Jaspal Kaur vs Jit Singh and Others

Paramjeet Singh, J.

CRM No. 30681 of 2010

For the reasons indicated in the Crl. Misc. application, the same is allowed. Delay of 518 days in filing the appeal is condoned.

CRM-A-750-MA of 2010

The instant application has been filed u/s 378(4) Cr.P.C. for grant of leave to appeal against the impugned judgment dated 20.10.2008 passed by the learned Sub Divisional Judicial Magistrate, Nabha, whereby respondents have been acquitted of the charges framed against them.

Brief facts of the case as mentioned in the impugned judgment are as under:-

... that complainant are that she is running a private clinic at Bhadson and on Ashwani Kumar is running a private chemist shop near shop. It is further alleged that in year 1993 Complainant was married to Nirmal Singh who is also running chemist shop in village Chahal. It is further alleged that Nirmal Singh had married Jaspal Kaur despite the fact that he was already married and civil and criminal proceedings between them are pending. Due to this enmity Nirmal Singh by paying some ransom to accused Shiam Singh got lodged false report with police against accused on 18.1.1996 and her house was raided on 18.1.1996 by accused no. 1 to 4. She was arrested along with her assistant Surjit Kaur. Accused ASI Jit Singh forcibly took away keys of her shop and in conspiracy with other accused registered false case against her vide FIR No. 4 of 19.01.1996 on the grounds that packets of tablets of Microden, 11 injections of compose, six injections of Nerolin and three empty bottles of 1 mg were recovered from complainant. Accused forcibly obtained her signatures on blank papers. Accused Jit Singh abused and tortured complainant mercilessly and molested the complainant with a view to outrage her modesty. She was produced in court on 19.1.1996 and accused ASI Jit Singh took away her four gold rings, one pair of gold ear rings, one set of chain and one lady watch along with currency notes of Rs. 1299/- from complainant. Initially she was remanded into police custody till 21.01.1996 and on 21.01.1996 accused Jit Singh himself wrote request on behalf of complainant for return of articles which was allowed by court but accused Jit Singh changed her gold ornaments and returned artificial ornaments to complainant. On release from judicial custody, complainant brought all these facts to the notice of higher authorities, but no action was taken against accused. Hence the present complaint.

On the preliminary evidence, accused-respondent Nos. 1, 5, 6, 7 and 9 were summoned under Sections 354, 323, 406, 504 read with Section 120-B IPC vide order dated 15.06.1999. Thereafter, accused-respondents were charge-sheeted vide order dated 10.12.2005, to which they pleaded not guilty and claimed trial.

Thereafter, statements of the accused-respondents u/s 313 Cr.P.C. were recorded. All incriminating facts and circumstances were put to the accused wherein they pleaded innocence and false implication.

The learned Trial Court vide judgment dated 20.10.2008, after appreciating the evidence, acquitted the accused-respondents of the charges framed against them. Against judgment dated 20.10.2008, the petitioner preferred an appeal before the learned Additional Sessions Judge, Patiala, which was also dismissed as not maintainable before that Court in view of provisions of Section 378(4) Cr.P.C., vide order dated 16.03.2010. Hence, this application for grant of leave to appeal against judgment dated 20.10.2008 passed by learned Sub Divisional Judicial Magistrate, Nabha.

I have heard learned counsel for the parties and gone through the impugned judgment.

The learned trial Court, after appreciating the evidence on record, observed as under:-

After giving careful consideration to contentions of rival parties I find that first of all, counsel for complainant has argued that accused Jit Singh took complainant does not inspire confidence as according to CW2 Shamsher Singh witness produced by complainant herself in her pre-charge evidence, FIR No. 4 dated 19.1.93 u/s. 22/21/65 of NDPS Act and that she was confined in female barrack. He has further deposed that ASI Kartar Singh was asked to keep watch upon her and as per DDR No. 4 it was 7.30 am and lady constable Ranjit Kaur and Daljit Kaur No. 1058 were present. In this way, complainant''s own witness has falsified allegations of the complainant. Now as regards the section 354 IPC against ASI Jit Singh is concerned, there are lots of contradictions in the statement of complainant Jaspal Kaur as compared to her cross-examination in pre charge evidence and complainant has given entire different version from the complainant itself as in the complaint complainant has stated that accused no. 1 tortured the complainant in inhuman ways, abused her in filthy language, soaped her mercilessly in the police station. A false case u/s. 41(i) S. 109 Cr.P.C. was also registered against Surjit Kaur assistant of complainant. The accused no. 1 in conspiracy with other accused molested the complainant in order to outrage her modesty in the men''s barracks. There was no lady SPO constable in the police station Bhadson. But at the time of pre-charge evidence complainant added some new version to this extent and counsel for accused drawn attention of complainant and put the contents of complaint to complainant where it is not so pleaded. Similarly, when complainant was cross-examined after charge she stated something different with regard to outraging her modesty. So one thing is crystal clear that ASI Jit Singh accused no. 1 is police officer who has already taken steps against complainant and did not favour her then how could he go for such act which amounts to section 354 IPC. As a whole the averments of the complainant contained in the complaint seems to be highly improvable and the allegations appears to have been leveled to pressurize ASI Jit Singh to do favour to complainant in NDPS Act case. Counsel for complainant further argued that complainant has already been acquitted but this fact hardly makes any difference as we are only concerned with present case in hand.

Other witness produced by complainant after charge is Nachhatar Kaur who is mother of complainant Jaspal Kaur but she is unaware of the facts Patiala. She never appears with her daughter Jaspal Kaur in Court at Nabha. Her statement was never recorded by any police official and that she did not move any written complaint before police authorities. She further deposed that where her daughter Jaspal Kaur resides nor she know with who she resides. He also does not know what she does. She did not report anywhere with regard to outraging of modesty of Jaspal Kaur. She has simply stated in her examination in chief that about 3/4 years at 11.30 "O" Clock, ASI Jit Singh along with one Sarpanch and one female came and knocked their door and thereafter they took her daughter in a vehicle where she was confined and they were not allowed to meet them. She stated ASI Jit Singh abused girls. No specific allegations have been leveled with regard to outraging modesty of Jaspal Kaur.

Complainant has stated that she had moved application before higher authorities but complainant failed to produce on file that any such application was moved to higher authorities regarding her allegations and any alleged highhandedness at the hands of accused.

Counsel for remaining accused argued that no offence is made out u/s 354/ 120B IPC against them and this contentions of counsel for accused hold good as complainant in her examination chief stated that all of these persons were standing at the spot and provoking accused ASI Jit Singh to outrage modesty of complainant by proclaiming that he was have chance and that her should rape her. This witness was confronted with complaint itself and she admitted that nothing like this stands recorded therein. There is no evidence that all of them were standing before barrack and were provoking accused Jit Singh. Moreover, as already discussed complainant has failed to committing of offence u/s. 354/120-B IPC does not arise at all. Further Sh. Nachhatar Kaur has not uttered even single word with regard to involvement of accused Rameshwar Dass Puri, Parveen Kumari and Sham Singh.

Other argument of counsel for complainant with regard to offence u/s. 406 IPC is concerned that accused Jit Singh was entrusted with gold ornaments and her misappropriated and converted the same into his own use and replaced the same with artificial ornaments. But this argument of counsel for accused does not have any force because evidence on record shows otherwise. Articles recovered from accused are deposited with MHC but in this case complainant has not made concerned MHC party. Further is Ex. C3 and Ex. D1 it is nowhere shown that articles were handed over to complainant by accused and accused had given his report as officiating SHO on the orders of Court. As per Punjab Police Rules 22.7 MHC is responsible for all articles and he is in direct charge of store room and is to keep the keys thereof and personally superintend all receipts and issues therefrom. He shall be responsible for the safe custody and dieting of persons in the lock up and shall personally keep the keys thereof. Moreover, complainant has failed to produce articles in question in court and no jeweler has been examined in support of his allegations. Even no receipt/bill for purchase of alleged articles have been produced and prove on file. PW2 Shamsher Singh in cross-examination stated that Jaspal Kaur had admitted that all articles shown as golden are artificial and due to non-availability of Goldsmith could not be attested and note to this effect has been given on box which was handed over to MHC. Similarly, PW2 has stated that item no. 8 was given to Jaspal Kaur on orders of JMIC, Nabha.

Complainant moved application for return of articles mentioned in Ex. C3 and Ld. JMIC had sought report of SHO of P.S. Bhadson and ASI Jit Singh who was SHO at that time gave report expressing no objection and on the basis of report of police articles were ordered to be returned and Sh. J.M. Singh had received and articles taken into custody by police mentioned in the application. Jaspal Kaur also signed the same as to be wife of Nirmal Singh and daughter of Gurdial Singh. Articles were handed over to Gurdial Singh father of complainant at her instance. Further CW Shamsher Singh in cross-examination admitted that Jaspal Kaur had admitted that at the time of her personal search memo the ornaments which her got written were artificial and that die to night due to no availability of gold smith these could not be attested. Similarly, CW3 Tarsem Chand in cross-examination admitted that the articles so recover were put into box and sealed and no replacement was made.

Further from perusal of complaint itself it transpires that complainant was married with Nirmal Singh Ghuman who has been arrayed as accused no. 9. Later on this fellow was discharged. Complainant herself admitted that proceedings u/s 495 Cr.P.C. Are pending against her. Jaspal Kaur claims herself to be a doctor and to be daughter of Gurdial Singh and some times daughter of Babu Singh. So conduct of complainant itself goes to the root of this case.

From the above discussion, it is safely concluded that no doubt ASI Jit Singh have been investigating in case FIR No. 4 in NDPS Act and at the time of investigation personal search of complainant Jaspal Kaur was conducted and some articles were taken into possession from complainant. Evidence produced by accused in defence also proved on file that Jaspal Kaur was booked under NDPS Act and that motive of filing false complaint as counter blast to inspire confidence.

Their Lordships of the Supreme Court in Rs. Allarakha K. Mansuri Vs. State of Gujarat, , held that where, in a case, two views are possible, the one which favours the accused, has to be adopted by the Court. This view has been reiterated in State of Goa Vs. Sanjay Thakran and Another, , and '' Chandrappa and Others Vs. State of Karnataka,

A Division Bench of this Court in '' State of Punjab Vs. Hansa Singh 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 Vs. State of Rajasthan, , 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 misreading of the evidence and merely because the appellate Court was inclined to take a different view, could not be a reason calling for interference.

In '' Mrinal Das and Others Vs. The State of Tripura, decided on September 5, 2011, the Hon''ble 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 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 Vs. Shera Ram @ Vishnu Dutta, , the Hon''ble Supreme Court has observed as under:-

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.

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, 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:-

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.

Learned counsel for the petitioner has failed to show any error of law or on facts on the basis of which interference can be made by this Court in the judgment under challenge. As such, this application for leave to appeal is dismissed.