Joginder Singh & Anr. Vs. State of Haryana
EmailAppeal: Criminal Appeal No. 799 of 1995
Petitioner: Joginder Singh & Anr.
Respondent: State of Haryana
Apeal: Criminal Appeal No. 799 of 1995
Judges: U.C. BANERJEE & B.N. AGRAWAL, JJ.
Date of Judgment: Sep 10, 2002
Head Note:
CRIMINAL LAW
Criminal Procedure Code, 1973
Section 378 – Appeal against acquittal – Possibility of two versions – Interference by High Court. Held that mere possibility of having other version ought to have prompted the High Court to accept findings of trial court.
Held:
If there are two possible versions and the court of sessions adopted one such version, question of recording reversal of an order of acquittal by reason of the fact that if there was any independent appraisal by the High Court, the High Court could have come to a different conclusion, could not arise. Mere possibility of having that version ought to prompt the High Court to accept the findings and conclusion of the learned trial judge. (Para 6)
Cases Reffered:
1. Ramesh Babulal Doshi v. State of Gujarat (JT 1996 (6) SC 79) (Para 5)
2. Tota Singh & Anr. v. State of Punjab (JT 1987 (2) SC 20) (Para 4)
2. Tota Singh & Anr. v. State of Punjab (JT 1987 (2) SC 20) (Para 4)
JUDGEMENT:
ORDER
1. Four accused persons, namely, Joginder Singh – A-1, Ranjit Singh – A-2, Mohan Singh – A-3 and Baldev Singh – A-4 were charged for the offences under section 302 read with section 34 and section 120-B of the Indian Penal Code. Accused Ranjit Singh was found guilty under section 302 of the Indian Penal Code for committing the murder of Daljit Singh and Bhajan Singh on 15.10.1989 and was sentenced to undergo imprisonment for life and to pay a fine of Rs. 5,000/- together with a default clause by the learned sessions judge, Narnaul. Incidentally, the co-accused of Ranjit Singh, viz., Baldev Singh, Joginder Singh and Mohan Singh were acquitted of the charges levelled against them by giving benefit of doubt by the learned sessions judge.
2. Against his conviction, Ranjit Singh moved the High Court and the state also moved the High Court against the order of acquittal. The High Court, in its turn, however, maintained the conviction of Ranjit Singh but reversed the order of acquittal as against accused Joginder Singh and Mohan Singh being A-1 and A-3, respectively. However, acquittal of Baldev Singh – A-4 by the learned sessions judge was affirmed by the High Court.
3. The High Court, it appears, went into the matter in very great detail and it is on this score that Mr. Sushil Kumar, learned senior counsel appearing in support of the appeal, contended that the parameters for reversal of an acquittal order passed by the High Court, as laid down by this Court in a catena of cases, do not seem to have been complied with and by reason therefore, the High Court’s order of reversal cannot be sustained.
4. This Court in Tota Singh & Anr. v. State of Punjab1, has the following to state as regards the authority of independent reappraisal of evidence so far as the High Court is concerned against an order of acquittal. Paragraph 6 of the judgment records as follows:
“6. The High Court has not found in its judgment that the reasons given by the learned sessions judge for discarding the testimony of PW2 and PW6 were either unreasonable or perverse. What the High Court has done is to make an independent reappraisal of the evidence on its own and to set aside the acquittal merely on the ground that as a result of such re-appreciation, the High Court was inclined to reach a conclusion different from the one recorded by the learned sessions judge. This Court has repeatedly pointed out that the mere fact that the appellate court is inclined on a re-appreciation of the evidence to reach a conclusion which is at variance with the one recorded in the order of acquittal passed by the court below will not constitute a valid and sufficient ground for setting aside the acquittal. The jurisdiction of the appellate court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the court below is such which could not have been possibly arrived at by any court acting reasonably and judiciously and is, therefore, liable to be characterised as perverse. Where two views are possible on an appraisal of the evidence adduced in the case and the court below has taken a view which is plausible one, the appellate court cannot legally interfere with an order of acquittal even if it is of the opinion that the view taken by the court below on its consideration of the evidence is erroneous.”
5. In the same view this Court in Ramesh Babulal (Ramesh Babulal Doshi v. State of Gujarat1) in paragraph 7 stated as below:
“7. Before proceeding further it will be pertinent to mention that the entire approach of the High Court in dealing with the appeal was patently wrong for it did not at all address itself to the question as to whether the reasons which weighed with the trial court for recording the order of acquittal were proper or not. Instead thereof the High Court made an independent reappraisal of the entire evidence to arrive at the above-quoted conclusions. This Court has repeatedly laid down that the mere fact that a view other than the one taken by the trial court can be legitimately arrived at by the appellate court on reappraisal of the evidence cannot constitute a valid and sufficient ground to interfere with an order of acquittal unless it comes to the conclusion that the entire approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then – and then only – reappraise the evidence to arrive at its own conclusions. In keeping with the above principles we have therefore to first ascertain whether the findings of the trial court are sustainable or not.”
6. The law thus seems to be clearly settled to the effect that if there are two possible versions and the court of sessions adopted one such version, question of recording reversal of an order of acquittal by reason of the fact that if there was any independent appraisal by the High Court, the High Court could have come to a different conclusion, could not arise. Mere possibility of having that version ought to prompt the high Court to accept the findings and conclusion of the learned trial judge. The matter presently under consideration, however, is not in accordance therewith. On this short ground this appeal could have been disposed of but judicial ethics prompt us to deal with the matter in slightly more greater detail by reason of strenuous submissions of Mr. Dhanda appearing for the state in the matter of maintaining the conviction. The principal contention advanced by Mr. Dhanda rests on two different aspects: The first being the evidence of two independent witnesses and the second happens to be dying declaration as certified by the doctor. Turning on to the second count first, let us however see for ourselves as to the evidence of the doctor. The doctor records separately the state or the health of the persons as: “Patient was conscious. B.P. not recordable. Pulse not palpable. Both the pupils were normal and reaching to light.” When this case was put to the doctor, the evidence of the doctor reads as below:
“In case, a person is under shock, and his pulse and B.P. is not recordable, his thinking power is diminished. In such a case there can be possibility of his being imaginative and prone to suggestions. I was conscious of the fact that the condition of both the injured was critical. I had advised the police to call the magistrate. I was told by the inspector that he had rung up one or two magistrates, but they were not available. I then advised him to record the statement of the injured in my presence because the condition was critical and there was expectancy of death at any time.”
7. The condition of the victims, as described by the doctor, thus seems to be rather serious and, in fact, the patients died within a time – gap of one and a half hour to two hours. Significant is the next bit of evidence of the doctor. The doctor stated:
“The statement was given by the injured on his own. However, when he got stuck up, he was asked by the inspector to proceed further and tell them to what had happened further. About 20 to 30 minutes were consumed in recording the statement. The patient was telling about the occurrence to the inspector who in the turn of his own was dictating the same to his subordinate who was taking it down. I have no idea whether the injured was speaking Hindi or Punjabi. I also do not know the exact name of the person who had actually scribed the statement.”
8. The factum of the statement being taken down after being told to do so by the inspector and being scribbled by a subordinate officer goes a long way in the matter of creating some doubt in the mind of the court by reason of the fact that though the scribe had written down in Hindi script, the language in which the answers came was not known. But the condition of the deceased, as was stated by the doctor, was prone to suggestions only. Therefore, one needs to delve on the issue as to whether this statement can be termed to be the statement of the dying person in its entirety or not. A deeper consideration exposed the evidence to a doubt in the mind of the court as regards the veracity of the statement. In the event the same, however, cannot be relied upon, the prosecution case falls to the ground by reason of the fact that in our criminal jurisprudential system the burden is heavy and is to be proved beyond all reasonable doubts.
9. The facts, as narrated by the prosecution witness, depict that Joginder Singh gave a ‘lalkara’. Ranjit Singh was driving the tractor and one other person Mohan Singh got down from the tractor and caused the lathi blow. According to the doctor’s evidence, which stands out to be rather categorical in nature that in the event of the lathi injury, the injury by itself would give a linear look and, in the case in hand, presently there was no injury having a linear look. It is significant that in the event of there being a conspiracy to kill the person by hurriedly getting down from the tractor with a lathi would not inflict a lathi blow to kill the victim. It is a human behavioural pattern which negates the same. The third factor also to be noticed is that the doctor itself has opined that the injuries reported could be caused by vehicular accident. If the doctor’s evidence stands accepted, the prosecution’s case stands wholly negated.
10. In that view of the matter, submission of Mr. Dhanda does not confer a benefit to the prosecution case for obtaining an order of conviction which, according to Mr. Dhanda, does not warrant any further interference under Article 136 of the constitution.
11. Coming back to the first count of Mr. Dhanda’s submission that the two eye witnesses were there who are supposed to be independent and as such there is a direct evidence available on record which the court should accept as trustworthy. We are, however, unable to record our concurrence therewith as well. By reason of the facts stated above, question of having credence and acceptability being attributed to the evidence of the eye witness does not arise. The learned sessions judge did not find it expedient to rely on the evidence and as such acquitted the accused persons on the ground of benefit of doubt. The High Court thought it fit to run counter to the appraisal of the evidence and independently appraised without delving into the issue as noticed in the two judgments above.
12. We do find some justification in the submission of Mr. Sushil Kumar as also that of Mr. Ranjit Kumar, that the case made out by the prosecution in either of the matters cannot withstand the test of proof beyond all reasonable doubts. The doubt stands created and which doubt being a part of the criminal jurisprudential system should entail an order of acquittal on the ground of benefit of doubt.
13. Criminal appeal no. 799 of 1995 is allowed and the order of the High Court stands set aside and that of the learned sessions judge stands restored. The accused-appellants are acquitted of all the charges. Bail bonds shall stand discharged.
14. So far as criminal appeal no. 220 of 1996 is concerned, the appeal is allowed. The judgments of the High Court as well as of the learned sessions judge stand set aside and quashed. The accused-appellant is acquitted of all the charges. Bail bonds shall stand discharged.
1. Four accused persons, namely, Joginder Singh – A-1, Ranjit Singh – A-2, Mohan Singh – A-3 and Baldev Singh – A-4 were charged for the offences under section 302 read with section 34 and section 120-B of the Indian Penal Code. Accused Ranjit Singh was found guilty under section 302 of the Indian Penal Code for committing the murder of Daljit Singh and Bhajan Singh on 15.10.1989 and was sentenced to undergo imprisonment for life and to pay a fine of Rs. 5,000/- together with a default clause by the learned sessions judge, Narnaul. Incidentally, the co-accused of Ranjit Singh, viz., Baldev Singh, Joginder Singh and Mohan Singh were acquitted of the charges levelled against them by giving benefit of doubt by the learned sessions judge.
2. Against his conviction, Ranjit Singh moved the High Court and the state also moved the High Court against the order of acquittal. The High Court, in its turn, however, maintained the conviction of Ranjit Singh but reversed the order of acquittal as against accused Joginder Singh and Mohan Singh being A-1 and A-3, respectively. However, acquittal of Baldev Singh – A-4 by the learned sessions judge was affirmed by the High Court.
3. The High Court, it appears, went into the matter in very great detail and it is on this score that Mr. Sushil Kumar, learned senior counsel appearing in support of the appeal, contended that the parameters for reversal of an acquittal order passed by the High Court, as laid down by this Court in a catena of cases, do not seem to have been complied with and by reason therefore, the High Court’s order of reversal cannot be sustained.
4. This Court in Tota Singh & Anr. v. State of Punjab1, has the following to state as regards the authority of independent reappraisal of evidence so far as the High Court is concerned against an order of acquittal. Paragraph 6 of the judgment records as follows:
“6. The High Court has not found in its judgment that the reasons given by the learned sessions judge for discarding the testimony of PW2 and PW6 were either unreasonable or perverse. What the High Court has done is to make an independent reappraisal of the evidence on its own and to set aside the acquittal merely on the ground that as a result of such re-appreciation, the High Court was inclined to reach a conclusion different from the one recorded by the learned sessions judge. This Court has repeatedly pointed out that the mere fact that the appellate court is inclined on a re-appreciation of the evidence to reach a conclusion which is at variance with the one recorded in the order of acquittal passed by the court below will not constitute a valid and sufficient ground for setting aside the acquittal. The jurisdiction of the appellate court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the court below is such which could not have been possibly arrived at by any court acting reasonably and judiciously and is, therefore, liable to be characterised as perverse. Where two views are possible on an appraisal of the evidence adduced in the case and the court below has taken a view which is plausible one, the appellate court cannot legally interfere with an order of acquittal even if it is of the opinion that the view taken by the court below on its consideration of the evidence is erroneous.”
5. In the same view this Court in Ramesh Babulal (Ramesh Babulal Doshi v. State of Gujarat1) in paragraph 7 stated as below:
“7. Before proceeding further it will be pertinent to mention that the entire approach of the High Court in dealing with the appeal was patently wrong for it did not at all address itself to the question as to whether the reasons which weighed with the trial court for recording the order of acquittal were proper or not. Instead thereof the High Court made an independent reappraisal of the entire evidence to arrive at the above-quoted conclusions. This Court has repeatedly laid down that the mere fact that a view other than the one taken by the trial court can be legitimately arrived at by the appellate court on reappraisal of the evidence cannot constitute a valid and sufficient ground to interfere with an order of acquittal unless it comes to the conclusion that the entire approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then – and then only – reappraise the evidence to arrive at its own conclusions. In keeping with the above principles we have therefore to first ascertain whether the findings of the trial court are sustainable or not.”
6. The law thus seems to be clearly settled to the effect that if there are two possible versions and the court of sessions adopted one such version, question of recording reversal of an order of acquittal by reason of the fact that if there was any independent appraisal by the High Court, the High Court could have come to a different conclusion, could not arise. Mere possibility of having that version ought to prompt the high Court to accept the findings and conclusion of the learned trial judge. The matter presently under consideration, however, is not in accordance therewith. On this short ground this appeal could have been disposed of but judicial ethics prompt us to deal with the matter in slightly more greater detail by reason of strenuous submissions of Mr. Dhanda appearing for the state in the matter of maintaining the conviction. The principal contention advanced by Mr. Dhanda rests on two different aspects: The first being the evidence of two independent witnesses and the second happens to be dying declaration as certified by the doctor. Turning on to the second count first, let us however see for ourselves as to the evidence of the doctor. The doctor records separately the state or the health of the persons as: “Patient was conscious. B.P. not recordable. Pulse not palpable. Both the pupils were normal and reaching to light.” When this case was put to the doctor, the evidence of the doctor reads as below:
“In case, a person is under shock, and his pulse and B.P. is not recordable, his thinking power is diminished. In such a case there can be possibility of his being imaginative and prone to suggestions. I was conscious of the fact that the condition of both the injured was critical. I had advised the police to call the magistrate. I was told by the inspector that he had rung up one or two magistrates, but they were not available. I then advised him to record the statement of the injured in my presence because the condition was critical and there was expectancy of death at any time.”
7. The condition of the victims, as described by the doctor, thus seems to be rather serious and, in fact, the patients died within a time – gap of one and a half hour to two hours. Significant is the next bit of evidence of the doctor. The doctor stated:
“The statement was given by the injured on his own. However, when he got stuck up, he was asked by the inspector to proceed further and tell them to what had happened further. About 20 to 30 minutes were consumed in recording the statement. The patient was telling about the occurrence to the inspector who in the turn of his own was dictating the same to his subordinate who was taking it down. I have no idea whether the injured was speaking Hindi or Punjabi. I also do not know the exact name of the person who had actually scribed the statement.”
8. The factum of the statement being taken down after being told to do so by the inspector and being scribbled by a subordinate officer goes a long way in the matter of creating some doubt in the mind of the court by reason of the fact that though the scribe had written down in Hindi script, the language in which the answers came was not known. But the condition of the deceased, as was stated by the doctor, was prone to suggestions only. Therefore, one needs to delve on the issue as to whether this statement can be termed to be the statement of the dying person in its entirety or not. A deeper consideration exposed the evidence to a doubt in the mind of the court as regards the veracity of the statement. In the event the same, however, cannot be relied upon, the prosecution case falls to the ground by reason of the fact that in our criminal jurisprudential system the burden is heavy and is to be proved beyond all reasonable doubts.
9. The facts, as narrated by the prosecution witness, depict that Joginder Singh gave a ‘lalkara’. Ranjit Singh was driving the tractor and one other person Mohan Singh got down from the tractor and caused the lathi blow. According to the doctor’s evidence, which stands out to be rather categorical in nature that in the event of the lathi injury, the injury by itself would give a linear look and, in the case in hand, presently there was no injury having a linear look. It is significant that in the event of there being a conspiracy to kill the person by hurriedly getting down from the tractor with a lathi would not inflict a lathi blow to kill the victim. It is a human behavioural pattern which negates the same. The third factor also to be noticed is that the doctor itself has opined that the injuries reported could be caused by vehicular accident. If the doctor’s evidence stands accepted, the prosecution’s case stands wholly negated.
10. In that view of the matter, submission of Mr. Dhanda does not confer a benefit to the prosecution case for obtaining an order of conviction which, according to Mr. Dhanda, does not warrant any further interference under Article 136 of the constitution.
11. Coming back to the first count of Mr. Dhanda’s submission that the two eye witnesses were there who are supposed to be independent and as such there is a direct evidence available on record which the court should accept as trustworthy. We are, however, unable to record our concurrence therewith as well. By reason of the facts stated above, question of having credence and acceptability being attributed to the evidence of the eye witness does not arise. The learned sessions judge did not find it expedient to rely on the evidence and as such acquitted the accused persons on the ground of benefit of doubt. The High Court thought it fit to run counter to the appraisal of the evidence and independently appraised without delving into the issue as noticed in the two judgments above.
12. We do find some justification in the submission of Mr. Sushil Kumar as also that of Mr. Ranjit Kumar, that the case made out by the prosecution in either of the matters cannot withstand the test of proof beyond all reasonable doubts. The doubt stands created and which doubt being a part of the criminal jurisprudential system should entail an order of acquittal on the ground of benefit of doubt.
13. Criminal appeal no. 799 of 1995 is allowed and the order of the High Court stands set aside and that of the learned sessions judge stands restored. The accused-appellants are acquitted of all the charges. Bail bonds shall stand discharged.
14. So far as criminal appeal no. 220 of 1996 is concerned, the appeal is allowed. The judgments of the High Court as well as of the learned sessions judge stand set aside and quashed. The accused-appellant is acquitted of all the charges. Bail bonds shall stand discharged.
