IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM No.A-383-MA of 2011 Date of Decision: 29.07.2011 State of Punjab ..... Applicant Versus Shehnaz and others. .....Respondents. CORAM: HON'BLE MR. JUSTICE S.S. SARON HON’BLE MR. JUSTICE JORA SINGH Present: Mr. K.D.S. Sidhu, Addl. AG, Punjab for the applicant-State of Punjab. ***** S.S. Saron, J Heard learned counsel for the applicant-State of Punjab. The applicant-State of Punjab has filed the present application in terms of Section 378 (3) of the Code of Criminal Procedure (Cr.P.C - for short) for grant of leave to appeal against the judgment and order dated 24.12.2010 passed by the learned Additional Sessions Judge, Sangrur whereby respondents have been acquitted for the offences punishable under Section 307/328 Indian Penal Code (IPC-for short). The FIR in the case was registered on the complaint of Fauzia. ASI Gurjit Singh alongwith other police officials on 10.03.2004 went to Civil Hospital, Malerkotla as Fauzia was admitted there. After taking opinion regarding fitness of Fauzia to make a statement, ASI Gurjit Singh recorded her CRM No. A-383-MA of 2011 statement. It was alleged by Fauzia that at about 4.30 p.m. on 10.03.2004, Abdul Sattar (respondent No.3), Mohd. Sadiq (respondent No.4), Shehnaz (respondent No.1) and Hamida (respondent No.2) came to her. At that time, Mohd. Sadiq (respondent No.4) was holding a bottle containing some medicine. He asked Fauzia to take the medicine. She, however, suspected that the bottle was containing some poisonous substance. As such, she refused to take the medicine. Abdul Sattar (respondent No.3) then said that if she did not drink poison on her own, she be administered the same forcibly. In the meanwhile Shehnaz (respondent No.1) and Hamida (respondent No.2) caught hold of Fauzia (complainant) by her arms and threw her on the ground. Mohd. Sadiq (respondent No.4) by forcibly opening her mouth and with the intention to kill her put the poison in her mouth. Then, they left Fauzia (complainant) there and all the respondents fled away form the spot alongwith the bottle. The complainant (Fauzia) screamed for help, which attracted her brother Kalim, who after arranging a vehicle took her to the Civil Hospital. It is alleged that the respondents finding the complainant (Fauzia) alone in her house had administered poison. The reason for administering poison was that a dispute had earlier occurred between the complainant (Fauzia) and the accused (respondents). 2 CRM No. A-383-MA of 2011 The respondents are all near relatives of the complainant (Fauzia). Hamida (respondent No.2) is the mother’s sister (Massi) of the complainant (Fauzia) and Mohd. Sadiq (respondent No.4) is the husband of Hamida (respondent No.2) i.e. mother’s sister’s husband (masar) of the complainant (Fauzia), Abdul Sattar (respondent No.3) is the mother’s brother (mama) of the complainant (Fauzia) while Shehnaz (respondent No.1) is the mother’s brother’s wife (mami) of the complainant (Fauzia). The complainant (Fauzia) was medically examined by Dr. Arvind Verma (PW-2), who noticed three minor injuries on her person. The contents of the stomach and clothes of the complainant (Fauzia) were sent to the Chemical Examiner for analysis. The Chemical Examiner in his report has found chloro compound group of insecticide in the articles sent to him for chemical examination. During investigation of the case an inquiry was conducted by the Superintendent of Police (Detective) who recommended for cancellation of the case. On an application submitted by the complainant (Fauzia) to the Additional Director General of Police, an enquiry was marked to Superintendent of Police (Detective), Jagraon, who in his enquiry report found accused Shehnaz (respondent No.1) and Hamida (respondent No.2) guilty and he exonerated the accused Abdul Sattar (respondent No.3) and Mohd. Sadiq 3 CRM No. A-383-MA of 2011 (respondent No.4). Accordingly police report (challan) was submitted against Shehnaz (respondent No.1) and Hamida (respondent No.2). Shehnaz (respondent No.1) and Hamida (respondent No.2) were charged for the commission of offences punishable under Sections 307 and 328 IPC. During the trial of the case the statement of Fauzia (PW-1) was recorded and thereafter an application in terms of Section 319 Cr.P.C. was filed for summoning Abdul Sattar (respondent No.3) and Mohd. Sadiq (respondent No.4). The learned trial Court vide order dated 23.11.2005 summoned Abdul Sattar (respondent No.3) and Mohd. Sadiq (respondent No.4) to face the trial for the offences punishable under Sections 307/328/34 IPC alongwith Shehnaz (respondent No.1) and Hamida (respondent No.2). They were also charged for the commission of offences punishable under Sections 307 and 328 IPC. The prosecution in order to prove its case examined as many as 9 witnesses, besides, tendered documents in evidence. The learned trial Court after considering the evidence and material on record has acquitted the respondents. Aggrieved against the same the applicant-State seeks leave to file an appeal against the said order. Learned State counsel has submitted that there has been a misreading of evidence by the learned trial Court. It is 4 CRM No. A-383-MA of 2011 submitted that the complainant (Fauzia) has categorically stated that the respondents had administered poison to her. This fact, it is submitted, is also corroborated by her brother (PW-3 Kalim). Besides, the chemical examiner’s report has also found Chloro compound group of insecticide, which was found in the samples that were sent for chemical analysis. Therefore, it is submitted that leave to appeal is liable to be granted. We have given our thoughtful consideration to the contentions of learned counsel for the applicant-State of Punjab. However, we find no merit in the same. The learned trial Court has found cogent reasons for acquitting the respondents. The complainant (Fauzia) in her deposition in Court reiterated the version as given by her in her initial statement to the police on the basis of which FIR was registered. It is alleged by her that on 10.03.2004, at about 4.30 p.m., she was alone in her home. At that time her mother’s sister (massi) (respondent No.2), her mother’s sister’s husband (massar) (respondent No.4), her mother’s brother (mama) (respondent No.3) and her mother’s brother’s wife (mammi) (respondent No.1) came there. Her mother’s sister’s husband (masar) (respondent No.4) was holding a small bottle containing some medicine. The respondents asked her to drink the medicine in the said bottle; however, she (Fauzia) 5 CRM No. A-383-MA of 2011 refused to drink the same suspecting it to be some poisonous substance. Abdul Sattar (respondent No.3), her mother’s sister’s brother told the other accused (i.e. respondents No.1, 2 and 4) to forcibly administer the contents of the small bottle to her. He went outside to keep a watch. Mohd. Sadiq, the mother’s sister’s husband (masar) and Shehnaz, the mother’s brother’s wife (mammi) of the complainant tried to forcibly put the contents of the bottle in the mouth of Fauzia (PW-1) with the intention to kill her. They poured the contents of the bottle in her mouth. At that time, her mother’s sister (massi) (respondent No.2) and her mother’s brother’s wife (mammi) (respondent No.1) had caught hold of her. Then she (Fauzia) raised a hue and cry, which attracted her brother Kalim (PW- 3), who got her admitted in the Hospital. All the respondents then fled away from the spot and took the small bottle with them. It is alleged that the father of Fauzia (complainant) in fact wanted to marry her in some foreign country. However, the respondents wanted to marry her in their brotherhood. Earlier, also there were disputes and quarrels in this regard. When the father of the complainant (Fauzia) did not agree to marry her in their brotherhood, then the respondents declared that they would cause harm to her and used to threaten her. Her maternal uncle Abdul Sattar (respondent No.3) had threatened to kill her. 6 CRM No. A-383-MA of 2011 Dr. Arvind Verma (PW-2), Medical Officer, Civil Hospital, Samana examined Fauzia (complainant) on 10.03.2004 at about 4.50 p.m. He found multiple abrasions present on both the fore arms anteriorally, an abrasion present on anterior lateral part of right leg, an abrasion 2” present on right anterior lateral part of neck. Kalim, PW-3 (brother of the complainant) stated that he was returning home on 10.03.2004 at about 4.32 p.m. and he heard a noise being raised by his sister (Fauzia). He saw from a distance of 10 karams that his mama, Abdul Sattar (respondent No.3), mammi, Shehnaz (respondent No.1), massar Mohd. Sadiq (respondent No.4) and massi Hamida (respondent No.2) were swiftly going out of the house. Mohd Sadiq (respondent No.4) was carrying a small bottle of medicine in his hand. On asking, his sister (Fauzia), she told him that all the accused (respondents) had come to her and asked her to take the medicine, but she refused to take the same suspecting it to be poison. The learned trial Court considered the fact that the prosecution case was based primarily on the evidence of the complainant (PW-1, Fauzia), Dr. Arvind Verma (PW-2) and brother of the complainant Kalim (PW-3), besides the Chemical Examiner’s report (Ex.PF). Dr. Arvind Verma (PW-2) in his cross-examination stated that the injuries on the person of Fauzia (complainant) were superficial in nature and possibility of injuries with a 7 CRM No. A-383-MA of 2011 friendly hand could not be ruled out. It is also stated during cross-examination that he gave no opinion whether it was a case of poisoning or not. Accordingly, it was observed that no injury mark suggestive of struggle was seen on the face and lips or elsewhere on the face of the complainant (Fauzia). Besides, there was no sign on her body to show that she was subjected to violence. It was also noticed that no opinion was given by Dr. Arvind Verma (PW-2) as to whether they had forcibly administered poison to the complainant (Fauzia). In case the accused had grappled with the complainant and forcibly put some poisonous substance in her mouth, then she would have received some injuries on her face. Therefore, it may be noticed that though there were minor injury marks on the person of the complainant, which could be suffered with a friendly hand. However, there was nothing to show from the deposition of Dr. Arvind Verma (PW-2) that the complainant (Fauzia) was forcibly administered some poisonous substance. The evidence of Kalim (PW-3) was rightly held by the learned trial Court to be inadmissible being hearsay evidence inasmuch as he was told by his sister (Fauzia) that the respondents had forcibly administered some poisonous substance to her. Discrepancies were also noticed by the learned trial Court as regards the stomach contents and the clothes of the complainant (Fauzia) from the date they were taken in 8 CRM No. A-383-MA of 2011 possession by the police till the date they were sent to the office of Chemical Examiner. It was held that the link evidence in the case was missing. Dr. Arvind Verma (PW-2) had examined the complainant (Fauzia) on 10.03.2004 at 4.50 p.m. He noticed that there was smell of pungent chemical from her clothes and also in her breath. He took the stomach contents and clothes for the purpose of sending them for chemical examination. However, Dr. Arvind Verma (PW-2), handed over the parcels to ASI Gurjit Singh, Investigating Officer on 13.03.2004. It is on the said date that ASI Gurjit Singh took possession of parcel of clothes and parcel of vial alongwith an envelope vide memo Ex.PW5/A. HC Inderjit Singh (PW-5) has also deposed that it was on 13.03.2004, that the Investigating Officer took in possession the parcels for chemical examination. There is no explanation as to why the parcels for chemical examination were not taken in possession on 10.03.2004; besides, as to where the parcels had remained from 10.03.2004 to 13.03.2004. It was, therefore, observed by the learned trial Court that the link evidence in the case was missing. Besides, it was also observed that the prosecution had failed to explain with regard to the receipt of parcel containing clothes and gastric leverage for chemical examination on 13.03.2004 when it was taken in possession by the police. C-Sudham Singh (PW-7) in his affidavit EX.PW7/A deposed that on 22.03.2004, he took the parcel for 9 CRM No. A-383-MA of 2011 chemical examination from MHC-Amrik Singh (PW-9). On the said date the chemical examiner raised certain objections on the parcel itself. C-Sudham Singh (PW-7) further deposed that on the same very date, he re-deposited the parcel with the MHC-Amrik Singh. Thereafter, on 19.04.2004, MHC-Amrik Singh again handed over the parcel to C-Sudham Singh (PW- 7) which he deposited with the chemical examiner. In cross- examination, it is submitted by C-Sudham Singh (PW-7) that he was not aware of the objections as the same were written in English language. HC-Amrik Singh (PW-9) in his deposition stated that the objections were removed; however, he could not state as to what actually the objections were. ASI Gurjit Singh (PW-6) in his cross-examination states that no sample was given to him by the Dr. Arvind Verma (PW-2) on 10.03.2004 when the statement of the complainant (Fauzia) was recorded. Therefore, in the circumstances, the prosecution has failed to clear the doubt regarding objections raised by the Chemical Examiner and also as to who had removed those objections. Therefore, it was observed that possibility of tampering with the sample could not be ruled out and the link evidence was incomplete. There was no evidence that the vial contained stomach wash or that it related to complainant. Therefore, the link evidence with regard to sending the stomach wash to Chemical Examiner was completely missing, which was a doubtful circumstance. 10 CRM No. A-383-MA of 2011 It was observed that Kalim (PW-3), brother of the complainant (Fauzia) had not seen the occurrence, which is the admitted position. As per his deposition, he was in fact informed by his sister (Fauzia) regarding the manner in which the incident had occurred. Therefore, his evidence was held to be inadmissible being hearsay. The motive for the incident was also found to be very weak. Fauzia (PW-1) and her brother Kalim (PW-3) stated that the respondents wanted to marry Fauzia (PW-1) in their brotherhood. However, their father did not agree as he wanted to marry Fauzia abroad. It may be noticed that in the FIR, as was initially recorded, this was not the motive which was given. It was mentioned that the respondents wanted to administer poison on account of some earlier quarrel. Learned trial Court found that there had been an improvement in the motive from that which was initially alleged. Besides, the motive had been disclosed after a lapse of eight and a half months from the lodging of the FIR. Abdul Sattar (PW-3) appeared in his defence as DW- 9, he deposed that there was a property dispute with the father of the complainant (Fauzia). On 10.03.2004, his mother had gone to revoke the power of attorney which had been executed in favour of the father of the complainant (Fauzia). In his deposition, he produced a copy of the cancellation of power of attorney as mark Ex.PW9/C. It was 11 CRM No. A-383-MA of 2011 also stated that Lal Din, Registry Clerk was a relative of the father of the complainant (Fauzia). It was observed by the learned trial Court that the possibility when the accused person i.e. Abdul Sattar (PW-3) went to revoke the power of attorney then the registry clerk who was a relative of the father of the complainant (Fauzia) may have informed him regarding the revocation of power of attorney. The present case was thereafter registered on 10.03.2004. Therefore, according to the learned trial Court the possibility could not be ruled out that when father of the complainant (Fauzia) came to know that his mother-in-law, who is the mother of Abdul Sattar (PW-3) had revoked the power of attorney earlier executed in his favour, he implicated all the respondents to put pressure on his mother-in-law. The motive as given by the prosecution is indeed too weak for the accused persons (respondents) to act in the manner as has been alleged by the prosecution. In the circumstances, it may be noticed that the case as set up by the prosecution has indeed not been established. The link evidence is completely missing with regard to the material sent to the Chemical Examiner. The motive is very weak; besides, the fact that the mother of Abdul Sattar (PW-3) had revoked the power of attorney in favour of her son-in-law, who is the father of the complainant (Fauzia) may have impelled the father of the complainant (Fauzia) to 12 CRM No. A-383-MA of 2011 initiate the present proceedings so as to put pressure on the respondents. The reasons recorded by the learned trial Court in acquitting the respondent are sound and probable and merely because an other view may be possible, is no ground to interfere with the order of the learned trial Court. Consequently, we find no merit in the criminal miscellaneous application seeking leave to appeal in terms of Section 378 (4) Cr.P.C and the same is dismissed. (S.S. SARON) JUDGE (JORA SINGH) JUDGE July 29, 2011 Sham 13