Punjab-Haryana High Court
Kulbir Singh vs Kashmir Singh And Others on 22 March, 2024
Neutral Citation No:=2024:PHHC:042767-DB
CRM-34533-2019
in/and
CRM-A-2636-2019
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-34533-2019
in/and
CRM-A-2636-2019
Date of Decision: 22.03.2024
KULBIR SINGH
...Applicant
Versus
KASHMIR SINGH AND OTHERS
...Respondents
CORAM: HON'BLE MR. JUSTICE SUDHIR SINGH
HON'BLE MR. JUSTICE HARSH BUNGER
Present : Mr. B.B.S. Randhawa, Advocate
for the applicant.
HARSH BUNGER, J.
CRM-34533-2019
This is an application filed under Section 5 of the Limitation
Act for condonation of delay of 58 days in filing the application seeking
special leave to appeal.
For the reasons mentioned in the application, the same is
allowed and delay of 58 days in filing the application seeking special leave
to appeal is condoned.
Criminal Misc. Application is, accordingly, disposed of.
CRM-A-2636-2019
The instant application seeking leave to appeal is preferred
against the judgment dated 21.05.2019 passed by the learned Additional
Sessions Judge, Gurdaspur, whereby respondents No.1 to 3 have been
acquitted of the charges under Sections 307, 323 read with Section 34 of the
Indian Penal Code.
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2. Vide order dated 19.05.2022, the lower Court record was called
for and the same was received in this Court.
3. The prosecution case, as per the complaint of complainant-
Kulbir Singh (PW-1), is that he is running a restaurant by the name of M/s
Khera International Restaurant, Jalandhar Road, Batala and prior to the
occurrence, the accused came to his restaurant and tried to consume liquor,
which was objected to by the complainant and he did not allow them to do
so. On this, the accused felt insulted and left the restaurant after threatening
the complainant of dire consequences. On 03.10.2010, at about 02:30 p.m.,
when the complainant was going towards village Tatle and reached near the
turning of village Tatle, at that time one white Zen car bearing No.PB-58-C-
0786 came from behind, which was being driven in a very rash and
negligent manner and tried to push the bike of the complainant on a side but
the complainant escaped. Complainant further alleged that the same car
blocked his way and the accused Kashmir Singh armed with hockey,
Balwinder Singh armed with hockey and accused Jagir Singh armed with
pistol with two unidentified persons came out of the car. Jagir Singh is
alleged to have raised lalkara to kill the complainant as he had stopped them
from consuming the liquor in his restaurant. It was alleged that all the
accused encircled the complainant and then accused Balwinder Singh gave a
hockey blow hitting on complainant's back and he fell down. Accused
Kashmir Singh gave hockey blow near his left knee joint and other
unidentified persons caused injuries with hockey on his back. The
complainant, in order to save his life, tried to run away from the clutches of
the accused. It was stated that the father of the complainant namely,
Piara Singh along with Parminder Singh, who were coming from village
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Tatle, saw the entire occurrence and raised hue and cry. Then Jagir Singh,
with an intention to kill the complainant, fired from his pistol towards the
head of the complainant, which passed touching in between his right
shoulder and right side of the neck. When the witnesses raised hue and cry,
all the accused ran away from the spot with their respective weapons while
threatening to kill the complainant as and when they get the opportunity. The
father of the complainant and witnesses took the complainant to Civil
Hospital, Kahnuwan, where he was medically examined. As per the
complainant, the matter was reported to the police; however, the police did
not take any action against the accused persons. Accordingly, the complaint
was filed before the Court.
4. In the preliminary evidence, the complainant examined the
following witnesses :-
Sr. No. Witness name Examined as
1 Piara Singh CW1
2 Complainant CW2
3 Dr. Gopal Raj, Medical Officer CW3
4 Parminder Singh CW4
Thereafter, the accused were summoned under Sections 307
and 323 read with Section 34 of the Indian Penal Code, vide order dated
05.04.2012. The case was, thereafter, committed to the Court of Sessions
vide order dated 26.08.2016.
5. Finding a prima facie case against the accused persons under
Sections 307, 323 read with Section 34 of the Indian Penal Code, they were
charge sheeted, to which, they pleaded not guilty and claimed trial.
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6. To prove its case, the prosecution/complainant examined PW1-
Kulbir Singh (complainant), PW2-Piara Singh and PW3-Dr. Gopal Raj. In
support of its case, the prosecution had also produced evidence in the form
of Exhibits, which are as under :-
Sr. No. Exhibit/s Document
1 PA Photocopy of complaint
2 PB Photocopy of testimony of Kulbir Singh-
complainant.
3 PC Photocopy of testimony of Piara Singh.
4 PW3/A Original MLR Record
5 PW3/B Pictorial diagram
6 PW3/C Original letters, constituting the Board
and of Doctors and their final opinion.
PW3/D
Thereafter, the statements of the accused underSection 313 of
the Code of Criminal Procedure, were recorded, wherein the entire
incriminating evidence was put to them. They denied the same and pleaded
their innocence and false implication.
7. Accused-Jagir Singh stated that he had been a permanent
resident of Amritsar since 1983 and he joined as an Income Tax Officer at
Batala on 30.04.2010 and retired on 30.11.2011 and continued to reside at
Amritsar. He stated that he was out of India from 23.09.2010 upto
01.10.2010, when he returned to India after visiting Europe. He produced a
copy of his passport, which showed his return to India on 01.10.2010. Jagir
Singh further stated that he owned a car having Miami gold colour and he
never possessed any car of white colour. He stated that 02.10.2010 and
03.10.2010 were Saturday and Sunday, respectively and being holidays, he
never visited Batala on the said dates. He categorically stated that he had
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been falsely implicated as he had passed an assessment order of income tax
and levied income tax to the tune of Rs.2,62,678/- upon Kuldeep Singh
(brother of complainant-Kulbir Singh). He also stated that he was not having
any fire arm in the year 2010 and that he was granted Arms licence on
17.02.2014 and the weapon was purchased on 07.08.2014.
Accused(s)-Balwinder Singh and Kashmir Singh stated that
they were posted as SDOs in P.S.P.C.L and certain raids were conducted on
the premises of the complainant's restaurant and fines were imposed upon
him because of which they had been dragged into a false case.
8. In defence, the accused examined the following witnesses :-
W. No. Name of Witnesses Nature of Testimony
DW-1 Circle Assistant Vijay Record qua accused Kashmir Singh
Kumar, City Division, and Balwinder Singh
PSPCL Batala.
DW-2 ASI Satnam Singh Roznamcha dated 06.10.2010 rapt
No.2555/BTL, P.S. no.08.
Sekhwan
DW-3 Inspector Nirmal Singh For recording statement of
No.273/BR, Incharge complainant.
Narcotic Cell,
Gurdaspur
DW-4 HC SohanLal Record of FIR No.13 of 2003 and FIR
No.2807/BTL, P.S. City No.16dated 04.10.2009, P.S. City
Batala. Batala.
DW-5 HC Jodha Singh Record FIR No.73 dt. 26.08.2001, FIR
No.2419/BTL, P.S. No.70 dt. 01.08.2014, FIR No.38 dt.
Rangar Nangal 02.06.2008, FIR No.60 dt. 10.08.2008,
FIR No.16 dt. 01.03.2013.
DW-6 Jaspal Singh A co-villager and Member Panchayat
of village Tatle.
DW-7 SDO Gurcharan Singh, Theft of electricity of Kulbir Singh C/o
West Sub Division, Khera International Hotel, in the
Batala account no.MF-33-1472/NRS and date
of checking to be 26.09.2017.
DW-8 ASI Hardeep Singh Register of FIR No.240 dated
No.1965/BTL, P.S. Civil 28.08.2006 P.S. Civil Lines, under
Lines Batala Section 447, 427 IPC, FIR No.29
dated 07.02.2014 under Section 307
IPC etc.
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The defence produced the evidence in the form of Exhibits,
which are as under :-
Sr. Name of the Exhibit/s Document
No. defence witness
1 DW-1 Circle D1 Certificate issued by Addl. S.E.
Assistant Vijay
Kumar, City
Division,
PSPCL Batala
2 -do- D2 Attested copy of service record
of Balwinder Singh.
3 DW-2 ASI DW2/A Roznamcha dated 06.10.2010,
Satnam Singh, Rapt No.8, registered by ASI
P.S. Sekhwan Nirmal Singh, P.S. Sekhwan.
4 DW-4 HC DW4/A Attested copy of FIR No.13 of
SohanLal, 2003
Police Station
City Batala
5 -do- DW4/B Attested copy of FIR No.16
dated 04.10.2009.
6 DW-5 HC DW5/A Attested copy of record FIR
Jodha Singh, No.73 dated 26.08.2001
P.S.
Rangar Nangal
7 -do- DW5/B Attested copy of the summoned
record of FIR No.70 dated
01.08.2014.
8 -do- DW5/C Attested copy of record of FIR
No.38 dated 02.06.2008
9 -do- DW5/D Attested copy of record of FIR
No.60 dated 10.08.2008.
10 -do- DW5/E Attested copy of record of FIR
No.16 dated 01.03.2013.
11 DW-7 SDO DW7/A Official record with respect to
Gurcharan the checking of the theft
Singh, West electricity of Kulbir Singh C/o
Sub-Division, Khera International Hotel,
Batala Jalandhar Road, Batala in the
account no.MF-33-1472/NRS.
12 DW-8 ASI DW8/A Original FIR register of FIR
Hardeep Singh, No.240 dated 28.08.2006, P.S.
P.S. Civil Lines, Civil Lines, under Sections 447
Batala and 427 IPC.
13 -do- DW8/B Photocopy of FIR register with
respect to FIR No.29 dated
07.02.2014 under Section 307
IPC.
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9. After conclusion of the trial, the learned trial Court acquitted
the accused persons.
10. The grounds considered by the learned trial Court for acquitting
respondents No.1 to 3, are as under :-
"(i) The complainant/PW-1 admitted that he did not
inform the police about the first incident in which the
accused persons threatened him at his restaurant;
(ii) The complainant also admitted the registration of
various FIRs either against him or against his family
including his father/Piara Singh/PW-2 and his
brother/Kuldip Singh. He admitted the registration of FIR
No.166 dated 15.12.2004 under section 419 and 420, FIR
No.240, FIR No.60 dated 10.08.2008, FIR No.16 dated
01.03.2013, FIR No.117 of 2013, FIR No.70 dated
01.08.2014 under Sections 353, 186;
(iii) The complainant/PW-1 admitted that a false theft
case of electricity was instituted against him;
(iv) The complainant/PW-1 admitted that he is having
relation with Sewa Singh Sekhwan, the MLA of his
constituency from his maternal side. Even PW-2/Piara
Singh admitted this relationship;
(v) PW-2/Piara Singh, father of complainant as well
as the alleged eye witness admitted that the staff of PSPCL
visited the hotel and penalty was imposed and that accused
Balwinder Singh and Kashmir were employees of PSPCL;
(vi) PW-2 further admitted that he had seen the
original passport of accused Jagir Singh according to
which Jagir Singh entered India on 01.10.2010;
(vii) The testimony of PW3 Dr. Gopal Dass along with
the report of Forensic Department of Medical College,
gives death knell to the case of the complainant as it has
been opined that the injury no.1 appears to have been
caused by a fire arm weapon. It has also been opined that
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the injuries could have been suffered with friendly hand
and the injury no.1 was superficial injury only.
(viii) There are lot of inconsistencies and
improbabilities in the oral evidence.
(ix) The motive assigned in this case was too weak for
the government servants to commit the offence of attempt
to murder.
(x) The defence has been able to prove on record the
motive on the part of the complainant to falsely implicate
the accused persons.
11. Learned counsel appearing for the applicant/complainant, while
assailing the judgment of acquittal passed by the trial Court, argued that
there is sufficient material available on record which proves that
accused/respondents No.1 to 3, in connivance with each other, had inflicted
injuries to the applicant. He submitted that it was apparent from the nature of
weapon carried by the accused that they wanted to kill the applicant. He
further submitted that there is a complete chain of link evidence establishing
the commission of offence by the accused persons and the trial court has
wrongly acquitted the accused persons by discarding the prosecution case.
12. Upon consideration of the matter, the following three issues
would arise for consideration by this court:-
(i) Whether delay in institution of complaint before the
Magistrate has been explained by the prosecution?
(ii) Whether defence evidence can be considered?
(iii) Whether previous animosity between the parties
has led to institution of present case?
13. As regards delay in institution of complaint before the
Magistrate, it is observed that as per prosecution case, the alleged occurrence
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took place on 03.10.2010 at about 2:30 pm. It has come in the statement of
PW-2 (Piara Singh) that he alongwith Parminder Singh took Kulbir
(injured-complainant) to Civil Hospital Kahnuwan on motorcycle of
Parminder Singh and got the injured admitted there and then went to Police
Station. PW-2 (Piara Singh) stated that the distance between place of
occurrence and police station was 3 kilometres and that between Kahnuwan
and place of occurrence was around 7-8 kilometres; whereas between police
station Sekhwan and Civil Hospital Kahnuwan,it was around 8-9 kilometres.
PW-2 (Piara Singh) further stated that he alongwith Parminder Singh went to
Police Station Sekhwan to give information and he reached the police station
at about 3:00 pm. According to Piara Singh, at the police station, he gave the
information in writing as he was asked to give application in writing, which
he got scribed from some private person at the Police station itself.
According to PW-2 (Piara Singh), he made a request before the police to
register an FIR against the culprits, but no heed was paid to it and thereafter,
they moved an application before SSP Batala, a copy of which was attached
with the complaint. However, it has come on record that at the time of
reconstruction of the file, no such copy was placed on record. It is a matter
of record that the complaint came to be filed before the concerned
Magistrate only on 16.10.2010.
In Dilawar Singh v. State of Delhi, 2007 (4) RCR (Criminal)
115, Hon'ble Apex Court while setting aside the conviction in a matter
where complaint was filed after a delay of 23 days; has held that such delay
without proper explanations is treated fatal to the case of prosecution as it
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affords an opportunity to make deliberations upon the complaint. The
Hon'ble Apex Court observed as under:-
"8. In criminal trial one of the cardinal principles for the
Court is to look for plausible explanation for the delay in
lodging the report. Delay sometimes affords opportunity to
the complainant to make deliberation upon the complaint
and to make embellishment or even make fabrications.
Delay defeats the chance of the unsoiled and untarnished
version of the case to be presented before the Court at the
earliest instance. That is why if there is delay in either
coming before the police or before the Court, the Courts
always view the allegations with suspicion and look for
satisfactory explanation. If no such satisfaction is formed,
the delay is treated as fatal to the prosecution case. In
Thulia Kali v. The State of Tamil Nadu, (AIR 1973
Supreme Court 501), it was held that the delay in lodging
the first information report quite often results in
embellishment as a result of afterthought. On account of
delay, the report not only gets bereft of the advantage of
spontaneity, but also danger creeps in of the introduction
of coloured version, exaggerated account or concocted
story as a result of deliberation and consultation. In Ram
Jag and others v. The State of U.P., (AIR 1974 Supreme
Court 606) the position was explained that whether the
delay is so long as to throw a cloud of suspicion on the
seeds of the prosecution case must depend upon a variety
of factors which would vary from case to case. Even a long
delay can be condoned if the witnesses have no motive for
implicating the accused and/or when plausible explanation
is offered for the same. On the other hand, prompt filing of
the report is not an unmistakable guarantee of the
truthfulness or authenticity of the version of the
prosecution.
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9. The complainant has attempted to explain the delay by
stating that the matter was reported to the police but the
police did not take any action. Such statement can hardly
be taken to have explained the delay. It is the simplest of
things to contend that the police, though report had been
lodged with it, had not taken any steps. But it has to be
established by calling for the necessary records from the
police to substantiate that in fact a report with the police
had been lodged and that the police failed to take up the
case..."
Thus, in the peculiar facts and circumstances of this case, the
delay of 13 days in submitting the complaint before the Magistrate has
remained unexplained and there are reasons to believe that the complaint
(Ex. PA) would have come into existence, after due deliberations.
14. As regards the second and the third issues, which are somewhat
connected, it is observed that Section 313Cr.P.C., 1973, confers a valuable
right upon an accused to put forth his defence of innocence. It is the duty of
the Court to examine the entire material on record to find out whether the
defence set up by the accused is a probable one. It is not necessary that an
accused must lead evidence in his defence and it is always open to him to
demonstrate from the prosecution evidence that his version of the occurrence
is probablized from the prosecution evidence itself, and where the accused
has also led evidence in defence which is consistent and compatible with the
prosecution evidence, the defence set up by the accused would cast a serious
doubt on veracity of the prosecution case.
In "Dudh Nath Pandey v. State of U.P." reported in (1981) 2
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SCC 166, the Hon'ble Supreme Court has observed as under:
"19. ...Defence witnesses are entitled to equal treatment
with those of the prosecution. And, courts ought to
overcome their traditional, instinctive disbelief in defence
witnesses. Quite often, they tell lies but so do the
prosecution witnesses."
In "State of Haryana v. Ram Singh" reported in (2002) 2 SCC
426, the Hon'ble Supreme Court has observed as under:
"19. ............Incidentally, be it noted that the evidence
tendered by defence witnesses cannot always be termed to
be a tainted one - the defence witnesses are entitled to
equal treatment and equal respect as that of the
prosecution. The issue of credibility and the
trustworthiness ought also to be attributed to the defence
witnesses on a par with that of the prosecution. Rejection
of the defence case on the basis of the evidence tendered
by the defence witness has been effected rather casually
by the High Court."
It is well established that the defence is not required to prove its
case beyond reasonable doubt, rather it is the duty of the prosecution to lead
evidence to prove the charges to the hilt. In view of the afore-stated position
in law, it is held that the defence evidence can be considered.
15. In the instant case, the respondents-accused got their statements
recorded under Section 313 of the Cr.P.C., wherein, accused Jagir Singh
denied the incriminating circumstances put to him and pleaded innocence
and false implication. He stated that he joined as Income Tax Officer at
Batala on 30.04.2010 and retired on 30.11.2011. He further stated that he
had been falsely implicated as he had passed an assessment order
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of income tax and levied income tax to the tune of Rs.2,62,678/- upon
Kuldeep Singh (brother of applicant-Kulbir Singh). It has come on record
that the income tax demand against Kuldeep Singh, was made on 31.08.2010
for the assessment year 2008-2009 and the alleged occurrence is of
03.10.2010. Jagir Singh has further proved on record that he was out of India
from 23.09.2010 upto 01.10.2010 when he returned to India after visiting
Europe. When the afore-said fact is considered in the light of the allegations
made by applicant-Kulbir Singh that a few days prior to the occurrence on
03.10.2010, Jagir Singh along with other co-accused had come to his
restaurant (M/s Kehra International Restaurant) and they tried to consume
liquor, which was objected to by applicant-Kulbir Singh, whereupon, the
accused felt insulted and left the restaurant after threatening the applicant-
Kulbir Singh, of dire consequences, the falsity of the allegations made in the
FIR becomes apparent.
As regards the other accused persons namely, Balwinder Singh
and Kashmir Singh, they had got recorded their statements under Section
313 of the Cr.P.C. stating that they were posted as Sub-Divisional Officers
in PSPCL and certain raids were conducted on the premises of applicant-
Kulbir Singh's restaurant and fines were imposed, on account of which,
they had been dragged and falsely implicated. It has come on record by way
of defence evidence that on 03.10.2007, an order was passed by the SDO;
whereby an assessment of Rs.3,79,450/- was made towards charges for
unauthorized use of electricity against applicant-Kulbir Singh and even an
appeal against the afore-said order came to be dismissed by the Appellate
Authority on 20.12.2008. Apart from that, it has also come on record by
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way of defence evidence that various cases had been registered against
applicant/complainant-Kulbir Singh and his father (Piara Singh) along with
other family members and the said fact had been duly admitted by the
complainant-Kulbir Singh during his cross-examination. The relevant extract
thereof reads as under :-
"XXXXX by Shri J.K. Khanna, Advocate for accused
Jagir Singh.
The police have registered 1/2 cases against me
regarding the land disputes. I cannot tell the numbers of
FIR. It is correct that a few FIR has been registered
against me, my brother and father Piara Singh, but I
cannot tell their FIR number. It is correct that an FIR
No.166 dated 15.12.2004 under Section 419, 420 was
registered against me. Volunteered I was acquitted in that
case. It is correct that Janak got registered FIR No.240
against me and Kuldeep Singh, Piara Singh. Volunteered
that was against a property dispute. I do not know if any
other cases are registered against Kuldeep Singh. It is
correct that FIR No.60 dated 10.08.2008 was registered
against me and my brother Kuldeep Singh and father
Piara Singh. It is correct that FIR No.16 dated 01.03.2013
was registered against me, my brother Kuldeep Singh and
father Piara Singh. It is correct that FIR No.117 of 2013
was registered against me, brother Kuldeep Singh and
father Piara Singh. It is correct that contempt proceedings
against me, my brother and father in civil case were
initiated. Volunteered these are relates to land dispute.
FIR No.70 dated 01.08.2014 under Section 353, 186 was
registered, but I was not named therein. It is incorrect to
suggest that I was main accused in that case. I was also
known by the name Surjit Singh alias Laddi. Again said, I
am named in the aforesaid FIR No.70 dated 01.08.2014.
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xxx xxx xxx
...It is correct that Kashmir Singh was working as
SDO in P.S.P.C.L. No team headed by Kashmir Singh ever
raided in our Hotel. It is correct that a case of electricity
theft was recorded against us. Volunteered the said case
was false. It is incorrect to suggest that because of my
personal vendetta with the accused Kashmir Singh and
Balwinder Singh. I have arraigned them in this false
complaint just to harass them. I do not know Jagir Singh
was posted as Income Tax Officer at Batala. It is incorrect
to suggest that he has made assessment of my income
because of which I was made to pay a hefty amount to the
department or that I arraigned him also accused in this
case just to harass him."
Similarly, Piara Singh (PW2) also admitted the factum of cases
registered against him and his family members and also that the staff of
P.S.P.C.L had visited their restaurant and penalty was imposed upon the
restaurant of applicant-Kulbir Singh (complainant). The relevant extract
from the testimony of Piara Singh (PW2) reads as under :-
"...It is wrong to suggest that I am facing criminal
trial in the court in five/seven cases. It is correct that staff
of P.S.P.C.L visited the premises of our hotel and penalty
was imposed to the hotel of complainant. I do not
remember if the said penalty was imposed prior to this
incident or thereafter. It is correct that the accused
Balwinder Singh and Kashmir Singh were employee of
P.S.P.C.L."
xxx xxx xxx
"...I know the accused Jagir Singh for the last
about 10 years. I cannot tell his place of posting during
this period. I cannot tell if any Income Tax access was
made by Jagir Singh, the then ITO, against my son
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Kuldeep Singh. I cannot tell as to when Jagir Singh was
posted in Batala. I cannot tell if he joined as ITO at Batala
on 30.04.2010 only. I cannot tell whether he remained
posted in Batala prior thereto. I know Jagir Singh as he
used to visit Kashmir Singh and Balwinder Singh, who are
officials of P.S.P.C.L and their office was near my Clinic
at Adda Umarpur. It is incorrect to suggest that he never
visited Batala on any day prior to his posting on
30.04.2010. Kashmir Singh and Balwinder Singh were
known and close to me because they were posted in the
building of PSPCL just adjacent to my clinic. Kashmir
Singh remained posted in P.S.P.C.L office building which
is near by Clinic and Balwinder Singh also remained
posted there.
It is incorrect to suggest that they did not know
each other prior to the summoning in this case. I cannot
say if Kashmir Singh was never posted in P.S.P.C.L Office
from June 2010 to October 2010. Volunteered he remained
posted in the said office for couple of years. I cannot admit
of deny the posting order of Kashmir Singh, which is
Mark-E. I cannot tell any particular year when he
remained posted in the said office. It is incorrect to suggest
that we have filed the present false complaint against the
accused as we apprehended that the raid of P.S.P.C.L
Officials in our premises was manipulated by Balwinder
Singh and Kashmir Singh accused. It is incorrect to
suggest that we have arraigned Jagir Singh accused in this
case as he has passed assessment order under the Income
Tax Act against my son Kuldeep Singh. It is incorrect to
suggest that no such occurrence took place or that I have
given a false statement in the court..."
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From the perusal of the record, it is evident that sufficient
evidence has been led by the defence that the applicant-complainant had a
motive to implicate the respondents-accused persons.
16. Further, the prosecution has also failed to prove on record that
alleged injury no. 1 suffered by the victim-complainant (Kulbir Singh) was
on account of the alleged fire arm injury. It has come on record by way of
statement of Dr. Gopal Raj (PW3) that he had not received any opinion from
the Forensic Department of Government Medical College, Amritsar. As per
Dr. Gopal Raj, SMO, PHC Dorangla, the patient was referred to
Government Medical College, Forensic Department for expert opinion
regarding injury no. 1 vide Ex. D1/B. He further stated that he gave his final
opinion Ex D1/C that kind of weapon used cannot be given and kind of
injury no. 1 was declared simple in nature as the patient did not appear
before the Forensic Department, Medical College, Amritsar. It has also come
on record through statement of Dr. Gopal Raj (PW3) that possibility of self-
suffering of injury no. 1 with a hot iron rod cannot be ruled out and the said
injury was superficial. The relevant extract from the cross-examination of
Dr. Gopal Raj (PW3) reads as under:-
"...I gave my final opinion Ex.D1/C that kind of weapon
used cannot be given and kind of injury No.1 was
declared simple in nature as the patient did not appear
before the Forensic Department, Medical College,
Amritsar. The possibility of self suffering of injury No.1
with a hot iron rod cannot be ruled out. It was a
superficial injury only. It is incorrect to suggest that I
have created MLR in question at the asking of Kulbir
Singh to create a false evidence."
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Accordingly, issues No.2 and 3, are answered in affirmative.
Accordingly, we find that the judgment of acquittal passed by the trial Court,
cannot be said to be perverse or unreasonable.
17. In criminal appeal against acquittal what the appellate court has
to examine is whether the finding of the learned court below is perverse and
prima facie illegal. Once the appellate court comes to the conclusion that the
grounds on which the judgment is based is not perverse, the scope of appeal
against acquittal is limited considering the fact that the legal presumption
about the innocence of the accused is further strengthened by the finding of
the court. At this point, it is imperative to consider the decision of the
Hon'ble Supreme Court passed in the case of Mrinal Das versus State of
Tripura, (2011) 9 SCC 479, it has been observed that :
"13. It is clear that in an appeal against acquittal
in the absence of perversity in the judgment and order,
interference by this Court exercising its extraordinary
jurisdiction, is not warranted. However, if the appeal is
heard by an appellate court, it being the final court of fact,
is fully competent to reappreciate, reconsider and review
the evidence and take its own decision. In other words, the
law does not prescribe any limitation, restriction or
condition on exercise of such power and the appellate court
is free to arrive at its own conclusion keeping in mind that
acquittal provides for presumption in favour of the accused.
The presumption of innocence is available to the person and
in criminal jurisprudence every person is presumed to be
innocent unless he is proved guilty by the competent court.
If two reasonable views are possible on the basis of the
evidence on record, the appellate court should not disturb
the findings of acquittal.
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14. There is no limitation on the part of the
appellate court to review the evidence upon which the order
of acquittal is found and to come to its own conclusion. The
appellate court can also review the conclusion arrived at by
the trial court with respect to both facts and law. While
dealing with the appeal against acquittal preferred by the
State, it is the duty of the appellate court to marshal the
entire evidence on record and only by giving cogent and
adequate reasons set aside the judgment of acquittal. 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........."
In the case of Ghurey Lal Vs. State of Uttar Pradesh, (2008)
10 SCC 450 in para no.75, the Hon'ble Supreme Court re-iterated the said
view and observed as follows :
"75. The trial court has the advantage of watching the
demeanour of the witnesses who have given evidence,
therefore, the appellate court should be slow to interfere
with the decisions of the trial court. An acquittal by the trial
court should not be interfered with unless it is totally
perverse or wholly unsustainable."
18. Thus, an order of acquittal is to be interfered with only for
compelling and substantial reasons. In case the order is clearly unreasonable,
it is a compelling reason for interference. But where there is no perversity in
the finding of the impugned judgment of acquittal, the appellate Court must
not take a different view only because another view is possible. It is because
the trial Court has the privilege of seeing the demeanour of witnesses and,
therefore, its decision must not be upset in the absence of strong and
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compelling grounds.
19. In view of the above, we do not find any illegality and
perversity in the findings recorded by the trial Court. Accordingly, the
judgment of acquittal passed by the learned trial Court is affirmed;
resultantly, the present application is dismissed and leave to appeal is
declined.
(SUDHIR SINGH) (HARSH BUNGER)
JUDGE JUDGE
March 22nd, 2024
gurpreet
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
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