Punjab-Haryana High Court
Bunty vs State Of Haryana And Another on 25 September, 2012
Author: Rameshwar Singh Malik
Bench: Jasbir Singh, Rameshwar Singh Malik
Crl.Misc.No.743-MA of 2011 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl.Misc.No.743-MA of 2011
Date of decision : 25.9.2012
Bunty .......Petitioner
Vs.
State of Haryana and another ....Respondents
....
CORAM : HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK **** Present : Mr. Jagat Singh, Advocate for the petitioner.
Mr.Sandeep Vermani, Addl. A.G., Haryana, for respondent no.1. Ms. Deepa Singh, Advocate for respondent no.2.
...
RAMESHWAR SINGH MALIK,J Crl.Misc.No.47939 of 2011 The applicant seeks condonation of delay of 17 days in filing the application for leave to appeal.
Notice of this application was issued.
Having heard the learned counsel for the parties and in view of the facts of the case, we are of the considered opinion that it is just and expedient to condone the delay.
Accordingly, the application is allowed for the reasons stated therein. The delay of 17 days in filing the application under Section 378(4) Cr.P.C., seeking leave to file appeal is condoned.
Crl.Misc.No.743-MA of 2011 The instant application has been filed by the applicant under Section 378(4) of the Code of Criminal Procedure (`Cr.P.C.' for short), seeking leave to file appeal against the judgement dated 7.6.2011, passed by the learned Additional Crl.Misc.No.743-MA of 2011 2 Sessions Judge-III, Bhiwani, whereby Ram Avtar-respondent no.2, being the only accused, was acquitted of the charge framed against him, for the offences punishable under Sections 302/309 of the Indian Penal Code (`IPC' for short).
The brief facts of the case, culled out from para 2 of the impugned judgement, are that on 28.1.2010, Moharrer Constable of Police Post Jui, informed ASI Net Ram that injured-Indrawati, wife of Ram Avtar and Ram Avtar s/o Sant Lal, both residents of village Asalwas Marehta were admitted in B.N. Sharma Hospital, Bhiwani. After getting the information, aforementioned, ASI Net Ram alongwith EHC Randhir Singh, went to the Police Station, Civil Lines, Bhiwani and collected the written intimation received from the doctor. It was revealed that both the injured admitted in B.N. Sharma Hospital, Bhiwani, had been referred to PGIMS, Rohtak. ASI Net Ram and EHC Randhir Singh went to PGIMS, Rohtak. They received two MLRs in respect of Indrawati and Ram Avtar. Opinion of the doctor was obtained about the fitness of injured, for making the statement. Doctor declared that the injured were fit to make the statement. ASI Net Ram, recorded the statement of the complainant-Indrawati, who stated that she was the wife of the accused Ram Avtar. She was a house wife. On 28.1.2010 at about 9.00 AM, when she was at her house, her husband had sprinkled petrol upon her as well as on himself and set her as well as himself on fire with a match stick. Thereafter, he brought her to a private hospital in Bhiwani, after arranging a vehicle and she was referred to PGIMS, Rohtak. It was further stated that 3-4 days back, there was a quarrel between the two (husband and wife). Statement of the complainant was also got recorded by the learned Judicial Magistrate, Ist Class, Rohtak. As per MLR, complainant-Indrawati had suffered 65-70% burns. Ram Avtar had suffered 35-40% burns. The police registered a case for the commission of offence under Sections 307 and 309 IPC. During the course of treatment, complainant died at PGIMS, Rohtak and Section 302 IPC was added. The accused remained admitted Crl.Misc.No.743-MA of 2011 3 at PGIMS, Rohtak and he was discharged from there on 22.3.2010.
Investigation was carried out. The Investigating Officer prepared the rough site plan of the place of occurrence with correct marginal notes. Statements of witnesses were recorded under Section 161 Cr.P.C. After concluding the investigation, report under Section 173 Cr.P.C., was presented to the court. Copies of the relevant documents were supplied to the accused as per law and the case was committed to the court of competent jurisdiction.
Having found a prima facie case, charge was framed against the accused for the offences punishable under Sections 302 and 309 IPC. The accused pleaded not guilty and claimed trial. In order to prove its case, the prosecution examined as many as 18 PWs and closed its evidence by tendering numerous documents in evidence. The statement of the accused was recorded under Section 313 Cr.P.C. All the incriminating material was put to the accused. He alleged false implication and claimed complete innocence. Opting for leading his defence evidence, accused examined 4 DWs and also tendered some documents in his evidence.
After hearing both the parties and perusal of the record, the learned Additional Sessions Judge-III, Bhiwani, recorded acquittal of the accused, vide impugned judgement dated 7.6.2011. Feeling aggrieved, the applicant has approached this court by way of instant application under Section 378(4) Cr.P.C., for granting the leave to appeal. That is how, this court is seized of the matter.
Learned counsel for the applicant submits that the learned trial court has committed a serious error of law, while recording acquittal of the accused- respondent no.2, without appreciating the evidence in the right perspective. He further submits that the prosecution has brought on record overwhelming and clinching evidence to bring home the guilt, but the learned trial court failed to give due weight to the plausible evidence led by the prosecution. He also submits that Crl.Misc.No.743-MA of 2011 4 the dying declaration recorded by PW-18 Sh.Chanderas, learned Judicial Magistrate, was itself sufficient to record conviction of the accused. Learned counsel for the applicant next contended that keeping in view the peculiar facts and circumstances of the case, the impugned judgement rendered by the learned trial court was not sustainable in law.
We have heard the learned counsel for the applicant and with his able assistance have gone through the record of the case.
Having given our thoughtful consideration to the contentions raised and also keeping in view the peculiar fact situation of the present case, we are of the considered opinion that present one is not a fit case for granting leave to appeal against the impugned judgement of acquittal. We say so for more than one reasons, being recorded hereinafter.
Firstly, there is no denying the fact that accused-respondent no.2 also suffered 35-40% burns, whereas his deceased wife suffered 65-70% burns in the same incident. The relevant part of the statement of PW-14 Dr.R.Sahu, regarding the burns on the person of accused-respondent no.2, is as under :-
" On the same day, I medico-legally examined one patient Sh.Ram Avtar son of Sant Lal at 2.30 PM. The patient had come with the alleged history of Burns on 28.1.10 at home in VPO Asalwas Marhta, PP Jui, PS Sadar Bhiwani and history was as told by the patient himself and as well as the attendant.
That I found the following injuries on his person :
Superficial to deep burns were present over the face, chest and upper ¼ of back. Reddish line of demarcation present. Ooze of serous fluid present. Vesicles present at places. Whitish gauge pieces present all over the burnt areas at places.
Adv. Surgeons opinion and approximately about 35 to Crl.Misc.No.743-MA of 2011 5 40% burns."
PW-1 to PW-9 are the official and formal witnesses. PW-10 Dinesh Kumar stated that Indrawati deceased was his cousin. There were four daughters and two sons of Indrawati. On 28.1.2010, Indrawati was set on fire by her husband Ram Avtar. When he went to see Indrawati deceased in PGIMS, Rohtak, on 29.1.2010, she disclosed to him that her husband Ram Avtar sprinkled the motor cycle oil, which was in a can (pipi), upon her and set her on fire. He also sprinkled some oil on himself and set himself as well on fire. He identified the dead body of the deceased.
PW-11 Zile Singh, S.I., and PW-12 Net Ram, A.S.I., deposed about the investigation carried out by them. PW-13 Dr.Basant Lal Sirohiwal deposed about the postmortem conducted by him on the dead body of the deceased, vide Ex.PW/1. PW-14 Dr. R. Sahu proved the MLRs of deceased Indrawati as Ex.PV/1 and also that of accused-respondent no.2. PW-15 to PW-17 were also the formal witnesses.
PW-18 was the Judicial Magistrate, who recorded the statement of the deceased. It is very pertinent to note here that PW-12 Net Ram, ASI, stated in his cross-examination that 5 to 7 persons were present near Indrawati-deceased, when her statement was recorded by the learned Duty Magistrate. He was also present when the statement of the deceased was being recorded by the Magistrate. This material discrepancy in the case of the prosecution has been discussed by the learned trial court, in paras 43 and 44 of the judgement. In this view of the matter, the star argument raised by the learned counsel for the applicant has been found without any force and the same is liable to be rejected. We say so because in the presence of 5 to 7 relatives of the deceased, possibility cannot be ruled out that she was under their influence, while getting her statement recorded. Crl.Misc.No.743-MA of 2011 6
Secondly, besides the fact that the accused-respondent no2 also suffered 35-40% burns in the same incident, he himself took the deceased to the hospital. He also remained admitted in the hospital for his medical treatment, for about 2 months because he came to be discharged from the hospital as late as on 22.3.2010. Further, the accused took a definite and specific stand in his statement under Section 313 Cr.P.C., to the effect that he was not on visiting terms with his in-laws because his brothers-in-law Rakesh and Dinesh were of criminal nature, having been involved in cases under Section 307 IPC etc. Since they wanted to stay at the house of the accused and he used to ask his wife(deceased) not to permit them to come, she was feeling annoyed with the accused. She used to say that it would be better, if she committed suicide because her husband was not allowing her brothers to come to see and stay with her.
He further stated that when he was sitting in his shop, adjacent to his house, his wife set herself on fire. His daughter cried and he went inside. When he tried to save her from fire, his wife took him in her arms because of which, he also suffered considerable burns on his neck, chest and hands. DW-1 Pooja was a child witness, who stated that deceased Indrawati was her mother. She corroborated the version given by the accused in his statement under Section 313 Cr.P.C.
Another material witness was DW-2 Mamta, who was none else but the real sister of the deceased and was married to younger brother of accused- respondent no.2 Ram Avtar. She deposed against her own brother Rakesh and cousin Dinesh. She submitted that Rakesh and Dinesh were indulged in several heinous crimes. She further deposed that since Ram Avtar used to consider her brother Rakesh as a bad element, the deceased was having strained relation with her husband. When she visited her sister Indrawati-deceased in the hospital at Rohtak, the deceased disclosed to her that she was fed up with life and wanted to Crl.Misc.No.743-MA of 2011 7 die. In this view of the matter, PW-10 Dinesh would not be a reliable witness. Under these circumstances, we are of the view that the learned trial court has not committed any illegality, while recording the acquittal of accused-respondent no.2.
Thirdly, it is also the settled principle of law that whenever two views are possible, the view which favours the accused, is to be preferred. Further, the view taken by this court also finds support from the judgement of the Hon'ble Supreme Court in the case of Arulvelu & anr.vs. State represented by the Public Prosecutor and anr. 2009(4) RCR (Crl.) 638. The relevant observations made by the Hon'ble Supreme Court in para No.39, 40 and 41 in the case of Arulvelu's case (Supra) read as under:
39. In Ghurey Lal v. State of Uttar Pradesh (2008) 10 SCC 450, a two Judge Bench of this Court of which one of us (Bhandari, J.) was a member had an occasion to deal with most of the cases referred in this judgment. This Court provided guidelines for the Appellate Court in dealing with the cases in which the trial courts have acquitted the accused. The following principles emerge from the cases above:
1. The accused is presumed to be innocent until proven guilty.
The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent.
2. The power of reviewing evidence is wide and the appellate court can re-appreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law, but the Appellate Court must give due weight and consideration to the decision of the trial court.
3. The appellate court should always keep in mind that the trial Crl.Misc.No.743-MA of 2011 8 court had the distinct advantage of watching the demeanour of the witnesses. The trial court is in a better position to evaluate the credibility of the witnesses.
4. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so.
5. If two reasonable or possible views can be reached - one that leads to acquittal, the other to conviction - the High Courts/appellate courts must rule in favour of the accused.
40. This Court in a recently delivered judgment State of Rajasthan v. Naresh @ Ram Naresh 2009 (11) SCALE 699 again examined judgments of this Court and laid down that "An order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger towards the accused. This Court has dealt with the scope of interference with an order of acquittal in a number of cases."
41. Careful scrutiny of all these judgments lead to the definite conclusion that the appellate court should be very slow in setting aside a judgment of acquittal particularly in a case where two views are possible. The trial court judgment can not be set aside because the appellate court's view is more probable. The appellate court would not be justified in setting aside the trial court judgment unless it arrives at a clear finding on marshalling the entire evidence on record that the judgment of the trial court is either perverse or wholly unsustainable in law."
The law laid down by the Hon'ble Supreme Court in Arulvelu's case Crl.Misc.No.743-MA of 2011 9 (Supra) has also been followed by a Division Bench of this Court in a recent judgment in the case of State of Haryana vs. Aman Kumar & anr.2012(3)RCR (Crl.) 330, which we respectfully follow.
In `Mrinal Das & others, V.The State of Tripura', 2011(9) SCC 479, decided on September 5, 2011, the Hon'ble Supreme Court, after referring to many earlier judgements, has laid down parameters, for interference against a judgement 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.Crl.Misc.No.743-MA of 2011 10
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 Crl.Misc.No.743-MA of 2011 11 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."
No other argument was raised.
Considering the totality of facts and circumstances of the case noted above, coupled with the reasons aforementioned, we have no hesitation to conclude that neither any patent illegality nor perversity has been pointed out in the impugned judgement of the acquittal, which is sine-quo-non for granting the leave to file appeal. No case for interference has been made out.
Resultantly, the instant application under Section 378(4) Cr.P.C., seeking leave to file appeal against the impugned judgement, stands dismissed.
( JASBIR SINGH ) (RAMESHWAR SINGH MALIK)
JUDGE JUDGE
25.9.2012
GS