the last submission of the learned counsel for the accused-respondents first that well reasoned judgment of acquittal should not be set aside merely on the ground that yet another view is possible, it is desirable to have a glance on different judgments on the issue.

In Murugesan and Others Vs. State through Inspector of Police, , Hon''ble the Supreme Court held as under:-

In the above facts can it be said that the view taken by the trial court is not a possible view? If the answer is in the affirmative, the jurisdiction of the High Court to interfere with the acquittal of the accused appellants, on the principles of law referred to earlier, ought not to have been exercised. In other words, the reversal the acquittal could have been made by the High Court only if the conclusions recorded by the learned trial court did not reflect a possible view. It must be emphasized that the inhibition to interfere must be perceived only in a situation where the view taken by the trial court is not a possible view. The use of the expression "possible view" is conscious and not without good reasons. The said expression is in contradistinction to expressions such as "erroneous view" or "wrong view" which, at first blush, may seem to convey a similar meaning though a fine and subtle difference would be clearly discernible.

The expressions "erroneous", "wrong" and "possible" are defined in the Oxford English dictionary in the following terms:

It will be necessary for us to emphasize that a possible view denotes an opinion which can exist or be formed irrespective of the correctness or otherwise of such an opinion. A view taken by a court lower in the hierarchical structure may be termed as erroneous or wrong by a superior court upon a mere disagreement. But such a conclusion of the higher court would not take the view rendered by the subordinate court outside the arena of a possible view. The correctness or otherwise of any conclusion reached by a court has to be tested on the basis of what the superior judicial authority perceives to be the correct conclusion. A possible view, on the other hand, denotes a conclusion which can reasonably be arrived at regardless of the fact where it is agreed upon or not by the higher court. The fundamental distinction between the two situations have to be kept in mind. So long as the view taken by the trial court can be reasonably formed, regardless of whether the High Court agrees with the same or not, the view taken by the trial court cannot be interdicted and that of the High Court supplanted over and above the view of the trial court.

A consideration on the basis on which the learned trial court had founded its order of acquittal in the present case clearly reflects a possible view. There may, however, be disagreement on the correctness of the same. But that is not the test. So long as the view taken is not impossible to be arrived at and reasons therefor, relatable to the evidence and materials on record, are disclosed any further scrutiny in exercise of the power u/s 378 Cr.P.C. was not called for.

A Division Bench of this Court in the case of State of Punjab Vs. Hansa Singh 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.

Their Lordships of Hon''ble the Supreme Court in the case of Allarakha K. Mansuri Vs. State of Gujarat, , held that where, in a case, two views are possible, the one which favours the accused, has to be adopted by the Court. Similar views were expressed in the cases of State of Goa Vs. Sanjay Thakran and Another, and Chandrappa and Others Vs. State of Karnataka, .

In Mrinal Das and Others Vs. The State of Tripura, Hon''ble the Supreme Court, after looking into many earlier judgments, has laid down parameters as to where 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, Hon''ble the 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.

After referring to a catena of judgments, their Lordships opined in para 10 of the judgment 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.

So far as the facts of the case in hand are concerned, there appears to be substance in the submissions of the learned counsel for the accused-respondents that it is a case of no evidence. Charges were framed on 1.6.2000 and thereafter the complainant had produced CW2 Dr. Raj Kumar Kaura only for further cross-examination. Even if the evidence of Dr. Raj Kumar Kaura is taken as a gospel truth then also, the allegation that the accused-respondents went to the place of occurrence and caused injuries to the complainant-appellant, is not substantiated. In post-charge evidence, the complainant-appellant has failed to appear as a witness. In spite of citing the wife of Gopal Dass as a witness, she has not been produced and besides this, despite citing three more witnesses in the list of witnesses, the complainant-appellant did not examine any of them. During investigation/inquiry, the allegations levelled by the complainant-appellant were found to be false by the investigating agency. There was huge un-explained delay of 22 days in filing the complaint with the learned Area Judicial Magistrate. The appreciation of the evidence by the learned Trial Court cannot, thus, be said to be perverse or against the settled norms. Therefore, keeping in view the totality of the facts and circumstances of the case, no interference is called for in the well reasoned impugned judgment of acquittal recorded by the learned Trial Court. Resultantly, the present appeal fails and the same is hereby dismissed.