IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Misc.No.A-800-MA of 2011(O&M) Date of decision: 07.12.2011 Man Singh …..Applicant versus State of Haryana and others ……Respondents CORAM: Hon’ble Mr.Justice Jasbir Singh Hon’ble Mrs.Justice Sabina Present: Mr.Rajesh Lamba, Advocate for the applicant Jasbir Singh, J. FIR No.31 dated 20.1.2010, for commission of offences under Sections 304-B, 498-A, 406 IPC was registered against Hitesh alias Sonu (husband), Ved Parkash (father-in-law), Inderwati (mother-in-law), Alka (respondent No.3)-married sister-in-law, Subhash (respondent No.4) – Nandoi and Santosh (respondent No.2) – unmarried sister-in-law of the deceased Pinki. As per case of the prosecution, marriage of the deceased Pinki was solemnized with Hitesh @ Sonu on 17.5.2009. On 15.1.2010, information was received at Police Station City Ballabgarh that Pinki had been admitted at Central Hospital Faridabad in an unconscious state. ASI Deep Chand reached the hospital and moved an application (Ex.PM) seeking opinion regarding fitness of the patient. Pinki was declared unfit. Relatives of Pinki were asked to make statement, they refused, by stating that they will make a statement only after she regained consciousness. Crl.Misc.No.A-800-MA of 2011(O&M) On 20.1.2010, SI Shri Pal (PW14) again visited the hospital to know about fitness of Pinki, she was again declared unfit. He then recorded statement (Ex.PA) of Man Singh (PW1) – father of Pinki. In his statement, PW1 mentioned that after marriage, the accused had been making consistent demand towards dowry. Her daughter was also being harassed and beaten up on that account. On the basis of above complainant, an FIR was recorded against respondent Nos.2 to 4 and others on 20.1.2010. Pinki died in the hospital on 21.1.2010. SI Shri Pal (PW14) prepared an inquest report on the dead body and sent it for post-mortem examination, which was conducted on 23.1.2010. The accused were arrested in the meantime. On completion of investigation, final report was put in Court for trial. The accused were charge sheeted, to which they pleaded not guilty and claimed trial. The prosecution produced 14 witnesses and also brought on record documentary evidence to prove its case. On conclusion of prosecution’s evidence, statements of 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. It was stated by Hitesh @ Sonu, Ved Parkash, Smt.Inderwati and Santosh that it was a case of accidental death. Accused Subhash and his wife Alka denied their involvement by stating that they are living separate from the family and had nothing to do with the death of Smt.Pinki. They also led evidence in defence. The trial Court on appraisal of evidence, convicted Hitesh @ Sonu (husband), Ved Parkash (father-in-law) and Smt.Inderwati (mother-in- law of the deceased), whereas respondent Nos.2 to 4 were acquitted. Hence, 2 Crl.Misc.No.A-800-MA of 2011(O&M) this application under Section 378 (4) Cr.P.C. seeking leave to file an appeal regarding their acquittal. After hearing counsel for the applicant, we are not inclined to interfere in the judgment under challenge acquitting respondent Nos.2 to 4. As per medical evidence on record, cause of death in this case was hypoxia on account of attempting throttling. Demand of dowry was alleged and proved by Man Singh (father of the deceased). Taking note of evidence on record, the trial Judge gave benefit of doubt to the respondents Nos.2 to 4 and they were acquitted. In that regard, it was observed as under:- “45. The question now arises that which of the accused are responsible for the murder or dowry death of Pinki. 46. In Preeti Gupta vs. State of Jharkhand (2010) 7 Supreme Court Cases 667, it was observed by Hon’ble Supreme Court that it is a matter of common knowledge that unfortunately, matrimonial litigation is rapidly increasing in our country. All the Courts are flooded with such cases, which demonstrate discontent and unrest in the family life of a large number of people of society. It is also of common experience that most of these complaints under Section 498A IPC are filed in the heat of moment over trivial issues without proper deliberations and those large numbers of such complaints are not even bonafide and rather filed with oblique motive. At the same time, rapid increase in the number of genuine cases of dowry harassment is also a matter of serious concern. It was further observed that at times, it is difficult to ascertain the real truth and the Courts have to be extremely careful and cautions in dealing 3 Crl.Misc.No.A-800-MA of 2011(O&M) with these complaints and must take pragmatic realities into consideration while dealing with matrimonial cases. It was observed that allegations of harassment by the husband’s close relatives who had been living in different cities and never visited or rarely visited the place where the complainant wife resided would have an entirely different complexion and such allegations are required to be scrutinized with great care & circumspection. Learned defence counsel also relied on Hardev Singh vs. Satnam Kaur 2007(2) RCR (Criminal) 692, wherein it was observed by Hon’ble Punjab & Haryana High Court that provisions of Section 304-B and 498-A IPC are being misutilized as in the complaints against husband, his brothers, sisters and parents are also roped in on the allegation of demand of dowry, whether they are joint or separate and sometimes, the parents, who are 80 to 90 years and unable to walk or talk and the sisters living at far off places in the matrimonial houses are also involved. In such like situation, the Courts while proceeding against the accused named in the complaint should be very cautious. 47. In present case, accused Alka is married sister-in-law; whereas accused Subhash is her husband. They are residing separately in Siya Ram Colony at Mukessar, away from the matrimonial home of deceased, which is situated in East Chawla Colony, Ballabgarh. It is most unlikely that married sister-in-law or her husband would make demands for dowry because in no eventuality, they are likely to be benefited by making demands in any manner. It also does not appeal to 4 Crl.Misc.No.A-800-MA of 2011(O&M) reason that every time, when PW1 visited place of accused at Ballabgarh, Alka & Subhash were present. Besides this, accused Subhash was busy in distribution of invitation cards in respect of a family function, which was to take place on 17.1.2010 in the house of his parental uncle as has come in the testimony of DW1, DW2 and DW3. So, presence of accused Subhash and Alka at the place of crime on 15.1.2010 is highly doubtful. 48. The other four accused i.e. husband Hitesh, father-in- law Ved Parkash, mother-in-law Smt.Inderwati and unmarried sister-in-law Santosh reside together in East Chawla Colony. In the presence of elders of the family i.e. father, mother and brother, it does not appeal to reason that accused Santosh, an unmarried girl will make demands for dowry, or treat her sister-in-law i.e. deceased Pinki with cruelty; or participate in the act of throttling her. She was not going to be benefited by making demands. In the circumstances, the culpability of accused Santosh also appears to be doubtful. 49. On account of the aforesaid discussion, I am of the considered opinion that benefit of doubt should go to accused Santosh, Alka and Subhash.” This Court is of the opinion that the finding given above is perfectly justified and is as per evidence on record. It is a case where the view taken by the trial Judge is possible. 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, 5 Crl.Misc.No.A-800-MA of 2011(O&M) 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, (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- 6 Crl.Misc.No.A-800-MA of 2011(O&M) appreciate, reconsider and review the evidence and take its own decision. 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 placed.” 7 Crl.Misc.No.A-800-MA of 2011(O&M) At the time of arguments, counsel for the applicant has failed to indicate misreading of evidence by the trial Judge which may necessitate any interference by this Court. The application is also barred by limitation. No plausible explanation has been given for condonation of delay as well. Dismissed. However, any observation made in this order shall not affect rights of both the parties in any other litigation. (Jasbir Singh) Judge 07.12.2011 (Sabina) gk Judge 8