Punjab-Haryana High Court
State Of Punjab vs Gurmit Kaur And Others on 24 January, 2013
Author: Jasbir Singh
Bench: Jasbir Singh
CRM A -551 -MA of 2012(O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM A -551 -MA of 2012(O&M)
Date of decision: 24.01.2013
State of Punjab
......Applicant
versus
Gurmit Kaur and others
...Respondents
CRM A -234-MA of 2012(O&M)
Veerpal Kaur
......Applicant
versus
State of Punjab and another
...Respondents
CRM A -339-MA of 2012(O&M)
Veerpal Kaur
......Applicant
versus
State of Punjab and others
...Respondents
Coram: Hon'ble Mr.Justice Jasbir Singh
Hon'ble Mr.Justice Inderjit Singh
Present: Mr.Rajesh Bhardwaj, Additional Advocate General, Punjab
for the applicant in CRM A -551 -MA of 2012
None for the applicant in CRM A -234 -MA of 2012 and
CRM A -339 -MA of 2012
Jasbir Singh, J.
CRM 41022 of 2012 In view of reasons mentioned in this application which is accompanied by an affidavit, it is allowed and 77 days delay in filing the application seeking leave to file an appeal stands condoned. CRM A -551 -MA of 2012(O&M) 2 CRM A -551 -MA of 2012 State of Punjab has filed this application under Section 378(3) Cr.P.C. seeking leave to file an appeal against judgment dated 17.1.2012 acquitting respondent Nos.1 to 5 of the charges framed against them.
Similarly, Veerpal Kaur applicant-complainant has filed an application under Section 378(3) Cr.P.C. bearing CRM A 339-MA - 2012 seeking leave to file an appeal against judgment referred to above acquitting the above respondents and also against acquittal of one Jyoti Sharma wife of Ram Tirath Sharma.
It is necessary to mention here that vide the judgment, referred to above, Sukhdev Singh husband of the applicant-complainant was convicted for commission of an offence under Section 313 IPC and sentenced accordingly.
The applicant-complainant Veerpal Kaur has also filed CRM A 234-MA of 2012 seeking leave to file an appeal against above judgment with a prayer that sentence awarded to Sukhdev Singh -accused be enhanced and further he be also convicted for the other offences for which he was charged.
This judgment will dispose of above said three applications, arising out of a common judgment involving similar facts. For facility of reference, facts are being taken from CRM A -551 -MA of 2012.
The respondents were named as accused in FIR no.100 dated 21.7.2006 police station Nehian Wala district Bathinda for commission of offences under sections 312, 313, 120B IPC and Section 25 of Pre- conception and Pre-natal Diagnostic Techniques (Prohibition of Sex CRM A -551 -MA of 2012(O&M) 3 Selection) Act, 1994 (in short PNDT Act). In the first instance, after completion of investigation, final report was submitted in Court only against Sukhdev Singh, Gurmit Kaur, Dr.Vinay Jindal - respondents-accused and the names of Paramjit Kaur and Dr.Amar Singh Brar were put in column No.2 of that report. It was an allegation against Sukhdev Singh and the other accused that they in conspiracy with each other, got pregnancy of the applicant-complainant terminated against her consent.
Process of law was initiated when a wireless message was received in the above police station on 21.7.2006, stating that the applicant- complainant was lying admitted in civil hospital Bagha Purana. ASI Jagtar Singh reached at the spot, after getting opinion of the doctor, declaring her fit to make a statement, recorded statement of the complainant.
The trial Judge has noted the following facts from the statement made by the complainant:-
"...that she was a house wife. She was married on 19.5.2004 with Sukhdev Singh resident of Bajakhana. From their marriage one child who was 1 ½ years old was born to her. She was again pregnant from her husband Sukhdev Singh. Her pregnancy was of 3 ½ months old. On 1st July 2006, Sukhdev Singh her husband, Paramjit Kaur sister of her husband and Gurmit Kaur mid-wife took her to Brar Hospital, Jaitu on the pretext of her check up. Dr.Amar Singh Brar after examining her gave report to her husband. She inquired from her husband about the report but her husband did not tell her anything but told her that child was very weak. Then above CRM A -551 -MA of 2012(O&M) 4 said all the three accused brought her back to house at Bajakhana. On 3.7.2006 they all three brought her in a Van to Patiala Nursing Home and told her that child was weak and medicine was to be provided to her from Patiala Nursing Home. She sat in the van in front of Patiala Nursing Home. They all three went inside of Patiala Nursing Home. After some time they took her inside of Patiala Nursing Home. Lady doctor Vinay Jindal examined her there. After some time one injection was given to her on her right arm and one injection was given to her on her right buttock. Two nurses were also with the said lady doctor. She did not know the names of said nurses but could identify them. After some time she became unconscious. She gained consciousness at 12.00 night. At that time she was in the house at Bajakhana. It was 3. p.m. when they took her in Patiala Nursing Home. At night she woke up her husband and asked her what had happened. He told that she was got examined from Jaitu. There was female child but they did not want a female child so pregnancy was got aborted. About 11/12 days she was not allowed to come out by her in laws. On the pretext of meeting her parents, she came to her parental house at Manuke. Due to pain her father on 18.7.2006 got her admitted at Civil Hospital, Bagha Purana. On that day i.e. 21.7.2006 senior doctor came from Bathinda. He took into possession prescription slip issued by Patiala Nursing Home. Her husband Sukhdev Singh, her sister in law CRM A -551 -MA of 2012(O&M) 5 Paramjit Kaur, mid-wife Gurmit Kaur conspired together and got determined sex of her child and got her aborted against her wishes from Dr.Vinay Jindal and two nurses of Patiala Nursing Home."
On the basis of above statement of the complainant, an FIR was recorded against Sukhdev Singh and the other respondents. After investigation, final report was put in Court against Sukhdev Singh, Gurmit Kaur and Dr.Vinay Jindal. Case was committed to the competent Court for trial vide order dated 10.4.2007. On an application filed further inquiry was conducted by Mr.Harjit Singh through SP(D) Bathinda, whereupon a supplementary challan, prepared under Section 173(8), was filed in Court on 14.2.2007. Vide that report commission of offence under Section 25 of the PNDT Act was deleted. The supplementary report was committed to the competent Court vide order dated 10.4.2007. On 10.5.2007, both the cases were clubbed together and it was ordered that the evidence will be recorded in case State versus Gurmit Kaur etc. The respondents-accused were charge sheeted to which they pleaded not guilty and claimed trial. Vide order dated 20.10.2008 passed by this Court proceedings qua accused Jyoti Sharma were stayed and it was ordered that proceedings qua others accused would continue. It is also on record that on 17.8.2006 a separate complaint was filed by the competent officer for commission of offences under Sections 23 and 25 of the PNDT for violating the provisions of Sections 4, 5, 6, 29 of PNDT Act and Rule 9 of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Rules 1996. In the said complaint, similar allegations were reiterated as were stated by the CRM A -551 -MA of 2012(O&M) 6 applicant-complainant in the FIR in question. Vide order dated 25.10.2007, all the accused were summoned to face trial. On 8.4.2008 the said complaint was also committed to the competent Court for trial. On 5.6.2008, that complaint was also clubbed with the main case since allegations in both the cases were approximately the same.
The respondents-accused were charge sheeted on 5.6.2008, to which they pleaded not guilty and claimed trial. The prosecution to prove its case produced seven witnesses and also brought on record documentary evidence. On conclusion of prosecution's evidence, statements of all the accused were recorded under Section 313 Cr.P.C. Incriminating evidence appearing against them was put to them, they denied the same, claimed innocence and false implication.
The trial Judge has noted the following facts, taken in defence by the respondent-accused Sukhdev Singh:-
"...that he was married with Veerpal Kaur on 19.5.2004. Their marriage was simple marriage. No dowry was demanded or given at the time of marriage even subsequently thereafter at any stage. Veerpal Kaur was not having good habits. She had high expectations. After few days of marriage, she proclaimed that she was married with him with an assurance that after the marriage, they both would be setting in Malaysia since he had lived in Malaysia for some time before the marriage. He tried to make her understand that he had no plan to settle in Malaysia, on which she felt annoyed and used to leave his company and house without his consent and without informing CRM A -551 -MA of 2012(O&M) 7 him. She never liked to live with him at Bajakhana. Due to in indifferent attitude of Veerpal Kaur she could not live in her parental house. After few days of his marriage, he started living in a separate house at Bajakhana. On 2.3.2005 they were blessed with a son. Even then she suggested that at least they should live at Moga, but he was adverse to the same. Veerpal Kaur again felt annoyed and left his company without his consent and after going to her parental house, she moved applications against him before SSP, Moga on 2.9.2005 and 3.12.2005 by making totally false and baseless allegations. The allegations levelled in both the applications were found false when inquired into by the authorities and said applications were ultimately filed on 26.10.2005. Veerpal Kaur had also filed an application u/s 125 Cr.P.C. for seeking maintenance allowance and due to non co-operation and indifferent attitude of Veerpal Kaur when she flatly refused to come to him to live as his wife then finding no alternative he had to file a divorce petition in the court at Faridkot. Veerpal Kaur appeared in the said case and maintenance allowance u/s 24 of HM Act was granted to her. During the pendency of the said litigation, a compromise was affected between them on 30.12.2005. Veerpal Kaur joined his company on 13.1.2006 at Bajakhana. As per compromise he withdrew the divorce petition on 12.1.2006. Although she resumed his society but as per compromise she did not withdraw the application filed u/s CRM A -551 -MA of 2012(O&M) 8 125 Cr.P.C. pending at Moga, she again left his society on 20.1.2006. She threatened to teach a lesson to him and other members of his family. He did not accompany Veerpal Kaur ever at Jaitu or at Goniana."
In the same fashion, commission of offence was denied by the other accused, stating that they have no concern with the allegations levelled against them. It was specifically denied by Dr.Amar Singh Brar that any sex determination was done, as alleged by the prosecution. He has further stated that he made a complaint for his false implication in this case and an inquiry was conducted and he was declared innocent, after scrutinizing the entire record of the hospital under his management. The accused also led evidence in defence. The trial Judge on appraisal of evidence found Sukhdev Singh husband of the applicant-complainant guilty and he was convicted and sentenced vide judgment under challenge, whereas others were acquitted.
After scrutinizing evidence in detail and looking at report made by Board of doctors of GGS Medical College, Faridkot, it was noted that the prosecution has failed to prove that any sex determination was done by Dr.Amar Singh Brar. In that regard, it was observed as under:-
"From Form F Ex.PW7/N and prescription slip Ex.PW7/O it is proved that Veerpal Kaur was pregnant and on 24.6.2006 her pregnancy was of 6.6 weeks. Since at that stage of pregnancy sex of foetus could not be determined by sonography and sex of foetus could only be determined after 16 to 17 weeks pregnancy so version of the prosecution that Veerpal Kaur CRM A -551 -MA of 2012(O&M) 9 complainant was got examined from Dr.Amar Singh Brar, Brar Hospital, Jaitu for determining the sex of the foetus is without any basis. Since Dr.Amar Singh Brar maintained record in accordance with rules and there was no violation of any rule framed under The Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 so I am of the view that prosecution has failed to prove that accused had committed offence under the The Pre-conception and Pre- natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994."
The trial Judge has also noted that PW3 Gurcharan Singh owner of the vehicle in which, it was stated that, the applicant-complainant was taken to the hospital has made many improvements in his statement when deposing in Court. To disbelieve this witness sufficient reasons are given in paragraph No.31 of the judgment under challenge. By taking note of the statement made by the applicant-complainant, it was said that so far as Patiala Nursing Home at Goniana Mandi is concerned, no medical treatment was given to the applicant-complainant. To say so, it was noted as under:-
'Thus his statement is only to the effect that he brought Veerpal Kaur along with three accused to Goniana Mandi in his Maruti van. Veerpal Kaur PW2 stated in examination in chief itself that vehicle was parked beneath the tree and all the three went away, whereas she continued sitting in the above vehicle. After some time they returned there that doctor was not available CRM A -551 -MA of 2012(O&M) 10 and they took her to some other doctor. She was thereafter taken to some hospital at Goniana by the accused. One tall doctor administered her injection in her arm there and he was not present in the court. Two nurses were also present at that time. She did not know names of those nurses. They were not present in the court. She was declared hostile on the request of learned Addl.PP. In the cross examination she stated that she made earlier statement on 24.9.2007 at the asking of the police. In the cross examination conducted by learned defence counsel she stated that she had not stated the name of Dr.Vinay Jindal, names of nurses Beant Kaur and Jyoti Sharma and names of Patiala Nursing Home in her statement Ex.PB when she appeared in the court on 24.9.2007. She was tutored by the police to name the above said persons including the names of Patiala Nursing Home, Goniana Mandi. She further stated that she did not state the name of doctors as well as Patiala Nursing Home at Goniana in her statement Ex.PB." It has also come on record that when the applicant-complainant failed to disclose names of the accused, she was declared hostile on request made by the Public Prosecutor. By taking note of the statement made by the complainant, the trial Court rightly said that no act to conduct abortion was done by Dr.Vinay Jindal. It was also noted that the prosecution has failed to prove that Gurmit Kaur -accused carried miscarriage of the applicant- complainant. Paramjit Kaur -accused is sister of Sukhdev Singh-accused. It was noted by the trial Court that she was a widow and residing at a distant CRM A -551 -MA of 2012(O&M) 11 place. It was further noted that there is tendency to rope in all the relations of the husband in a criminal case. The trial Judge has thrashed entire evidence in a proper manner. Each and every document has been examined in detail to give benefit of acquittal to the respondent-accused. So far as Sukhdev Singh is concerned, reasons were given to convict him. He was held guilty and sentenced to undergo imprisonment for a period of three years and to pay a fine of Rs.5000/- with a default clause for commission of an offence under Section 313 IPC.
Taking overall view of the entire facts on record and after hearing counsel for the applicant, we are of the opinion that no case is made out to enhance sentence as prayed in this application.
The opinion formed by the trial Judge is as per evidence on record.
The law to interfere in a judgment of acquittal is well settled. It is only in those cases where there are compelling circumstances and judgment under challenge is perverse, the appellate Court can interfere with an order of acquittal. The appellate Court is supposed to bear in mind the presumption of innocence of the accused and that the trial Court's acquittal order further strengthen that presumption. Interference in a routine manner, where other view may be possible, should be avoided unless there are good reasons to do the same.
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.CRM A -551 -MA of 2012(O&M) 12
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 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 CRM A -551 -MA of 2012(O&M) 13 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 were discussed and then it was opined as under:-
"10. There is a very thin but a fine distinction between an CRM A -551 -MA of 2012(O&M) 14 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 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.
Dismissed.
(Jasbir Singh)
Judge
24.01.2013 (Inderjit Singh )
gk Judge