IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No.105-MA of 2009 Date of Decision: 27.05.2009 State of Haryana Applicant Versus Krishan and others Respondents CORAM:- HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MR. JUSTICE JORA SINGH Present: Mr.K.S.Godara, Deputy Advocate General, Haryana for the applicant Mr.Rakesh Nehra, Advocate for the respondents ….. Jasbir Singh, J. The State of Haryana has filed this application under Section 378(3) Cr.P.C. with a prayer to grant leave to file an appeal against judgment dated 5.11.2008, acquitting the respondents of the charges framed against them. It was an allegation against the respondents that on 27.3.2007, they, in connivance with each other, had murdered (dowry death) Sanju wife of respondent No.1. Criminal Misc. No.105-MA of 2009 2 The trial Court, in paragraph No.2 of its judgment, has noted the following facts regarding case of the prosecution:- “Briefly stated, the allegations of the prosecution are that on 28.3.2007, ASI Har Narain, Incharge, Police Post, Kalanaur along with other police officials has present at Kahnaur Chowk for patrol and crime checking duty. There, complainant Bhateri alongwith her daughters Anita & Sunita and Jeth (brother-in- law) Om Parkash came and got her statement recorded to the effect that she was the resident of village Luhani, District Bhiwani. Her husband had expired 8 years ago. She married her daughters Sanju and Anju with accused Krishan Lal & Pawan respectively both residents of village Kahnaur five years ago. In the marriage, they have given dowry as per their capacity. Her daughter Sanju was sent to her in-laws while Anju was not sent to her in laws. Out of the marriage between Krishan and her daughter Sanju, one daughter and one son were born about 1-1/2 years and 7 months ago, respectively. Risal Singh father-in-law of her daughters Sanju and Anju died four years ago. From the very beginning of marriage, her daughter Sanju was harassed by her husband Krishan Lal, brother-in-law Pawan and mother-in-law Gindori for or in connection with demand of dowry and also they used to taunt and beat her for the same. Regarding this, her daughter Sanju told them many a times when she visited village Luhani. A local Panchayat including herself, her daughter Sunita, Sajjan the Criminal Misc. No.105-MA of 2009 3 son of her husband’s sister and her Jeth Om Parkash visited village Kahnaur and advised both her sons-in-law and their mother Gindori to behave Sanju properly. On 27.3.2007, at about 11.00 a.m., her daughter Sanju made a telephonic call to her and told her that the accused Krishan Lal, Pawan and Gindori were pressurising her to bring a sum of Rs.10,000/- as they needed this money for the marriage of their daughter Poonam. On this, she (complainant) assured her daughter Sanju that she would arrange the money and would inform her on telephone. Anyhow, on that very day i.e. 27.3.2007 at about 4.00/5.00 p.m., a telephonic message was received from her son- in-law Krishan Lal that Sanju has become unconscious and she (complainant) should reach immediately. On this, she along with her daughters Anita & Sunita and her Jeth Om Parkash reached the house of the accused at village Kahnaur and found her daughter Sanju lying dead on a cot in a room. On probe, she came to know that Sanju has committed suicide by hanging herself with the Chunni tied with the ceiling fan on account of her harassment meted out to her by all the three accused or after murdering Sanju, they put her on the cot.” On the basis of above said information, FIR bearing No.92 was recorded against the respondents on 28.3.2007 for commission of offences under Sections 304-B, 498-A and 34 IPC. The investigating officer ASI Har Narain (PW8) went to the spot, prepared the inquest report regarding dead body of the deceased and sent it for post-mortem examination. He also Criminal Misc. No.105-MA of 2009 4 prepared rough site plan of the place of occurrence. Post-mortem on the dead body was conducted by Dr.Sushma Jain (PW5) on 28.3.2007. On completion of investigation, final report was put in Court for trial. The accused were charge sheeted. They pleaded not guilty and claimed trial. The prosecution produced oral as well as documentary evidence to prove its case. On conclusion of prosecution’s evidence, statements of the respondents 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. They also led evidence in defence. The trial Court on appraisal of evidence came to the conclusion that the prosecution has failed to bring home guilt of the respondents-accused and accordingly they were acquitted of the charges framed against them. Hence, this application. It is apparent from the records that marriage was solemnized about five years earlier to the date of occurrence. Out of wedlock, one daughter and one son had taken birth. As per medical evidence on record, cause of death was asphyxia which was result of hanging and it was ante- mortem in nature. It is an admitted fact that complainant Bharteri (PW2), mother of the deceased, did not support case of the prosecution. In her deposition in Court, she has categorically stated that marriage was very simple and that she had given nothing to the respondents at the time of marriage. It is also an admitted fact that sister of the deceased, namely, Anju was married to respondent-Pawan. She was not produced in the witness box to support case of the prosecution. Sajjan Singh (PW3), who is also related Criminal Misc. No.105-MA of 2009 5 to the deceased, has also failed to support case of the prosecution. Anita (PW6), another sister of the deceased, has given some evidence regarding harassment to deceased and demand of dowry by the respondents from the deceased. The trial Court has discarded her evidence on the ground that she was resident of a different village. Otherwise also even as per statement of this witness, the deceased was beaten up two years prior to date of her death by the respondents. The trial Court has rightly held that soon before death, no incidence of demand of dowry was proved on record by the prosecution. After discussing statements of PW2 and PW3, the trial Court has rightly held as under:- “21. In the complaint (Ex.PB), the complainant had stated that after the marriage of her daughter Sanju, all the three accused have been harassing her for the demand of dowry but while appearing in the witness box, she has stated that she did not know as to what the accused were doing with her daughter. So much so, she has not corroborated the version of her complaint Ex.PB that she along with her daughter Sunita, her sister-in- law’s son Sajjan and Jeth Om Parkash visited village Kahnaur and advised the accused persons to behave Sanju properly. She has also not corroborated the version of her complaint Ex.PB that she along with her daughters Sunita and Anita and Jeth Om Parkash visited village Kahnaur on receipt of a telephonic message from accused Krishan that Sanju had become unconscious but has stated that on that day, she along with the aforesaid members had gone to village Kahnaur on receipt of Criminal Misc. No.105-MA of 2009 6 the telephonic call from her daughter Sanju & that when they went there, they found Sanju lying dead on the cot. Similarly, Sajjan as PW3 has not stated that he had visited village Kahnaur at any time before this occurrence for advising the accused persons to behave Sanju properly but has stated that he had gone to village Kahnaur along with complainant Bhateri, his maternal uncle Om Parkash & her cousin Sunita on the date of occurrence i.e. 27.3.2007 and came to know that Sanju got herself hanged. 22. From the aforesaid statements of these two material witnesses, the prosecution version about the harassment of the deceased by the accused persons, for or in connection with the demand of dowry at any time on or before the death of Sanju, has not been established.” Regarding PW6, the trial Court has observed that in the face of the statements made by PW2 and PW3, deposition made by this witness, does not inspire confidence. The trial Court, in paragraph No.27 of its judgment, after looking into evidence on record, has rightly held that death of Sanju was unnatural and within seven years, however, the prosecution has failed to prove that she was subjected to cruelty or harassment by the respondents for or in connection with demand of dowry soon before her death. By observing as above, the trial Court has rightly held that presumption under Section 113- B of the Indian Evidence Act, 1872 cannot be raised against the respondents. We feel that opinion expressed by the trial Court, in view of evidence on record, is justified. Criminal Misc. No.105-MA of 2009 7 Even in cases where two views are possible, ordinarily, the view taken by the trial Court in favour of the accused is 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, 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 27.05.2009 (Jora Singh) gk Judge