IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No.575-MA of 2007(O&M) Date of Decision: 21.01.2009 Mohinder Kaur Applicant Versus Nasib Kaur and others Respondents CORAM:- HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MR. JUSTICE JORA SINGH Present: Ms.J.J.Kaur, Advocate for the applicant Mr.H.S.Gill, Senior Advocate with Mr.Vivek Goel, Advocate for the respondents ….. Jasbir Singh, J. Applicant has filed this application under Section 378 (4) Cr.P.C. to lay challenge to the judgment of acquittal, passed by the Additional Sessions Judge, Nawanshahr on 20.3.2007. Application is barred by limitation, prayer has been made to condone the same. This Court has issued notice in application for condonation of delay on 13.5.2008. Today, on request made, we have also heard arguments on application filed under Section 378(4) Cr.P.C. on merits. As per records, Jit Singh husband of the applicant, filed a complaint in the month of August 1998, against the respondents, for commission of an offence punishable under Sections 302/201/120-B IPC. It was his allegation that the respondents, on 18.6.1998, with common intention, after conspiring with each other, had committed murder of his Criminal Misc. No.575 MA of 2007(O&M) 2 brother Swarn Singh. Jit Singh –complainant had died in the meantime. This application has been filed by his widow. After recording preliminary evidence, vide order dated 30.9.2000, the competent Court committed the case for trial to the Court of Sessions. Case of the prosecution as noticed by the trial Court in paragraph No.2 of judgment under challenge reads thus:- “Brief facts of the prosecution case are that accused Nasib Kaur and Surjit Kaur are the sisters of complainant Jit Singh, whereas accused Rattan Singh (since deceased) was the husband of accused Nasib Kaur and accused Teja Singh is the husband of accused Surjit Kaur. Sarwan Singh alias Swarn Singh was brother of complainant, as well as, accused Nasib Kaur and Surjit Kaur. Both complainant and Sarwan Singh alias Swarn Singh were joint owners of land in village Narang Shahpur, Tehsil Phagwara, District Kapurthala. Swarn Singh was residing with the complainant and was joint in cultivation with the complainant. Swarn Singh was a bachelor and issueless. In the month of January, 1998, accused Nasib Kaur and her husband Rattan Singh (since deceased) visited village Narang Shahpur and prevailed upon Swarn Singh to accompany them to village Bharoli. Though Swarn Singh was not anxious to go with accused Nasib Kaur and her husband Rattan Singh (since deceased) yet they prevailed upon Swarn Singh to alienate his share of agricultural land in village Naran Shahpur, by transferring in favour of Niranjan Singh son of Criminal Misc. No.575 MA of 2007(O&M) 3 Piara Singh of village Bharoli who had come from abroad. Initially Swarn Singh was not inclined to sell his share in the land and, as such, he returned to village Narang Shahpur in the end of May, 1998 and started living with the complainant. In the first week of June, 1998, accused Teja Singh and Rattan Singh (since deceased) came to village Naran Shahpur on tractor and took Swarn Singh with them to village Bharoli. During his stay at village Bharoli, Swarn Singh was taken by the accused to Punjab National Bank, Pharala branch and opened an account in the name of Swarn Singh. An amount of Rs.20,00,000/- was deposited by Niranjan Singh son of Piara Singh as part payment of the sale consideration of the share of Swarn Singh in the land, at village Narang Sahahpur and subsequently Swarn Singh executed a registered sale-deed in favour of said Niranjan Singh on 12.6.1998. After getting the sale deed executed and registered from Swarn Singh, Niranjan Singh left for United Kingdom and from there, he remitted another sum of Rs.15,00,000/- which too was credited in the said Bank Account of Swarn Singh with Punjab National Bank, Pharala. After the initial deposit of Rs.20 lacs, accused Surjit Kaur opened an account with Punjab National Bank, Pharala branch with initial deposit of Rs.100/- on 17.5.1998 and all the accused along with Swarn Singh visited the Bank on that day. Accused Nasib Kaur was also holding Bank account in the said Bank. The accused tried to prevail upon Swarn Singh to Criminal Misc. No.575 MA of 2007(O&M) 4 transfer Rs.10 lacs each in the respective Bank accounts of accused Surjit Kaur and Nasib Kaur, in the presence of one Baldev Singh son of Darshan Singh of village Soondh, but Swarn Singh refused to oblige the accused. On 18.6.1998 in the morning, Swarn Singh left the house of accused Nasib Kaur where all the accused were present saying that he was returning to his village Narang Shahpur. All the accused tried to prevail upon Swaran Singh not to go to village Naran Shahpur but he did not agree and consequently the accused forcibly dragged Swarn Singh and took him inside the house of Nasib Kaur, in the presence of Jit Singh neighbourer of accused Nasib Kaur, as well as, one Kewal Singh son of Jagir Singh resident of Hoshiarpur Road, Phagwara, who happened to pass by the side of house of accused Nasib Kaur and they requested the accused to let Swarn Singh go to his house, but the accused did not pay any heed to the said request of the above-stated witnesses and bolted the door of the house from inside. At about 9.30 AM, the accused declared that Swarn Sing had died and they hurriedly arranged for the cremation of his dead body without sending any message to the complainant and other relatives of Swarn Singh. The complainant came to know about the death of Swarn Singh his brother on 21.6.1998 and on 22.6.1998, approached the police of Police Station, Behram in the company of Mohinder Singh, Romesh Kumar Lamberdar and Malkiat Singh Director Phagwara cane Growers Co-operative Society Ltd., Criminal Misc. No.575 MA of 2007(O&M) 5 Phagwara and moved application in writing. The police promised to take action, but subsequently, the police failed to take any action against the accused. Hence, this complaint was filed.” During trial (complainant) prosecution produced seven witnesses and also brought on record documentary evidence to prove its case. 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, pleaded innocence and false implication. It was further stated by them that complainant Jit Singh and deceased Swarn Singh were not on good terms, lot of litigation was pending between them. Civil Suit was decided in favour of Swarn Singh on 7.12.1998. Respondents were supporting Swarn Singh in litigation with Jit Singh, being real sister and brother-in-law respectively of the deceased. It was also stated that in fact Jit Singh wanted to grab property of Swarn Singh. Feeling danger to his life, at the hands of Jit Singh, deceased Swarn Singh had started living with them in their village. Swarn Singh was an old man and he died on 18.6.1998 a natural death, due to illness. His last rites were also performed by the respondents. On a complaint made by Jit Singh, an enquiry was conducted by the police, however, they were found innocent and accordingly, no action was taken against them. It was further stated that all witnesses being friends of Jit Singh had deposed against them. They also led evidence in defence. The trial Court on analysis of evidence of both the parties, came to a conclusion that the prosecution has failed to prove guilt of the Criminal Misc. No.575 MA of 2007(O&M) 6 respondents beyond a shadow of reasonable doubt, by giving them benefit of doubt, they were acquitted of the charges framed against them. In this case, as per allegation, motive for committing murder of Swarn Singh, by the respondents-accused, was to grab Rs.35 lacs, which the deceased received by selling his property on 12.6.1998. Swarn Singh- deceased refused to oblige the respondents-accused. They committed his murder. The trial Court has held that there was no motive with the respondents-accused to commit murder of Swarn Singh. In that regard, it was observed as under:- “19. As far as, the motive is concerned, the same is itself belied from the copy of order, Ex.DD passed on an application for interim injunction in a civil suit filed by complainant Jit Singh (since deceased) against Swarn Singh (since deceased), as well as, copy of order dated 7.12.1998 Ex.DE. From these documents, it is proved on record that this complainant Jit Singh was on inimical terms with Swarn Singh deceased. Both complainant Jit Singh (since deceased) and Swarn Singh deceased were real brothers and this Swarn Singh (since deceased) was a bachelor and it is an admitted case of the complainant that Swarn Singh deceased was taken by the sisters and brothers in law to their house at village Bharoli and when it is proved on record that both the brothers were on logger heads due to litigation, then the going of deceased Swarn Singh and residing with the accused was not such an act which could prove that the intention of the accused to take deceased Swarn Singh to their house was to commit his murder and moreover, Criminal Misc. No.575 MA of 2007(O&M) 7 why the sisters who have got love and affection with Swarn Singh their brother, would cause his murder is too remote to imagine. 20. Learned counsel for the accused has further argued that the prosecution has also examined PW3, Raj Kumar Manager of Punjab National Bank, Pharala branch and he also produced on record the statement of account Ex.PB from which it is very clear that an amount of Rs.42,26,193/- was still lying intact in the Savings Bank Account of deceased Swarn Singh and this amount included the amount of Rs.35 lacs which was received by Swarn Singh as sale consideration of the land sold by him to Niranjan Singh and if it is so, when the amount was lying in the Savings Bank A/c of Swarn Singh then why the accused will cause his murder; rather the motive is otherwise because the complainant Jit Singh (since deceased) in order to grab this entire amount of Rs.42,26,193/- lying deposited in Punjab National Bank, Pharala branch, has falsely set up this case involving both sisters and their husbands, so that he could grab the entire property, as otherwise it would have been distributed among the heirs of Swarn Singh (since deceased) who died unmarried and issueless and has prayed that the motive is absolutely lacking in this case.” The trial Court has further noticed that the complainant has failed to make out unbreakable chain of circumstances, to prove commission of offence by the respondents-accused. It was noticed by the trial Court that Criminal Misc. No.575 MA of 2007(O&M) 8 the litigation was pending between the deceased and the complainant- Jit Singh. They were not on good terms. The trial Court has rightly noticed that motive rather lies with Jit Singh, who was bent upon to grab amount of sale proceeds of the property of the deceased. By discussing in detail it has rightly been held in favour of the respondents that they had rather facilitated deposit of sale proceeds amount, in a Bank by the deceased. The trial Court has also discarded story of last seen of the deceased put by the prosecution. It has been rightly said by the trial Court that if the alleged witnesses had seen any untoward incident, it was natural for them to disclose it to police or to any other person. However, witnesses rather decided not to talk to anybody and deposed for the first time only in Court. The factum of making extra judicial confession by the respondents-accused has also been negatived by the trial Court on the ground that Malkiat Singh (PW6) and Romesh Kumar (PW7) before whom, it was alleged that the respondents had made a confessional statement, were not known to them. The above said witnesses were not persons of means who could have saved the respondents-accused from torture of the police. It was also noticed on record that the witnesses produced were known to the complainant Jit Singh for the last more than two decades. It was noted on record that the cremation of the deceased Swarn Singh was largely attended by the co-villagers and none raised any objection at that time. We are of the opinion that as per evidence on record view taken by the trial Court was possible. Even in cases where two views are possible, the view taken by the trial Court in favour of the accused is to be accepted. Criminal Misc. No.575 MA of 2007(O&M) 9 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.” No case is made out to interfere at the instance of the applicant. Accordingly, this application as also the application for condonation of delay stands dismissed. (Jasbir Singh) Judge 21.01.2009 (Jora Singh) gk Judge