CRIMINAL MISC. -A- 705 -MA OF 2011 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: October 12, 2011. Parties Name Bhoop Singh ...APPLICANT VERSUS Dharam Singh alias Dharma and others ...RESPONDENTS CORAM: Hon'ble Mr. Justice Jasbir Singh Hon'ble Mrs. Justice Sabina PRESENT: Mr. R.S. Budhwar, Advocate, for the applicant Jasbir Singh, J. JUDGMENT Respondents No. 1 to 4 were made to face trial for commission of offences under Sections 323, 324, 325 and 302 read with Section 34 IPC on the basis of FIR No.404 of 2008, which was recorded on a statement made by Jai Singh father of the applicant in this case. Vide the judgment under challenge, the trial Court convicted and sentenced the private respondents for commission of offences under Sections 324 and 325 read with Section 34 IPC. However, they were CRIMINAL MISC. -A- 705 -MA OF 2011 (O&M) -2- acquitted of the charge framed against them under Sections 302/34 IPC. Hence this application under Section 378(3) Cr.P.C. with a prayer to grant leave to file an appeal against judgment under challenge. As per case of the prosecution, respondents No. 1 to 4 caused injuries to Jai Singh on September 27, 2008, who thereafter was admitted in Civil Hospital at Assandh. After giving preliminary medical treatment, he was referred to PGIMS Rohtak. His statement was recorded by Jitender Singh, Head Constable, wherein he has stated that on September 27, 2008, at 7.30 PM, when he was coming to his house, he met the private respondents on his way. Kehar Singh raised an exhortation that let he be caught, whereupon respondent No. 1 Dharampal gave Gandasi blow on his head, which led to his fall on the ground. Satpal , respondent No. 2, gave a sword blow on his leg and Maha Singh, respondent No. 3, gave a Lathi blow on his chest and leg. Jai Singh raised an alarm, which attracted the applicant and his brother Dalip Singh to the spot, which made the assailants run away from the spot. Upon above statement, initially FIR was recorded under Sections 323/324/325/34 IPC on September 30, 2008. Jai Singh died on October 15, 2008, whereupon offence under Section 302 IPC was added in the FIR. Respondents No. 1 to 4 were charge-sheeted for commission of above offences. They pleaded not guilty and claimed trial. Prosecution produced seven witnesses and also brought on record documentary evidence to prove its case. On conclusion of prosecution evidence, statement of respondents No. 1 to 4 was recorded under Section 313 Cr.P.C. Incriminating material existing on record was put to them, which they CRIMINAL MISC. -A- 705 -MA OF 2011 (O&M) -3- denied and pleaded innocence. Respondent No. 1 admitted the occurrence by stating that it was he to whom injuries were caused by the opposite party. He further stated that the investigating agency connived with the complainant party and did not register an FIR at his instance. As per evidence on record, Jai Singh deceased was medico legally examined by Dr. Anil Gulia (DW2) on September 28, 2008, in PGIMS Rohtak. Patient was discharged on October 9, 2008. This witness has specifically stated that at the time of discharge, there was no symptom of serious nature, which could cause death on that date. The trial Court, on analysis of evidence, has opined that in the occurrence dated September 27, 2008, injuries were caused by respondents No. 1 to 4 to deceased Jai Singh. It was further noticed by the Court below that when the deceased was admitted in the hospital, he was conscious and his condition was not critical. As per medico legal report, following injuries were found on the person of the deceased: “1. Lacerated wound 18 cm x 9 cm on the right leg in the middle with underline bone fractured at multiple places, muscles were crushed and fresh blood was present. X-ray and Ortho Surgeon opinion was advised. 2. Incised wound 6 x 0.5 cm bone deep on the right parietal region of skull, horizontally placed. Fresh blood was present. X-ray was advised. 3. Reddish bruise 4 cm x 2 cm with small lacerated wound of size 1 cm x 0.3 cm on the left frontal region of scalp. Fresh blood was present. X-ray was advised. CRIMINAL MISC. -A- 705 -MA OF 2011 (O&M) -4- 4. Reddish bruise 16 cm x 2 cm on the right side of chest wall. X-ray was advised.” Injuries No. 2,3 and 4 were declared simple. As per medical evidence on record, the above injuries were not sufficient to cause death in ordinary course. The deceased was discharged from the Hospital on October 9, 2008. He was brought dead to the PGIMS Rohtak on October 15, 2008. After examination of the dead body, it was taken back. However, thereafter it was made a police case. To say that death had not occurred on account of the injuries, mentioned above, the trial Court has made reference to the deposition made by Dr. Ramanjit Kaur (PW7), who, after conducting post-mortem examination of the dead body, failed to give any positive finding regarding cause of death. This witness has stated that the injuries were found fully cured, which otherwise were not sufficient to cause death. Internal part of the dead body was sent for special test like histo-pathology examination and chemical examination by Forensic Science Laboratory. In this regard, the trial Court has noted as under: “54. No doubt later on as per her opinion, Ex. P-24 she alleged that the deceased died because of the multiple injuries, lung congestion and possibly cardiac arrest but when she was cross- examined on this aspect, she failed to justify her conclusions and ultimately it comes out that the death of the deceased was not even remotely connected with the injuries found on his person. First of all she admitted that when she examined the dead body all the injuries except the dressed wound, which was CRIMINAL MISC. -A- 705 -MA OF 2011 (O&M) -5- because of the fracture, were already healed up. She further failed to justify that if the injuries were sufficient to cause the death in the ordinary course why she had not given opinion at that time and why she referred the body parts for special tests, on the contrary she admitted that the injuries were old and she want to have the opinion of the histo-pathology. If it was so, even after the histo-pathology report, Ex. P-23, no injury was found on the internal parts of the brain, on the contrary it was found that there was chronic ischeamic heart disease due to atheroselerosis, which is caused by accumulation of the lipids in the heart and since it was found to be chronic, it shows the patient was already suffering from heart disease. 55. She further admitted that there was problem in the liver, kidney and similarly there was no internal injury on the brain and as such the head injury cannot cause the death and thus she admitted that none of the tests would justify the death of the deceased because of the injuries. Thus the only inference which can be drawn from her stand is that she had made the injuries, which were already healed as a link for the death of the deceased, cause of death without any basis, on the contrary, the deceased died a natural death because of lung congestion and heart attack as he is proved to be a chronic patient of heart problem which fact is suppressed by the prosecution. 56. Above all, it is further proved from the file that the deceased was discharged from the PGI Rohtak on 9.10.2008 by CRIMINAL MISC. -A- 705 -MA OF 2011 (O&M) -6- DW-2, Anil Gulia as he has fully recovered from the injuries except a fracture which requires long time to heal and for which no serious attention is required and which cannot be a reason or cause for the death of the deceased. However, the prosecution tried to improve its case on this aspect by alleging that the deceased remained in the PGI itself till death and he was never discharged . In this regard PW-1 and PW-2 tried to allege that both of them remained with the deceased in PGI, Rohtak, till his death but PW-2 admitted that on 9.10.2008 the deceased was discharged by Dr. Gulia stating that the deceased is perfectly normal in all respects but they alleged that they have not brought the deceased from PGI but kept him in a verandah of the PGI till his death. But when they were confronted as to whether any doctor visited them or provided any medicines etc., they admitted that no one visited them. 57. Not even this, when Dw-2 Dr. Anil Gulia appeared and proved that the deceased was discharged hale and hearty as per the discharge summary Ex. D-D, it was suggested to him that he has discharged the deceased wrongly despite being not fit without saying anything that the deceased was never discharged or remained in the PGI may be in the verandah. As such this story is proved to be an afterthought story just to link the natural death of the deceased with the injuries. It cannot be believed that if the injured was serious he would be discharged and then allowed to be kept in a verandah.” CRIMINAL MISC. -A- 705 -MA OF 2011 (O&M) -7- This Court feels that in view of medical evidence, as discussed above, the trial Court was justified in forming an opinion that the prosecution had failed to prove that Jai Singh had died on account of injuries caused by respondents No. 1 to 4 to him on September 27, 2008. At the time of arguments, counsel for the applicant has failed to prove any misreading of evidence by the trial Court, which may necessitate any interference by this Court. Application is also barred by limitation. The ground stated to condone the delay is not justifiable. Their lordships of the Supreme Court in State of Goa v. Sanjay Thakran (2007) 3 SCC 755 and in Chandrappa v. State of Karnataka, (2007) 4 SCC 415, held that where, in a case, two views are possible, the one which favours the accused has to be adopted by the Court. Similarly, in Mrinal Das & others v. The State of Tripura, (Criminal Appeal No. 1719 of 2011), 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: “8) It is clear that in an appeal against acquittal in the absence of perversity in the judgment and order, interference by this Court exercising its extraordinary jurisdiction, is not warranted. However, if the appeal is heard by an appellate court, being the final court of fact, is fully competent to re- appreciate, reconsider and review the evidence and take its own decision. CRIMINAL MISC. -A- 705 -MA OF 2011 (O&M) -8- In other words, law does not prescribe any limitation, restriction or condition on exercise of such power and the appellate court is free to arrive at its own conclusion keeping in mind that acquittal provides for presumption in favour of the accused. The presumption of innocence is available to the person and in criminal jurisprudence every person is presumed to be innocent unless he is proved guilty by the competent court. If two reasonable views are possible on the basis of the evidence on record, the appellate court should not disturb the findings of acquittal. There is no limitation on the part of the appellate court to review the evidence upon which the order of acquittal is found and to come to its own conclusion. The appellate court can also review the conclusion arrived at by the trial Court with respect to both facts and law. While dealing with the appeal against acquittal preferred by the State, it is the duty of the appellate court to marshal the entire evidence on record and only by giving cogent and adequate reasons set aside the judgment of acquittal. 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 CRIMINAL MISC. -A- 705 -MA OF 2011 (O&M) -9- placed. “ In view of above, no case is made out for interference. Dismissed. ( Jasbir Singh ) Judge (Sabina) Judge October 12, 2011 DKC