Crl. Rev. No.147 of 2005 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -.- Crl. Rev. No.147 of 2005 (O&M) Date of decision:- 11.3.2011 Kulwant Kaur ... Petitioner Versus Harjinder Singh & Ors. ... Respondent CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present:- Mr. Vivek Suri, Advocate, for the petitioner. Gurdev Singh, J (oral) This revision has been preferred by Kulwant Kaur, petitioner/accused, against the judgment dated 20.1.2004 passed by Additional Sessions Judge (Ad hoc) Faridkot acquitting the respondents/accused Harjinder Singh and others, of the offences under Sections 302 and 120-B IPC. The complainant PW7 gave written application to the ADGP (Crime), Punjab, Chandigarh, for taking proceedings against the accused. She narrated therein that her elder son Sukhwinder Singh @ Peeter deceased was a television mechanic and had been working at the shop of Harinder Singh accused since long. On 1.9.2000 Shakti accused, son of that Harinder Singh, took her son from the house, who kept on working at the shop till 5/6 PM. All the accused were present at the shop and were taking liquor and asked her son to take the same, but he had not been taking any drinks. Thereafter Balwinder Singh @ teacher accused offered a glass of Crl. Rev. No.147 of 2005 (O&M) -2- cold water to her son and after consuming that water he fell down. Shakti came to her and disclosed that fact. When she went to the shop of the accused, she found that her son had already been removed to a private hospital by Balwinder Singh and Harinder Singh. Thereafter she went to the hospital and found that froth was coming out of the mouth of her son and all his nails had become bluish and he had died. On the advice of the doctor she took the dead body of her son to Civil Hospital Kotkapura where Rajinder Kumar ASI and Basant Singh Head Constable were already present. After obtaining her signatures on blank papers the dead body of her son was sent to G.G.S.Medical College, Faridkot. She asked the police to take proceedings against the accused, who committed the murder of her son, but they did not take any proceedings. They kept on postponing the matter on the ground that first the post mortem report is to be obtained. Even after the receipt of the post mortem report, no such action was taken by the police. On 30.4.2001, she was assured by the D.S.P Faridkot that the FIR would be registered against the accused. Accordingly her application was marked to Police Station Kotkapur. Immediately thereafter she was called by the officer in-charge of that police station and her statement was recorded by Baldev Singh ASI. She was told that the FIR would be registered after two or three days, but no FIR was registered despite the fact that she visited the police station time and again. She also narrated in that application that Bittu Singh accused, who was related to her as the son of elder brother of her husband, had purchased a television on credit from the deceased, who had gone to his house to collect the price and found Inderjeet Crl. Rev. No.147 of 2005 (O&M) -3- Kaur wife of that Bittu in objectionable state with Balwinder Singh and regarding that activity of Balwinder Singh he had made a protest and since that date the accused had been giving threats to kill her son. That application was marked to the S.S.P Faridkot for registration of the case and to investigate the matter. The SSP further marked that application to the DSP Kotkapura for taking necessary action as per the law after verifying the facts. An enquiry was conducted by Des Raj DSP PW4. On the basis of that enquiry he came to the conclusion that the deceased was in the habit of taking intoxicants etc and on 1.9.2000, he came to the shop of Harjinder Singh and fell down on the platform constructed in front of that shop. Harjinder Singh and others told that it is a case of fit of epilepsy and the deceased was removed to the Hospital at Kotkapura and was admitted at that place and that at the instigation of some one his mother moved that false application. The matter was referred to the District Attorney (legal) for his opinion and he gave his opinion that prima facie case under Sections 302 and 120B IPC is made out against that accused. Thereafter the FIR was registered against the accused for the aforesaid offences. The investigation was conducted by the officer in-charge of the police station, who went to the place of occurrence and after inspecting the same prepared rough site plan with correct marginal notes. The map on scale Ex.PA of the place of occurrence was got prepared from Dharam Singh Draftsmen PW1. The investigating officer collected the post mortem report Ex.PC, the report of the chemical examiner Ex.PD and other documents and also recorded the statements of the witnesses. In the course of investigation, the accused were Crl. Rev. No.147 of 2005 (O&M) -4- arrested and after completion thereof the challan was put in before the Judicial Magistrate, who committed the same to the Court of Session on the ground that the offence under Section 302 IPC was exclusively triable by the Court of Session. The case was entrusted to Additional Sessions Judge, Faridkot for the trial of the accused. On the basis of the documents sent along with police report he found sufficient grounds for presuming the accused committed offences punishable under Sections 302/34 and 120-B IPC. They were charged accordingly, to which they pleaded not guilty and claimed trial. To prove their guilt prosecution examined Dharam Singh PW1, Pardeep Singh PW2, Dr.K.K.Aggarwal PW3, Des Raj DSP PW4, SI Gurjit Singh PW5, HC Rajpal Singh PW6 and Kulwant Singh PW7. After the evidence was closed by the prosecution the accused were examined and their statements were recorded under Section 313 Cr.P.C. The incriminating circumstances appearing against them in the prosecution evidence were put to them in order to enable them to explain the same. They denied all those circumstances and pleaded their innocence and false implication at the instance of Kulwant Kaur complainant. It was stated by Shakti Singh and Harjinder Singh accused that Kulwant Kaur demanded money from Harjinder Singh to prosecute the other accused and subsequently she levelled accusation against them under the greed of money, after consulting some mischievous persons. The accused were called upon to enter on their defence and they examined Harjinder Kumar DW1 in their defence evidence. Crl. Rev. No.147 of 2005 (O&M) -5- I have heard learned counsel for the petitioner. It has been submitted by learned counsel for the petitioner/complainant that cogent and convincing evidence was produced by the prosecution before the trial Court that the deceased died as a result of poisoning and that the poison was administered to him by the accused and still they were acquitted. Those facts stand proved from the statement of Dr.K.K.Aggarwal PW3, who conducted the post mortem examination on the dead body of the deceased and the statement of Kulwant Kaur PW7. He prayed for converting the finding of acquittal of the accused recorded by the trial Court into that of conviction. In this revision, which has been preferred against the judgment of acquittal, the evidence produced by the prosecution is to be scrutinised in the light of the fact that there are two presumptions in favour of the accused. The first presumption arises under the criminal jurisprudence as every accused is presumed to be innocent unless proved guilty. The second presumption arises from the fact of their acquittal was recorded by the trial Court. Merely on the ground that on the same set of facts this Court comes to different conclusion is not a sufficient ground for converting the acquittal into conviction while exercising the revisional jurisdiction. According to Dr. K.K.Aggarwal PW3, he had conducted the post mortem examination on the body of the deceased. He has stated that he had sent viscera of the dead body to the chemical examiner Patiala as well as Pathologist. After the receipt of the report of the chemical examiner he gave his opinion that the cause of death was potassium cyanide, which was Crl. Rev. No.147 of 2005 (O&M) -6- sufficient to cause the death in the ordinary course of nature. His opinion was not challenged during his cross-examination. From that medical evidence produced by the prosecution it stands proved that the deceased has died as a result of poisoning. In order to establish the guilt of the accused the prosecution was required to prove that all the accused hatched criminal conspiracy and in pursuance thereof caused the death of the deceased. When the complainant entered the witness box as PW7, she deposed about the facts which according to her constitute the motive on the part of the accused to cause the death of her son and that the last time her son was taken by Shakti Singh to the shop of his father Harjinder Singh where he used to work as television mechanic and thereafter he was found lying dead in the hospital. She stated that on 1.9.2000 Shakti Singh came to her house at about 7 AM and took away the deceased by saying that her son was to be taken to the shop. The deceased worked at the shop through out the day and was not allowed to come back from the shop. At 7.30 PM Shakti came to call her and told her son had become unconscious. When she went to that place she came to know that he had been removed to the hospital. When she reached the Hospital she found that froth was coming from his mouth, his tongue was cut and his nails had become bluish. She was told by the doctor that he has died. When she made enquiry regarding the incident she was told that Balwinder Singh offered a glass of cold water to the deceased and thereafter he had fallen on the ground. About the motive part she has stated that her son had seen Balwinder Singh accused in compromising condition Crl. Rev. No.147 of 2005 (O&M) -7- with the wife of Bhupinder Singh, who were having illicit relations and her son had threatened that he would tell that fact to his father's brother. From the statement of this complainant, it may be concluded that Balwinder Singh accused had the motive to cause his death. But what about the other accused. It cannot be concluded from her statement that the poison was given to her son by all these accused or that they had hatched a criminal conspiracy in pursuance of which poison was administered to him. During her cross-examination she admitted that she had filed a complaint against the accused and that complaint was proved on the record as Ex.DA. The same was filed by her only against Balwinder Singh and Bittu accused and a different version was given in that complaint. No such evidence was produced on the record that after the deceased left the house and till his death he had not come in contact with any other person. In these circumstances, last seen theory could not have been invoked for concluding that it were the accused and only the accused who caused the death of he deceased. After having examined the records of the case, it has been found that findings recorded by the trial Court and the appellate Court do not suffer from any perversity or illegality nor it can be said to be the result of misreading of the evidence. The revision petition is dismissed accordingly. The records be returned forthwith. March 11, 2011 (Gurdev Singh) tripti Judge