IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No.459-MA of 2008 Date of Decision: 14.01.2009 State of Punjab Applicant Versus Naib Singh and another Respondents CORAM:- HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MR. JUSTICE JORA SINGH Present: Mr.D.S.Brar, DAG Punjab for the applicant Mr.R.K.Girdhar, Advocae for the respondents ….. Jasbir Singh, J.(Oral) State of Punjab has filed this application under Section 378 (3) Cr.P.C. with a prayer to grant leave to file an appeal against judgment dated 2.6.2008, passed by the Sessions Judge, Faridkot, acquitting the respondents of the charges framed against them. In FIR No.42 dated 7.4.2007, it was allegation against respondent No.1 that he had committed murder of his daughter, namely, Dupinder Kaur and that the commission of offence was facilitated by respondent No.2. Prosecutions, story, as noticed by the trial Court in its judgment, reads thus:- “As per the prosecution, on 7.4.2007 the complainant Nasib Kaur (who is the mother of deceased Dupinder Kaur) got recorded her statement with SI Gursher Singh of Police Station Jaitu that her husband Naib Singh (accused) is working as a Manager in the Gurdawara Guru Ki Dhab. She has got three Criminal Misc. No.459-MA of 2008 2 children. Dupinder Kaur, aged about 19 years is one of her daughters. As a student, her daughter Dupinder Kaur aforesaid developed intimacy with Lachhman Singh of village Sarawan. About 10-12 days ago, Dupinder Kaur had eloped with Lachhman Singh. The relatives and the family members of the complainant brought Dupinder Kaur back to their house on the condition/ assurance that she would be married to Lachhman Singh. Naib Singh and his father Hari Singh (both the accused, who are father and grand father respectively of the deceased Dupinder Kaur) were deadly against it and they had been intending to kill her in case she married Lachhman Singh. For the preceding five days, Chhinder Kaur, sister of accused Naib Singh had been staying in the complainant’s house. On the date and at the time of occurrence, Dupinder Kaur was lying on a cot in the store room. The complainant was herself present in the bath room washing clothes. At about 11.00 A.M., she heard the screams of her daughter Dupinder Kaur. The complainant ran towards Dupinder Kaur and saw that Dupinder Kaur was lying on the cot. Accused Hari Singh was holding her legs. Chhinder Kaur (who has not been challenged) was holding Dupinder Kaur by her hairs. Accused Naib Singh gave 3-4 blows with a wooden Bala on the head of Dupinder Kaur. The complainant raised raula “na maro na maro”, whereupon the accused persons ran away from the place of occurrence with the wooden bala.” Criminal Misc. No.459-MA of 2008 3 One Chhinder Kaur was also named as an accused in the FIR, however, during investigation, she was found innocent and her name was put in column No.2 of the final report. Process of law was put in motion at the instance of Smt.Nasib Kaur, mother of the deceased. On her statement, above said FIR was recorded against the respondents. SI Gursher Singh, Investigating Officer went to the spot, got prepared the site plan, took into his possession dead body of Dupinder Kaur and sent it for post-mortem examination, which was conducted by Dr.Gurmanjit Rai (PW1). The above said witness found following injuries on the person of the deceased:- “1. Lacerated wound 4 x 2.5 cms was present on right eyebrow obliquely placed. Clotted blood was present. 2. Reddish brown abraded bruise 13.5 x 9.5 cms was present on right side of face, forehead and right temperate region of head. 3. Lacerated wound 1.7 x 0.5 cm was present on pinna of right ear. Clotted blood was present.” As per copy of the post-mortem report (Ex.P1), cause of death was result of laceration of brain, as a result of head injury, which was sufficient to cause death in ordinary course of nature. Hari Singh, respondent was arrested on 8.4.2007 and respondent-Naib Singh was arrested on 11.4.2007. On disclosure statement of respondent No.1, wooden bala (heavy wooden stick) was recovered and taken into possession against a recovery memo. On completion of investigation, final report was put in Court for trial. Respondents were charge sheeted to which they pleaded not guilty and Criminal Misc. No.459-MA of 2008 4 claimed trial. The prosecution, to prove its case, produced oral as well as documentary evidence. On conclusion of prosecution’s evidence, statements of the respondents/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, however, they led no evidence in defence. It is an admitted fact that during trial, complainant Nasib Kaur (PW2) did not support case of the prosecution. She was declared hostile and was cross-examined by the Public Prosecutor. The trial Court, on analysis of evidence on record, came to a conclusion that prosecution has failed to prove guilt of the respondents/accused beyond a shadow of reasonable doubt. Accordingly, they were acquitted of the charges framed against them. Hence, this appeal. State counsel has vehemently contended that the case was proved against the respondents, by the prosecution, by leading requisite evidence on record. He further argued that Nasib Kaur (PW2) has resiled from her statement under pressure, being wife of respondent No.1. Counsel argued that weapon of offence (wooden bala) was recovered at the instance of respondent No.1. It was blood stained and also contained finger prints of the accused. He further argued that there was a motive with the respondents to commit murder of the deceased, who was adamant to marry a boy of her own choice against wishes of her parents. There was sufficient circumstantial evidence on record to convict the respondents, however, the trial Court has failed to appreciate the same. He prayed that application be Criminal Misc. No.459-MA of 2008 5 allowed and leave be granted to the State to file an appeal against the judgment under challenge. Prayer made has vehemently been opposed by Mr.Girdhar, who has put in appearance on behalf of the respondents. By making reference to contents of the judgment under challenge, he argued that no evidence is available against the respondents in this case. Mother of the deceased had given earlier statement under pressure of the police officials. Death had occurred outside the house of the respondents. Deceased was injured by some unknown person, she was taken to the house by both the respondents. However, she died after reaching there. Only evidence available against respondent No.1 is that he was seen carrying blood stained wooden bala in the street, by PW3 Lachhman Singh. By stating as above, he prayed that the application be dismissed. The trial Court, in acquitting the respondents, has observed thus:- “11. The prosecution’s charges against the accused Naib Singh and Hari Singh are that accused Naib Singh’s daughter Dupinder Kaur, since deceased, developed love affairs with PW Lachhman Singh of Village Sarawan and she wanted to marry him. She also eloped with him about 10-12 days prior to the occurrence, but she was brought back to the house on the assurance of her marriage with said Lachhman Singh. The accused persons, who are the father and grand father respectively of Dupinder Kaur deceased, were against her marriage with Lachhman Singh. On 7.4.2007 at about 11.00 A.M. when Dupinder Kaur deceased was lying on a cot in the Criminal Misc. No.459-MA of 2008 6 house, her grand father Hari Singh accused caught hold of her by her legs, Chhinder Kaur, sister of accused Naib Singh, caught hold of Dupinder Kaur by her hairs and the accused Naib Singh gave 3-4 blows of wooden Bala on the head of Dupinder Kaur and she died at the spot. PW2 Nasib Kaur, mother of deceased Dupinder Kaur, who was washing clothes in the wash room rushed towards Dupinder Kaur on hearing her shrieks and she found her daughter Dupinder Kaur lying dead on the cot. The motive behind the occurrence was that deceased Dupinder Kaur was adamant at her marriage with Lachhman Singh, which was not acceptable to the accused persons. 12. During the trial, however, PW2 Nasib Kaur, who has been cited by the prosecution as its only eye witness did not support the prosecution case, but gave a different story that her daughter Dupinder Kaur, (since deceased) was found seriously injured in the field at a distance of about one killa from the house. She was taken to the house of the complainant and the accused persons and she succumbed to her injuries on that very day. During her cross examination, the prosecution could not demolish her testimony and, therefore, the prosecution’s material witness, namely PW2 Nasib Kaur could not be helpful for convicting the accused persons. Besides her there remains the statement of PW3 Lachhman Singh, who has only stated that he saw accused Naib Singh carrying a blood stained wooden bala after the occurrence. This witness seems to have been Criminal Misc. No.459-MA of 2008 7 procured by the prosecution in order to strengthen its case only and his vague testimony in no way is sufficient to base conviction against the accused persons for the gravest offence of murder. PW3 Lachhman Singh no where gives the time when he saw accused Naib Singh carrying the blood stained wooden bala. It is surprising that he is the man with whom Dupinder Kaur deceased had affairs and because of him she sacrificed her life. This witness claims to have seen accused Naib Singh, father of the deceased girl, carrying a blood stained wooden bala and then un-concerned, this witness Lachhman Singh PW3 simply went away to Jaitu town. He no where states as to at what O’clock he saw accused Naib Singh carrying the wooden bala. So, the testimony of this witness is also not helpful to the prosecution case. 13. Learned Public Prosecutor for the State argued that the wooden bala carried the blood stains on one side and the finger prints on the other side. As per the report of the Finger Print Expert Ex.P31 received from the office of Director Finger Prints Bureau, Phillaur, the photographed impression on the photographs No.II, III and IV were sufficiently smudged and do not permit of comparison and, therefore, no opinion could be given regarding the finger prints. Thus, the prosecution has failed to prove that the alleged weapon of offence carried the finger prints of the accused Naib Singh.” Criminal Misc. No.459-MA of 2008 8 We feel that finding given by the trial Court is perfectly justified. There exist no cogent evidence on record to connect the respondents with the crime. The alleged eye witness has not supported case of the prosecution. The trial Court has rightly held that PW3 Lachhman Singh was a procured witness. As per prosecution story, murder was committed inside the house. If that was so, there was no occasion for Naib Singh to display blood stained wooden bala outside in the street. The trial Court has further noticed that PW3 Lachhman Singh was vague in his reply, with regard to time at which he had seen the above said accused carrying the weapon of offence. It was allegation of the prosecution that deceased wanted to marry Lachhman Singh (PW3) against wishes of her parents. If that was so, after noticing respondent No.1 carrying blood stained wooden bala, it was expected from the above said witness to report the matter to the police. His silence has rightly been taken as a circumstance by the trial Court, to say, that he was a procured witness. So far as finger prints are concerned, the trial Court has noticed that as per report, the impressions were smudged and were not capable of comparison. No firm opinion was given by the finger prints expert in that regard. Counsel for the applicant has failed to show any misreading of evidence on the part of the trial Court, which may necessitate interference by us in judgment of acquittal. The opinion formed by the trial Court, in view of evidence on record, was possible. Even in cases, where two views are possible, one in favour of the accused is supposed to be accepted. Their Lordships of the Supreme Court in Allarakha K.Mansuri v. State of Gujarat, 2002(1) RCR (Criminal) 748, held that where, Criminal Misc. No.459-MA of 2008 9 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-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.” Dismissed. (Jasbir Singh) Judge 14.01.2009 (Jora Singh) gk Judge