CRIMINAL MISC. NO. 687-MA OF 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: January 29, 2009 Parties Name State (Union Territory Chandigarh) ...APPLICANT. VERSUS Meena ...RESPONDENT CORAM: HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MR. JUSTICE JORA SINGH PRESENT: Mr. Sukant Gupta, Advocate, for the applicant. JASBIR SINGH, J. JUDGMENT State (Union Territory Chandigarh) has filed this application under Section 378(3) Cr.P.C. with a prayer to grant leave to file an appeal against judgment dated January 20, 2007, acquitting the respondent of the charges framed against her. There is a delay of 582 days in filing this application. Prayer for condonation of delay has also been made. It was case of the prosecution that the respondent in conspiracy with Jaswant Pal son of Ram Dev Pal had committed murder of her husband Om Parkash on June 16, 2004. Jagir Dass (PW1) and deceased Om Parkash were real brothers and both were in joint business as cable operators. Prosecution story as noticed by the trial Court is as under: CRIMINAL MISC. NO. 687-MA OF 2008 -2- “4. On 16.6.2004 at about 5.15 a.m. the complainant Jagir Dass received a telephonic call from accused Meena who told him that Om Parkash, her husband, had not returned home that night. She further stated that some newspaper hawker told her that Om Parkash's motorcycle No. CH-03M-04422 was lying parked in CRPF ground, Ram Darbar, Chandigarh. 5. On receipt of the above message, this complainant having taken Suresh Kumar (PW7) along went to CRPF ground. There they found the motorcycle of Om Parkash lying parked. They came to know that Om Parkash had been taken away by P.C.R. (Police Control Room) Gypsy to Govt. Medical College and Hospital, Sector 32, Chandigarh. The complainant then reached the above hospital. There he came to know that doctor had declared Om Parkash as brought dead. He identified the dead body of Om Parkash lying on the stretcher. 6. Prior to that at about 4.45 a.m., A.S.I. Surinder Singh (PW15) received a message from the control room that one male person was lying on the ground near CRPF Camp, Ram, Dabar, Chandigarh. On receipt of that information he having taken Constable Satwant Singh along rushed to the spot. He found the above motorcycle lying there. Besides this one Nokia mobile was lying there. They came to know that Om Parkash who was lying on the ground had been taken to Govt. Medical College and Hospital, Sector 32, Chandigarh.” CRIMINAL MISC. NO. 687-MA OF 2008 -3- ASI Surinder Singh (PW15) went to the Hospital in Sector 32, Chandigarh, and moved an application (Ex. PJ) to know cause of death of Om Parkash and also for conducting post-mortem examination of the dead body. He was intimated that Om Parkash was brought dead and his post- mortem examination could not be conducted in that Hospital. The Investigating Officer then prepared inquest report of the dead body and sent it for post-mortem examination to General Hospital, Sector 16, Chandigarh. Thereafter he reached at the spot, where he met the complainant Jagir Dass, who made a statement Ex. PA stating that some unknown persons have caused death of his brother Om Parkash. On receipt of intimation from ASI Surinder Singh (PW15), FIR Ex. PA/1 was recorded. In the meantime, Investigating Officer removed blood stained earth from the spot, got the spot photographed and prepared rough site plan. Post-mortem on the dead body was conducted by Dr. G. Verma (PW2) on June 17, 2004. It was a case of fire-arm injury. Pellets were removed from the body at the time of autopsy. Clue regarding participation of Jaswant Pal in the crime was given by Satish Kumar (PW6), who stated that he had seen the above said accused coming from the side of Railway track and going towards Ram Darbar on June 15, 2004, at 11.50 PM. His shirt was stained with blood. The above named accused was produced before the Investigating Officer on June 16, 2004, by Prem Chand (PW3). The witness further stated that accused Jaswant Pal had made confessional statement before him that he was having illicit relations with the respondent in this application, which fact had become known to Om Parkash. In view of above, both had conspired to kill Om Parkash. As planned on June 15, 2004, Jaswant Pal had taken Om CRIMINAL MISC. NO. 687-MA OF 2008 -4- Parkash to Panchkula on a motorcycle on the pretext of making payment to someone. Both of them went to the house of one Charno alias Charanjit Kaur (PW17) and then towards CRPF Building. Thereafter at a secluded place, he shot dead above said Om Parkash. PW3 has further stated that after committing the murder, Jaswant Pal had contacted the respondent in this application, on telephone. On disclosure statement made by Jaswant Pal, weapon of offence was recovered and thereafter respondent was also arrested. On completion of investigation, final report was put in Court for trial. The accused pleaded not guilty to the charge and claimed trial. The prosecution produced 25 witnesses and also brought on record documentary evidence to prove its case. On conclusion of prosecution evidence, statement of the respondent was recorded under Section 313 Cr.P.C. Incriminating material was put to the accused. They denied the same and pleaded false implication. The respondent took a specific stand that she has falsely been implicated in this case at the instance of Jagir Dass who wanted to grab her husband's cable operation business. She denied any relationship with co-accused Jaswant Pal. She has further stated that her son Himanshu was tutored to falsely depose against her. The accused also led evidence in defence. The trial Court, on analysis of evidence as led by the parties, came to a conclusion that the prosecution has failed to prove guilt of the respondent and accordingly acquitted her. However, co-accused Jaswant Pal was convicted and sentenced for commission of an offence punishable under Section 302 IPC and Section 25 of the Arms Act, 1959. After hearing counsel for the applicant, we find that it was a case of circumstantial evidence. The trial Court rightly came to the CRIMINAL MISC. NO. 687-MA OF 2008 -5- conclusion that the prosecution has failed to make out a complete chain of circumstances, which may indicate towards guilt of the respondent in this case. The trial Court has held that the prosecution has failed to prove any motive on the part of the respondent to commit murder of her husband. In this regard, it was observed as under: “62. The next circumstance as relied upon by the prosecution is 'motive' of this accused Jaswant Pal to eliminate the deceased. This circumstance has not been proved by the prosecution by leading cogent and satisfactory evidence. Prem Chand (PW3), no doubt, stated that before him this accused had confessed that he had illicit relations with co-accused Meena who was wife of deceased Om Parkash. He further deposed that he had taken Meena to Delhi and there nephew of Om Parkash had seen him and Meena in a compromised position. He had told it to Om Parkash. Om Parkash had then quarreled with Meena. Thereafter they (both the accused) planned to kill Om Parkash and in pursuant of that conspiracy he murdered him by firing gun shot at him as discussed here-in-before. But from such like statement made by PW3 it is hard to infer any such illicit relations. Nephew of Om Parkash was the best witness to depose about the alleged incident witnessed by him in Delhi. Neither his name was divulged by this PW3 nor investigating agency opted to examine or site him as prosecution witness. In the absence of that direct evidence which was available to the prosecution to prove this fact it shall not be safe to place reliance upon this circumstantial evidence. CRIMINAL MISC. NO. 687-MA OF 2008 -6- 63.Reference was also made to the testimony of Charanjit Kaur (PW17) who had also stated that on 15.6.2004 accused had stated before her that illicit relations between Jaswant Pal and his wife were irking him. On account of that he was quite perturbed. This statement made by this PW17 also does not appeal to reason at all. Had the things been like that there would have been no occasion for the deceased Om Parkash to take the accused Jaswant Pal along while going to Panchkula. Om Parkash had, according to this PW17, no liking for accused Jaswant Pal. He was an eyesore for him. Still when he was taking him along it is not believable that deceased was perturbed on account of the illicit relations of accused Jaswant Pal with accused Meena. This version seems to have been introduced by her for some other reasons. But the fact remained that accused Jaswant Pal could not be taken to have committed crime having the above motive in his mind.” As per evidence on record, finding given by the trial Court is justified. Against the respondent, it was allegation that the murder of her husband was committed by Jaswant Pal at her instance. After analysing the evidence on record, the trial Court has rightly come to conclusion that the prosecution has failed to establish on record that there were illicit relations between the respondent and her co-accused. To prove conspiracy between both the accused, reliance was placed upon telephone calls made by co- accused to the respondent on the night intervening 15 & 16th June, 2004. To CRIMINAL MISC. NO. 687-MA OF 2008 -7- discard story of calls made by co-accused, the trial Court has referred to the testimony of Suresh Kumar (PW7), an employee with the deceased, who had stated that the telephone in dispute was installed in house of the deceased. The cable operation business was also being run from that place. Jaswant Pal accused was working in a section, which used to remain open around the clock and workers used to continue to work there. Jaswant Pal used to work upto 12 at mid-night and upto 1 AM. Mother of Om Parkash and two children were also staying in the house. By noting as above, the trial Court has rightly held that respondent Meena alone was not to receive the calls on the phone in question. In such like situation, Jaswant Pal accused would not think of using the phone, which was being used in the business premises. Prosecution story of hearing conversation between respondent Meena and accused Jaswant Pal by her son was also rightly discarded by the trial Court. In that regard, it was observed as under: “69. The above submission made by learned Public Prosecutor is devoid of merits. First of all this witness Himanshu (PW24) was a child aged about nine years. At the time of occurrence he was aged between six to seven years when he is alleged to have heard the above conversation. A boy of such an age group cannot recollect the exact account of conversation after the span of eight to nine months. No steps were taken for examining him during initial investigations. A permission was sought for further investigation. During that investigation his statement was recorded and then he was produced in the court as PW24. Therefore, it cannot be ruled out that this witness could not be a tutored witness. He had already lost his father. CRIMINAL MISC. NO. 687-MA OF 2008 -8- His mother was in jail. In their absence he was in custody of Jagir Dass (complainant) PW1 who was only an employee of the deceased Om Parkash. Despite the fact that he was his real brother, immediately after his death he moved an application for seeking permission to manage the property left by Om Parkash on behalf of his minor sons. In that petition (Ex. DA) he had categorically mentioned that he wanted to become guardian of the minor children as well as property of his brother Om Parkash. He had further mentioned in his affidavit (Ex. DH) filed before Judicial Magistrate First Class, Chandigarh that children of Om Prakash i.e. Himanshu (PW24) and Sahil were in his custody. That being so he had every opportunity to tutor this docile child to depose in particular fashion. The claim of the prosecution that this witness could not be examined at relevant time as he was away of Rajpura is unbelievable. Even if he was away of Rajpura the place was not far off that he could not be examined. In such a situation, this witness seems to have been procured and projected by PW1 (complainant) with an idea to plug the loop hole as prior to his examination statement of this PW1 had been recorded in the court and he must have been panicky on account of certain revelations made by him during his cross-examination. 70.Be that as it , may even if for the sake of arguments, it is taken that this witness has been rightly examined by the prosecution, his testimony does not inspire confidence. In his cross-examination he admitted that he, his mother (Meena) CRIMINAL MISC. NO. 687-MA OF 2008 -9- and his father (Om Parkash) used to sleep in one room whereas his younger brother and his grand mother used to sleep in another room. He further stated that when telephonic call was received at 11 p.m. his grandmother and his younger brother were sleeping and he was sleeping with his mother in another room. He further added that he had picked up the phone first under the impression that it must be call from his father. Again said the phone was picked up by his mother first and thereafter he had picked up the receiver. He further stated that he had picked up the phone from another room where he was sleeping all alone and his mother had picked up the receiver from the bed room where they used to sleep. This statement itself demolishes the whole claim of the prosecution. It is not believable as to how he had talked on telephone holding the parallel line when admittedly he and this accused Meena were sleeping in the same room. It has not been the case of this witness that he had on hearing the telephone ring gone to another room. This all shows that this witness has only been dragged into the fray by the complainant for obvious reasons.” The trial Court has also come to the conclusion that Jagir Dass (PW1) appeared to have involved the respondent in this case because of ulterior considerations. To discard testimony of Himanshu (PW24), son of the respondent, the trial Court has noticed that at the time of alleged occurrence, he was of very tender age and his tutoring could not be ruled CRIMINAL MISC. NO. 687-MA OF 2008 -10- out. The trial Court has given further sufficient reasons to discard theory of conspiracy between the respondent and her co-accused in paras No. 77 to 80 of the impugned judgment. Counsel for the applicant has failed to show any misreading of evidence on the part of the trial Court, which may necessitate any interference by us in judgment of acquittal. As has been discussed earlier, in view of evidence on record, view favouring the respondent was possible. Their Lordships of the Supreme Court in Allarakha K. Mansuri v. State of Gujarat, 2002 (1) RCR (Criminal) page 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) page 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.” Counsel for the State has failed to show that the trial Court has committed any error on facts or material irregularity, on the basis of which judgment under challenge qua the respondent can be set aside. CRIMINAL MISC. NO. 687-MA OF 2008 -11- For the reasons, mentioned above, this application fails and the same is accordingly dismissed. (JASBIR SINGH) JUDGE (JORA SINGH) JUDGE January 29, 2009. DKC