Punjab-Haryana High Court
Harish Chander vs State Of Punjab And Others on 21 November, 2011
Bench: Jasbir Singh, Kanwaljit Singh Ahluwalia
CRIMINAL MISC. -A- 655 -MA OF 2011(O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
DATE OF DECISION: November 21, 2011.
Parties Name
Harish Chander
...APPLICANT
VERSUS
State of Punjab and others ...RESPONDENTS
CORAM: Hon'ble Mr. Justice Jasbir Singh
Hon'ble Mrs. Justice Kanwaljit Singh Ahluwalia
PRESENT: Mr. S.S.Sodhi,
Advocate, for the applicant
Jasbir Singh, J.
JUDGMENT
This application has been filed under Section 378(4) Cr.P.C. with a prayer for grant of leave to file an appeal against judgment of acquittal dated December 15, 2010. Respondents No. 2 to 4 were arraigned as accused in FIR No. 255 of 2003 registered under Section 302/304 Part II IPC on an allegation that on December 20, 2003, they had caused death of CRIMINAL MISC. -A- 655 -MA OF 2011(O&M) -2- Shri Anil Aggarwal by giving him the beatings.
Case of the prosecution as noted by the trial Judge reads thus:
"Prosecution story in brief is that complainant Harish Chander was working as a salesman in the shop of Shri Om Jeweller, Sarafan Bazar, Ludhiana which was run by Anil Aggarwal; that on 20.12.2003 at about 7/ 7.30 PM his employer Anil Aggarwal told him to go to the shop of Handa Jeweller, Sarafan Bazar to get payment therefrom. That then he went to the shop of Handa Jeweller and demanded money from its owner namely Ashwani Kumar @ Bittu on which said Ashwani Kumar tried to hand over Rs. 3000/- to him by saying that the weight of gold locket was 50 mg less than its actual weight. That complainant refused to accept the said amount of Rs. 3000/-on which Ashwani Kumar @ Bittu and his two sons and his brother in law started abusing him and they also started saying that Anil Aggarwal is a thief. That on this complainant told them not to speak such things against his employer. That complainant told the said persons to talk to Anil Aggarwal on which they caught him from his neck. That then complainant came back and he informed about the said incident to his employer Anil Aggarwal. That then Anil Aggarwal took him to shop of Handa Jeweller and told the above said persons to behave properly with his servant/ employee. That thereafter complainant and his employer came back to their shop. That after closing the shop, complainant, his employer Anil Aggarwal and two other CRIMINAL MISC. -A- 655 -MA OF 2011(O&M) -3- employees namely Bablu and Des Raj were coming back to the house at about 9 PM. That when they were passing in front of the shop of Handa Jeweller, Ashwani Kumar @ Bittu and his two sons and his brother in law and some other persons encirclled Anil Aggarwal. That immediately Ashwani Kumar @ Bittu caught Anil Aggarwal from behind while his sons, brother in law and other persons started giving fist blows on the chest of Anil Aggarwal. That complainant, Bablu and Des Raj tried to rescue Anil Aggarwal from the hands of above said persons, but the said persons did not stop and kept on giving fist blows to Anil Aggarwal, as a result of which Anil Aggarwal became unconscious and fell on the ground. That in the meantime other persons who were present in the market also came there, on which Ashwani Kumar alias Bittu, his sons and brother in law and other persons ran away therefrom."
Shri Anil Aggarwal was taken to CMC Hospital in a rickshaw by Bablu (PW9) and Des Raj. There he was admitted in the Emergency Ward, after examination, he was declared as brought dead.
The process of law was initiated on a statement made by Harish Chander (PW1) to Inspector Gurdev Singh (PW8), who went to the Hospital, prepared an inquest report on the dead body and sent it for post- mortem examination, which was conducted on December 21, 2003, by a Board of Doctors, which includes Dr. G.P.Mangla (PW2) of Civil Hospital, Ludhiana. After noting the injuries on the dead body, part of the heart and CRIMINAL MISC. -A- 655 -MA OF 2011(O&M) -4- portion of both the lungs were sent to the Department of Pathology, Government Medical College, Patiala, for pathological examination. Viscera was sent to the Chemical Examiner for analysis. After receipt of the above reports, death was reported to have been caused on consumption of aluminium phosphate poisoning in association with atherosclerosis and coronary artery disease, which were sufficient to cause death in the ordinary course of nature. Respondents No. 2 to 4 were arrested on December 23, 2003.
On completion of investigation, final report was put in Court for trial. Copies of the documents as per the provisions of Section 207 Cr.P.C. were supplied to the private respondents and case was committed to the competent Court for trial on May 31, 2004. The prosecution examined nine witnesses and also brought on record documentary evidence to prove its case. On conclusion of prosecution evidence, statements of respondents No. 2 to 4 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. They also brought on record some documents in defence.
The trial Court, on analysis of evidence, found the private respondents innocent and giving them benefit of doubt, they were acquitted of the charge framed against them. The finding recorded by the trial Judge in that regard reads thus:
"PW1 and PW9 have clearly stated in the court that Raj Kumar met them on the way when they were talking Anil Aggarwal on rickshaw to CMC Hospital. So it is clear that PW3 Raj Kumar CRIMINAL MISC. -A- 655 -MA OF 2011(O&M) -5- had not witnessed the alleged occurrence. PW1 and PW9 have admitted in their testimony that they were working in the shop of deceased Anil Aggarwal. It has also come into evidence that PW3 Raj Kumar was relative of deceased Anil Aggarwal. Thus it is evident that PW1, PW3 and PW9 are interested witnesses. PW1, PW3 and PW9 while appearing in the witness box stated on oath that at about 9 PM all the three accused encircled Anil Aggarwal in their presence and that Ashwani Kumar caught Anil Aggarwal from behind while remaining accused gave fist blows in his chest and that on this Anil Aggarwal became unconscious and that immediately he was taken to CMC Hospital Ludhiana, where he was declared dead. From the perusal of testimony of PW2, who conducted post-mortem examination on the dead body of Anil Aggarwal it is clear that only superficial red abrasion on the back of right wrist and another superficial abrasion on the right flank of abdomen were found on the dead body of Anil Aggarwal. It is also evident that part of the heart and portion of both lungs of the deceased were sent to department of Pathology Govt. Medical College Patiala for their examination, while viscera was sent for chemical examination to the office of Chemical Examiner Punjab Patiala. As per report of Chemical Examiner Ex. PC aluminium phosphate a pesticide was detected in stomach and large and small intestine while phosphine a constituent of aluminium phosphide was detected in liver, spleen and kidney CRIMINAL MISC. -A- 655 -MA OF 2011(O&M) -6- and blood of the deceased. As per Histo-Pathological examination report Ex. PD, the cause of death could be atherosclerosis and coronary heart disease. After the receipt of reports Ex. PC and Ex. PD, it is clear that PW2 and Dr. U.S. Sooch gave opinion Ex. PE that the cause of death in this in their opinion was aluminium phosphide poisoning in association with atherosclerosis and coronary heart disease. PW2 in his cross-examination has clearly stated that there was no injury mark on the chest of deceased and he further clarified that there would have been fist marks if repeated fist blows were given. In these circumstances this Court is of the view that prosecution has failed to prove that repeated fist blows were given on the chest of Anil Aggarwal by the accused at the time of alleged occurrence. Also there is nothing on the record to prove that accused were in knowledge, at the time of alleged occurrence, that Anil Aggarwal was suffering from heart disease. From the perusal of testimony of PW2 coupled with report of Chemical Examiner Ex. PC and opinion Ex. PE it is clear that Anil Aggarwal died due to aluminium phosphide poisoning in association with coronary heart disease. The alleged eye witnesses have no where stated in the court that any poison or pesticide was administered to Anil Aggarwal by the accused at the time of alleged occurrence. In these circumstances, it is evident that the ocular evidence is not in consonance with the medical evidence and in the present case, CRIMINAL MISC. -A- 655 -MA OF 2011(O&M) -7- the medical evidence specifically rules out any injury on the chest of deceased, which has been alleged by the eye-witnesses. So as per the law laid down by Hon'ble Apex Court in Kapil Deo Mandal's case (Supra), this court can draw adverse inference to the effect that the prosecution version as being put forth before the court is not trustworthy. In these circumstances the oral testimony of PW1, PW3 and PW9 who are interested witnesses, which is in variance to the medical evidence, seems to be doubtful and thus it could not be accepted in preference to the evidence of medical expert who had clearly stated that no injury mark was detected on the chest of deceased and that there would have been fist marks if the repeated fist blows were given.
21. In the light of above discussion, this court is of the view that prosecution has failed to prove beyond shadow of doubt that accused assaulted Anil Aggarwal and gave fist blows in his chest, which resulted in his death. "
Counsel for the applicant has vehemently contended that the above finding of the trial Judge is not correct. By making reference to the statements made by PW1, PW3 and PW9, he made an attempt to show that the death had occurred on account of beatings given by the private respondents to the deceased.
When confronted with a fact that as per the medical evidence on record, death had occurred on account of consumption of poison coupled with heart disease etc., he has failed to refer to any evidence on record, CRIMINAL MISC. -A- 655 -MA OF 2011(O&M) -8- which may indicate that the factum of heart disease was known to respondents No. 2 to 4.
After hearing counsel for the applicant and looking into the order under challenge, we are not inclined to interfere in the judgment under challenge. It was a specific case of the prosecution, as stated by PW1, PW3 and PW9 that the beatings given by respondents No. 2 to 4 resulted into death of Shri Anil Aggarwal. None of the witnesses has stated that any poison was administered to the deceased by the private respondents. The trial Judge by making reference to inter se relationship of the above witnesses has rightly come to a conclusion that they were interested witnesses.
The trial Judge further noted contradiction between the oral testimony made by the above witnesses and the medical evidence on record. Post mortem on the dead body was conducted by a Board of Doctors, which includes Dr. G.P. Mangla (PW2) and Dr. U.S. Sooch, on December 21, 2003. As per report, the following injuries were found on the person of the deceased:-
"1. Superficial red abrasion ½' x ¼' on the back of the right wrist.
2. Superficial abrasion 1' x ½ ' placed horizontally on the right flank of the abdomen in its middle."
Both the injuries were superficial. Part of the heart and portion of both the lungs were sent to the Medical College, Patiala, for histo- pathological examination. Viscera was also sent to the Chemical Examiner CRIMINAL MISC. -A- 655 -MA OF 2011(O&M) -9- for analysis. On receipt of report of Chemical Examiner Ex.PC and histo- pathology report Ex. PD, cause of death, as per opinion of the witness, was consumption of aluminium phosphate poisoning in association with atherosclerosis and coronary artery disease which were sufficient to cause death in the ordinary course of nature. Opinion given by Dr. G.P.Mangla was brought on record as Ex. PE. Medical evidence on record clearly shows that the witnesses had suppressed the truth. Death had not occurred due to fist blows given to the deceased Anil Aggarwal. It is nobody's case that any ailment, being suffered by the deceased, was within the knowledge of the private respondents. The trial Judge has rightly observed that the medical evidence on record rules out that death was the result of injuries caused to Anil Aggarwal by the respondents - accused. The finding given by the trial Court is based on record. No misreading of evidence has been indicated.
It is a case where, in view of evidence on record, it can safely be said that the prosecution has failed to prove guilt of the private respondents. Even in cases where two views are possible, after acquittal, in appeal, benefit will go to the accused.
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 CRIMINAL MISC. -A- 655 -MA OF 2011(O&M) -10- 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."
To the same effect is the ratio of the judgments of the Supreme Court in State of Goa v. Sanjay Thakran (2007) 3 SCC 755 and in Chandrappa v. State of Karnataka, (2007) 4 SCC 415.
Similarly, in Mrinal Das & others v. The State of Tripura, (Criminal Appeal No. 1719 of 2011), decided on September 5, 2011, the Supreme Court, after looking into various judgments, has laid down parameters, in which interference can be made in a judgment of acquittal, by observing as under:
"8) 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, being the final court of fact, is fully competent to re- appreciate, reconsider and review the evidence and take its own decision. In other words, 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 CRIMINAL MISC. -A- 655 -MA OF 2011(O&M) -11- 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. 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. 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"
Counsel for the applicant has failed to indicate any misreading CRIMINAL MISC. -A- 655 -MA OF 2011(O&M) -12- of oral as well as documentary evidence on record by the trial. No case is made out for interference.
This application is also barred by limitation. No cogent explanation has been furnished for condonation of delay.
Consequently, the applications fail and the same are dismissed.
( Jasbir Singh ) Judge (Kanwaljit Singh Ahluwalia) Judge November 21 , 2011 DKC