CR. MISC. NO. 419-MA OF 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: April 16, 2009. Parties Name State of Haryana ...PETITIONER VERSUS Jai Bhagwan ...RESPONDENT CORAM: HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MR. JUSTICE JORA SINGH PRESENT: Mr. S.S.Randhawa, Addl. A.G., Haryana for the petitioner. Mr. Bijender Dhankhar, Advocate, for the respondents JASBIR SINGH, J. Judgment. This judgment will dispose of Cr. Misc. No. 419-MA of 2008 and Criminal Revision No. 2753 of 2008 as these arise out of one judgment. For facility of dictating judgment, facts are being mentioned from Cr. Misc. No. 419-MA of 2008. This application has been filed by the State of Haryana under Section 378(3) Cr.P.C., with a prayer to grant leave to file an appeal against judgment of acquittal dated April 19, 2008, passed by the Additional Sessions Judge, Jhajjar. Complainant Sukhbir Singh has also filed Criminal Revision No. 2753 of 2008 to lay challenge to the above said judgment. For issuance of notice of motion, record of the Court below was requisitioned vide order dated November 06, 2008. CR. MISC. NO. 419-MA OF 2008 -2- We have heard counsel for the parties and have also gone through the record with their assistance. It was allegation against the respondents that on January 21, 2005, they had murdered Rani wife of respondent No. 1 Jai Bhagwan in connection with demand of dowry. The story of the prosecution, as has been unfolded by the trial Court in para No. 2 of its judgment reads thus: “In brief, the case of the prosecution, is that Rani, since deceased, daughter of Sukhbir Singh was firstly married with Ashok, r/o village Damkan Kheri, Tehsil Gohana and out of this marriage, two daughters namely Priyanka and Versha were born. However, due to some differences developed between the couple, their marriage was got dissolved through the intervention of Panchayat. On 23.6.2004, complainant got his above named daughter remarried with Jai Bhagwan, who was surviving his first wife namely Geeta, and to which his first wife also consented. Jai Bhagwan also agreed to adopt her daughter named Versha, as his daughter. It is alleged that sufficient dowry was also given to accused Jai Bhagwan, in the marriage. But Jai Bhagwan and his family members were not satisfied with the dowry she brought. They started taunting and harassing her on account of demand of more dowry. Her husband and her mother-in-law i.e. Accused Nos. 1 & 3 demanded a sum of Rs. 20,000/- for installation of a tubewell. They also threatened her to face dire consequences in default. Complainant met their demand to the extent of Rs. 15,000/-, which he paid to the accused in the presence of PW Ishwar. CR. MISC. NO. 419-MA OF 2008 -3- But Jai Bhagwan and his family members raised their further demand of Rs. One lac for purchasing a tractor and they also threatened her to face the dire consequences. On her failure to meet their demand, she was beaten up. On 21.1.2005, a person came from village Bhadana (maternal village of Rani) and disclosed to a boy of the village that the daughter of complainant had died. On receipt of this information, complainant along with others came to the matrimonial home of Rani and where he came to know that her dead body was lying in the house in a burnt condition. On inquiry from Versha daughter of Rani, she disclosed that her mother was done to death by the accused by setting her on fire.” It is necessary to mention here that death had occurred on January 21, 2005, whereas the FIR was got recorded on September 23, 2005. During the course of investigation, Jai Bhagwan, Ram Chander and Prem Devi, respondents No. 1 to 3 respectively, were arrested. On completing necessary formalities, final report was put in Court against them for trial. Charge-sheet was framed against them, to which they pleaded not guilty and claimed trial. During trial, by invoking the provisions of Section 319 Cr.P.C. on an application moved, respondents No. 4 to 6 were also summoned to face trial along with respondents No. 1 to 3. All the six accused were charge-sheeted, to which they pleaded not guilty and claimed trial. The prosecution produced eleven witnesses and also brought on record documentary evidence to prove its case. On conclusion of CR. MISC. NO. 419-MA OF 2008 -4- prosecution evidence, statements of the private respondents were recorded as per provisions of Section 313 Cr.P.C., wherein they denied the allegations, claimed innocence and false implication. They also led evidence in defence. The trial Court , on appraisal of evidence on record, came to a conclusion that the prosecution has failed to prove guilt of the respondents beyond a shadow of reasonable doubt and accordingly acquitted them of all the charges framed against them. Hence this application. After hearing arguments of counsel for the parties and perusing the record, we are not inclined to interfere in the impugned judgment at the instance of the applicant. It is case of the prosecution that complainant Sukhbir Singh came to know on January 21, 2005, from Miss Versha (aged about five-six years, at the relevant time) PW1 that his daughter Rani was killed by the respondents. PW1 has categorically stated that she narrated facts of the occurrence to Sukhbir Singh on that very date. Despite that it has come on record that Sukhbir Singh, complainant and his wife got recorded their statements before the Investigating Officer, stating therein that their daughter had committed suicide and the respondents were not to be blamed for the same. In view of their statements , DDR Ex. PF was recorded in the Police Station and no further action was initiated against the respondents. Thereafter, during enquiry by a Tehsildar regarding death of Smt. Rani, complainant along with Bhoop Singh, Satbir Singh and Jitender also made statements exonerating the respondents from the charge. FIR was got recorded after about eight months of the alleged occurrence. The trial Court has rightly held that the prosecution has failed to explain the delay in getting the FIR recorded. It has also come on record that CR. MISC. NO. 419-MA OF 2008 -5- respondent No. 2 Ram Chander (father in law of the deceased) is an old man and was residing separate from the family of the deceased. While acquitting the respondents, the trial Court has observed as under: “33. Now the next question comes when it was not a dowry death then whether it was a murder by the accused. But to my opinion, it was not a murder because complainant and his wife both made a statement at the time of preparation of the inquest report by the police that on the day of “Sakaranti”, his son had gone to the matrimonial home of his daughter along with “Sidha” (ceremonial gifts) and who, while coming back, disclosed that Rani (victim) was quite happy in her matrimonial home and she was having no problem there. It was also mentioned that on 21.1.2005, accused Ram Chander, father-in- law of the deceased himself gave an information to him that his daughter had committed suicide by pouring diesel oil on herself and putting fire thereon. On receipt of this information, he along with his wife, both came there. They made inquiries regarding the death of her daughter and they were fully satisfied and, therefore, they made a statement that no member of her in-laws were having any hand in the burning of his daughter, rather, she herself committed suicide. This statement was made by Sukhbir Singh on 22.1.2005 and on the basis of which a DDR was lodged in the Police Station as Ex. PF. Not only that complainant and Bhup Singh son of Singh Ram, Satbir son of Satpal, Jitender son of Ram Chander also made a similar statements before Tehsildar, Bahadurgarh, who was also CR. MISC. NO. 419-MA OF 2008 -6- investigating the cause of death. There is no doubt that accused cannot take the benefit of inquest report in view of the law laid down in Jai Singh's and Podda Narayana's cases (Supra). But there is a long delay in lodging of FIR and when same has not been satisfactorily explained by the prosecution, then benefit of the statements made by the family members of the victim at the time of inquest report can be taken by the accused. Even otherwise, Luxmi Narain, I.O. Of the case admitted this fact that during this investigation, no prima facie case was made out against any of the accused. This case case was got registered after a lapse of period of eight months, when complainant moved a complaint to the Magistrate. It is also a settled principle of law that there is a tendency to implicate all the family members of the husband in such like cases. There is no doubt that the prompt lodging of FIR is not a guarantee of truth but the delay deprives FIR of the advantage of spontaneity and involves danger of coloured version, exaggerated, concocted story and, therefore, law requires that delay must be satisfactorily explained. The prompt information was delivered by the complainant at the time of making of inquest report by it and wherein he along with his wife and other co-villagers denied any hand of the family members of in-laws of the deceased. It is also one of the circumstances, which goes in favour of the accused that they immediately informed the police of the deceased regarding the cause of death and all the proceedings were made in their presence. CR. MISC. NO. 419-MA OF 2008 -7- 34.There is also no dispute that the evidence of a child witness should not be brushed aside because it came from the mouth of a child. But when there is a long delay and the child remained in the custody and guardianship of the parents of the victim for a long time, before making a statement in the Court, then, there is a possibility of giving of tutored version in the Court. In this case, the occurrence took place on 22.1.2005 whereas the child witness made her statement on 29.8.2006, i.e. After about one year and seven months. Her statement was not got recorded to the police immediately when she disclosed while coming back to the house of the complainant that her mother was murdered by the accused. There is no explanation of the prosecution as to why her statement was not got recorded immediately. ASI Randhir Singh (PW9) had stated that he had tried to contact PW Versha, whose name came in the statement of Sukhbir during the period from 25.9.2005 to 9.11.2005 but he has not explained as to what stopped him from contacting the child and recording her statement. There is no doubt that the accused have taken a defence under Section 313 Cr.P.C. that Rani got fire while she was preparing evening tea at about 4.00 P.M. and diesel is not used in the kitchen. But it is also a settled principle of law that it is the duty of the prosecution to prove its case at its hilt and beyond a shadow of reasonable doubt and the onus does not shift upon the accused to disprove the same. Even otherwise, the statement CR. MISC. NO. 419-MA OF 2008 -8- of PW Versha is quite contrary and contradictory to the hear say deposition made by the complainant. As per complainant accused Sheela (sister-in-law), Prem (mother-in-law), Tej Singh (husband of Sheela's sister), Jai Bhagwan (husband), Rani (sisterin-law) had over powered and stragulated her whereas accused Jai Bhagwan and his father Ram Chander stated that she should be finished completely. She was taken to second room where her clothes were put off. Accused Ram Chander, father-in-law brought the cane of diesel and then Jai Bhagwan and Sheela after pouring the diesel put on fire to her whereas Ram Chander was saying that she should be locked in a room and they should leave the same. But as per Ms. Versha (PW1), Jai Bhagwan, Sheela & Ram Chander had brought the diesel. Accused Tej had stragulated her mother, Accused Jai Bhagwan, Sheela and Ram Chander had over powered her. Rani poured diesel on the dead body of her mother and Jai Bhagwan put on fire to her. Such material contradiction compels the Court not to believe the story of the prosecution. The possibility cannot be ruled out that child witness had given the tutored version and, therefore, her evidence requires corroboration from any other independent source. 35.As rightly argued by the learned defence counsel, there was no fracture of her hyoid and tracheal ribs which is common in case of strangulation and uncommon in case of hanging. There is also no plausible explanation as to why the accused CR. MISC. NO. 419-MA OF 2008 -9- would remove the dead body to another room. Why her clothes were removed from her dead body and why complainant kept mum during the long period from 22.1.2005 to 23.9.2005. Admittedly, the accused Sheela and Rani were found to be innocent during investigation and they were summoned on an application filed by the prosecution under Section 319 Cr.P.C. Complainant has alleged that from the relatives of the accused Tej Singh namely Randhir Singh and Krishan were posted at Police Station, Badli and they did not allow the police to investigate the case independently. But prosecution did not bring any evidence on record to prove that there were any such police officials, who had remained posted at Police Station Badli or at any other Police Station within the district during such period.” We are of the opinion that in view of evidence on record, finding given by the trial Court is perfectly justified. As per version given by PW1 Varsha, the deceased was killed first and then diesel oil was poured on her and she was put to fire. The medical evidence on record has not supported above said version. During post-mortem examination, no sign of strangulation was detected. The burn injuries were found to be ante mortem in nature. Counsel for the applicant has contended that as per medical report, fire was the result of diesel oil, which negatives defence version that the deceased caught fire because of accidental fire from a stove. In the post- morte report Ex. PB, cause of death was shown as under: CR. MISC. NO. 419-MA OF 2008 -10- “In our opinion, the cause of death in this case is due to shock as a result of burn and its complication. All the injuries are ante-mortem in nature and sufficient to cause death in usual course of nature.” It is nowhere stated that burn injuries were the result of fire from diesel oil. Only again column, which shows information furnished by the police, it has been mentioned that the deceased was put to fire after pouring diesel oil upon her. Counsel for the applicant has failed to show any misreading of evidence on the part of the trial Court. Opinion formed by the trial Court was possible in view of evidence on record. Their Lordships of the Supreme Court in Allarakha K. Mansuri v. State of Gujarat, 2002 (1) RCR (Criminal) page 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) page 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 CR. MISC. NO. 419-MA OF 2008 -11- different view, could not be a reason calling for interference.” Counsel for the State has failed to show that the trial Court has committed any error on facts or material irregularity, which may necessitate any interference by this Court. Application is also barred by limitation, for which sufficient explanation has not been given. Dismissed. In view of findings given above, Cr. Revision No. 2753 of 2008 also fails and the same is dismissed. ( Jasbir Singh ) Judge (Jora Singh ) April 16, 2009. Judge DKC