Criminal Revision No.2378 of 2005 1 In the High Court of Punjab and Haryana at Chandigarh Criminal Revision No.2378 of 2005 Date of decision: 25.9.2008 Arjun Singh ......petitioner Versus State of Haryana .......Respondent CORAM: HON'BLE MR.JUSTICE JASBIR SINGH HON'BLE MRS. JUSTICE SABINA Present: Mr. Akshay Bhan, Advocate and Mr.Veneet Soni, Advocate for the petitioner. Mr.P.S.Sullar, DAG, Haryana. Mr. Ashit Malik, Advocate, for the respondents. **** JUDGMENT SABINA, J. Vide this judgment Criminal Misc.No.504-MA of 2005 and Criminal Revision No.2378 of 2005 would be disposed of as both have arisen out of judgment dated 28.9.2005 passed by Sessions Judge, Kurukshetra. Originally State had filed an application for grant of leave to file appeal. The said Criminal Misc. No.504-MA of 2005 was dismissed by this Court vide order dated 16.1.2006. Aggrieved by the same, complainant Arjun Singh approached Hon'ble Supreme Court. Criminal Appeal No.1458 of 2007 arising out of SLP (Criminal) 1434 of 2006 was allowed by Hon'ble Supreme Court vide order dated 22.10.2007 and order of this Court dated 16.1.2006 was Criminal Revision No.2378 of 2005 2 set aside. The matter was remanded back to this Court to hear all the parties and dispose of the appeal as well as revision petition by a speaking order. Record of the trial Court was summoned. We have heard learned State counsel, learned counsel for the complainant and learned counsel for the respondents/accused and have gone through the record available on the file carefully. Prosecution story in brief as noticed by the trial Court in para Nos. 2 to 4 of its judgment reads as under:- “Arjun Singh complainant is one of the three sons of Raghbir Singh. He is a resident of Village Sanghore. On 9.1.2003, at about 8.00 a.m. Kanwar Singh and Sanjay Kumar sons of Bahadur Singh, residents of village Sanghore came to the gher (a piece of land, enclosed by boundaries, used for tethering cattle) of the complainant. There was a ramp at the gate of the gher. They started dismantling the ramp. Smt. Sadhi Devi, Jagdish and Smt. Shanti Devi, mother, brother and wife respectively of the complainant came there. They tried to prevent Kanwar Singh and Sanjay Kumar (hereinafter referred to as accused) from dismantling the ramp. Sanjay Kumar gave a push to Smt. Sadhi Devi on account of which she fell down. In the meanwhile, Kanwar Singh exhorted Sanjay Kumar to kill Sadhi Devi. He assured Sanjay Kumar by claiming that he had influence in the government circles Criminal Revision No.2378 of 2005 3 and that he would take care of the consequences. Hearing this, Sanjay Kumar picked up a brick and had hit Smt. Sadhi Devi, while she was lying on the ground, on left side of her chest. On receiving the blow with brick, the mother of the complainant started writhing with pain. The complainant and others brought Smt. Sadhi Devi home. When they were getting ready to take her to the doctor, she breathed her last. Smt. Shanti Devi and Jagdish saw the entire occurrence. Raghbir Singh, father of the complainant had filed a civil suit against Kanwar Singh in the civil court at Kurukshetra. He sought restraint order against Kanwar Singh from dismantling the ramp of his house. On 8.1.2003, the court granted the desired stay. On account of ill will created by the same, Kanwar Singh and others had dismantled the ramp in front of the house of the complainant and they dismantled the ramp in front of the gher of the complainant on 9.1.2003. When the complainant was going to the village doctor for calling him, the accused followed his motor cycle and besides abusing him, they threatened to kill him. On 9.1.2003 Prem Singh ASI along with other police officials was present on the turning of village Sunarian near village Sanghore. Jagdish met him there and made a complaint about this incident. Prem Singh Criminal Revision No.2378 of 2005 4 ASI recorded statement of Jagdish. Prem Singh ASI then went to village Sanghore and conducted the inquest proceedings. He did not recommend registration of case on the complaint of Jagdish. Dr.Om Parkash along with Drs.C.R.Khatri and Dr.(Mrs.) Inderjit Chauhan conducted postmortem examination on the dead body of Sadhi Devi. They opined that death of Sadhi Devi was on account of rupture of left ventricle of heart which was ante mortem in nature and was sufficient to cause death in ordinary course of nature.” It was further mentioned in the FIR that complainant party had been approaching the police to take action against the accused but no action had been taken. Hence, written application Exhibit PA was sent and on the basis of the same formal FIR No.10 dated 9.2.2003 was registered by the police of Police Station Babain, under Section 304/34 IPC. ASI Prem Singh recorded statement of Jagdish on 9.1.2003 and visited the spot. He conducted the inquest proceedings with regard to dead body of deceased and sent it for postmortem examination. He did not recommend registration of FIR in this case. On 9.1.2003 Dr.Om Parkash alongwith Doctors C.R.Khatri and Mrs.Inderjit Chauhan conducted the postmortem examination on the dead body of deceased Sadhi Devi and found as under:- “The dead body measured 5ft. It was moderately built and Criminal Revision No.2378 of 2005 5 nourished wearing green coloured printed suit and cream coloured jarsi. There was yellow metallic nose pin by lateral on both sides of nose. Eyes and mouth were closed. Rigor mortis was present. Postmortem staining was present on back. There was no external injury on the body. On dissection scalp, skull and vertibary were healthy. There was subcutaneous haemotma on the left side of sternal area. Third and fourth rib on left side were fractured near the sternum. Pericardium was ruptured and full of clotted blood. Heart was ruptured at left ventricle. Rest of the organs were healthy. Stomach was healthy and contained digested food material. Small intestines were healthy and contained chyme and gases while the large intestine were also healthy and contained fecal matter and gasses. Urinary bladder contained small amount of urine. In our opinion the cause of death was rupture of left ventricle of heart which was ante mortem in nature and sufficient to cause death in ordinary course of nature. The probable time that cause injury and death was within minture and between death and postmortem was from 6 to 24 hours.” Dr.K.K.Goel visited the spot on 17.10.2003 and found no material which could be helpful in framing an opinion as to whether Sanjay Kumar had pushed Sadhi Devi on the ground and Criminal Revision No.2378 of 2005 6 subsequently hit her with a brick on her left side of her chest or whether she had herself fainted and suffered injuries by falling on the ground. He gave his opinion that the allegations levelled by relatives of deceased against Sanjay Kumar that the deceased was pushed on the ground and subsequently hit with a brick could be possible, while chances of receiving injuries like haemotama, fracturing of ribs and rupturing of heart by falling herself without any external force in this position are rare. After completion of investigation and necessary formalities accused Sanjay Kumar was sent up for trial. Charge against the accused was framed under Section 304 IPC on 9.3.2004. Thereafter, vide order dated 22.5.2004 Kanwar Singh was also ordered to be summoned as an accused on an application filed by the prosecution under Section 319 Cr.P.C. Charge against the accused was framed under Section 304/34 IPC on 29.7.2004. Accused did not plead guilty to the charge and claimed trial. Prosecution in order to prove its case at the trial examined thirteen witnesses. After close of prosecution evidence accused Sanjay Kumar, when examined under Section 313 Cr.P.C. pleaded as under:- “I am innocent. I did not push or cause any injury to Sadhi Devi. She fell her own out of anger seeing the gathering of the villagers. My brother Kanwar Singh was not there on the day of occurrence. I have been falsely implicated in this case.” Criminal Revision No.2378 of 2005 7 Accused Kanwar Singh when examined under Section 313 Cr.P.C. pleaded as under:- “I am innocent. I was lying admitted in the hospital one day prior to the alleged occurrence and remained admitted from 8.1.2003 to 12.1.2003. I have been falsely implicated in this case.” Accused in their defence examined Dr. Baldev Singh (DW-1), Darshan Lal (DW-2), Balwant Singh (DW-3) and Rameshwar Das (DW-4). Learned counsel for the complainant as well as learned State counsel have argued that prosecution had been successful in proving its case. There was no unexplained delay in lodging of the FIR. Sadhi Devi had died as a result of rupture of left ventricle of heart. All the eye witnesses had duly supported the prosecution case and their statements were liable to be believed. Learned counsel for respondents/accused, on the other hand, has argued that prosecution had failed to prove its case. FIR was registered after one month of the occurrence and there was no satisfactory explanation regarding the said delay. At the time of inquest proceedings statements of the eye witnesses were recorded and they had not stated that accused Sanjay Kumar had given a brick blow on the chest of the deceased. Accused Kanwar Singh was admitted in the hospital a day before the occurrence and was discharged on 12.1.2003. There was no external mark of injury on the person of the deceased which showed that the story coined by Criminal Revision No.2378 of 2005 8 the complainant that accused had inflicted injury on the person of the deceased was false. The other villagers who were present there had not been examined. There was nothing on record to suggest that Sanjay Kumar had any motive or intention to commit murder of Sadhi Devi. Complainant as PW-1 has deposed that on 9.1.2003 at about 8/8.30 a.m., he was present at the ramp of gher. His brother Jagdish, wife Shanti Devi and mother Sadhi Devi were also present there. Accused came at the spot to demolish the ramp. They (complainant party) stopped them from doing so. Sanjay accused pushed his mother and Kanwar Singh instigated him to kill her. As a result Sanjay accused gave a brick blow on the chest of his mother. They took her inside the house where she succumbed to her injuries while they were still preparing to take her to the doctor. Balwant Rai (PW-8) and Shanti Devi (PW-9) corroborated his statement with regard to the occurrence. Complainant in his cross-examination has admitted that street in their village had already been brick paved. The drains were being made pucca and the work of brick paving the drains was in progress at a distance of ½ killa away from his house from the side of North. The drains were being made pucca by accused Kanwar Singh. Villagers gave in writing that drains were being paved with consent of all, to the police. Shanti Devi (PW-9) deposed in her cross-examination that ramp of the house was dismantled on 8.1.2003 for widening the street. There was a gap of about quarter Criminal Revision No.2378 of 2005 9 to one killa between their house and where the work of making pucca drains was in progress. Thus, the occurrence had taken place when the drains were being paved. Ramps were being demolished for widening the street. Complainant while appearing in the witness box has projected himself as an eye witness to the occurrence. However, when his statement was recorded during inquest proceedings, he had stated that he was sitting inside the house and was informed by his wife that his mother had suffered injuries and he should call for a doctor. During cross-examination complainant was duly confronted with his statement made in the inquest proceedings Exhibit PB. He admitted his signatures at Mark 'A' but denied the contents of the said statement. Exhibit PA is the written complaint made by Arjun Singh to the police which formed the basis for recording the FIR. A perusal of the same also does not show that complainant had witnessed the occurrence. Rather portion Mark 'A' to 'A' of Exhibit PA was put to the complainant during his cross-examination, wherein it was stated that at the spot his wife Shanti Devi and Jagdish had seen the entire occurrence. Complainant also stated that before filing the application Exhibit PA he had contacted an Advocate in this regard. Thus, complainant had taken legal assistance before making the complaint. He has made material improvements while appearing in the witness box and projected himself as an eye witness to the occurrence, whereas, in his earlier statement he had not done so. Complaint Exhibit PA does not bear any date although FIR was Criminal Revision No.2378 of 2005 10 registered on its basis on 9.2.2003. As per complaint Exhibit PA Shanti Devi, Jagdish and Sadhi Devi had come to the spot and had tried to prevent the accused from dismantling the ramp. It is not clearly mentioned in the said complaint that the complainant was also with the said three persons. In these circumstances, learned trial Judge rightly held that the presence of complainant Arjun Singh at the spot was doubtful. Shanti Devi (PW-9), wife of the complainant, while appearing in the witness box, has stated that on 9.1.2003 at about 8/8.30 a.m. she along with her mother-in-law Sadhi Devi and daughter Savita was present at their gher. Sanjay Kumar and Kanwar Singh came to the spot and started dismantling the ramp. After some time Arjun Singh and Jagdish also reached there and Sanjay Kumar gave a push to her mother-in-law Sadhi Devi. She fell down on the ground and Kanwar Singh exhorted Sanjay Kumar to kill her. Sanjay Kumar picked up a brick and gave a blow with the same on the left side of the chest of her mother-in-law, who became unconscious and while they were preparing to call for a doctor she died. Complainant, on the other hand, has deposed that while he was going on a motor cycle to call a village doctor, he was chased by both the accused and was abused by them. Accused threatened to kill him. Although in his examination-in-chief he also deposed that while they were preparing to shift her for treatment she succumbed to her injuries. Since Sadhi Devi had already died then there was no occasion for the complainant to call for the doctor. Shanti Devi (PW- Criminal Revision No.2378 of 2005 11 9) also deposed in her cross-examination that her husband did not leave home for calling Dr.Naresh. She has alleged that her father-in- law had filed a civil suit against Kanwar Singh in the Court at Kurukshetra which was the reason for this enmity. Motive is a doubled edged weapon and possibility that accused have been falsely involved in this case due to this enmity cannot be ruled out in view of statements of defence witnesses discussed in the later part of the judgment. Balwant Rai (PW-8) was not named as a witness in a complaint made to the police. As per this witness Kanwar Singh accused abused Sadhi Devi when she stopped them from dismantling the ramp. He exhorted his brother Sanjay Kumar to push and hit her. He assured Sanjay Kumar that he would save him from the consequences and thereupon Sadhi Devi was pushed by Sanjay Kumar and when she fell down Sanjay Kumar hit her with a brick on her chest. Thus, as per this witness Sadhi Devi was pushed and given a brick blow by Sanjay Kumar at the instigation of Kanwar Singh after she was abused by Kanwar Singh. As per this witness his statement was recorded by the police after one month of the occurrence but the public prosecutor stated that there was no statement of this witness under Section 161 Cr.P.C. This witness had served police department and was, thus, aware of legal formalities. As per Shanti Devi (PW-9) this witness had come with the accused to the spot. In case Balwant had accompanied the accused, he must have also been one of the persons who were dismantling the Criminal Revision No.2378 of 2005 12 ramp. This makes the testimony of Balwant Rai (PW-8) doubtful. In these circumstances, learned trial Judge rightly held that the statement of Balwant Rai (PW-8) could not be relied upon. Jagdish, brother of the complainant, had allegedly witnessed the occurrence but he has not been examined at the trial. As per Dr.Baldev Singh (DW-1), Kanwar Singh had remained admitted in PHC Babain from 8.1.2003 to 12.1.2003. In his cross-examination he deposed that the patient was suffering from chest pain, restlessness, sleeping disturbance and cough. He was referred to L.N.J.P. Hospital at Kurukshetra on 9.1.2003 at 9.30 a.m. The Cardiologist of the said hospital ruled out his suffering from heart disease on 10.1.2003. The patient had returned back to PHC Babain at night time on 9.1.2003 as his medical examination could not be completed. He again went to hospital at Kurukshetra on 10.1.2003 at 9.00 a.m. Thus, the presence of accused Kanwar Singh at the spot is doubtful because he was admitted in the hospital at Babain on the alleged day of occurrence. He could not have been present at the spot as he was referred by Dr.Baldev Singh to hospital at Kurukshetra at 9.30 a.m. on 9.1.2003. Occurrence in this case is alleged to have taken place at 8/8.30 a.m. Darshan Lal (DW-2), is Sarpanch of the village and he has denied that any such occurrence as alleged had taken place. It was averred that Sadhi Devi suddenly fell down. Presence of Sanjay Kumar and Jagdish at the spot is admitted by him. He also proved the writing (Exhibit DF) made during Panchayat meeting which had Criminal Revision No.2378 of 2005 13 taken place on 10.1.2003 as per which Sadhi Devi had not been hit by any one. The said witness is a respectable person of the village and his statement cannot be brushed aside. Balwant Singh (DW-3) has corroborated the statement of DW-2. There is delay in lodging the FIR in this case. After the occurrence police visited the spot and prepared inquest report regarding the dead body of the deceased. Complainant had also signed the said proceedings. Dead body was sent for postmortem examination. On investigation police found that no offence was made out in this case. The same is duly corroborated by proceedings Exhibit DF held in the panchayat meeting on 10.1.2003 i.e. a day after the occurrence. There is no written complaint on record regarding non-registration of case by the complainant except Exhibit PA. The same is undated. FIR was registered on its basis on 9.2.2003, after one month of the occurrence. Hence, the delay in lodging the FIR has not been duly explained by the prosecution. In view of the facts discussed above the averment of the complainant that police was siding with the accused party does not inspire confidence. We have gone through the entire evidence on record. The statements of the eye witnesses cannot be relied upon. Presence of accused Kanwar Singh at the spot is not made out from the evidence on record as the said accused was admitted in the hospital at the alleged time of occurrence. It was allegedly at his instigation that accused Sanjay Kumar had inflicted injury on the person of Sadhi Devi. Since accused Kanwar Singh was not present Criminal Revision No.2378 of 2005 14 at the spot, he could not have instigated accused Sanjay Kumar to inflict injury on the person of Sadhi Devi. As per medical evidence no external mark of injury was seen on her person. There was civil litigation pending between the parties. There are material discrepancies in the statements of the alleged eye witnesses. The prosecution witnesses have not come out with true facts and from their statements the story put forth by them appears to be doubtful. It is a settled proposition of law that in a case of doubt, benefit of it has to be extended to the accused. Evidence on record, thus, indicates that the view taken by the trial Judge was possible. Even in cases where two views are possible, after acquittal, in appeal benefit will go to the accused. 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- Criminal Revision No.2378 of 2005 15 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.” Accordingly, both the appeal as well as revision are dismissed. (SABINA) JUDGE (JASBIR SINGH) JUDGE September 25, 2008 anita