Punjab-Haryana High Court
Surjit Singh vs State Of Punjab And Another on 9 January, 2013
Author: Jasbir Singh
Bench: Jasbir Singh, Inderjit Singh
CRM No. 69108 of 2012 in/and
CRM-A No. 925-MA of 2012 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
*****
CRM No. 69108 of 2012 in/and
CRM-A No. 925-MA of 2012
Date of decision : 9.1.2013
Surjit Singh ........Applicant-appellant
Vs.
State of Punjab and another .......Respondents
CORAM: Hon'ble Mr. Justice Jasbir Singh
Hon'ble Mr. Justice Inderjit Singh
Present:- Mr. KBS Mann, Advocate, for the applicant-appellant
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Jasbir Singh, J.
Vide judgment dated 7.3.2012 respondent No.2 was acquitted of the charge framed against her. The complainant has filed this application under Section 378 (4) Cr.P.C. seeking leave to file an appeal against judgment dated 7.3.2012 to the extent of acquittal of respondent No.2. It is necessary to mention here that vide the above judgment, one Sarabjit Singh was convicted for commission of offences under Section 302, 201 IPC and 27(1) of the Arms Act, 1959 and sentenced accordingly.
Respondent No.2 and above Sarabjit Singh were arrayed as accused in FIR No. 202 dated 13.12.2008 Police Station City Malout, on an allegation that they, in furtherance of their common intention had committed murder of Hardeep Kaur on 12.12.2008 by causing her fire arm CRM No. 69108 of 2012 in/and CRM-A No. 925-MA of 2012 -2- injuries. The trial Judge has noted the following facts regarding case of the prosecution :-
"that on the night of 12.12.2008, one ruqa No.794 dated 12.12.2008 was received at P.S. City Malout from Dr. Rakesh Goel of Civil Hospital, Malour at about 11 PM. The ruqa was to this effect that some unknown person had brought the dead body of some unknown lady at civil hospital Malout, who died on account of fire arms injuries. That on coming to know regarding death of that lady, that unknown person sped away with his car alongwith the dead body of that lady. That the matter was inquired into but no clue was found thereof by the police. That on 13.12.2008 at about 11 AM, a telephone message was received from some anonymous person by the police that one Hardeep Kaur died last night on account of fire arm injuries at Malout and her dead body was being cremated at Dhani Sarawan Bodla at that time. That SHO Parminder Singh of Police Station City Malout alongwith his police team comprising ASI Puran Chand and other police officials set out to Sarawan Bodla in Government vehicle No.PB-30D-5723. That when his police party reached on culvert of minor in the area of village Sarawan Bodla on the way, one Surjit Singh Sarpanch son of Anokh Singh resident of village Katora, Tehsil Zira, District Ferozepur along with Pipal Singh came across the police party. That Surjit Singh made his statement before SI Parminder Singh thereat. The complainant Surjit Singh stated in his statement dated 13.12.2008 before SHO Parminder Singh that he had four sisters and Chhinderpal Kaur wife of Paramjit Singh who was residing in America was his eldest sister. That his next sister Prabhjit Kaur wife of Rachhpal Singh was resident of village Karanput Thehri in Rajasthan. That his next sister Majit Kaur CRM No. 69108 of 2012 in/and CRM-A No. 925-MA of 2012 -3- wife of Paramjit Kaur was resident of Kothi Faiz, Ganganagar Road, Abohar and his next and youngest sister Hardeep Kaur wife of Sarabjit Singh, then resided with her family at Preet Nagar, Malout. That Hardeep Kaur his sister had one son namely Sukhmandeep Singh aged 15 years and one daughter namely Harmandeep Kaur aged 13 years. That the complainant is the only brother of his sisters. That in the morning on 13.12.2008, at about 6 AM, the complainant received a telephonic call on cell phone of his paternal uncle's son namely Gurpartap regarding death of Hardeep Kaur, his youngest sister, on the last night on account of heart attack. That the complainant alongwith Pipal Singh son of Banasha Singh, Surjit Singh son of Moola Singh, Gurmit Singh son of Inder Singh residents of village Katora and his family members and relations reached Malout. That he came to know therefrom that the dead body of his sister had already been taken to Dhani Sarawan Bodla. That at about 11 AM, the complainant and others reached Dhani Sarawan Bodla. That they uncovered the face of the dead body of his sister Hardeep Kaur by removing the covering cloth and noticed two fire arm injuries on her face. The complainant side suspected some foul play in the death of his sister Hardeep Kaur. That they inquired into this matter and ascertained that Hardeep Kaur, his sister, had been shot dead by her husband Sarabjit Singh with his pistol. That the cause of occurrence leading to her murder was that Sarabjit Singh, her husband, had developed illicit relations with one Rachna alias Harpreet Pandtani resident of Khadur, P.S. Zira, who then resided at Muktsar. That Rachna alias Hapreet Kaur, the paramour of Sarabjit Singh occasionally visited his house at Preet Nagar, Malout and sometimes Sarabjit Singh used to visit Harpreet Kaur at Muktsar. That it became the bone of contention between CRM No. 69108 of 2012 in/and CRM-A No. 925-MA of 2012 -4- Hardeep Kaur sister of complainant and her husband Sarabjit Singh accused. That last night Sarabjit Singh came late at night at home and when the sister of complainant Hardeep Kaur inquired from him the cause of his late coming, he murdered her by shooting her with his .32 bore pistol. That Sarabjit Singh had caused murder of his sister Hardeep Kaur in conspiracy with Rachna alias Harpreet. That to conceal the fact of crime, Sarabjit Singh accused removed the dead body of his sister Hardeep Kaur in the car from Malout to Sarawan Bodla. That Sarabjit Singh changed the bloodstained clothes of Hardeep Kaur deceased which she was wearing at the time of the occurrence."
As per case of the prosecution, thereafter, Surjit Singh complainant-applicant got his statement recorded to SHO/Inspector Parminder Singh PW-14, who prepared inquest report on the dead body and sent it for post mortem examination. The dead body was also got photographed. The Investigating Officer got prepared a rough site plan of the place from where the dead body was recovered. He also got recorded statements of the witnesses. He scraped blood from the place of occurrence and took it into his possession against a recovery memo. He also took into his possession blood stained pieces of a bed sheet. He also recovered 6 empties of .32 bore revolver from the bed-room of the deceased. 2 bullets stained with blood were also recovered; one from the mattress of the bed and second from lobby of the house. Sarabjit Singh husband of the deceased was arrested on 14.12.2008. On interrogation, he suffered a disclosure statement which led to recovery of weapon of offence (.32 bore revolver). He also got recovered blood stained clothes of the CRM No. 69108 of 2012 in/and CRM-A No. 925-MA of 2012 -5- deceased. During investigation, an enquiry was conducted. Sarabjit Singh and respondent No.2 were found innocent and a supplementary challan was presented in the Court. Copies of the documents were supplied to the respondent/accused as per norms. Case was committed to the competent Court for trial vide order dated 16.4.2009. Respondent Sarabjit Singh was charge sheeted to which he pleaded not guilty and claimed trial. Respondent No.2 was summoned to phase trial on an application moved by the prosecution under Section 319 Cr.P.C. Charge was amended, to which again the accused pleaded not guilty and claimed trial.
The prosecution produced 18 witnesses and also brought on record documentary evidence to prove its case. On conclusion of the prosecution's evidence, separate statements of both the accused were recorded under Section 313 Cr.P.C. Incriminating material existing on record was put to them which they denied, claimed innocence and false implication. Respondent No.2 specifically denied that she had any relationship with her co-accused namely; Sarabjit Singh. The trial Judge on appraisal of evidence found respondent No.2 not guilty and ordered her acquittal. When giving above benefit to respondent No.2, the trial Judge has observed as under :-
"Now this Court proceeds to examine the case of accused Rachna Rani alias Harpreet Kaur. She is alleged to have conspired with accused Sarabjit Singh in committing this murder of Hardeep Kaur or in destroying the evidence with regard to her murder. The evidence against her is that she had developed illicit relations with Sarabjit Singh accused. The CRM No. 69108 of 2012 in/and CRM-A No. 925-MA of 2012 -6- prosecution mainly relied upon the statement of PW17 Prabhjit Kaur, who has deposed that she found Rachna accused at the house of accused Sarabjit Singh on 26.10.2008 and 22.11.2008. This court has already observed that her statement was not recorded by the police during investigation of the case. She has been examined in the Court by the prosecution under Section 311 of the Code. As per law laid down in Hakam Singh's case (supra), no reliance can be placed on the statement of a witness by the court, whose statement has not been recorded by the police. The statement of PW17 Prabhjit Kaur, thus, cannot be looked into as per law referred to above. There is, thus, only statements of PW1 Surjit Singh, PW4 Gurmit Singh and PW5 Pipal Singh in this regard. From the statement of PW1 Surjit Singh, this court finds that he has not seen Rachna accused in the company of accused Sarabjit Singh. He has not seen accused Rachna Rani alias Harpreet Kaur talking to accused or conspiring with him. No correspondence or mobile calls between the two accused have been produced on record by the prosecution. The statement of PW5 Pipal Singh has also been examined by this court. He has stated that he met Rachna before this occurrence, but at the same time, he stated that he had no interaction with her. This witness has also not seen Rachna accused in the company of Sarabjit Singh accused or conspiring with him to commit this crime. The mere statement that accused Sarabjit Singh had illicit relations with accused Rachna, as given out by the prosecution witnesses, could not prove any conspiracy in committing murder of Hardeep Kaur against her or the conspiracy of destroying the evidence with accused Sarabjit Singh. On the mere statements of prosecution witnesses that accused Rachna had illicit relations with accused Sarabjit Singh, it cannot be said that she is a CRM No. 69108 of 2012 in/and CRM-A No. 925-MA of 2012 -7- party to any conspiracy. There must be agreement or meeting of mind of two or more persons to commit the offence for attracting the offence of criminal conspiracy. A few bits here and a few bits there on which the prosecution relies to prove conspiracy cannot be held to be adequate for connecting the accused with the commission of the offence of criminal conspiracy, as held by the Supreme Court in State of Kerala v. P. Sugathan reported in 2000(4) Recent Criminal Reports page 369. Herein, there is neither any direct evidence nor any circumstantial evidence proving the conspiracy against accused Rachna alias Harpreet Kaur on the record by the prosecution to commit this crime in complicity with accused Sarabjit Singh,. Conspiracy is an agreement and meeting of minds of two or more persons to commit the offence. There must be meeting of minds resulting in ultimate decision taken by the conspirators regarding the commission of an offence and where the factum of conspiracy is sought to be inferred from circumstances, the prosecution has to show that the circumstances giving rise to a conclusive and irresistible inference of an agreement between the two or more person to commit the offence are proved. Motive itself cannot be a proof of conspiracy as held by the Supreme Court in Saju v. State of Kerala reported in 2000(4) Recent Criminal Reports page 747. Meeting of minds is essential for attracting the offence of criminal conspiracy. The prosecution could not prove it on the record against accused Rachna alias Harpreet Kaur that she agreed to do or caused to be done an illegal act or an act which is illegal by illegal means with accused Sarabjit Singh to commit the offence of murder of Hardeep Kaur and to destroy the evidence of murder in this case. On the other hand, accused Rachna alias Harpreet Kaur explained in her statement under Section 313 CRM No. 69108 of 2012 in/and CRM-A No. 925-MA of 2012 -8- of Code of criminal Procedure that she has no connection with accused Sarabjit Singh whatsoever. Even if her illicit relations which are alleged by prosecution are assumed not admitted for the sake of arguments, even then, it is only a motive and no criminal conspiracy is proved on the part of accused Rachna alias Harpreet Kaur to prove the charges against her. The statement of PW 17 Prabhjit Kaur cannot be relied upon because she never appeared before the police nor gave any statement to police during investigation of the case. PW 1 Surjit Singh complainant has nowhere given any direct or circumstantial evidence of any kind against accused Rachna alias Harpreet Kaur. Similar are the statements of PW 4 Gurmit Singh and PW 5 Pipal Singh in this case. Resultantly, this Court finds that the charges against accused Rachna alias Harpreet Kaur for the offences under Sections 120B IPC, 302 IPC read with 120B IPC and 201 IPC read with Section 120 B IPC are not proved beyond any shadow of doubt by the prosecution in this case. The case of accused Rachna Rani alias Harpreet Kaur remained unproved by the prosecution beyond any shadow of doubt in the opinion of this Court and she deserves to be acquitted of the charges framed against her in this case."
This Court feels that the opinion formed by the trial Judge is perfectly justified. At the time of arguments, counsel for the applicant failed to indicate any misreading of evidence on the part of the trial Court, connecting respondent No.2 with the alleged crime. Against her, final report was not put in Court. She was summoned to face the trial only when an application was moved by the prosecution under Section 319 Cr. P.C. The presence of respondent No.2 in the house of her co-accused,was found CRM No. 69108 of 2012 in/and CRM-A No. 925-MA of 2012 -9- doubtful. Surjit Singh PW-1- the complainant had not seen respondent No.2 in the company of Sarabjit Singh. Conspiracy between both the accused to commit the crime was not proved on record. The opinion recorded by the trial Judge is perfectly justified and as per evidence on record.
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) CRM No. 69108 of 2012 in/and CRM-A No. 925-MA of 2012 -10- 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 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 CRM No. 69108 of 2012 in/and CRM-A No. 925-MA of 2012 -11- 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 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 194 days in filing the appeal. CRM No. 69108 of 2012 in/and CRM-A No. 925-MA of 2012 -12- Accordingly, both the applications are dismissed.
(Jasbir Singh) Judge (Inderjit Singh) Judge 9.1.2013 Ashwani