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2024 DIGILAW 1356 (PNJ)

Balram Singh v. State of Punjab

2024-11-22

ALOK JAIN, SUDHIR SINGH

body2024
JUDGMENT : Mr. Sudhir Singh, J. Challenge in the present appeal is to the judgment dated 26.09.2018 passed by learned Special Court, Moga (for short ‘the Trial Court’), whereby, accused-respondents No.2 and 3 were acquitted of the charges framed against them, in case bearing FIR No.49 dated 22.05.2014 registered under Section 22 of NDPS Act and Section 25 of Arms Act. 2. Vide order dated 29.08.2023, the lower Court records was called for. The same has been received. 3. The prosecution case is that when 22.05.2014, ASI Sukhjinder Singh along with HC Davinderjit Singh and other police officials were on patrol duty at G.T. Road, Moga, then at about 08:15 PM, Balram Singh came there and informed ASI Sukhjinder Singh about an unclaimed Polythene bag, lying on the roof of bathroom of his residential house. ASI Sukhjinder Singh, in turn, informed SHO Jagtar Singh through telephone and the said SHO informed ASI Sukhjinder Singh that on 19.05.2014, he searched the house of Balram Singh, but nothing incriminating was recovered from his house. On the directions of SI Jagtar Singh, ASI Sukhjinder Singh and other police party along with complainant Balram Singh went to the house of said Balram Singh, where one unclaimed polythene bag was recovered from the roof of bathroom of his house. On the search of said polythene bag one country made revolver was recovered. The said revolver was taken into possession by the police. On further search of the said bag, six vials of injections, two strips of Parvon Spas capsules, one strip containing 10 capsules and second strip containing six capsules, 24 packets of Pehnotil tablets containing 100 tablets in each packet, were recovered. Out of the said substance, samples were drawn and parcels were prepared. All the parcels were sealed by the Investigating Officer with his seal bearing impression “SS”. The seal after use was handed over to HC Davinderjit Singh. The entire case property was taken into possession vide recovery memo. Ruga was sent to the Police Station, on the basis of which the FIR was registered. On 25.05.2014, on the basis of statement of Hardev Singh son of Mohinder Singh, Kashmir Singh and Gurcharan Singh (respondents No.2 and 3) were nominated as accused. Respondents No.2 and 3 were arrested on 28.05.2015 and 07.07.2014 respectively. Ruga was sent to the Police Station, on the basis of which the FIR was registered. On 25.05.2014, on the basis of statement of Hardev Singh son of Mohinder Singh, Kashmir Singh and Gurcharan Singh (respondents No.2 and 3) were nominated as accused. Respondents No.2 and 3 were arrested on 28.05.2015 and 07.07.2014 respectively. After investigation, the challan was presented against respondent No.2 Kashmir Singh, whereas respondent No.3 Gurcharan Singh, was placed in Column No.2. Charges under Sections 22 of the Narcotic Drugs and Psychotropic Substance Act, 1985 and Section 25 of the Arms Act were framed against respondent No.2 Kashmir Singh, to which he pleaded not guilty and claimed trial. However, vide order dated 28.08.2017, an application under Section 319 Cr.P.C. was allowed and respondent No.3 Gurcharan Singh was summoned as an additional accused. On 20.12.2017, supplementary challan was presented against respondent No.3 Gurcharan Singh. Thereafter, charges were framed against both, respondents No.2 and 3, under Section 22 of NDPS Act and Section 25 of Arms Act, to which they pleaded not guilty and claimed trial. 4. During trial, the prosecution examined as many as 11 witnesses i.e. PW1Balram Singh; PW2-Hardev Singh; PW3-Veer Singh; PW4-Gurmnek Singh; PW5MHC Surinder Singh; PW6-ASI Sukhjinder Singh Investigating Officer; PW7- HC Davinderjit Singh; PW8-Constable Jugraj Singh; PW9-ASI Gurdeep Singh; PW10Inspector Jagtar Singh and PW11-Inspector Gurwinder Singh. Thereafter, statements of the accused-respondents were recorded under Section 313 Cr.P.C. The entire incriminating material was put to them, which they denied pleaded false implication. 5. The grounds considered by the trial Court for acquitting the respondents No.2 and 3 are as follows:- i) When on 19.05.2014, SI Jagtar Singh conducted the raid in the house of Balram Singh, no recovery was effected. However, as per the version of PW2Hardev Singh on 17.05.2014 the accused kept one Polythene Bag on the roof of the bathroom of Balram Singh. If it had been so, the recovery of intoxicant substance and revolver could have been effected on 19.05.2014 itself, when the aforesaid raid was conducted by SI Jagtar Singh. This clearly casts a dent in the prosecution story. ii) PW2-Hardev Singh is the real nephew of Balram Singh. There was no explanation as to why the said witness did not tell anyone about the intoxicant substance and the revolver having been kept by respondents No.2 and 3 on the roof of the bathroom of Balram Singh on 17.05.2014. This clearly casts a dent in the prosecution story. ii) PW2-Hardev Singh is the real nephew of Balram Singh. There was no explanation as to why the said witness did not tell anyone about the intoxicant substance and the revolver having been kept by respondents No.2 and 3 on the roof of the bathroom of Balram Singh on 17.05.2014. iii) There is no evidence regarding the information having been given to DSP Dharamkot on 19.05.2014 with respect to intoxicant material in the house of Balram Singh, pursuant to which the raid was conducted by SI Jagtar Singh under the directions of said DSP. The disclosure statement of co-accused Kashmir Singh cannot be made the sole basis for conviction as it was not corroborated by any independent witness. iv) The testimony of PW2-Hardev Singh; PW3-Veer Singh and PW4-Gumek Singh shows that they are interested witnesses and they have deposed in favour of Balram Singh in order to falsely implicate respondents No.2 and 3. It has come in the testimony of the aforesaid witnesses that Balram Singh was not having cordial relations with accused Gurcharan Singh. v) As per the testimony of PW6-ASI Sukhjinder Singh, he had search of the polythene bag and one country made revolver was recovered and further on unloading the same, and no cartridge was recovered. However, on perusal of the FSL report (Ex.PY), the parcel ‘B’ was containing five live cartridges of 0.32 inch. Thus, there was a clear contradiction in the evidence of the prosecution as regard the cartridges of the said revolver. vi) Whether or not the revolver allegedly recovered was in a working condition, was also not established. Further, the prosecution had failed to examine any armourer regarding the testing of the working condition of the said revolver.” 6. Learned counsel appearing for the appellant has vehemently argued that the finding of the learned trial Court that the prosecution witnesses PW2 to PW4 are interested witnesses, suffer from patent illegality inasmuch, merely because the said witnesses were related to the appellant, is no ground to discard their testimony, when the same is corroborated by the other evidence on record. Learned counsel appearing for the appellant has vehemently argued that the finding of the learned trial Court that the prosecution witnesses PW2 to PW4 are interested witnesses, suffer from patent illegality inasmuch, merely because the said witnesses were related to the appellant, is no ground to discard their testimony, when the same is corroborated by the other evidence on record. It is further argued that the confessional statement made by respondent No.2 Kashmir Singh is admissible in evidence as he had made the said confessional statement regarding his involvement and the involvement of respondent No.3, who was a similarly placed accused and, thus, the trial Court ought not to have discarded such confessional statement. It is further argued that the findings recorded by the learned trial Court as regards the working condition and the serviceability of the alleged revolver, are also not tenable as once, such revolver was recovered and the same was proved to have been kept by the accused-respondents on the floor of the bathroom of the appellant, there was no requirement to record such a finding. 7. On the other hand, learned counsel appearing for respondents No.2 and 3, while defending the judgment of acquittal passed by learned trial Court, have contended that the learned trial Court has given sufficient reasons to reach the finding of acquittal. It is further argued that the entire material and evidence on record clearly casts a doubt on the veracity of the prosecution version and, therefore, the judgment of acquittal does not require any interference by this Court. 8. We have heard the learned counsel for the parties and have also gone through the records of the case. 9. In our opinion the following issue arises for consideration before this Court. “Whether the judgment of acquittal passed by learned trial Court requires any interference by this Court?” 10. In order to answer the aforesaid issue, it is to be seen whether the findings recorded by the learned trial Court are contrary to the evidence on record or while doing so, the learned trial Court did not take into consideration the material and the evidence on record. The findings recorded by the learned trial Court, if read inconsonance with the records of the case, it would clearly come out that the prosecution was not able to prove its case beyond reasonable doubt. The findings recorded by the learned trial Court, if read inconsonance with the records of the case, it would clearly come out that the prosecution was not able to prove its case beyond reasonable doubt. In this regard, it may be noticed that it is the case of the prosecution that before the raid conducted by the SI Jagtar Singh on the house of the appellant Balram Singh on 22.05.2014, said Jagtar Singh had already conducted a raid on the house of Balram Singh on 19.05.2014. If it was so, then as to why the alleged substance and the revolver kept in polythene bag by accused on the roof of the bathroom of the residential house on 17.05.2014, was not recovered or noticed by said Jagtar Singh, is beyond common comprehension. The learned trial Court has rightly found that the testimony of PW2-Hardev Singh is not believable simply for the reason that the alleged substance and the revolver put on the roof of the bathroom of the house of Balram Singh could, were not recovered on 19.05.2014. 11. Still further in the instant case, the link evidence is also missing. As per the version of SI Jagtar Singh, he conducted a raid on the house of Balram Singh on 19.05.2014 upon the directions of DSP Dharamkot, but what led to the issuance of such direction, has also not been established. Still further, even if the confessional statement made by accused Kashmir Singh is taken into consideration, then also in the absence of any corroborative evidence, the said confessional statement cannot be the sole basis for conviction. It has come in the testimony of PW2 to PW4 that there was a party faction in the village and the said witnesses were litigating against each other. Such being the factual position, this Court is left with no option except to find out whether there is any other trustworthy evidence on record which could establish the guilt of the accused-respondents. However, there is none and, therefore, the learned trial Court has rightly found that the said witnesses are interested witnesses and the false implication of the accused-respondents could not be ruled out. Still further, the scientific evidence in the instant case is contrary to the oral evidence. However, there is none and, therefore, the learned trial Court has rightly found that the said witnesses are interested witnesses and the false implication of the accused-respondents could not be ruled out. Still further, the scientific evidence in the instant case is contrary to the oral evidence. As per the testimony of ASI Sukhjinder Singh (Investigating Officer), there was no cartridge loaded in the alleged revolver, whereas as per the report of the FSL, the parcel ‘B’ was containing five live cartridges of 0.32 inch. This clearly creates a dent in the case of the prosecution and, thus, the learned trial Court has rightly found that the prosecution has not been able to prove its case beyond reasonable doubt. 12. 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 finding 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 caused 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. 14. 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. 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 reiterated 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.” 13. 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 compelling grounds. 14. We have thoroughly gone through the records of the case and we find that the findings recorded by the learned trial Court do not suffer from any patent illegality or perversity. Accordingly, the issue framed above is answered in negative. 15. 14. We have thoroughly gone through the records of the case and we find that the findings recorded by the learned trial Court do not suffer from any patent illegality or perversity. Accordingly, the issue framed above is answered in negative. 15. In view of the above finding no merit in the present appeal, the same is hereby dismissed. 16. All pending applications (if any), shall also stand disposed of.