-1- Criminal Revision No.1843 of 2001. IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Criminal Revision No.1843 of 2001. Date of Decision: April 9 , 2010. Smt.Shiv Rani ...Petitioner VERSUS Ramesh Kumar and another ...Respondents 1. Whether the Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? QUORUM : HON'BLE MR. JUSTICE MOHINDER PAL. Present: Mr. Vijay Lath, Advocate, and Mr. Naveen Sharma, Advocate, for the petitioner. Mr. Dhirinder Chopra, Advocate, for respondent No.1. Mr. Vishal Munjal, Additional Advocate General, Punjab, for the State. -.- MOHINDER PAL, J. This revision petition, filed by petitioner Smt. Shiv Rani against the acquittal of Ramesh Kumar (accused-respondent No.1) of the charge under Section 302 of the Indian Penal Code -2- Criminal Revision No.1843 of 2001. (for short `the Code') with the alternative charge under Section 306 of the Code and under Section 498-A of the Code by the trial Court, was admitted for hearing on 9.7.2004. As is apparent from the letter No.FA-II-2001/55207 dated 1.9.2001 written by the office of the Advocate General, Punjab, to the counsel for the petitioner, which has been placed on the file of the revision petition, no appeal by the State has been filed. Petitioner Smt. Shiv Rani is the mother of Suman Bala (since deceased), who was married with accused-respondent Ramesh Kumar in or around 1975-1976. Ms. Nidhi Sharma (P.W.2) was born out of this wed-lock. Ms. Nidhi Sharma was about eighteen years old at the time of her deposition in Court on 25.5.1998 and was a student of B.A (Final). The couple had also adopted a male child. The relations between accused-respondent Ramesh Kumar and his wife Suman Bala (deceased) were not cordial. The accused was in the habit of gambling and was a habitual drunkard. He was unsuccessful in his business of manufacturing soap. Father of Suman Bala had arranged a `Halwai' shop for the accused, which was also destroyed by the accused. The brother of Suman Bala had again got opened a shop of readymade garments to the accused. However, the accused could also not run smoothly the business of running the shop of readymade garments. The accused also did not permit the deceased to run that shop. The accused used to assault the -3- Criminal Revision No.1843 of 2001. deceased quite often. There often used to be quarrels between the accused and the deceased. On 13.9.1994 at about 10 A.M Ms. Nidhi Sharma (P.W.2) was away to her college while the adopted male child of the couple was lying asleep in the house. It is allegation of the prosecution that Suman Bala was set on fire by the accused- respondent. Ms. Nidhi Sharma was brought from college by the neighbours. Suman Bala was taken to Dayanand Medical College and Hospital, Ludhiana (for short `C.M.C') and got admitted there. However, she succumbed to the injuries. The instant case was registered against the accused- respondent Ramesh Kumar on the instructions of the Inspector General of Police and under orders of the Senior Superintendent of Police, Sangrur, dated 1.12.1995. Earlier to the registration of the instant case against him, accused-respondent Ramesh Kumar had lodged report (Exhibit P.D) with the police that Suman Bala caught fire while working in kitchen. Acting on this report, the police did not take any action against the accused-respondent. Subsequently, on 29.11.1994, Smt.Shiv Rani (petitioner), mother of the deceased, made application (Exhibit P.B) initiating investigation. In her application (Exhibit P.B), Smt. Shiv Rani alleged that the accused used to harass and maltreat Suman Bala for and in connection with demand of dowry and also alleged that cash amount was given to him many times. She further alleged that they were not informed by the accused about the -4- Criminal Revision No.1843 of 2001. incident in which Suman Bala caught fire and died. After completion of investigation, the accused-respondent was arrested and report under Section 173 of the Code of Criminal Procedure was presented against him in the Court of the Ilaqa Magistrate, who committed the case to the Court of Session. The trial Court, after framing charge, recording evidence and hearing the learned counsel for the parties, vide judgment dated 3.4.2001, acquitted accused-respondent Ramesh Kumar of the charge framed against him, as afore-mentioned. This revision petition has been preferred by petitioner Smt. Shiv Rani challenging the judgment dated 3.4.2001 passed by the trial Court. I have heard Mr. Vijay Lath, Advocate, and Mr. Naveen Sharma, Advocate, appearing for the petitioner, Mr. Dhirinder Chopra, Advocate, appearing for respondent No.1 and Mr. Vishal Munjal, Additional Advocate General, Punjab, appearing for the State and have gone through the records of the case. Learned counsel for the petitioner argued that there was sufficient evidence on the record against the accused- respondent warranting his conviction and the trial Court wrongly did not take note of that evidence and acquitted the accused- respondent. On the other hand, learned counsel for the accused- respondent has contended that the view taken by the trial Court is probable and cannot be substituted by another view even though possible to be drawn from the circumstances of the -5- Criminal Revision No.1843 of 2001. case. He submitted that the order of acquittal can be set aside only for compelling reasons and wherever two views are possible to be drawn, the one favourable to the accused persons should be preferred. No doubt, it is well-settled that where the revisional jurisdiction of this Court has been involved by a private complainant against an order of acquittal, the same ought not be exercised lightly and that it should be exercised only in exceptional cases where the interests of public justice require interference for the correction of a manifest illegality or the prevention of a gross miscarriage of justice, but it is also well- settled that where accused has been acquitted without considering material evidence with inconsistent and faulty reasonings and probative value of the First Information Report has been ignored, the order of acquittal can be interfered with. In this case, as would be discussed hereinafter, the trial Court was not justified in acquitting the accused-respondent in the case. Insofar as charge under Section 302 of the Code against the accused-respondent, admittedly, there is no eye-witness to the occurrence and the case of the prosecution rests squarely on the circumstantial evidence. Before the circumstantial evidence is accepted, it has to satisfy that the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances, taken cumulatively, -6- Criminal Revision No.1843 of 2001. should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; that the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence; that cumulative effect of the circumstances must be such as to negate the innocence of the accused and bring home the offences beyond any reasonable doubt; and that there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability, the act must have been done by the accused. For the reasons to be mentioned hereinafter, the impugned judgment regarding acquittal of the accused-respondent under Section 302 of the Code is not legally sound. Although it is well-settled that the High Court should be slow in disturbing the finding of the fact arrived at by the trial Court and if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted, but each case has its own facts. Paramount consideration of the Court is always to avoid miscarriage of justice. A miscarriage of justice which may arise from the acquittal of guilty is no less than from the conviction of an innocent. However, in this case, the totality of the facts and -7- Criminal Revision No.1843 of 2001. circumstances of the case point towards the fact that the trial Court has taken a view based upon conjectures and hypothesis and not on the legal evidence so far as acquittal of the accused- respondent under Section 302 of the Code is concerned. The evidence on record points towards the commission of the offence by the accused under Section 302 of the Code. In this case, the prosecution examined Santokh Singh (P.W.1), Ms. Nidhi Sharma (P.W.2), Smt.Shiv Rani complainant (P.W.3), Head Constable Mohinderjit Singh (P.W.4), Assistant Sub Inspector Wassan Singh (P.W.5) and Superintendent of Police Pritpal Singh (P.W.6). The post mortem report (Exhibit P.L) in respect of Suman Lata (deceased) was also tendered in evidence. In his statement recorded under Section 313 of the Code of Criminal Procedure, the accused-respondent denied the prosecution allegations and pleaded innocence. He pleaded that his wife had died in an accidental fire. At that time, the police recorded statements of brothers of the deceased and conducted proceedings under Section 174 of the Code of Criminal Procedure and it was found by the police that it was accidental fire. He pleaded that his mother-in-law had got the false case registered because of quarrel regarding custody of the children. However, no evidence was led by the accused in his defence. The marriage of the accused-respondent with the deceased had taken place in or around 1975-76. The relations between them were strained on account of the drinking and gambling habits of the accused-respondent. Their daughter -8- Criminal Revision No.1843 of 2001. Ms.Nidhi Sharma (P.W.2) has also deposed against her father that he was addicted to drinking and gambling and had sold the entire property to satisfy his lust of gambling and drinking. Ms. Nidhi Sharma further stated that the accused-respondent used to press her mother Suman Bala to claim her share out of her mother's property. She also deposed about the incident when accused tried to stab Suman Bala with `Sua'. She also deposed about the failure of business by the accused. Ms.Nidhi Sharma (P.W.2) also deposed about the quarrel between her parents on the previous night of the occurrence. She also deposed that on 13.9.1994 at about 9.30 A.M, she had gone to College and some neighbours came to her in College at about 11 A.M and brought her home by informing that her mother had burnt. Complainant Smt.Shiv Rani (P.W.3), mother of the deceased had fully supported the prosecution case by corroborating the version given by Ms.Nidhi Sharma (P.W.2). She proved her statement (Exhibit P.B) made before the police and complaint (Exhibit P.C) made to police. Head Constable Mohinderjit Singh (P.W.4) deposed about the proceedings under Section 174 of the Code of Criminal Procedure conducted on the dead body of Suman Bala and also stated that statement (Exhibit P.D) of the accused- respondent was recorded. He also deposed that post mortem examination on the dead body of Suman Bala was got done through police request (Exhibit P.G). Assistant Sub Inspector Wassan Singh (P.W.5) had conducted the investigation after the registration of the case and gave accounts of the investigation done by him. He -9- Criminal Revision No.1843 of 2001. recorded the statements of the witnesses under Section 161 of the Code of Criminal Procedure. Superintendent of Police Pritpal Singh (P.W.6) deposed that he had made inquiry in this case and gave report (Exhibit P.M) recommending registration of case against the accused- respondent. Scaled site plan (Exhibit P.A) of the place of occurrence was prepared by Draftsman Santokh Singh (P.W.1). As noticed above, in this case Ms.Nidhi Sharma (P.W.2), daughter of accused-respondent Ramesh Kumar and Smt.Shiv Rani (P.W.3), mother of deceased Suman Bala, have deposed against the accused. There is no reason as to why daughter of the accused would appear as a witness and depose falsely against her father. The main allegation against the accused is that he used to continuously maltreat the deceased under the influence of liquor. Ms.Nidhi Sharma (P.W.2), in her statement (Exhibit D.B) did not say anything about the demand of dowry by the accused. While deposing in Court also, Ms.Nidhi Sharma did not state about the demand of dowry and her mother's maltreatment at the hands of the accused on account of insufficiency of dowry. She deposed about the beatings to the deceased by the accused under the influence of liquor. Smt.Shiv Rani complainant (P.W.3) had also stressed on the maltreatment of the deceased by the accused under the influence of liquor. Since Ms. Nidhi Sharma (P.W.2), who was the best witness to depose about dowry demands -10- Criminal Revision No.1843 of 2001. by her father, has not laid stress on this aspect and the marriage between the accused and the deceased had been solemnized about eighteen years before her death, I am of the considered opinion that the prosecution has not been able to prove the charge against the accused under Section 498-A of the Code. However, as mentioned above, the prosecution has proved the charge under Section 302 of the Code against the accused- respondent. For acquitting the accused, the trial Court observed as under:- “22. The incident had taken place on 13.9.1994 when Nidhi Sharma P.W.2 had gone to attend her classes. She was called by the neighbours when Suman Bala got burnt. She was taken to Daya Nand Medical College & Hospital at Ludhiana and at that time the deceased was accompanied by Pawan Kumar and Kailash Sharma and the accused himself. Pawan Kumar was residing at Ludhiana. Kailash Sharma is cousin of the deceased while Pawan Kumar is her real brother. An inquest report was prepared by the police on the dead body of Suman Bala. Statements of Kailash Sharma, Pawan Kumar, one Vijay Kumar and accused Ramesh Kumar were recorded by the -11- Criminal Revision No.1843 of 2001. police / in the inquest report. Kailash Sharma stated that while he was sitting on his shop, he was told by Pawan Kumar that a telephone was received from his brother-in- law i.e accused that Suman Bala got accidentally burnt and they have to go to Ahmedgarh. He stated that he along with Pawan Kumar and others went to Ahmedgarh. The accused met them on the way when he was carrying Suman Bala in a van to Ludhiana. Kailash Sharma went in the van and started talking to Suman Bala. On his asking, Suman Bala told that suddenly the stove burst and accident took place and she got burns. According to him (Kailash Sharma) the incident took place all of a sudden and nobody was at fault. To the same effect is the statement of Pawan Kumar who is real brother of Suman Bala. He stated that he received a telephone from Ramesh Kumar that his sister had met with an incident/accident and he went to Ahmedgarh along with his mother i.e Shiv Rani (complainant) and others. He stated that he met Ramesh Kumar when he was taking Suman to Ludhiana for treatment. He also -12- Criminal Revision No.1843 of 2001. alighted from his own car and went into the van in which Suman was being carried. On his asking, Suman Bala told that accident took place due to bursting of the stove. Vijay Kumar is another witness who also corroborated the statements of these two persons. Then accused Ramesh Kumar got a D.D.R recorded in the Police Station, Ahmedgarh, giving all the details of the incident. The case was investigated by the police and it was found that the accused was not at fault and it was case of accidental fire and the case was thus filed. 23. The best evidence regarding the involvement of the accused in getting burnt Suman Bala, was of Pawan Kumar and Kailash Sharma and Vijay Kumar, who had talked to the deceased before her death. Their statements are there on the record and they are witnesses of the inquest report Ex.P.E. Their statements if read critically suggest that it was a case of accidental death and not a case under Section 302 or 306 much less than under Section 498-A of the Indian Penal Code.” -13- Criminal Revision No.1843 of 2001. A perusal of the above-quoted observations of the learned trial Judge reveal that he did not take into account the facts which emerged after the registration of the instant F.I.R against the accused-respondent and was, in fact, influenced what allegedly happened before the registration of the instant case. It is not understandable as to how the trial Judge ignored the inquiry report (Exhibit P.M) prepared by Superintendent of Police Pritpal Singh (P.W.6), which led to the registration of the instant case against the accused. No question was put to Superintendent of Police Pritpal Singh (P.W.6) by the defence counsel in the trial Court with regard to the conclusions arrived at by the said Senior Police Officer in his inquiry report (Exhibit P.M). Only a suggestion was put to him that he made a false report, which he denied as incorrect. In his inquiry report (Exhibit P.M), Superintendent of Police Pritpal Singh (P.W.6), inter alia, stated that the accused-respondent was a habitual drunkard and a instinctive gambler. He used to drink excessively. He had sold the ornaments of his wife Suman Bala (deceased) and squandered away the whole money. Superintendent of Police Pritpal Singh (P.W.6) in the inquiry report (Exhibit P.M ) stated that as per the version of accused- respondent Ramesh Kumar, Suman Bala's clothes caught fire accidentally in the kitchen on 13.9.1994; that he (accused- respondent Ramesh Kumar) took Suman Bala to D.M.C, Ludhiana, for treatment, where she died. Superintendent of Police Pritpal Singh (P.W.6) further stated that he had joined Ms.Nidhi -14- Criminal Revision No.1843 of 2001. Sharma (P.W.2) and Smt. Shiv Rani complainant (P.W.3) in the inquiry. The investigation revealed that no officer earlier to Superintendent of Police Pritpal Singh (P.W.6) had joined Ms. Nidhi Sharma in the inquiry / investigation. Superintendent of Police Pritpal Singh (P.W.6) in Exhibit P.M, in certain terms, stated that his inquiry revealed that accused-Ramesh Kumar had burnt Suman Bala to death. As per post mortem report (Exhibit P.L), Suman Bala had died due to shock as a result of extensive burns, 100 % burns, which were sufficient to cause death in the ordinary course of nature. The facts and circumstances of the case suggest that it was not a case of suicide. Despite the fact that the deceased used to be subjected to beatings by the accused regularly under the influence liquor, as has come in the evidence of the prosecution, even then she did not want to end her life and had adopted a male child. A verdict of acquittal cannot follow if at some stage the accused influenced the investigation and that too before the registration of the F.I.R against him, as has been done by the accused in this case by tilting the investigation in his favour by lodging D.D.R informing the incident to the police in the way helpful to him. In the Zimni report No.5 dated 14.1.1996 prepared by Station House Officer Ajaib Singh of Police Station, Ahmedgarh, it has been mentioned that the allegation of complainant Smt.Shiv Rani was that his daughter had been set on fire by the accused-respondent after sprinkling liquor on her. The trial Judge observed that “the incident of accidental fire from stove -15- Criminal Revision No.1843 of 2001. also seems to be natural, because otherwise the deceased was using gas (liquid petroleum gas) in her kitchen but on the day of accident, she was working on a stove. It has been admitted by Nidhi Sharma P.W.2 sthat on 13.9.1994 when she came back from the college and went to the kitchen she found that gas cylinder had already exhausted and they had already placed an order for refil but the gas was not refilled by that time. Although she has stated that the stove lying in the kitchen was intact but otherwise from this statement the fact is proved that on the day of accident, the deceased was working on a stove and it was not a made up story by the accused was working on a stove.” It is a queer finding by the learned trial Judge because if the stove was intact in the kitchen, how could Suman Bala could get 100 per cent burns by the bursting of stove. In the post mortem report (Exhibit P.L), superficial and deep burns all over the body except sole of feet were observed. As per post mortem report (Exhibit P.L), Suman Bala had died due to shock as a result of extensive burns, 100 % burns, which were sufficient to cause death in the ordinary course of nature. The deep burns all over the body could not be caused by the bursting of stove. The facts and circumstances discussed above clearly show that various links in the chain of evidence led by the prosecution have been satisfactorily proved, the said circumstances point to the guilt of the accused-respondent with reasonable definiteness and the circumstances are in proximity to the time and situation of the occurrence. In this view of the -16- Criminal Revision No.1843 of 2001. matter, the reasoning adopted by the learned trial Judge in acquitting the accused-respondent cannot be accepted. As such, there exists a manifest illegality in the judgment of acquittal resulting in miscarriage of justice. For the aforesaid reasons, this revision petition is allowed, the order of acquittal of accused-respondent Ramesh Kumar is set aside and the matter is remanded to the trial Court to pass a fresh judgment after hearing the parties. It is made clear that the trial Court should not, in any way, be influenced by any observation made by this Court touching the merits of the case while dealing with this revision petition. April 9, 2010. ( MOHINDER PAL ) ak JUDGE