The High Court disposed of an application under Section 378(4) Cr.P.C. seeking leave to appeal an acquittal. Upholding the trial court's finding based on weak circumstantial evidence, the Court dismissed the application, citing Supreme Court precedents on the high threshold required to interfere with acquittals.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
In the High Court of Punjab and Haryana, at Chandigarh
Criminal Misc. No. A-130-MA of 2012
Date of Decision: 27.7.2012
Om Parkash
... Applicant
Versus
State of Haryana and Others
... Respondents
CORAM: Hon'ble Mr. Justice Jasbir Singh, Acting Chief Justice. Hon'ble Mr. Justice Rakesh Kumar Jain.
Present: Mr. Gurvinder Singh Bhatti, Advocate for the applicant.
Jasbir Singh, Acting Chief Justice
This application has been filed under Section 378(4) Cr.P.C. seeking leave to file an appeal against the judgment dated 29.11.2011 acquitting respondents No.2 and 3 of the charges framed against them.
The above respondents were arrayed as accused in FIR No. 168 dated 8.5.2009 for commission of offences under Sections 302, 201 & 34 IPC registered at Police Station Samalkha, District Panipat. It was an allegation against them that they had murdered Krishan alias Kala son of the applicant. The process of law was started on a statement made by the applicant namely Om Parkash (PW.1). The trial Judge has noted the following facts regarding the case of the prosecution:-
“that on 08.05.2009, complainant Om Parkash (PW1) moved application Ex.PB to the Station House Officer, Police Station Samalkha, submitting therein that his son Krishan alias Kala (deceased) used to work as temporary driver on vehicle No.
Criminal Misc. No. A-130-MA of 2012
2
HR-67-5139 of Animal Husbandry Department on the request of driver Ram Kumar (PW11). On 4.05.2009, Ram Kumar was ill, therefore, Krishan came to the office of Deputy Commissioner, Panipat, as driver of the said vehicle, for election duty. At about 9.00 P.M., he contacted Krishan through the phone of Pawan and he apprised him that he alongwith Parveen Constable, who was posted on Guard Duty at the residence of Deputy Commissioner, Jitender employed in the office of Deputy Commissioner, Ishwar Barber, Mahabir, owner of Nain Photostat, Joginder son of Teja, resident of village Nara and Satish, the owner of Rai Ahata, was in the said Ahata situated at Ram Lal Chowk, Panipat and they were consuming liquor and he would return after sometime. After waiting for sufficient period, he again tried to contract Krishan on telephone, but there was no response and as such, could not contract him. In the morning of 6.5.2009, from Dainik Bhaskar Newspaper, he came to know that the official vehicle driven by Krishan was lying in the canal near Naraina. On getting such information, he along with 40/50 persons of his village reached there and found that the official vehicle was lying in the canal, but the dead body of Krishan could not be traced out. He suspected that Parveen constable,Jitender, Ishwar Barber, Mahabir, Joginder and Satish after persuading his son Krishan to consume liquor, either kidnapped him or committed his murder.”
Criminal Misc. No. A-130-MA of 2012
3
In the statement made by the applicant, a suspicion regarding murder/kidnapping of his son was raised against many persons. On the basis of the above statement FIR Ex.PB/1 was registered in Police Station Samalkha. The investigation was taken up by Inspector Om Parkash (PW.13) who visited the spot, prepared rough site plan Ex.PU and took into his possession the vehicle owned by the Department of Animal Husbandry on 6.5.2009 vide memo Ex.PV. The suspects were put under interrogation, however, nothing incriminating was found against them. The dead body could not be discovered from the canal despite search conducted through divers. The Investigating Officer got call details of the mobile phones of respondents No.2 and 3. The location of the calls made, were found to be near to the place of occurrence. The accused made an extrajudicial confession before Naveen (PW.2) admitting their guilt. Both the accused had also pin pointed the place, where the murder was committed and from where the dead body was thrown into the canal. On completion of the investigation final report was put in the Court. Copies of the documents were supplied to the accused, as per norms. Their case was committed to the competent Court for trial. The accused/respondents No.2 & 3 were charge sheeted on 7.10.2009 to which they pleaded not guilty and claimed trial.
The prosecution produced 14 witnesses and also brought on record the documentary evidence to prove its case. On completion of the prosecution evidence, separate statements of both the accused were got recorded under Section 313 Cr.P.C. Incriminating evidence
Criminal Misc. No. A-130-MA of 2012
4
appearing on record was put to them which they denied, claimed innocence and pleaded false implication. They also led evidence in defence.
The trial Judge, on appraisal of the evidence, found both the respondents not guilty and accordingly they were acquitted of the charges. Hence, this application.
The trial Judge had noted that the dead body of Krishan alias Kala deceased was not recovered. There was no eye witness account to prove as to how the murder was committed and when the dead body was thrown into the canal. It was also noted that missing report regarding Krishan was got lodged only on 8.5.2009 by the applicant whereas the Tata Sumo, owned by the Department of Animal Husbandry, Haryana, allegedly driven by the deceased, was found lying in the canal on 5.5.2009. A news report appeared in that regard in the news paper “Dainik Bhaskar on 6.5.2009. In the First Information Report, suspicion was raised regarding murder/kidnapping of son of the applicant against many other persons with whom he was seen taking liquor on 4.5.2009. After investigation, all those persons were found innocent. The case of the prosecution rests upon the circumstantial evidence and in such like cases the Court is supposed to be very cautious. The accused can be held guilty only if the facts indicate towards his guilt and nothing else.
It is a case of the prosecution that Inspector Om Parkash (PW.13) got a secret information on 22.5.2009 regarding commission of offence by respondents No.2 and 3 and call details of their mobile
Criminal Misc. No. A-130-MA of 2012
5
phones were also obtained. From the perusal of the call details it was found that the calls were made near to the place of occurrence. The mobile phones which were mentioned as 99964-82000 & 92152-22588, there is nothing on record to prove that the said numbers were released in favour of both the respondents. The trial Court has rightly came to a conclusion that the depositions made by Inspector Om Parkash (PW.13) and Head Constable Paramjeet Singh (PW.14) did not prove that the said mobile phones belong to respondents No.2 and 3.
It was further case of the prosecution that both the accused had made an extrajudicial confession before Naveen (PW.2). The trial Court has rightly rejected the deposition of this witness by stating that he was not a person of means. Finding in that regard has been given in paragraph No.31 of the judgment. The trial Court has rightly held that there was no occasion for the accused to make any confessional statement before the above witness. In paragraph No.32, it has been rightly stated that the prosecution has failed to prove the presence of respondents No.2 and 3 near to the place of occurrence. The recovery memos etc. have rightly been disbelieved. The prosecution has also failed to prove any motive on the part of respondents No.2 and 3 to commit the crime. The view taken by the trial Court appears to be justified and 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.
Criminal Misc. No. A-130-MA of 2012
6
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 v. State of Rajasthan, 1991(1) SCC 166, 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 v. Sanjay Thakran (2007) 3 SCC 755 and in Chandrappa v. State of Karnataka, (2007) 4 SCC 415 , 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
Criminal Misc. No. A-130-MA of 2012
7
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 v. Shera Ram alias Vishnu Dutta, (2012) 1 SCC 602 , the Hon’ble Supreme Court has observed as under:-
“7. 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.
8. 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,
Criminal Misc. No. A-130-MA of 2012
8
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:-
“10. 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.”
Criminal Misc. No. A-130-MA of 2012
9
Counsel for the applicant has failed to indicate any error in passing the judgment on the part of the trial Court which may necessitate interference by this Court.
Dismissed.
(Jasbir Singh) Acting Chief Justice
(Rakesh Kumar Jain) Judge
July 27, 2012 “DK”
3 issues framed by the court
Whether interference in an appeal against acquittal is warranted given the trial court's reliance on circumstantial evidence and lack of corroboration.
Whether the High Court was justified in rejecting the request to file an appeal against the acquittal of respondents in a murder case.
Whether the criteria laid down by the Supreme Court regarding compelling reasons for overturning an acquittal were met in the present case.
Colour shows how this judgement treated each authority
Allarakha K.Mansuri v. State of GujaratRelied on¶32
Allarakha K.Mansuri v. State of Gujarat, 2002(1) RCR (Criminal) 748
State of Punjab v. Hansa SinghReferred¶35
State of Punjab v. Hansa Singh, 2001(1) RCR (Criminal) 775
Ashok Kumar v. State of RajasthanDistinguished¶36
Ashok Kumar v. State of Rajasthan, 1991(1) SCC 166 · Who else cites this
State of Goa v. Sanjay ThakranReferred¶37
State of Goa v. Sanjay Thakran (2007) 3 SCC 755 · Who else cites this
Chandrappa v. State of KarnatakaReferred¶37
Chandrappa v. State of Karnataka, (2007) 4 SCC 415 · Who else cites this
Mrinal Das & others v. The State of TripuraRelied on¶38
Mrinal Das & others v. The State of Tripura, 2011(9) SCC 479 · Who else cites this
State of Rajasthan v. Shera Ram alias Vishnu DuttaRelied on¶43
State of Rajasthan v. Shera Ram alias Vishnu Dutta, (2012) 1 SCC 602 · Who else cites this
Om Parkash
State of Haryana and Others
Jasbir Singh
Rakesh Kumar Jain
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
