Crl. Appeal No.717-MA of 2009(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.717-MA of 2009(O&M) Date of Decision: April 27, 2010 Kulwant Kaur ........Appellant Versus Manjit Kaur and Ors. ........Respondents CORAM : HON'BLE MRS. JUSTICE SABINA Present: Mr. H.S. Batt, Advocate for the applicant-appellants. SABINA, J. Complainant Kulwant Kaur filed a complaint under Sections 323,427,452,506 read with Section 34 of Indian Penal Code (in short 'IPC'), Police Station B-Division, Amritsar against respondents No. 1 to 3. Vide impugned judgment dated 2.6.2009, learned trial Judge acquitted respondents No. 1 to 3 of the charge framed against them. The complainant has filed this application under Section 378(4) of the Code of Criminal Procedure (in short 'Cr.P.C.') with a prayer for grant of leave to file an appeal against the order mentioned above. The case of the complainant, as noticed by the trial Court in para No.2 of its judgment, reads thus:- “2. In brief facts of the present case as put up in the complaint are that father of the complainant was owner of Crl. Appeal No.717-MA of 2009(O&M) 2 house bearing Old No.211-13/3 and 136/5 half min north and new Municipal No.178/6, situated in ward No.6, Chowk Pathanwala Patti who died on 16.9.1983. The complainant alongwith her brother Kulwinder Singh became owners in possession of the said house and brother of the complainant started residing in the said house and the complainant after her marriage came to Amritsar in the house of her in laws. It has been averred that accused No.1 is wife of accused No.2 and accused no.3 is sister of accused no.2. All the accused said accused are in relations of complainant as daughter, son and daughter-in-law of elder brother of father of complainant. It has been alleged that all the accused conspired with each other and marginal witnesses and they got scribed and got registered sale deed in favour of accused No.1 of the said house which was registered in the office of Sub registrar, Patti on 10.3.1994. when the complainant came to know about the said sale deed, she filed an application in the court of SDJM Patti under Section 156(3) Cr.P.C. and on the direction of the court a case FIR No.161/200 was registered against all the accused named above under Sections 419/420/467/468/471/120-B of IPC. All the accused having grudge due to registration of the said FIR against them came to the house of the complainant and her son Gagandeep Singh were present in the house at that time. All the accused asked the complainant to withdraw the said FIR against them otherwise she will face the consequences but Crl. Appeal No.717-MA of 2009(O&M) 3 the complainant refused to withdraw the said FIR, and on this all the accused became annoyed. Accused Jaswant Singh caught hold the complainant from her pleat(hairs), dragged her on the floor. Accused Manjit Singh slapped the complainant and accused Jaswinder Kaur gave kick blows to the complainant on various parts of her body while she was lying on the ground. Accused Jaswant Singh also gave fists blows on the mouth of the complainant and accused also abused the complainant in filthy language. Accused Jaswant Singh took out the sewing machine of the complainant and threw it away on the ground and as such the said Sewing machine was totally damaged. The spects of the complainant were also broken. The complainant and her son Gagandeep Singh raised hue and cry “Mar Dita” Mar Dita” on which Kiran wife of Pawan Kumar and Rajwinder Kumar were attracted to the spot and rescued the complainant from the clutches of the accused and witnessed the entire occurrence. Accused while going from the spot again threatened the complainant that if she does not withdraw the said case against them, they will again come and she would be again given beating and will be killed. It has been alleged that the complainant went to the P.S. B.Division, Amritsar with her son Gagandeep Singh but the police did not hear the genuine demand of the complainant and hence the present complaint.” After hearing learned counsel for the appellant, I am of the Crl. Appeal No.717-MA of 2009(O&M) 4 opinion that the present application deserves to be dismissed. The learned trial Court while acquitting the respondents of the charge framed against them has held as under:- “Contention of learned defence counsel is that accused persons have been falsely implicated in this case. He has referred to the cross-examination of witnesses. Perusal of cross-examination of Kulwant kaur PW-2 shows that in her cross-examination she has admitted that when accused persons left spot she was sitting and working on sewing machine. In this case complainant has alleged in her testimony that accused persons have broken her sewing machine but complainant PW.2 in her cross-examination has admitted that when accused persons left place she was working on her sewing machines. It shows that her sewing machine was not broken by accused person. Moreover she has not produced the damaged sewing machine in the court nor she has proved on record report to show that there was any damage to sewing machine. Onus to prove this fact was on the complainant but the complainant has not led no any cogent evidence to prove that her sewing machine was damaged by accused person. In this case complainant in her cross-examination has deposed that no written application was moved to police for taking action whereas son of complainant PW.3 Gagandeep has admitted in his cross-examination that they gave written complaint to the police of P.S. B Division. Her Crl. Appeal No.717-MA of 2009(O&M) 5 mother Kulwant Kaur signed the complaint. This fact casts doubt on the story of the complainant whether any written complaint was moved or not. The complainant is saying that they have not moved any complaint to the police whereas son of complainant who is alleged eye witness has deposed in his cross-examination that written application was moved to the police for taking action against the accused persons. This fact casts cloud on the story of the prosecution whether they have moved any application to the police or not. Kiran who appeared into witness box as PW.1 in her cross-examination has admitted that she was tenant of complainant. Contention of learned defence counsel is that all the witnesses interested witnesses. Ikiran who appeared as PW.1 is interested witness. Perusal of cross-examination of PW.1 Kiran shows that she has admitted that she was tenant of the complainant. There are material contradictions between the statements of the complainant witnesses. One witness stated that written complaint was moved before the police whereas other witness has deposed that no written complaint was moved to the police. It is admitted fact between the parties that litigation is pending between the parties as patti. Contention of learned defence counsel is that accused persons have been falsely implicated in this case to put pressure on the accused persons who are facing trial as patti. As per section 452 of IPC complainant has to prove the fact that all the Crl. Appeal No.717-MA of 2009(O&M) 6 accused committed house trespass after making preparation to cause hurt to her or for assaulting her or for wrongly restraining her, or for putting her in fear of hurt or of assault or of wrongful restraint. In this case complainant Kulwant Kaur in her cross-examination has admitted that accused persons also came a day before occurrence to her home. There is no evidence on record to prove the fact that accused persons came to house of complainant after having made preparation to cause hurt or assaulting her. It is cardinal principle of criminal jurisprudence that complainant has to prove her case beyond the shadow of reasonable doubt and if there is any doubt then benefits of doubt must be given to accused. There are material discrepancies contradictions in the statements of the witnesses. This court is of the view that complainant has failed to prove its case against the accused beyond the shadow of reasonable doubt.” The reasons given by the trial Court, while acquitting respondents 1 to 3, are sound reasons. 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:- Crl. Appeal No.717-MA of 2009(O&M) 7 “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.” Learned counsel has failed to show any mis-reading of evidence on record. No ground is made out to grant leave to file an appeal. Accordingly, this application is dismissed. Hence, the application seeking condonation of delay in filing the criminal misc. application is merely academic and is disposed of as such. (SABINA) April 27, 2010 JUDGE Anand