Punjab-Haryana High Court
Smt. Krishna Devi vs Smt. Santosh And Others on 14 December, 2011
Bench: Jasbir Singh, Sabina
CRIMINAL MISC. -A- 650 -MA OF 2011 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
DATE OF DECISION: December 14, 2011.
Parties Name
Smt. Krishna Devi
...APPLICANT
VERSUS
Smt. Santosh and others
...RESPONDENTS
CORAM: Hon'ble Mr. Justice Jasbir Singh
Hon'ble Mrs. Justice Sabina
PRESENT: Mr. A.P.S. Deol, Senior Advocate,
with Mr. Vishal Rattan,
Advocate, for the applicant
Jasbir Singh, J.
JUDGMENT
This application has been filed by complainant Smt. Krishna Devi widow of Babu Lal under Section 378(4) Cr.P.C. with a prayer seeking leave to file an appeal against judgment dated April 27, 2011, acquitting respondents No. 1 to 4 of the charges framed against them.
The process of law was initiated on a private complaint filed by Smt. Krishna Devi (PW9).Babu Lal, husband of the complainant, was found dead on June 2, 2004. As per post-mortem report, it was a case of death by poisoning (aluminium phosphide). The police investigated it as a case of CRIMINAL MISC. -A- 650 -MA OF 2011 -2- suicide. Feeling aggrieved, the complainant filed a private complaint, after recording preliminary evidence, it was dismissed by the concerned Magistrate. The complainant went in revision, which was allowed, and case was remitted to the Court of Magistrate to proceed further as per law. Thereafter, presence of respondents No. 1 to 4 was secured and on completion of the proceedings, the case was committed to the Court of Sessions for trial vide order dated April 29, 2009, passed by the Judicial Magistrate Ist Class, Rewari.
Respondents No. 1 to 4 were charge-sheeted vide order dated May 25, 2009, for commission of offence punishable under Sections 302/120-B/34 IPC. They pleaded not guilty and claimed trial. The prosecution produced ten witnesses in Court and also brought on record documentary evidence to prove its case. On conclusion of prosecution evidence, statement of the respondents - accused was recorded under Section 313 Cr.P.C. They denied the allegations and pleaded false implication. They also led evidence in defence. The trial Judge on appraisal of evidence found case of the prosecution doubtful and vide impugned judgment, acquitted the respondents of the charges framed against them.
Shri A.P.S. Deol, Senior Advocate, counsel for the applicant, has vehemently contended that the trial Judge has misread the evidence on record. The allegations against respondents No. 1 to 4 were proved on record. However, they were acquitted without any justification. He prayed that the application be allowed and leave to file appeal be granted. He further prayed that the judgment under challenge be set aside and the CRIMINAL MISC. -A- 650 -MA OF 2011 -3- respondents be convicted and sentenced for the offences with which they were charged.
After hearing counsel for the applicant, we are not inclined to interfere in the impugned judgment at the instance of the applicant. Case of the prosecution, as noted by the trial Judge, reads thus:
"On 2-6-2004, Shri Babu Lal since deceased, has left his house, along with Rs. 1.5 lacs, disclosing to his family members including the complainant i.e. his wife Krishna that he is going to the office of Sub Registrar as two sale deeds are to be executed and after execution of the sale deeds he would go to the house of Smt. Santosh accused. At around 10.30 a.m. on the same day when Babu Lal was contacted on mobile No. 94160-65282 Dinesh son of the deceased heard loud voices but he has not apprehended anything tone. However, at around 1.15 / 1.30 p.m. on the same day i.e. 2 June, 2004, one of the accused Toni has given a telephonic call on land line number 25282 of Babu Lal informing Dinesh, son of the deceased Babu Lal that the condition of Babu Lal is not well and he, alone, has to come to the house situated in village Kankarwali to look after his father. Sensing some foul play, complainant Smt. Krishna along with her son Dinesh reached at the spot and found her husband Babu Lal wrapped in quilt (Gudri) and during examination a foul smell was coming out from the body and mouth of the deceased and during examination of the body of Babu Lal, complainant Smt. Krishna as well as Dinesh found CRIMINAL MISC. -A- 650 -MA OF 2011 -4- that face of deceased was covered with vomiting, foul smell was coming out from the nose and mouth, eyes were open, palms were closely tightly and froth was coming out from mouth. Smt. Krishna tried to awake her husband by shaking him but Babu Lal did not respond and in that condition, Babu Lal was shifted to Govt. Hospital, Rewari where he was declared brought dead. The dead body was sent to mortuary and the police was informed. Sh. Nihal Singh Sub Inspector has reached in the hospital and conducted inquest upon the dead body of Babu Lal and has also recorded the statements of the persons present in the hospital including Smt. Krishna complainant and Dinesh, son of the deceased. Sh. Nihal Singh, Sub Inspector has not noticed any external mark of injury on the dead body of the deceased and from the physical appearance noticed it a case of consumption of aluminium phosphide. On the next day, i.e., 3-6-2004, Dr. Chander Shekhar, Medical Officer, Govt. Hospital, Sirsa has conducted post-mortem examination on the dead body of Babu Lal and found no mark of ligature and has also not noticed any external or internal injury on the dead body. However, the Medical Officer could not opine the cause of death immediately and opined that the cause of death would be determined after going through the report of chemical examination and the samples and sample seal were handed over to the police for the purpose of sending the same to Chemical Examiner.CRIMINAL MISC. -A- 650 -MA OF 2011 -5-
3. Smt. Krishna and her son doubted a foul play and so on that very day went to the house situated in Kankarwali and get it photographed from PW2 Viney Kumar, Photographer and when found the articles of Babu Lal deceased lying scattered suspicious approach turned into belief and matter was reported to the police by moving a complaint."
It has come on record that Sunita niece of respondent No. 1 is married to Rajesh son of the deceased. It is case of the complainant that on June 2, 2004, a sale deed was to be executed in favour of the deceased. He had taken Rs. 1.5 lakh from his house for the said purpose and rest of the amount he was to secure from respondent No. 4 Toni, to whom Rs. 1.5 lakh were given on loan at an earlier point of time. It is then said that a telephonic call was received from respondent No. 1 intimating that the health of the deceased was not good. When the complainant along with her son went there, he saw the deceased in a precarious condition. Babu Lal was shifted to the hospital, where he was declared brought dead. The post- mortem was conducted by a Board of Doctors including Dr. Chander Shekhar (PW7) on June 3, 2004. No internal or external injury was found on the person of the deceased. Viscera was sent to the Chemical Examiner for examination and on receipt of report Ex. PW7/C, death was declared as a result of consumption of poison (aluminium phosphide). This witness has testified in Court that no injury was found on the person of the deceased. The trial Judge by noting above facts and also noting health of the deceased that he was a well-built person rightly came to a conclusion that it was not CRIMINAL MISC. -A- 650 -MA OF 2011 -6- possible to administer poison to him forcibly or under some decei as the above said poison has a very pungent smell.
The trial Judge also noted the contradictions between the contents of the complaint made by the complainant to the police and deposition made by her in Court. In the first complaint, no motive was alleged. However, in the Court it was said that dispute had occurred on account of non-return of loan amount by respondent No. 4- Toni to the deceased. There is nothing on the record to show as to when loan was advanced. No pronote or receipt has been produced in that regard. Furthermore, death is alleged to have occurred in the house of the respondents. Nobody in the neighbourhood has been brought in the witness-box to depose that any scuffle had taken place between the deceased and the private respondents. Merely because in the photographs, mobile phone, pen etc. of the deceased were found lying scattered on the floor is no ground to presume that the private respondents had used some force against the deceased. Regarding receipt of telephone calls, it was said that as a close relation of respondent No. 1 is married in the house of the deceased, telephonic calls were presumable and natural. It was case of the prosecution that the deceased had taken money (1.5 lacs) from his house to get a sale deed registered. Nothing in that regard has been brought on record as to who was the seller from whom the property was to be purchased.
In defence, it has been shown that Babu Lal deceased was under debt. May be under stress, he had committed suicide. The opinion arrived at by the Court below is perfectly justified and is as per evidence on CRIMINAL MISC. -A- 650 -MA OF 2011 -7- record.
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 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, 2011 CRIMINAL MISC. -A- 650 -MA OF 2011 -8- (9) Supreme Court Cases 479, 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 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 CRIMINAL MISC. -A- 650 -MA OF 2011 -9- 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 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 December 14 , 2011 DKC