Punjab-Haryana High Court
Jaswinder Kaur vs State Of Punjab And Others on 28 February, 2012
Bench: Jasbir Singh, Sabina
CR.MISC.-A- 1003 -MA OF 2011 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
DATE OF DECISION: February 28, 2012
Parties Name
Jaswinder Kaur
...APPLICANT
VERSUS
State of Punjab and others
...RESPONDENTS
CORAM: Hon'ble Mr. Justice Jasbir Singh
Hon'ble Mrs. Justice Sabina
PRESENT: Mr. Sarju Puri,
Advocate, for the applicant.
Jasbir Singh, J.
JUDGMENT
Jaswinder Kaur, complainant, has filed this application under Section 378(4) Cr.P.C. seeking leave to file an appeal against judgment and order dated September 17, 2011, passed by the Sessions Judge, Shaheed Bhagat Singh Nagar, vide which respondents No. 2 and 3 were acquitted from commission of an offence under Section 307/34 IPC. However, they were convicted for commission of offences under Sections 323 and 498-A IPC.
By moving this application, it is prayed that the judgment and order under challenge be modified and the above respondents be also convicted for commission of an offence under Section 307 IPC and further that the sentence awarded to them for offences under Sections 498-A and CR.MISC.-A- 1003 -MA OF 2011 -2- 323 IPC be enhanced.
Heard counsel for the applicant.
The marriage between the applicant -complainant Jaswinder Kaur and Gurnek Singh, respondent No. 2, was solemnised in the year 1998. One female child was born out of the wed-lock. It was an allegation against respondents No. 2 and 3, i.e., husband and mother-in-law of the complainant that they were harassing the complainant with a view to force her to bring more dowry and that the respondent No. 2 made an attempt to kill the complainant and her daughter by pushing both of them, in a river.
Process of law was set in motion on an application, filed by the applicant - complainant to the police.
The trial Judge has noticed following facts regarding case of the prosecution:
"The accused were challaned by the Officer Incharge, Police Station Rahon, on the allegations that on 3.12.2009, an application was moved by Jaswinder Kaur wife of Gurmukh Singh addressed to SSP, SBS Nagar, alleging that she was married with Gurnek Singh in the year 1998 and she has one daughter from this marriage. Her husband had gone to foreign country and remained there for eight years. Her husband and mother-in-law had been beating and taunting her for not bringing sufficient dowry. In fact her husband wanted to have second marriage, in which her mother-in-law is also in agreement. On 22.11.2009, her husband in agreement with her mother-in-law took her and her daughter on the plea that her CR.MISC.-A- 1003 -MA OF 2011 -3- mother is to be called for. She and her daughter accompanied him and took her towards the river side. When she asked that they were to go to the city side, he stated that he has some work. When they reached near village Chak Elahi Baksh, her husband stopped the vehicle and stated that they both will be done to death. He caught them from the arms and dragged towards the river. She and her daughter raised the alarm and some persons, who were digging the same came to their rescue, whereas her husband pleaded them that it is their personal matter, upon which they gave a threat that he should dare to throw them in the river. In the meantime some other persons collected there, to which Gurnek Singh pleaded for pardon, upon which they came back to the house. On the way Gurnek Singh asked them not to tell this fact in the house. But in the house, again attempts are being made to kill them."
The Investigating Officer recorded statements of the witnesses and after completing investigation as per norms, put up the final report in Court. Copies of the documents were supplied to the accused - respondents as per norms. Case was committed to the competent Court for trial. The accused were charge-sheeted, to which they pleaded not guilty and claimed trial. The prosecution produced eight witnesses and also brought on record documentary evidence to prove its case. On the closure of prosecution evidence, separate statements of the accused were recorded under Section 313 Cr.P.C. Incriminating material existing on record was put to them, which they denied, pleaded innocence and false implication. Respondent - CR.MISC.-A- 1003 -MA OF 2011 -4- accused Gurnek Singh specifically stated that he had made no attempt to kill the complainant and his minor daughter. He has falsely been implicated by the complainant and her father when he asked the details of Rs. 15,00,000/-, which he sent, during the period of seven years , when he was staying abroad. It was his allegation that the complainant had given Rs. 7,00,000/- to her father for the purchase of a tractor and trolley and another amount of Rs. 5,00,000/- to send her brother to Australia. On the date of alleged occurrence, respondent No. 3 was not present in the village. Rather she had gone to Himachal Pradesh. Similar defence was taken by respondent No. 3
- mother-in-law of the complainant. They also led evidence in defence.
The trial Judge when acquitting the accused- respondents from charge under Section 307 IPC has observed as under:
"Firstly taking whether the accused in furtherance of their common intention have tried to commit murder of Jaswinder Kaur, the relevant evidence is the statement of PW-1 Jaswinder Kaur who has stated that on 22.11.2009 her husband asked her to bring her mother in the house and to accompany with him. Accordingly, she along with her daughter started from the village. Her husband took the vehicle towards village Chak Elahi Baksh and stopped the vehicle near the river and he started to drag them towards the river with the threat that he will kill both of them. They cried and a number of persons gathered there, who saved them. Then there is statement of her own daughter Hardip Kaur, who appeared as PW-4, who is a minor daughter aged about 10 years, but she was examined CR.MISC.-A- 1003 -MA OF 2011 -5- after satisfying that she is a competent witness. She in her statement has stated that on 22.11.2009 her father took her and her mother by the side of the river in the car and he made effort to throw them in the river. They raised cries and some persons came there and saved them. Their version is further corroborated by an independent witness Inderjit Singh PW-2 , who has stated that on 22.11.2009, he was irrigating his land in village Chak Elahi Baksh near the dump of the river, where water was about 22 feet deep, when a car of black colour stopped there, Gurnek Singh was pushing one girl and one lady towards the water side. He reached there and enquired from Gurnek Singh, who disclosed that he had come to kill these ladies. But he advised him that whatever the dispute is, they should settle in the house. However, Gurnek Singh had hot exchange with him, but in the meantime some other persons came there, then he pleaded to forgive.
26. It is clear from these statements that the accused had just dragged Jaswinder Kaur and her daughter towards the river side, but he was unable to take them there due to intervention of the persons present there. Although it is not necessary that the injury be caused capable of causing the death, but the intention of the accused is to be seen and in case the intention of the accused is to cause the death, then if there is bodily injuries or not, it is not material and to support this point, there is judgment Hon'ble Apex Court reported as 2009(1) RCR CR.MISC.-A- 1003 -MA OF 2011 -6- (Criminal) Page 956 (supra) and of our Hon'ble High Court reported in 2006(4) RCR(Criinal) Page 902 (supra). But how the intention is to be determined, it is to be determined from the act, conduct and circumstances of the case. It is the positive case of the prosecution that the intention of the accused was to kill Jaswinder Kaur and her daughter by throwing them in the river water. For that it is to be seen whether the river water was sufficiently deep that in case they would have been thrown there, then their death was imminent, in case they does not know how to swim. Therefore, the depth of the water at that place is a material point. Although PW-1 Jaswinder Kaur and PW-4 Hardip Kaur or the Investigating Officer did not refer about the depth of the water there. However, PW-2 Inderjit Singh in his statement has stated that at that place the depth of the water was 22 feet deep. But it is an improvement. He has not stated so in his affidavit Ex.PB and his statement under Section 161 Cr.P.C. Ex.DA. In case at the trial any improvement is made by a witness, then that part of the statement is not required to be considered. Therefore, through this witness, the prosecution has tried to improve the case to tell the depth of the water at a particular point, but his statement has been corroborated by DW-1 Pargan Singh, who in his statement has stated that it is a season tributary and water had come at that place in the floods of 1988. In the next line, it has been admitted by the prosecution by asking from the witness CR.MISC.-A- 1003 -MA OF 2011 -7- that it is correct that during the rainy season the water comes in that tributary. Therefore, water come in the tributary only in rainy season and the occurrence is in the month of November and certainly it is not rainy season. Therefore, in the seasonal tributary the water will not be so deep to cause death even if a person does not know the swimming. The Investigating Officer did not take the photographs of the place of occurrence to show that there is water or did not examine any witness to show the depth of the water at the place the accused wanted to throw Jaswinder Kaur and her daughter. Therefore, technically the evidence of the prosecution is not sufficient that even if the version of the prosecution is admitted and accused would have accomplished his act, whether with that act, the death of Jaswinder Kaur and daughter was imminent."
However, on further discussion of the evidence, the respondents were found guilty for causing simple injuries to the complainant and harassing her for bringing less dowry. For offences under Sections 323 and 498-A IPC, sentence of three months and 1½ year with fine, respectively was awarded. This Court feels that the sentence awarded is perfectly justified. It appears to be a case of wear and tear in the matrimonial relationship of the parties and does not attract higher punishment.
Opinion arrived at by the trial Judge is as per evidence on record.
Their Lordships of the Supreme Court in Allarakha K.Mansuri CR.MISC.-A- 1003 -MA OF 2011 -8- 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.
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 CR.MISC.-A- 1003 -MA OF 2011 -9- 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 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 CR.MISC.-A- 1003 -MA OF 2011 -10- 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:-
"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." CR.MISC.-A- 1003 -MA OF 2011 -11-
Counsel for the applicant has failed to indicate any misreading of oral as well as documentary evidence on record by the trial Court. No case is made out for interference.
Consequently, the application fails and the same is dismissed.
( Jasbir Singh ) Judge ( Sabina) Judge February 28, 2012 DKC