Punjab-Haryana High Court
Naib Singh vs Harvinder Singh @ Vicky And Another on 9 January, 2013
Author: Jasbir Singh
Bench: Jasbir Singh, Inderjit Singh
CRM No. 31343 of 2012 in/and
CRM-A No. 411-MA of 2012 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
*****
CRM No. 31343 of 2012 in/and
CRM-A No. 411-MA of 2012
Date of decision : 9.1.2013
Naib Singh ........Applicant-appellant
Vs.
Harvinder Singh @ Vicky and another .......Respondents
CORAM: Hon'ble Mr. Justice Jasbir Singh
Hon'ble Mr. Justice Inderjit Singh
Present:- Mr. Sanjay Jain, Advocate, for the applicant-appellant
---
Jasbir Singh, J.
CRM No. 31343 of 2012 After hearing counsel for the applicant, application is allowed. Delay of 36 days in filing the appeal stands condoned. CRM-A No. 411-MA of 2012 Harvinder Singh @ Vicky respondent No.1-accused was made to face trial in FIR No. 7 dated 15.1.2010 Police Station Ghanaur for commission of offences under Sections 302/34 IPC. It was an allegation against him that on 13.1.2010 he had murdered his wife namely Manpreet Kaur @ Kirpa by pushing her into a canal, within the area of village Ghanaur. After trial, above named accused/respondent No.1 was acquitted of the charge framed against him. The applicant-complainant Naib Singh- father of the deceased has filed this application under Section 378 (4) CRM No. 31343 of 2012 in/and CRM-A No. 411-MA of 2012 -2- Cr.P.C. seeking leave to file an appeal against judgment of acquittal dated 28.11.2011.
The process of law was initiated on a statement Ex.PA made by PW 1 Naib Singh-father of the deceased, to Inspector Devinder Singh PW-12. The trial Judge has noted the following facts regarding case of the prosecution :-
"That, one of the daughters of complainant Naib Singh, namely Manpreet Kaur @ Kirpa got married to Harvinder Singh @ Vicky, son of Charan Singh, on 27.12.2009. However, daughter of the complainant had not come for the Phera ceremony on the next day. On 30.12.2009, complainant had received a telephone call from his daughter Manpreet Kaur thereby, making him a request to take her back and she will disclose the tale after returning to the village. However, the complainant had prevailed upon his daughter and had stated to her that he shall come on Sunday and then he shall take her. Then, the complainant as well as his wife and several other family members had gone to in laws' village of Manpreet Kaur on Sunday and ceremonies of Milni were performed and then Manpreet Kaur @ Kirpa had accompanied the complainant to his village. Manpreet Kaur @ Kirpa had disclosed Labh Kaur, wife of the complainant, about her husband Harvinder Singh @ Vikcy, to be having illicit relations with one Simran. He also stated that he cannot live without Simran. He had also asked her (Manpreet Kaur) to return to her house and that he shall ask her to accompany him, in front of the family members, but she is not to accompany him. He also threatened her that in case, she returned, then he will kill her (Manpreet Kaur). The aforesaid conversation was disclosed to the complainant by his wife. CRM No. 31343 of 2012 in/and CRM-A No. 411-MA of 2012 -3- On the next day, Harvinder Singh, son-in-law of the complainant, had come to his house and when the complainant had returned from his work, Harvinder Singh, on seeing the complainant, had gone away on his motor cycle. On that very night brother-in-law of the complainant Balkar Singh and Ranjit Singh, elder brother-in-law (Jeth) of Manpreet Kaur had come to the house of the complainant and they asked Manpreet Kaur, to accompany them. However, the complainant had not sent his daughter with the said persons. On the next day, Surjito, resident of village Maupur and Ranjit Singh, Jeth of his daughter, had come to the house of the complainant and on their asking complainant had sent his daughter along with them. On 12.1.2010, Harvinder Singh had made telephone call to the complainant, thereby, disclosing him that his daughter does not allow him to go for work on the combine and that if he is not allowed to go for work, then he (complainant) should arrange for payment of Rs.1.0/1.50 lacs and the complainant had expressed his inability to pay the aforesaid amount and then asked to talk to Manpreet Kaur @ Kirpa and daughter of the complainant had again made request to the complainant, to take her back. Complainant had asked his daughter to take her after 3-4 days. On 13.1.2010, Harvinder Singh, along with his maternal uncle's son Sandeep Singh @ Kalu, son of Amarjit Singh resident of Islampur as well as Manpreet Kaur @ Kirpa, while on motor cycle, had gone to Roorki, his paternal aunt's village. On the next day, all of them, while on the motor cycle, were returning back. In the area of village Ghanaur, on the pretext of paying obeisance in the canal along with coconut and chuni, Harvinder Singh and Sandeep Singh had given push to Manpreet Kaur, in the canal and had killed her."
CRM No. 31343 of 2012 in/and CRM-A No. 411-MA of 2012 -4- The Investigating Officer then got a site plan of the place of occurrence prepared and also took into his possession some articles of the deceased against recovery memos. Respondent No.1 was arrested on 16.1.2010. The Investigating Officer also took into his possession some photographs vide memo Ex.PW 3/D. He then recorded statements of the witnesses under Section 161 Cr.P.C. Dead body of the deceased was recovered on 30.1.2010. Inquest report thereon was prepared by PW-10 SI Sukhdev Singh. This witness had also recorded statements of some of the witnesses. Post mortem on the dead body was conducted by Dr. Jitinder Kumar Jakhar (PW-6). This witness proved on record the post mortem report Ex.PW6/B. On completion of investigation final report was put in Court. Copies of the documents were supplied to the respondent/accused as per norms. Case was committed to the competent Court for trial vide order dated 27.4.2010. The respondent/accused was charge sheeted to which he pleaded not guilty and claimed trial.
The prosecution produced 12 witnesses and also brought on record documentary evidence to prove its case. On conclusion of the prosecution's evidence, statement of Harvinder Singh was recorded under Section 313 Cr.P.C. Incriminating circumstances appearing on record were put to him which he denied, claimed innocence and false implication. He also put on record some documents in defence. It was further stated by him that the complainant-Naib Singh has taken his daughter to his village on 12.1.2010 on account of Lohri. On 16.1.2010 when he (Harvinder Singh) along with Sandeep Singh went to bring back his wife, he was CRM No. 31343 of 2012 in/and CRM-A No. 411-MA of 2012 -5- arrested by the police. It was further stated that deceased Manpreet Kaur had illicit relations with Amit Kumar @ Meeta. An FIR No. 156 was recorded against above said person for kidnapping her and committing rape on 26.9.2009. However, during trial, witnesses resiled and the said accused was acquitted. It was also disclosed that marriage of Manpreet Kaur was forcibly solemnised with the respondent-accused. Out of frustration, Manpreet Kaur had committed suicide by jumping into a canal.
The trial Judge on appraisal of evidence, found case of the prosecution doubtful which resulted into acquittal of Harvinder Singh above named. It is a case of circumstantial evidence. There is no eye witness account to the alleged occurrence. The trial Judge after appraisal of evidence has rightly come to a conclusion that the chain of circumstantial evidence is not complete so as to pin point respondent No.1 as an accused. The prosecution has relied upon deposition made by Mithu PW-5 to prove that the deceased was last seen with the respondent- accused. This witness is closely related to the complainant. However, during cross examination he has deposed that he does not know the respondent-accused and never met him. This witness was declared hostile. Despite cross examination, the prosecution failed to elicit any incriminating material from him against the respondent-accused. Evidence of Harvinder Singh accused making extra judicial confession of his guilt before Surjit Singh PW-4, was also rightly rejected by the Court below by observing as under :-
"Coming to the case in hand, it is pertinent to mention that CRM No. 31343 of 2012 in/and CRM-A No. 411-MA of 2012 -6- extra-judicial confession was made by Harvinder Singh before Surjit Singh, PW.4. On scrutiny, testimony of PW.4, reveals that he has stated about confession of the guilt to have been made by the accused Harvinder Singh, on 15.1.2010. Though, at first instance, he had stated about confession to have been made on 16.1.2010 and thereafter, he corrected himself and stated that confession was made on 15.1.2010 about having given push to his wife Manpreet Kaur @ Kirpa, in the canal, on the pretext of immersing the coconut and Chunni in the canal. As the said witness had stated date of confession to be 15.1.2010 and not 16.1.2010, as projected by the prosecution, after seeking permission from the Court, learned Addl. PP for the state had cross examined the said witness at length and he was confronted with his statement Ex.PW.4/A, However, the said witness stuck to his version of confession having been made by the accused on 15.1.2010 and not on 16.1.2010 and he also deposed that he had produced the accused before SHO on that very day and he categorically denied about having produced the accused, before SHO, on 16.1.2010. Furthermore, he was confronted with memo Ex.PW.4/B, vide which, the motor cycle and RC were taken into possession and he stood witness to the said memo, but however, he denied about the said articles to have taken into possession, on 16.1.2010. Rather, he stated that it was prepared on 15.1.2010 when the accused was produced. However, as per version of the prosecution, extra-judicial confession is claimed to have been made on 16.1.2010 and on that very day, the said witness had produced the accused. Rather, the witness, apart from deposing in examination-in-chief, even in the cross examination, had stated categorically that he had produced the accused on 15.1.2010 and his signatures were obtained by the police on 15.1.2010, on the day, when CRM No. 31343 of 2012 in/and CRM-A No. 411-MA of 2012 -7- accused was produced. However, there is serious contradiction coming forth qua the date of making of confession by the accused before the said witness. In these circumstances, there is definitely, doubt raised about genuineness of the claim of the prosecution. It thus shows that somewhere, there is suppression of the progress of the case and the prosecution is not coming out with true manner of development of facts and this itself is sufficient to discard the confession, so made. Moreover, Surjit Singh PW.4 was not Sarpanch at the relevant time of making confession by the accused. Also, further he is not Sarpanch of the village of accused. Rather, he is Sarpanch of village Mardapur, which falls within the jurisdiction of PS Sadar, Rajpura and not within the jurisdiction of PS Ghanaur to which the present case relates. The said witness to the extra judicial confession is not proved to be fully reliable and it shall be unsafe to rely upon this extra-judicial confession."
The trial Court has given sufficient reasons in Para No.21 to say that the story of pushing the deceased into the canal by the respondent- accused is not proved on record. How the complainant came to know about death of the deceased, the prosecution has failed to prove it on record. The delay in reporting the matter to the police was rightly taken against the prosecution by giving good reasons in Para No.24 of the judgment under challenge. By making reference to FIR Ex.D 2 earlier registered regarding kidnapping of the deceased, judgment passed therein, and the tending circumstances, the trial Judge came to a conclusion that it was a case of suicide The opinion expressed by the trial Judge is as per evidence on record.
CRM No. 31343 of 2012 in/and CRM-A No. 411-MA of 2012 -8- 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.
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 CRM No. 31343 of 2012 in/and CRM-A No. 411-MA of 2012 -9- 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 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, 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 CRM No. 31343 of 2012 in/and CRM-A No. 411-MA of 2012 -10- 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."
Counsel for applicant-appellant has failed to show any error in law on the basis of which interference can be made by this Court in the judgment under challenge.
Accordingly, the application is dismissed.
(Jasbir Singh) Judge (Inderjit Singh) Judge 9.1.2013 Ashwani