Himachal Pradesh High Court
State Of Himachal Pradesh vs Jeet Kumar & Others on 9 November, 2016
Author: Sanjay Karol
Bench: Sanjay Karol, Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
Criminal Appeal No. 315 of 2012
Judgment Reserved on : 26.10.2016
Date of Decision : November 9 , 2016
State of Himachal Pradesh ...Appellant
of
Versus
Jeet Kumar & others
rt ...Respondents
Coram:
The Hon'ble Mr. Justice Sanjay Karol, Judge
The Hon'ble Mr. Justice, Vivek Singh Thakur, Judge.
Whether approved for reporting? 1
No.
For the appellant : Mr. Vikram Thakur and Mr. Puneet Rajta,
Deputy Advocate Generals for the
appellant/State.
For the respondent : Mr. Naresh Kaul, Advocate, for the respondent.
Sanjay Karol, J.
Assailing the judgment dated 17.03.2012, passed by Addl. Sessions Judge (II), Kangra at Dharamshala, Distt. Kangra, H.P., in R.B.T.S.C. No. 43-N/VII/2010/2007 (S.T. No. 42 of 2011), titled as State of Himachal Pradesh Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 21:31:36 :::HCHP 2vs. Jeet Kumar & others, whereby all the accused stand acquitted, State has filed the present appeal under the .
provisions of Section 378 of the Code of Criminal Procedure, 1973.
2. It is the case of prosecution that on 7.11.2006, accused Jeet Kumar murdered his wife Krishna Devi by of setting her on fire in the kitchen of his house. On hearing her cries Gurdial Singh (PW-9), rushed to the spot and rt informed Sudershan Singh (PW-8) about the incident.
Sanjeev Kumar (PW-14) informed the police. Investigating Officer Nathu Ram (PW-16), after reaching the spot, recorded statement of Roop Lal (PW-1), brother of the deceased, to the effect that since the time of marriage, accused Jeet Kumar (husband) alongwith co-accused Treedo Ram, Prittam Chand and Neeta Devi (father-in-law, brother-in-law and sister-in-law) had been subjecting the deceased to cruelty, both mental and physical. With the preparation of inquest papers (Ext. PW-6/A), dead body was taken into possession and post mortem got conducted from Dr. Gurmeet Singh (PW-17) who issued Post Mortem Report (Ext. PW-17/A), which revealed the deceased to have died ::: Downloaded on - 15/04/2017 21:31:36 :::HCHP 3 as a result of ante-mortem burning and suffocation due to inhalation of smoke. With the completion of investigation, .
which prima facie revealed, complicity of the accused in the alleged crime, challan was presented in the Court for trial.
2. Accused were charged for having committed offences punishable under the provisions of Section 498-A of and 302 both read with Section 34 of the Indian Penal Code, to which they did not plead guilty and claimed trial.
rt
3. In order to prove its case, in all, prosecution examined seventeen witnesses and statements of the accused under Section 313 Cr. P.C. were also recorded, in which they took plea of innocence and false implication.
4. In defence, accused examined Dr. Kanwal Rajpal Singh (DW-1) to establish that deceased was undergoing psychiatric treatment. The defence is to the effect that she burnt herself without understanding consequences thereof.
5. The Trial Court, finding the testimonies of the prosecution witnesses not to have established the prosecution case, acquitted all the accused of the charged offences. Hence the present appeal.
::: Downloaded on - 15/04/2017 21:31:36 :::HCHP 46. We have heard Mr. Vikram Thakur & Mr. Puneet Rajta, Deputy Advocate Generals, on behalf of the State as .
also Mr. Naresh Kaul, learned counsel for the accused. We have also minutely examined the testimonies of the witnesses and other documentary evidence so placed on record by the prosecution. Having done so, we are of the of considered view that no case for interference is made out at all. We find that the judgment rendered by the trial Court to rt be based on complete, correct and proper appreciation of evidence (documentary and ocular) so placed on record.
There is neither any illegality/infirmity nor any perversity with the same, resulting into miscarriage of justice.
7. It is a settled principle of law that acquittal leads to presumption of innocence in favour of an accused. To dislodge the same, onus heavily lies upon the prosecution.
Having considered the material on record, we are of the considered view that prosecution has failed to establish the essential ingredients so required to constitute the charged offence.
8. In Prandas v. The State, AIR 1954 SC 36, Constitution Bench of the apex Court, has held as under:
::: Downloaded on - 15/04/2017 21:31:36 :::HCHP 5"(6) It must be observed at the very outset that we cannot support the view which has been expressed in several cases that the High Court has no power under S. 417, Criminal P.c., to reverse a judgment of .
acquittal, unless the judgment is perverse or the subordinate Court has in some way or other misdirected itself so as to produce a miscarriage of justice. In our opinion, the true position in regard to the jurisdiction of the High Court under S. 417, Criminal P.c. in an appeal from an order of acquittal has been stated in - 'Sheo Swarup v. Emperor', AIR 1934 PC 227 (2) at pp.229, 230 (A), in these words:
of "Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of rt acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognized in the administration of justice." "
9. Perusal of testimonies of Roop Lal (PW-1), Kaushalaya Devi (PW-2), Rani Devi (PW-3), Bishabhar Dass (PW-4) and Hajara Singh (PW-5), relatives of the deceased ::: Downloaded on - 15/04/2017 21:31:36 :::HCHP 6 only reveal the allegations of cruelty, mental and physical, to be absolutely vague and unspecific with regard to .
manner, time and place. They admit that through the wed-
lock three children were born and no complaint ever came to be registered with any authority, much less the local Panchayat. Testimonies of Roop Lal and Kaushalaya Devi of are evidently clear to such effect. Significantly all these witnesses admit that next to the place of occurrence, there rt are houses of several other persons. Yet none from the neighbourhood came forward to depose anything against the accused. To the contrary, Gurdial Singh (PW-9) and Sanjeev Kumar (PW-14), immediate neighbours, admit that not only relations between the husband and wife were cordial but they never quarrelled with each other. In fact, it is also admitted by Bishambhar Dass (PW-4) and Gurdial Singh (PW-9) that since the time of marriage, accused Jeet Kumar had separated from his family and accused Prittam Chand and Neeta Devi were residing separately.
10. Further, from a careful perusal of testimonies of Bishambhar Dass (PW-4), Nek Ram (PW-7), Sudershan Singh (PW-8), Gurdial Singh (PW-9) and Sanjeev Kumar (PW-14) it ::: Downloaded on - 15/04/2017 21:31:36 :::HCHP 7 is clear that the deceased was suffering from some mental ailment and undertaking psychiatric treatment at various .
places, including from a spiritual guru and that it was the accused who was taking her care.
11. In this backdrop, we find the genesis of the prosecution story of the accused having subjected the of deceased to cruelty, to have been falsified. It appears that all was well between the parties and allegations of cruelty rt and dowry demand appear to be only an afterthought. In fact, Kaushalaya Devi (PW-2) admits that children of the deceased used to sleep with the grandfather which only shows that the mother (deceased) was not regularly attending to them.
12. Now what transpired on the date of the incident stands revealed by Sudershan Singh (PW-8), Gurdial Singh (PW-9) and Sanjeev Kumar (PW-14) who reached the spot first. It is not in dispute that accused Jeet Kumar also sustained burn injuries. This was when he tried to save the deceased.
13. According to Gurdial Singh, on 7.11.2006 at about 1.30 a.m. he heard cries coming from the ::: Downloaded on - 15/04/2017 21:31:36 :::HCHP 8 neighbourhood. Immediately he went to the house of the accused and saw Krishna Devi burning. He saw the .
deceased being brought out of the kitchen wrapped with a blanket. Also fire was dowsed with water. However, Krishna Devi expired on the spot. Immediately he alongwith Prittam and Sanjeev Kumar went to the house of the Pradhan and of narrated the incident.
14. Sudershan rt Singh (PW-8) states that on 7.11.2006, Gurdial, Prittam and one driver came to him and informed him that "wife of Jeet Ram had set herself on fire and she had expired". Now prosecution has not cross examined the witness on this point and when we peruse the testimony of Sanjeev Kumar (PW-14) we find him to have informed the police about the incident.
15. From the cross examination of the Investigating Officer Nathu Ram (PW-16) it is evident that inner portion of the door of the kitchen was burnt. Inner side hooks of the door were also broken. It appears that the door which was bolted from inside was broken open and while saving the deceased, accused Jeet Kumar sustained injuries, which fact also stands established through the testimony of Dr. ::: Downloaded on - 15/04/2017 21:31:36 :::HCHP 9 Gurmeet Singh (PW-17), according to whom, such injuries were possible if one tries to save a burning person.
.
16. There is neither any direct nor any circumstantial evidence on record establishing complicity of all the accused in the commission of the alleged crime. None has come forward to prove common intent on the part of the of accused in committing the crime. In fact the co-accused, had separated and started residing separately. The eye-
rt witnesses have not deposed anything against the accused.
There is no evidence worth the name, establishing the charge of 'murder' or for that matter 'cruelty'. Unfortunately death did take place, but then, for what reason, police has not been able to reach out to the truth of the matter. Court cannot presume or merely suspect guilt of the accused, more so, in view of the fact where parties stood married for more than five and half years and through the wed-lock three children came to be born and no complaint of cruelty ever came to be lodged with the police or any other authority. Also there is no prior history of any attempt of cruelty. It is not that members of the complainant party had no access to justice delivery system. They are residents of ::: Downloaded on - 15/04/2017 21:31:36 :::HCHP 10 Pathankot, Distt. Gurdaspur (Punjab), which is not in a remote corner of the State. They could have easily informed .
anyone about the incident. Their version is also uninspiring in confidence. In fact it is vague and unspecific.
17. From the material placed on record, prosecution has failed to establish that the accused are guilty of having of committed the offence, they stand charged for. The guilt of the accused does not stand proved beyond reasonable doubt to the hilt.
rt
18. Having perused the testimony of the prosecution witnesses on record it cannot be said that prosecution has been able to prove its case, beyond reasonable doubt, to the effect that the accused persons in furtherance of their common intention treated Krishna Devi with cruelty and also committed her murder, by setting her on fire after sprinkling kerosene, by leading clear, cogent, convincing and reliable material on record. The Court below, in our considered view, has correctly and completely appreciated the evidence so placed on record by the prosecution. It cannot be said that the judgment of trial Court is perverse, illegal, erroneous or based on incorrect and incomplete ::: Downloaded on - 15/04/2017 21:31:36 :::HCHP 11 appreciation of material on record resulting into miscarriage of justice.
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19. The accused have had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down by the Apex Court in Mohammed Ankoos and others versus Public Prosecutor, High Court of of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, since it cannot be said that the Court below has not correctly rt appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice, no interference is warranted in the instant case.
For all the aforesaid reasons, present appeal, devoid of merit, is dismissed, so also pending applications, if any. Bail bonds, if any, furnished by the accused are discharged. Records of the Court below be immediately sent back.
(Sanjay Karol), Judge.
(Vivek Singh Thakur), Judge.
November 9 , 2016 (PK) ::: Downloaded on - 15/04/2017 21:31:36 :::HCHP