Kartar Singh vs State Of Punjab And Ors
2022 Latest Caselaw 15835 P&H

CRM-A-385-MA-2016                                                     -1-

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      IN THE HIGH COURT OF PUNJAB AND HARYANA
                    AT CHANDIGARH

                                         CRM-A-385-MA-2016
                                         Date of Decision:06.12.2022

KARTAR SINGH                                              ......... Petitioner

                                    Versus

STATE OF PUNJAB AND ORS                                   ..... Respondents

CORAM: HON'BLE MR. JUSTICE JAGMOHAN BANSAL

Present :   Mr. Gurcharan Dass, Advocate
            for the appellant.

            Mr. Digvijay Nagpal, AAG, Punjab.

                   ****

JAGMOHAN BANSAL, J. (Oral)

1. The appellant through instant application under Section

378(4) Cr.P.C. is seeking grant of special leave to appeal against order

dated 21.12.2015 whereby learned Sessions Judge, Sangrur has acquitted

the respondents from charges of commission of offence punishable under

Sections 148, 323 and 452 read with Section 149 of IPC.

2. The brief facts which are necessary for the adjudication of

the present controversy and emerging from the record as well arguments

of learned counsel for the appellant are that the appellant-Kartar Singh

filed Criminal Complaint bearing No.COMI/55/2014 against six persons

namely Maghar Singh, Mukhtiar Singh, Avtar Singh, Paramjit Singh,

Balkar Singh and Dari Singh. During the pendency of proceedings, Dari

Singh and Paramjit Singh passed away. The appellant withdrew

complaint against Balkar Singh. Accordingly, trial took place

against remaining three accused. The complaint was filed under Section

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452, 323, 325, 506 and 148 IPC read with Section 149 of IPC.

3. The appellant in its complaint alleged that a piece of

Shamlat land was given to him on 12.05.1973 and he had possession

over the land since then. The Gram Panchayat of Village Bharimansa

filed civil suit against the appellant. On 20.05.2007, Maghar Singh

Sarpanch and other members of the Panchayat forcibly trespassed into

the house of the complainant and caused injuries upon his person. The

Trial Court examined witnessed of the complainant/appellant and framed

charges under Section 452, 323 and 148 read with Section 149 of IPC.

The Trial Court post charges recorded evidence of complainant as well

as present respondents. The Trial Court came to a conclusion that

complainant has proved his case beyond the shadow of reasonable doubt,

therefore, accused/respondents were liable to be convicted under

Sections 452, 323, 148 and 149 IPC. The Trial Court vide order dated

07.07.2015 awarded sentence of Rigorous Imprisonment of 2 years under

Section 452, 323, 148 read with Section 149 of IPC alongwith fine.

4. The respondents preferred an appeal before learned Sessions

Judge, Sangrur, who vide order dated 21.12.2015 came to a conclusion

that complainant has failed to prove guilt of the accused/appellant

beyond the shadow of reasonable doubt, thus, they were entitled to

benefit of doubt. Learned Sessions Judge, Sangrur, accordingly, set aside

judgment of conviction and allowed appeal of the accused.

5. Learned counsel for the appellant would submit that Trial

Court has passed a reasoned order and Sessions Court has wrongly set

aside findings of learned Trial Court. There was no basis to upset

judgment of conviction. The doctor, who prepared MLR had confirmed

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injuries suffered by appellant. The respondent attacked appellant because

they wanted to get the land vacated from the possession of appellant.

There was no mala-fide intention on the part of complainant to implicate

the respondents.

6. Per contra, learned counsel for the respondents contends that

learned Sessions Court has rightly acquitted the respondents by setting

aside the conviction order passed by the learned JMIC. Learned counsel

further submits that Trial Court based its decision on surmises and

conjectures and failed to appreciate the evidence in rightful manner.

7. I have perused the record and heard arguments of the

appellant. The present application seeking special leave to appeal is

bereft of merit and deserves to be dismissed.

8. Hon'ble Supreme Court in a catena of judgments while

dealing with scope and powers of the appellate court in dealing with an

appeal against an order of acquittal has elucidated:

(i) An appellate court has full power to review, reappreciate and

reconsider the evidence upon which the order of acquittal is founded.

(ii) The Code of Criminal Procedure, 1973 puts no limitation, restriction

or condition on exercise of such power and an appellate court on the

evidence before it may reach its own conclusion, both on questions of

fact and of law.

(iii) Various expressions, such as, 'substantial and compelling reasons',

'good and sufficient grounds', 'very strong circumstances', 'distorted

conclusions', 'glaring mistakes', etc. are not intended to curtail extensive

powers of an appellate court in an appeal against acquittal. Such

phraseologies are more in the nature of 'flourishes of language' to

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emphasise the reluctance of an appellate court to interfere with acquittal

than to curtail the power of the court to review the evidence and to come

to its own conclusion.

(iv) An appellate court, however, must bear in mind that in case of

acquittal, there is double presumption in favour of the accused.

Firstly, the presumption of innocence is available to him under the

fundamental principle of criminal jurisprudence that every person

shall be presumed to be innocent unless he is proved guilty by a

competent court of law. Secondly, the accused having secured his

acquittal, the presumption of his innocence is further reinforced,

reaffirmed and strengthened by the trial court.

(v) If two reasonable conclusions are possible on the basis of the

evidence on record, the appellate court should not disturb the finding of

acquittal recorded by the trial court.

9. A three judge bench of the Apex Court in Ashok Kumar

Singh Chandel Vs State of U.P. 2022 Live Law (SC) 915 has adverted

with question of jurisdiction of High Court in appeals against acquittal.

The Apex Court has held:

I. Jurisdiction of the High Court in Appeals Against Acquittals

91. This is the first preliminary submission and it is based on a principle laid down by this Court that in an appeal against acquittal, the criminal appellate court will not interfere with the acquittal unless there are substantial and compelling reasons. The common submission of all the counsels appearing for the Appellants is, therefore, that the High Court was not justified in

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reversing the order of acquittal.

92.The position of law with respect to the jurisdiction of the High Court in cases of appeals against acquittals is well established. After reviewing the judgments on this subject, this Court clarified in Chandrappa v. State of Karnataka24 that:

"3. Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion."

93. It is sufficient to note the principle laid down in the Constitution Bench of this Court in M.G. Agarwal v. State of Maharashtra25:

"16. ...But the true legal position is that however circumspect and cautious the approach of the High Court may be in dealing with appeals against acquittals, it is undoubtedly entitled to reach its own conclusions upon the evidence adduced by the prosecution in respect of

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the guilt or innocence of the accused. This position has been clarified by the Privy Council in Sheo Swarup v. King Emperor and Nur Mohammad v. Emperor [AIR 1945 PC 151] ...

17. ...Similarly in Ajmer Singh v. State of Punjab [(1952) 2 SCC 709 : 1953 SCR 418] it was observed that the interference of the High Court in an appeal against the order of acquittal would be justified only if there are "very substantial and compelling reasons to do so". In some other decisions, it has been stated that an order of acquittal can be reversed only for "good and sufficiently cogent reasons" or for "strong reasons". In appreciating the effect of these observations, it must be remembered that these observations were not intended to lay down a rigid or inflexible rule which should govern the decision of the High Court in appeals against acquittals. They were not intended, and should not be read to have intended to introduce an additional condition in clause (a) of Section 423(1) of the Code. All that the said observations are intended to emphasise is that the approach of the High Court in dealing with an appeal against acquittal ought to be cautious because as Lord Russell observed in the case of Sheo Swarup, the presumption of innocence in favour of the accused "is not certainly

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weakened by the fact that he has been acquitted at his trial". Therefore, the test suggested by the expression "substantial and compelling reasons" should not be construed as a formula which has to be rigidly applied in every case. That is the effect of the recent decisions of this Court, for instance, in Sanwat Singh v. State of Rajasthan [AIR 1961 SC 715] and Harbans Singh v. State of Punjab [AIR 1962 SC 439] and so, it is not necessary that before reversing a judgment of acquittal, the High Court must necessarily characterise the findings recorded therein as perverse..."

94. Following the Constitution Bench, this Court in Ghurey Lal v. State of UP26 has formulated the following principles:

"69. The following principles emerge from cases

1. The Appellate Court may review the evidence in appeals against acquittal under sections 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate court can reappreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law.

2. The accused is presumed innocent until proven guilty. The accused possessed this presumption when he

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was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent.

               3.      Due   or        proper    weight        and
               consideration must be given to the
               trial     court's        decision.       This    is
               especially      true      when       a    witness'

credibility is at issue. It is not enough for the High Court to take a different view of the evidence. There must also be substantial and compelling reasons for holding that the trial court was wrong.

70. In light of the above, the High Court and other appellate courts should follow the well-settled principles crystallized by number of judgments if it is going to overrule or otherwise disturb the trial court's acquittal:

1. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so.

A number of instances arise in which the appellate court would have "very substantial and compelling reasons" to discard the trial court's decision. "Very substantial and compelling reasons" exist when:

i. The trial court's conclusion with regard to the facts is palpably wrong; ii. The trial court's decision was based

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on an erroneous view of law; iii. The trial court's judgment is likely to result in "grave miscarriage of justice";

iv. The entire approach of the trial court in dealing with the evidence was patently illegal;

v. The trial court's judgment was manifestly unjust and unreasonable;

vi. The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/report of the ballistic expert, etc. vii. This list is intended to be illustrative, not exhaustive.

2. The Appellate Court must always give proper weight and consideration to the findings of the trial court.

3. If two reasonable views can be

reached - one that leads to acquittal,

the other to conviction - the High

Courts/Appellate Courts must rule in

favor of the accused.

10. The appellant is seeking special leave to appeal against

judgment and order whereby trial court has acquitted the respondent. It is

settled law that granting of special leave to appeal against acquittal is a

discretionary power. However, such power has to be exercised

judiciously and the Courts are not permitted to exercise the same at

whims or fancies and arbitrarily. Arbitrariness has always been held

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anathema to exercise of any power.

11. In the case in hand, the appellant was in possession of

Shamlat land and respondents had filed civil suit against the appellant.

There was no personal interest of the respondents because land belonged

to Panchayat and respondents were holding post of Sarpanch or Punch.

The appellant did not get FIR registered against the respondents whereas

appellant opted to file criminal complaint. The Panchayat could not get

possession of the land through nomral mode and it moved through

District Development and Panchayat Officer. The criminal case under

Section 13-A of Punjab Village Common Land Act, 1961 and under

Section 447 of IPC came to be registered against present appellant and

his other family members. There was no reason for the members of the

Panchayat to get agitated rather it was appellant, who was facing

criminal proceedings under aforesaid sections. The medicial examination

was conducted on 20.05.2007,however, no dangerous or grievous injury

was found on the person of the appellant. He did not lodge FIR. The

alleged incident took place on 20.05.2007 whereas complaint came to be

filed on 14.06.2007. Had appellant approached police and spent time in

pursuing his remedy before police, the filing of complaint on 14.06.2007

could justify, whereas things are different. It is settled proposition of law

that every delay in FIR, does not spoil case of prosecution, however,

complainant/prosecution is supposed to explain delay especially when

there is long delay between incident and date of lodging FIR or filing of

complaint.

12. The appellant examined Nirmal Singh CW-2 and Dhanna

Singh who supported the version of the appellant, however, in their

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cross-examination, they deposed that accused/respondent did not come to

the house of the complainant nor incident occurred in their presence. The

appellant in his deposition had deposed that his daughter in law and

brother's wife were present at the time of alleged accident, however,

none of them was examined.

All the above facts and circumstances make the case of

appellant doubtful and it is settled proposition of law that prosecution is

bound to prove its case beyond the shadow of reasonable doubt.

13. Having regard to the findings recorded by Appellate Court

including accepted legal position, this Court is of the considered opinion

that in the case in hand, there is no infirmity or irregularity in the

impugned order whereby Appellate Court has acquitted the respondent.

Accordingly, this Court fully agrees with the finding recorded by

Appellate Court. The impugned judgment being speaking, based upon

correct appreciation of facts, applicable law & judicial precedents and

well-reasoned needs to interference. Therefore, request of the applicant

seeking permission special leave to appeal is hereby rejected. In the

result, application seeking special leave to appeal and appeal stand

dismissed.

                                               ( JAGMOHAN BANSAL )
                                                      JUDGE
06.12.2022
Ali


                   Whether speaking/reasoned    Yes/No
                      Whether Reportable        Yes/No




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