Crl.Revision No.2472 of 2006 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Crl.Rev.No. 2472 of 2006 Date of decision: 8.9.2009 Ganga Ram ... Petitioner versus Jagdish and others ... Respondents CORAM:HON'BLE MR. JUSTICE JORA SINGH. Present: Mr.Vivek Singla, Advocate, for the petitioner. Mr.Kamal Sharma, Addl.AG, Haryana. Mr.Inderpal Singh, Advocate, for the complainant. ... JORA SINGH, J. Ganga Ram filed this revision to impugn judgment dated 2.8.2002 rendered by Additional District & Sessions Judge (Adhoc), Rohtak, in FIR No.205 dated 27.8.2001 under Sections 302/120-B/34 IPC, Police Station Sampla. Prosecution story, in brief, is that Niroj, aged about 32, years, daughter of Ganga Ram, was married with Suraj Mal about 15/16 years back and from this wedlock, she had two daughters and one son. Jagdish is the real brother-in-law of Niroj. He used to pick up quarrel with Niroj qua division of house and other properties. Ganga Ram, father of Niroj, came to know about the dispute qua division of property, then he got constructed a separate house for his daughter Niroj, but Jagdish and his sister Rajpati were not happy. They used to quarrel with Niroj. Niroj came to her parental house and disclosed about picking up quarrel with her by these persons, to her father. Rajpati, sister of Jagdish, also used to take the side of Jagdish. On the intervening night of 26/27.8.2001, Niroj was found murdered in her Crl.Revision No.2472 of 2006 2 house. There were deep cuts on her neck and face. Bhim Singh, Chowkidar of the village, came to know about the murder. Then he gave intimation to Police Station Sampla. SI Pawan Kumar, Police Station Sampla, had gone to the spot. After inspecting the dead body, a message was sent to Ganga Ram, father of the girl. On receipt of message, Ganga Ram and his family members came to the spot, where dead body of Niroj was lying. Statement of Ganga Ram (Ex.PD) was recorded. He had signed the same in token of its correctness. Ganga Ram reported that Niroj was murdered by Jagdish, his brother Raj Kumar and their sister Rajpati. After making endorsement, the statement was sent to the police station, on the basis of which, formal FIR was recorded. Special reports were sent to the higher authorities. Inquest report was prepared. Dead body was sent to the Hospital for postmortem examination. Rough site plan with correct marginal notes was prepared. Blood stained earth was lifted from the spot and the same was sealed and taken into police possession vide recovery memo. One blood stained baniyan was also recovered from the spot and the same was sealed and was taken into police possession vide separate recovery memo. Clothes of the deceased were handed over to the IO and the same were sealed into sealed parcel, and were taken into police possession. During investigation, the IO came to know that Jagdish and Suraj Mal after collecting milk from Village Bhansrab used to sell the same in Delhi, but on the day of occurrence, Jagdish remained in the house. Only Suraj Mal had gone to collect the milk for sale in Delhi. On the day of occurrence, Raj Kumar was also in the house of Jagdish. When Suraj Mal came back at 11.00 AM, then he found dead body of Niroj lying in the house. Crl.Revision No.2472 of 2006 3 On 29.8.2001, the accused were arrested. Raj Kumar was interrogated. Raj Kumar suffered a disclosure statement (Ex.PF) that he had kept concealed one axe by the side of road at a distance of one km. from Sampla. He knew the same and could get the same recovered. The disclosure statement (Ex.PF) was thumb marked by accused Raj Kumar and attested by the witnesses. Jagdish was also interrogated. On interrogation, Jagdish suffered disclosure statement that on his advice, Raj Kumar had kept concealed axe by the side of road and he could point out the place and get the axe recovered. Disclosure statement (Ex.PG) was signed by the accused and attested by the witnesses. Accused were remanded to police custody and after that, got recovered the axe from the specified place as per disclosure statements. Sketch of the axe was prepared. The axe was sealed in a sealed parcel and was taken into police possession vide separate memo. Rough site plan of the place of recovery with correct marginal notes was also prepared. After completion of investigation, challan was presented in the Court. The case was committed to the Court of Sessions for trial by the committing Court. The accused were charged under Sections 302/120-B/34 IPC. The accused did not plead guilty and claimed trial. The prosecution examined 11 witnesses. Dr. Vijay Kumar Dahiya (PW1) had conducted the postmortem examination on the dead body of Niroj on 27.8.2001. Injuries were found to be ante mortem in nature. Cause of death was due to shock and haemorrhage due to the injuries, which were sufficient to cause death in the ordinary course of nature. Kind of weapon used was sharp edged weapon. Crl.Revision No.2472 of 2006 4 Constable Sumit Kumar (PW2) prepared scaled site plan (Ex.PG) at the instance of Ganga Ram. ASI Ram Niwas (PW3) had recorded formal FIR (Ex.PD/1) on receipt of ruqa (Ex.PD). Jai Bhagwan (PW4) had handed over special report to the Illaqa Magistrate. Ram Bhagat (PW5) was serving as MHC. Case property was deposited with him. He had handed over the sealed parcels to Constable Bhagat Singh for depositing the same in the Laboratory. Constable Bhagat Singh (PW6) stated that he had deposited the sealed parcels in the FSL, Madhuban. Ganga Ram (PW7) is the father of the deceased. Suraj Mal (PW8) is the husband of the deceased, whereas Manish (PW9) is the brother of the deceased. They have stated that Jagdish used to quarrel with the deceased regarding partition of property and domestic articles. Rajpati was helping the accused. Raj Kumar was with Jagdish on the day of occurrence. On the day of occurrence, Jagdish had not gone to collect milk for sale in Delhi. Only Suraj Mal had gone to collect milk for sale in Delhi and when Suraj Mal came back, then he found Niroj lying murdered in the house. Joginder Singh (PW10) stated that in view of disclosure statements suffered by the accused, the axe was recovered from the specified place. SI Pawan Kumar (PW11) is the Investigating Officer. After closing of prosecution evidence, statements of accused were recorded under Seciton 313 Cr.P.C.. The accused denied all the prosecution Crl.Revision No.2472 of 2006 5 allegations and pleaded to be innocent. In defence, the accused examined Khajani as DW1. After hearing PP for the State, defence counsel for the accused and from the perusal of evidence on file, learned Additional Sessions Judge opined that prosecution failed to establish beyond doubt that the accused facing trial had murdered Niroj. Benefit of doubt was given to the accused and they were acquitted of the charges levelled against them. Feeling dissatisfied with the impugned judgment, revision was preferred by Ganga Ram. Appeal was not preferred by the State against acquittal of the accused. I have heard learned counsel for the parties and have gone through the evidence on file. Learned counsel for the petitioner argued that Niroj was married with Suraj Mal. Jagdish used to quarrel with Niroj qua partition of property. Respondents-accused had the motive to commit the crime. On the day of occurrence, Jagdish had not gone to collect the milk for sale in Delhi. He had stayed in the house. Only Suraj Mal had gone to collect the milk for sale in Delhi. On the day of occurrence, Raj Kumar was also with Jagdish. Rajpati used to help Jagdish in partition of property. Accept respondents- accused, no one was present in the house at the time of occurrence. Axe was recovered in view of the disclosure statements of the accused, but trial Court did not appreciate the legal and factual position. The case is based on circumstantial evidence. No eye witness. The prosecution was required to show as to what was the motive to commit the crime. When the case is based on circumstantial evidence, then motive Crl.Revision No.2472 of 2006 6 assumes importance. No doubt, Niroj was married with Suraj Mal about 15/16 years back and from this wedlock, she had three issues. According to the story, there was a dispute regarding partition of property. Ganga Ram got constructed a separate house for Niroj, but no independent witness came forward to state that there was a dispute regarding partition of property. Suppose there was a dispute regarding partition of property, then question is whether the respondents-accused had committed the crime. According to the evidence, Bhim Singh came to know about the murder of Niroj. He had informed the police but statement of Bhim Singh was not recorded. Police party on receipt of information from Bhim Singh came to the spot, then a message was sent to Ganga Ram. The dead body was inspected. Ganga Ram along with his family members came to the spot. After arrival of Ganga Ram, his statement was recorded, on the basis of which, formal FIR was recorded. Ganga Ram is not an eye witness. He is the father of the deceased and being father was expected to support the prosecution story. The prosecution was required to examine Bhim Singh to know how he came to know about the incident, and whether at the time of murder, any of the respondents-accused was found present at the spot. Regarding murder, Bhim Singh, Chowkidar, had informed the police but no explanation is forthcoming as to why statement of Bhim Singh was not recorded. After recording the statement of Bhim Singh, the police party was expected to inspect the spot. After the arrival of complainant party, i.e., Ganga Ram and his family members, their statements could easily be recorded under Section 161 Cr.P.C. There was no idea to wait for Ganga Ram to record his statement. Manish (PW9) is the brother of deceased. He was also expected to Crl.Revision No.2472 of 2006 7 support the prosecution story. He was not an eye witness. Suraj Mal (PW8) is the husband of the deceased, but he was also not an eye witness. So statements of Ganga Ram, Suraj Mal and Manish are of formal nature. They have not stated a word that any one had seen the respondents-accused while committing the crime. SI Pawan Kumar (PW11) is the Investigating Officer. He admitted that he came to know about the crime through Bhim Singh. After that, police party had gone to the spot. Husband of Niroj was not present there. Police party had waited for the arrival of Ganga Ram. After the arrival of Ganga Ram, his statement (Ex.PD) was recorded. After that, inquest report was prepared and dead body was sent to the hospital for postmortem examination. That means the FIR is inquest oriented. Evidence shows that the complainant party simply suspected that the crime was committed by the respondents accused because on the day of occurrence, Jagdish had not gone to collect milk for sale in Delhi. Jagdish remained in the house. Only Suraj Mal had gone to collect milk for sale in Delhi. Evidence was led to the effect that Raj Kumar was also in the house of Jagdish on the day of occurrence. Rajpati was supporting Jagdish. If it is presumed that Jagdish had not gone to collect milk on the day of occurrence, Raj Kumar was with Jagdish and Rajpati was supporting Jagdish, then point is whether they had committed the crime. As per evidence, axe was recovered in pursuance of disclosure statement suffered by Raj Kumar. Jagdish had also suffered disclosure statement that at his instance, Raj Kumar had kept concealed axe by the side of road. After the disclosure statements of Jagdish and Raj Kumar, they were produced in the Court and were remanded to police custody. After the Crl.Revision No.2472 of 2006 8 accused were remanded to police custody, then axe was got recovered, but no report of Laboratory is on the file to show that blood noticed on the axe was tallying with the blood group of the deceased. Both the parties were residing separately. Earlier to the present occurrence, there was no dispute amongst the parties. Evidence rather shows that house was partitioned three years earlier to the present occurrence during the life time of father-in-law of Niroj. Agricultural land was also partitioned. Nothing is on the file that any civil suit was pending regarding partition of property or a complaint was sent to any authority regarding partition. In fact, Suraj Mal and Jagdish, both brothers, used to collect milk jointly for sale in Delhi. Both the brothers had joint account and one motorcycle. Meaning thereby, Suraj Mal and Jagdish had joint business. So, when their business was joint, then there was no question of dispute regarding partition, particularly when partition had taken place during the life time of their father. When business of Jagdish and Suraj Mal was joint and there was no dispute amongst the parties, then Jagdish, Raj Kumar or Rajpati were not expected to commit crime. They were expected to commit crime in case there was earlier litigation amongst the parties. Recovery of axe is also doubtful. In case Raj Kumar had suffered a disclosure statement qua axe, then in pursuance of disclosure statement suffered by him, axe should have been got recovered. There was no idea to wait to record statement of Jagdish and produce them in the Court for police remand for recovery of the axe. All discussed above shows that the prosecution failed to complete the chain of circumstantial evidence. Evidence on the file was rightly scrutinized. Judgment of the trial Court is to be set aside if the same is Crl.Revision No.2472 of 2006 9 against facts and is perverse. When two views are possible, then the view favourable to the accused is to be accepted. In 2002(4) RCR (Crl.) 61, Bindeshwari Prasad Singh @ B.P.Singh and others vs. State of Bihar (now Jharkhand) and another, case is under Section 302 IPC- Acquittal in murder case- Held that High Court cannot re-appreciate the evidence in revision and set aside order of acquittal and order re-trial except in exceptional cases to prevent gross miscarriage of justice. No other submission has been put forward. In view of all discussed above, revision without merit is dismissed. 8.9.2009 ( JORA SINGH ) pk JUDGE