Punjab-Haryana High Court
Surinder Singh vs State Of Haryana And Others on 7 January, 2013
Author: Jasbir Singh
Bench: Jasbir Singh, Naresh Kumar Sanghi
CRM No. 65740 of 2012 in/and
CRM-A No. 886-MA of 2012 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
*****
CRM No. 65740 of 2012 in/and
CRM-A No. 886-MA of 2012
Date of decision : 7.1.2013
Surinder Singh ........Applicant-appellant
Vs.
State of Haryana and others .......Respondents
CORAM: Hon'ble Mr. Justice Jasbir Singh
Hon'ble Mr. Justice Naresh Kumar Sanghi
Present:- Mr. R.S. Budhwar, Advocate, for the applicant-appellant
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Jasbir Singh, J.
This application has been filed under Section 378 (4) Cr.P.C.
seeking leave to file an appeal against judgment dated 9.8.2012 passed by Additional Sessions Judge, Narnaul, acquitting respondents No. 2 and 3 of the charges framed against them. The above respondents were arrayed as accused in FIR No. 28 dated 28.1.2009 Police Station Kanina, for commission of offences under Sections 302/201 read with Section 34 IPC.
It was an allegation against them that they had murdered Pardeep son of the complainant Karan Singh (PW-5). The process of law was started on a complaint made by PW-5 Karan Singh. His statement Ex.PE was recorded by SI Surender Singh PW-24. The trial Judge has noted the following facts regarding case of the prosecution :-
"That on 28.01.2009, when Surender Singh SI/SHO alongwith other police officials was present at T Point Ateli turn, Kanina in connection with patrolling duty, Complainant Karan Singh met him CRM No. 65740 of 2012 in/and CRM-A No. 886-MA of 2012 -2- and moved an application wherein he stated that he is resident of village Unhani and is agriculturist. He has two sons and two daughters. After taking meal, his younger son Pardeep went out of the house. He did not return back. They inquired about him from their relatives. He was not found out. Therefore, on 13.01.2009, a missing report was lodged in police station, Kanina. Later on, he was searched for a long period. Today on 28.01.2009, one dead body contained in jute bag was found in Johar (village pond) of Bagichi of village. It was opened it and he identified that dead body, as that of his son Pardeep @ Poliya, whose age was about 21 years. His son Pardeep @ Poliya was having illicit relation with Rajwanti wife of Jai Singh. Rajwanti wife of Jai Singh and Jai Singh son of Shri Ram have committed murder of his son and kept him in jute bag and had put it in Johar (pond). He suspected both of them."
The Investigating Officer went to the place of occurrence, prepared inquest report on the dead body of Pardeep and sent it for post mortem examination. He also took into his possession one jute bag, one shawl, 8 pieces of bricks, one purse containing photographs of the deceased against recovery memos. The Investigating Officer also prepared rough site plan of the place from where dead body was recovered. He also recorded statements of the witnesses. Both the accused were arrested on 29.1.2009. Thereafter, under order passed by this Court, fresh investigation was conducted through DSP Randhir Singh PW-22 and a supplementary challan was presented on 2.5.2009.
On presentation of final report, copies of the documents were supplied to the respondents/accused as per norms. Their case was committed to the competent Court for trial. Both the accused were charge CRM No. 65740 of 2012 in/and CRM-A No. 886-MA of 2012 -3- sheeted on 15.4.2009 to which, they pleaded not guilty and claimed trial.
To prove its case, prosecution produced 24 witnesses and also brought on record documentary evidence. On conclusion of the prosecution's evidence, separate statements of the respondents-accused were recorded under Section 313 Cr.P.C. They pleaded innocence and false implication.
They also led evidence in defence.
As per case of the prosecution, on 9.1.2009 at about 9.00/9.30 P.M., Pardeep (deceased) went out from his house with one Vinod. Dead body of Pardeep was recovered on 28.1.2009. Missing report was lodged only on 13.1.2009. The trial Judge on appraisal of evidence came to a conclusion that it was a case of circumstantial evidence against the respondents/accused. No direct evidence was available. The prosecution has failed to connect the respondents/accused with the crime beyond shadow of reasonable doubt. The chain of circumstances was not such which may led to a conclusion that the offence, in all probabilities, was committed by the respondents/accused. The trial Judge has also rightly said that disclosure statement made by both the accused, admitting their guilt, cannot be relied upon against them except as per the provisions of Section 27 of the Evidence Act. The trial Judge has noted as under in that regard :-
"In the present case, as per prosecution case both the accused have identified the place of occurrence and recovery in pursuance of their retracted disclosure statements Ex.PG and Ex.PH whereas in pursuance of disclosure statements Ex.PE and Ex.PF, the rope, the sua and sutli were recovered. The CRM No. 65740 of 2012 in/and CRM-A No. 886-MA of 2012 -4- rope is said to be used in strangulation but there is no strangulation marks and it is not case of strangulation and as such the recovery of said rope is of no consequence. Similarly, the recovery of sua and sutli, being ordinary articles of usage in villages and they not connected with murder but alleged to be used in stitching of bag after putting body in same. There was no reason to hide these articles. Moreover, the bag was allegedly stitched on the way to pond where stones etc. were put in bag and in that case, one body was put in pond, there was no reason to hold back sua and sutli for it to be got recovered by police. The place of occurrence was already in the knowledge of the police authorities. In view of this, the said disclosure statements cannot be said to be reliable piece of evidence."
Now coming to the prosecution evidence, at the outset, it is important to notice that deceased was last seen with Vinod, who allegedly took him to the house of accused but Vinod is neither accused nor has not been examined as a witness. In absence of this last seen evidence, the main reliance on the evidence of Rohtash PW6. However, a careful scrutiny of his evidence show that it does not inspire any confidence. Firstly, he being neighbour, allegedly saw deceased and Vinod entering house of accused and on his asking Jai Singh replied that they are frequent visitors to his house. This fact itself is really surprising. The whole case of prosecution is that deceased and accused Rajwanti had illicit relations. In that case, it is highly surprising that this witness being close neighbour did not know about it and did not get suspicious on seeing Jai Singh with deceased in the said house. Especially when the case of prosecution is that deceased was called in the house by Rajwanti on the pretext that her husband had gone out of house. In that case, on CRM No. 65740 of 2012 in/and CRM-A No. 886-MA of 2012 -5- seeing accused Jai Singh in house, it is not possible that deceased alongwith Vinod, would stay put in house of Jai Singh for consuming liquor. Rather, in normal course, the deceased would have left the house immediately on seeing Jai Singh. Moreover, in that case, if it was so planned, it was Rajwanti, who would have opened the door and not Jai Singh. Still further, PW Karan Singh also brought out that the mother of Jai Singh admitted that deceased had come to their house but in case of such a plan, the presence of mother or her admission is highly unlikely. Lastly, but not the least, Rohtash allegedly asked about presence of deceased and Vinod from Jai Singh, and in that case, having known that a neighbour has come to know of presence of deceased in their house, he would have postponed his plan. But the things did not stop there. Rohtash also heard noise of hammer from house of deceased and Jai Singh replied that they were having liquor. This reply/explanation was acceptable to Rohtash as if there is no difference between noise of drinking and noise of hammer or else the prosecution suggested that it was noise of killing of deceased with hammer as feebly argued by counsel for complainant. This argument is wholly preposterous. The hitting of hammer on head would not make noise, which can be heard by neighbour having house across the street. In any case, this argument stands demolished by medical evidence also as there is no such injury to skull.
The connection of Rohtas does not stop here and like any bollywood story, this same person, next day early in the winter morning at 4 AM, now noticed the accused loading Jute Bag on camel cart and he again confronts the accused about the same. What is most intriguing is that, he does not all about this to anybody from 09.01.2009 till 14.01.2009 and comes out with explanation that he was away from village. CRM No. 65740 of 2012 in/and CRM-A No. 886-MA of 2012 -6- Even when he tells about this to Karan Singh, the police advises him to mention this in DDR and does not take any action. The other PW Rajesh saw accused with jute bag in camel cart near pond while coming back from his fields after watering them. However, the said statement of Rajesh has been proved to be false by the defence witnesses. Subhash Yadav JE DW2 clearly brought out that as per record electricity was not supplied to Dhanonda feeder on 10.01.2009 from 00 am to 7:35 a.m. As there was a break down in the line due to that reason the electricity was not supplied to Dhanonda Feeder. Copy of said record are Ex.DW2/A and Ex.DW2/B. Though suggestion was given that many agriculturists have also installed generator for light in the area of Kanina but no suggestion was ever given that Rajesh was using generator or had any generator in his field. Thus, once on the date in question there was no electricity in the village and in that case there was no question of Rajesh coming back after watering his fields and in that case, his presence on said spot near pond at about 4/4.15 AM in winters is highly doubtful. There is no evidence on record that anybody had seen the said jute bag being thrown in the pond.
Still further, nobody knows, what was contained in the said jute bag and the suspicion that body of deceased was being taken by accused on that date and thrown in pond stands belied by medical evidence. The body is said to have been found floating in village pond on 29.01.2009 i.e. after 14 days of its being allegedly thrown in the pond. As per medical evidence, it is highly unlikely that the bag containing the body would remain in the pond for 15 days and that too Pacca Pond. As per Modi's Medical Jurisprudence, it is fairly well settled that "dead bodies float in the shallow and CRM No. 65740 of 2012 in/and CRM-A No. 886-MA of 2012 -7- stagnant water of a pond sooner than in the deep water of a running stream, as the water of a pond, being warmer from the action of the sun's rays, favours putrefaction. Bodies float more readily in sea water than in fresh water, the specific gravity of the former being higher. It is also to be noticed that generally as far as flotation of a body is concerned, the gases of decomposition developed within a submerged body cause it to rise to the surface, unless it is entangled in weeds, ropes, or any other impediment. In India, a submerged body comes to the surface within 24 hours in summer and within 2 to 3 days or more (rarely more than a week) in winter. In temperate climes, a submerged body floats in about a week in summer, and in about a fortnight in winter. The power of flotation of a decomposing body is so great, that it may come to the surface in spite of its being weighed with a heavy stone.
It was also rightly held by the trial Judge that story of putting the dead body in a bag with 40 to 45 Kgs. of stones is not believable.
Sufficient reasons to say so have been given in Para Nos. 47 and 48 of the judgment under challenge. The prosecution has failed to prove motive on the part of the respondents/accused to commit the crime and further Vinod, with whom the deceased Pardeep had left his house on 9.1.2009, was not brought into the witness box. The story of last seen the accused with the deceased, has rightly been discarded by the trial Judge. After hearing counsel for the applicant-appellant and perusing the record, we are satisfied that the opinion recorded by the trial Court is as per evidence on record. Counsel for the applicant-appellant failed to show any lacuna in the judgment under challenge which may necessitate any interference. CRM No. 65740 of 2012 in/and CRM-A No. 886-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. 65740 of 2012 in/and CRM-A No. 886-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. 65740 of 2012 in/and CRM-A No. 886-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.
Otherwise also, no plausible explanation has been furnished for causing delay of 22 days in filing the appeal.
Accordingly, both the applications are dismissed.
(Jasbir Singh) Judge (Naresh Kumar Sanghi) Judge 7.1.2013 Ashwani