Punjab-Haryana High Court
Bharpur Singh vs State Of Punjab And Others on 20 March, 2012
Author: Jasbir Singh
Bench: Jasbir Singh, Sabina
CRM-A-96-MA of 2011(O & M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
*****
CRM-A-96-MA of 2011(O & M)
Date of decision : 20.3.2012
Bharpur Singh .......Applicant/Appellant
Vs.
State of Punjab and others ..........Respondents
CORAM :Hon'ble Mr. Justice Jasbir Singh
Hon'ble Mrs. Justice Sabina
Present:- Mr. H.S. Saggu, Advocate, for the applicant-appellant
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Jasbir Singh, J.
Respondents No. 2 to 4, along with one Amritpal Singh, were put to trial on an accusation that they on 26.4.2004, in the area of village Bhatiwal Khurd, in furtherance of their common intention, have committed murder of Kesar Singh.
It was allegation against respondent No.2 that she has abetted the commission of the above offence. After contest, the trial Judge has acquitted respondents No.2 to 4 whereas their co-accused Amritpal Singh was convicted and sentenced vide the impugned judgment.
The trial Judge has noticed the following facts regarding case of the prosecution :-
"that Bharpur Singh, the accuser, moved a complaint before Senior Superintendent of Police, Sangrur on 14.7.2006. In this complaint it was stated by the accuser that his son Kesar Singh (the deceased), had died on 29.4.2006. His corpse was CRM-A-96-MA of 2011(O & M) -2- found in a canal near Lehragaga. He suspected that the deceased was murdered by some body. The deceased was married to Lovepreet Kaur (accused) about five years before. After marriage, Lovepreet Kaur developed illicit relations with Amritpal Singh (accused). They (Amritpal Singh and Lovepreet Kaur) used to meet each other stealthily. Lovepreet Kaur and Amritpal Singh made a plan to remove the deceased from their way. Amritpal Singh would make the deceased take liquor etcetera till he went unconscious and then would meet accused Lovepreet Kaur. Deceased was not aware of illicit relations between the two. Lovepreet Kaur and Amritpal Singh had made a complete plan to eliminate the deceased, who was only son of the accuser, from their way to grab whole property of the accuser thereafter. Accuser used to take cattle to canal for bathing and drinking water. On the day when the deceased went missing Lovepreet Kaur had told the accuser that she had made the cattle to drink water in the house. Thereafter, deceased never came back and died. Cadaver of the deceased was found in a canal with injury marks on it. On the head injury marks inflicted with a sharp edged weapon were present and a weapon like "sua" was pierced across it (the head). Accuser suspected Lovepreet Kaur and Amritpal Singh as killers of the deceased because after performing Bhog ceremony of the deceased, Lovepreet Kaur had put pressure upon her parents and "in-laws" for marrying her to Amritpal singh by way of "pugree"
(turban) ceremony. Both Lovepreet Kaur and Amritpal had killed the deceased in a well planned CRM-A-96-MA of 2011(O & M) -3- manner because they were having illicit relations with each other and wanted to live together peacefully."
It is necessary to mention here that on 29.4.2006 applicant made a statement in Police Station at Sunam that death of his son Kesar Singh was caused due to drowning. Whereupon proceedings under Section 174 Cr.P.C. were conducted.
On completion of the prosecution's evidence, final report was put in Court, copies of the documents were supplied to the accused as per norms. Case was committed to competent court for trial. The accused were charge-sheeted for commission of an offence under Section 302 read with Section 34 and Section 109 IPC. They 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 prosecution evidence, separate statements of all the accused were recorded under Section 313 Cr.P.C.
Incriminating material existing on record was put to them which they denied, claimed innocence and false implication.
Respondent No.2 denied that she has any illicit relations with Amritpal Singh as alleged. After death of her husband, her in-
laws started quarreling with her on trifles, as they did not want to give her share out of the insurance amount of Kesar Singh-her husband.
When claimed, she was turned out of the matrimonial house. The accused also led evidence in defence.
The trial Judge on perusal of evidence found respondents CRM-A-96-MA of 2011(O & M) -4- No.2 to 4 not guilty and accordingly, they were acquitted. However, Amritpal Singh was convicted and sentenced vide judgment and order under challenge. The trial Judge when giving benefit of doubt to respondent No.2, has observed as under :
"62. It is seen that case of the prosecution as regards accused Lovepreet Kaur is that the deceased was married to her about five years before the occurrence. She, however, developed illicit relations with Amritpal Singh (accused). They (Amritpal singh and Lovepreet Kaur) would meet each other stealthily and hatched a plan to remove the deceased, who was not aware of illicit relations between the two, from their way. Amritpal Singh would make the deceased take liquor etcetera till he went unconscious and then would meet accused Lovepreet Kaur. On the day when the deceased went missing Lovepreet Kaur had told the accuser that she had made the cattle to drink water in the house whereas the cattle were taken out by him usually for bathing and drinking. Thereafter, deceased never came back and died. Cadaver of the deceased was found in a canal with injury marks on it. Another circumstance cited against accused Lovepreet Kaur by the prosecution is that immediately after "Bhog"
ceremony of the deceased was over she insisted that she was married to accused Amritpal Singh.
63. In PW6/A, statement of the accuser recorded on 29.4.2006 there is mention of accused Lovepreet Kaur. In his statements, Exhibit DC, and Exhibit DD, recorded on 13.8.2006 and 5.10.2006, respectively, the accuser Bharpur Singh CRM-A-96-MA of 2011(O & M) -5- is shown to have stated that Lovepreet Kaur had developed illicit relations with accused Amritpal Singh and said Amritpal Singh in tandem with Lovepreet Kaur had killed the deceased and had thrown his dead body in the nearby canal, but while appearing as PW6 he has disclosed that it was so understood by him in view of insistence of Lovepreet Kaur for her marriage with Amritpal Singh at the "Bhog" ceremony of the deceased. To put it straight this statement of the accuser is nothing more than an assumption. Even otherwise, the statement that the deceased was killed and then thrown in the canal runs contrary to statement of PW3, Dr. Sanjay Bansal that the deceased had drowned alive.
64. Accuser Bharpur Singh, father of the deceased, while appearing as PW6 has said that when on the day of "Bhog" ceremony of Kesar Singh, Lovepreet Kaur asked him that she be married to Amritpal Singh he believed that Amritpal Singh and Lovepreet Kaur had illicit relations with each other and they used to meet each other earlier and had killed his son Kesar Singh so that he did not come in their way. However, this is an improvement over his statement Exhibit PW6/A, wherein this fact was not found recorded when his attention was drawn towards those statements. His statement to this effect, therefore, is unacceptable being an afterthought.
65. Jal Kaur, mother of the deceased, while appearing as PW8 has also stated that accused Amritpal Singh and accused Lovepreet Kaur had developed illicit relations, regarding it she made a CRM-A-96-MA of 2011(O & M) -6- complaint twice to her sister Palo, mother of accused Amritpal singh, and requested her that she should prevent her son Amritpal Singh from indulging in the immoral activities but Amritpal Singh did not abstain and went on meeting Lovepreet Kaur stealthily and after 2-3 days of her son having gone missing, he came to her house and threatened that in case he was not married with Lovepreet Kaur he would die. She has also stated that on the day of picking up last remains of Kesar Singh, accused Lovepreet Kaur started saying that she be married to Amritpal Singh. According to her Lovepreet Kaur developed illicit relations with Amritpal Singh about two years before the death of her son Kesar Singh and she had seen both of them in compromising position and had advised them not to indulge in such activities. However, her statement that she had advised accused Lovepreet Kaur against maintaining relations with Amritpal Singh is an improvement over her statement, Exhibit DE, because when attention of the witness was drawn towards that statement it was not found recorded therein.
66. Jarnail Singh, while appearing as PW1 has also deposed to the effect that on the day of "Bhog" ceremony of the deceased, Lovepreet Kaur had asked that she be married to accused Amritpal Singh and so has stated Baghel Singh, while appearing as PW2 with the addition that Lovepreet Kaur had illicit relations with Amritpal Singh which assumed as Amritpal Singh used to visit and reside in the house of Kesar Singh being related to him and he would see Amritpal Singh coming to CRM-A-96-MA of 2011(O & M) -7- the house of Lovepreet Kaur.
67. DW5 Jarnail Singh has not been cross examined on behalf of the prosecution with regard to his deposition that he, his wife Balwinder Kaur, uncles and other collaterals of Lovepreet Kaur, and lady members had attended "Bhog" ceremony of deceased Kesar Singh, on that occasion no talk had taken place regarding second marriage of Lovepreet Kaur in any form, even Lovepreet Kaur had not expressed her desire to get herself married after death of Kesar Singh, and she, rather, had said that she would look after her children while living at the house of her "in-laws".
68. Chhajju Singh, DW6 has also stated that he attended "Bhog" ceremony of Kesar Singh, at that time Lovepreet Kaur did not express her desire to marry Amritpal Singh, and rather, she wanted to live with her children in village Bhattiwal Khurd in the house of her in-laws. His statement to this effect has also been allowed by the prosecution to go unchallenged.
69. Evidence culled out here-in-above though is found to be insufficient to reach a conclusion that accused Lovepreet Kaur had an affair with accused Amritpal Singh and insisted that she be married to him yet, were it so, having an affair or exhibiting a desire to be remarried in itself cannot amount to instigation, conspiracy or intentional aid to constitute abetment within the meaning of Section 107 of the Indian Penal Code."
Entire evidence has been discussed in a thread ball manner.
It has rightly been noted that accusation against respondent No.2 was an after thought.
CRM-A-96-MA of 2011(O & M) -8- Similarly, when granting relief of acquittal to respondents No.3 and 4, the trial Judge has observed as under :
"82. In Exhibit PW6/A, statement of accuser Bharpur Singh recorded on 29.4.2006, Exhibit PW6/B, written complaint made by him before Senior Superintendent of Police, Sangrur, Exhibit DC and Exhibit DD, statements of accuser Bharpur Singh recorded on 13.8.2006 and 5.10.2006, respectively, a reference to accused Yadwinder Singh and Jaspal Singh @ Nikka is conspicuously missing.
83. Accused Bharpur Singh while appearing as PW6, however, has said that all the accused conspired with one another and killed his son Kesar Singh, Amritpal Singh (accused) had called the deceased from his house, when he, accompanied by his brother Baghel singh, searched for, and inquired about, the deceased in the houses of Amritpal Singh, Yadwinder Singh and Jaspal singh, they had told him that the deceased though had accompanied them on 26.4.2006 but now they did not know where he had gone. However, he had admitted in his cross examination that when he lodged First Information Report with the police against Amritpal Singh and Lovepreet Kaur he did not name Yadwinder Singh and Jaspal Singh. Though he was volunteered to add that their names were disclosed by accused Amritpal Singh during investigation by police but no material has been brought forth to establish their complicity. Even otherwise, when, as stated by PW6, Jal Kaur, when her son Kesar Singh was accompanied by accused Amritpal Singh, her CRM-A-96-MA of 2011(O & M) -9- husband (PW6 Bharpur Singh) was present and was looking after the cattle, he would have in all probability seen who had accompanied the deceased at the time of his departure from the house and, therefore, his saying that Amritpal Singh had told about the other two accused having accompanied him at that time cannot be taken note of.
84. Mother of the deceased, namely PW6, Jal Kaur has also stated that she was told by Amritpal Singh that Jaspal Singh and Yadwinder Singh had also accompanied him when Kesar Singh went with him. However, Amritpal Singh had come to her house alone. Though she has denied a suggestion that she has named Yadwinder Singh and Jaspal Singh under misguided suspicion but, at the same time, has admitted that she had not disclosed before the police that when Kesar Singh had left the house along with Amritpal Singh, accused Yadwinder Singh and Jaspal Singh had also met them and that she has disclosed this fact before the court for the first time. She has also admitted that she did not get it recorded in her statement before learned Civil Judge (Junior Division), Sangrur that when aforesaid four persons were coming after murdering her son, they had met her near her house on the turning or that she had asked them where Kesar Singh was and they had disclosed that they were not aware about him. Thus even her statement that she was told by Amritpal Singh about presence of Yadwinder Singh and Jaspal Singh cannot be taken cognizance of.
85. PW1 Jarnail Singh has not stated a word to CRM-A-96-MA of 2011(O & M) -10- suggest complicity of accused Yadwinder Singh and Jaspal Singh.
86. Baghel Singh, while appearing as PW2 has stated on solemn affirmation that on 6.4.2006 at about 8.00 P.M., he was returning to village from canal after a walk. Kesar Singh (deceased) alongwith Amritpal Singh, Yadwinder Singh and Jaspal Singh, accused met him on the way. At about 9.00/10.00 P.M., Kesar Singh's father Bharpur Singh came to him and told that Kesar Singh had not returned home. They went to the house of Amritpal singh, Yadwinder Singh and Jaspal Singh and inquired from them whereabouts of Kesar Singh. They told that Kesar Singh had gone with them but they did not know his whereabouts. His deposition, however, is of no avail to the case of the prosecution firstly because he talks of 6.4.2006 whereas the occurrence, as per story of the prosecution, took place on 26.4.2006 and secondly because in the event of date mentioned in his deposition is taken to be wrongly written as 6.4.2006 instead of 26.4.2006, Bharpur Singh (PW6) with whom he claims to have gone in search of the deceased has not stated even a single word to suggest that this witness had disclosed before him that he had also seen accused Yadwinder Singh and Jaspal Singh in the company of the deceased and accused Amritpal Singh.
87. From the cited evidence, which is the only evidence on the point of complicity of accused Yadwinder Singh and Jaspal Singh @ Nikka, it cannot be concluded that these two accused had a meeting of minds with accused Amritpal singh or they in any manner participated in the commission CRM-A-96-MA of 2011(O & M) -11- of the criminal act which led to murder of deceased Kesar Singh."
The finding given by the Court below is as per evidence on record.
After discussing deposition made by the prosecution witnesses, it is rightly said that the prosecution has failed to prove its case against the above respondents. The opinion expressed by the Court is as per facts of the case.
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, CRM-A-96-MA of 2011(O & M) -12- 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 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.
CRM-A-96-MA of 2011(O & M) -13-
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 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 CRM-A-96-MA of 2011(O & M) -14- 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 the applicant has failed to indicate any misreading of evidence and factual error in the judgment passed by the Court below which may necessitate interference by this Court.
Dismissed.
(JASBIR SINGH) JUDGE (SABINA) JUDGE 20.3.2012 Ashwani