Judgment:
Crl.
Revision No.847 of 1998 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -.- Crl.
Revision No.847 of 1998 (O&M) Date of decision: 16.01.2014 Alamdeep Thakur .......Petitioner Versus State of Haryana and others .......Respondents Coram: Hon'ble MRS.Justice Rekha Mittal -.- Present: Mr.Hemant Bassi, Advocate for the petitioner Mr.Anupam Sharma, AAG, Haryana Mr.K S Nalwa, Advocate and Mr.Rajeev Trikha, Advocate for respondents No.2, 3, 6 and 7 -.- 1.
Whether Reporters of local papers may be allowed to see the judgment?.
2.
To be referred to the Reporter or not?.
3.
Whether the judgment should be reported in the Digest?.
Rekha Mittal, J.
The present revision petition has been directed against judgment 27.02.1998, passed by the Additional Sessions Judge, Yamunanagar at Jagadhari, whereby the private respondents have been acquitted of the offence charged against them.
The material facts necessary for disposal of the petition are extracted hereinbelow.
The occurrence was reported by Phool Chand, Chowkidar of Bimbra Mohan Lal 2014.01.23 11:27 I attest to the accuracy and integrity of this document Chandigarh Crl.
Revision No.847 of 1998 (O&M) 2 Mustafabad on 21.12.1995, vide report Ex.
PD.
As per allegations Mandeep @ Prince son of Usha Thakur, resident of Mustafabad had kidnapped Sapna daughter of Girdhari Lal Bakshi.
A criminal case was registered about kidnapping, but later Sapna performed marriage with Mandeep against the wishes of her parents and made a statement in favour of Mandeep before the High Court.
Mandeep and Sapna started living as husband and wife at some other place.
They had been visiting Mustafabad occasionally to meet Usha Thakur, mother of Mandeep.
At that time, there used to be quarrel between Usha Thakur and parents of Sapna.
About a month prior to the occurrence, Mandeep and Sapna started living at Mustafabad with Usha Thakur.
On 21.12.1995, Phool Chand, Chowkidar came to know that Usha Thakur, Mandeep, her son and Sapna, her daughter-in-law had been killed and the dead bodies were set on fire.
He also found that the door of the house of Usha Thakur facing the house of Girdhari Lal was found broken.
He suspected involvement of Girdhari Lal and his son in the commission of crime.
On the basis of report lodged by complainant Phool Chand, investigation commenced, statement of Parveen Kumar, an alleged eye witness of the occurrence was recorded.
The inquest proceedings were conducted.
The dead bodies were got post mortem examined.
Girdhari Lal, Jai Bhagwan, Mangat Ram, accused got recovered gandasi, lathi and danda, respectively, in pursuance of their disclosure statements.
On completion of investigation, challan was presented against all the accused except Kala alias Ravinder.
Accused Ravi alias Happy was produced before the Juvenile Court.
After hearing counsel for the parties, Girdhari Lal, Jai Bimbra Mohan Lal 2014.01.23 11:27 I attest to the accuracy and integrity of this document Chandigarh Crl.
Revision No.847 of 1998 (O&M) 3 Bhagwan, Mangat Ram and Naresh Kumar were charged for commission of offence under Sections 148/ 302 read with Section 149 of Indian Penal Code (in short, IPC).to which they did not plead guilty and claimed trial.
After examination of Parveen Kumar, Kala alias Ravinder was summoned as an additional accused on the basis of application filed by the prosecution under Section 193 read with Section 319 of the Code of Criminal Procedure (in short, 'the Code').After appearance of Kala alias Ravinder, articles of charge was framed afresh against the accused for the aforesaid offence, to which they did not plead guilty and claimed trial.
To prove its case, the prosecution examined as many as seven witnesses, namely, Dr.
Rakesh Jain (PW1).Dr.
Ramesh Kumar (PW2).Dr.
T K Gupta (PW3).Constable Rishi Pal (PW4).Ram Karan, photographer (PW5).Phool Chand, Chowkidar (PW6) and Parveen Kumar, an alleged eye witness of the occurrence (PW7).The learned trial Court, on appreciation of evidence adduced by the prosecution particularly the statement of star witness Parveen Kumar, arrived at a conclusion that the prosecution has failed to connect the accused with the commission of offence and resultantly, their examination under section 313 of the Code was dispensed with and eventually, they were acquitted of the offence charged against them.
Feeling aggrieved against the verdict of the learned trial Court, the present petition has been preferred by Alamdeep Thakur on the plea that she has suffered loss due to murder of Usha Thakur, mother, Mandeep Thakur, brother and Sapna, sister-in-law.
The case was admitted and has now mature for hearing.
Bimbra Mohan Lal 2014.01.23 11:27 I attest to the accuracy and integrity of this document Chandigarh Crl.
Revision No.847 of 1998 (O&M) 4 Counsel for the petitioner would argue that the learned trial Court has not appreciated the statement of Parveen Kumar in the right perspective and as a result, the Court below has committed a grave error in holding in favour of the accused.
It is argued with vehemence that Parveen Kumar, in his examination-in-chief has attributed specific role to each of the assailants, but later refused to identify the accused present in the Court to be author of the crime.
Parveen Kumar (PW7) did not identify the accused as he was under constant threat from the accused and the facts gets substantiated as he filed a petition before this Court seeking protection to his life and liberty.
It is prayed that the judgment passed by the trial Court may be set aside and the case is remitted to the learned trial Court for reconsideration of testimony of Parveen Kumar and to decide the case afresh, in accordance with law.
Counsel for the respondents have supported the judgment of the trial Court with the submissions that Parveen Kumar was introduced as a witness as he had grievance against Girdhari Lal accused at whose behest Parveen Kumar was arrayed as an accused in the criminal proceedings initiated by Girdhari Lal with regard to kidnaping of his daughter Sapna by Mandeep and otheRs.It is further submitted that as Parveen Kumar had his own axe to grind against the accused party, the blind murder of Usha Thakur and others provided him an opportunity to become a witness to the crime by concocting a false version.
According to counsel, had it been true that Parveen Kumar was an eye witness to the occurrence, there was no reason for him not to disclose about the crime to his family members immediately after his arrival to his house and thereafter information to the police.
The last submission made by counsel is that Parveen Kumar came Bimbra Mohan Lal 2014.01.23 11:27 I attest to the accuracy and integrity of this document Chandigarh Crl.
Revision No.847 of 1998 (O&M) 5 forwarded to become a witness after due deliberation and discussion with his family members with an intent to settle score with the accused.
I have heard counsel for the parties and perused the records.
The instant revision petition has been preferred by one of the family members of the deceased by invoking section 401 of the Code.
Section 401 of the Code deals with High Court's powers of revision.
There cannot be any denial that in exercise of power of revision, this Court is not competent to convert a finding of acquittal into one of conviction in view of bar created under Section 401(3) of the Code.
A relevant extracted thereof is usefully quoted thus:- “401.
High Court's powers of revision.
(1) xx xx (2) xx xx (3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction.”
.
Hon'ble the Supreme Court of India in Sheetala Prasad and others v.
Sr.Kant and another, AIR2010Supreme Court 1140 has held that the revisional jurisdiction can be exercised by the High Court at the instance of private complainant in the following circumstances:- 1.
Where the trial Court has wrongly shut out evidence, which the prosecution wished to produce; 2.
Where the admissible evidence is wrongly brushed aside as inadmissible; 3.
Where the trial Court has no jurisdiction to try the case and has still acquitted the accused; 4.
Where the material evidence has been overlooked either by the trial Court or the Appellate Court or the order is passed by Bimbra Mohan Lal 2014.01.23 11:27 I attest to the accuracy and integrity of this document Chandigarh Crl.
Revision No.847 of 1998 (O&M) 6 considering irrelevant evidence; and 5.
Where the acquittal is passed on the compounding of the offence which is invalid under the law.
After recalling the legal aspect of the matter in regard to scope of intervention by this Court, it brings the Court to embark upon the statement of Parveen Kumar, the material rather star witness examined by the prosecution.
It is true that Parveen Kumar (PW7) in the earlier part of his examination-in-chief has deposed about the role played by each of the assailant in inflicting injuries to Mandeep, Usha Thakur and Sapna, but later in his examination, the witness deposed that he did not identify the accused properly.
Further deposed that he came to know the names of the assailants in the next morning from other persons of the village.
The witness was declared hostile despite objection by the learned defence counsel.
During his cross examination by the Public Prosecutor, he has deposed that there was no light at the place of occurrence i.e.in the Court compound of the house.
He has further denied that he had identified the assailants in the electric light and on the basis of his knowledge, he had disclosed their names to the Police.
The witness was thereafter cross examined by the learned defence counsel.
A relevant extract from the cross examination of the witness reads as follows:- “I as well as my uncle had telephone connections having direct connection with chhappar.
My uncle had a scooter in the days of occurrence.
I did not tell about the occurrence either to my father or to my uncle or their sons because I was frightened.
I did not give any telephonic message to Bimbra Mohan Lal 2014.01.23 11:27 I attest to the accuracy and integrity of this document Chandigarh Crl.
Revision No.847 of 1998 (O&M) 7 the police station.
When Mandeep had gone out, on hearing noise of bachao bachao from outside, then I immediately came out in the Court compound of the house from the room and I found that 20-25 persons were standing in the Court compound and not 50 or 60.
On seeing a large number of persons, I went in the street towards West after passing through the room marked by letter 'T'.
There was complete dark in the court compound at that time.
I cannot say if that night was one day prior to Amavas.
Since I was under fear and I rushed towards the street, I could not identify any of the persons standing in the Court compound.
No portion of the Court compound was visible from the street shown in the West in the scaled plan as there is kitchen and room in between.
I was present in that street existing on the Western side.”
.
In the later part of his examination, testimony of the witness reads as follows:- “I stood surety for Mandeep deceased in the case of assault on the employees of Haryana State Electricity Board and damage to the property of the Board.
A case of kidnapping of Usha Thakur was registered against Inder Singh, his wife Kulwant Kaur and one Nirmal Kaur.
I was a witness in that case of kidnapping.
It is correct that Inder Singh had lodged a cross case against Usha Thakur and Mandeep to the effect that she had defrauded him along with Mandeep to the tune of Rs.55,000/- on the assurance that his son would be sent outside the country and they would help him in getting Visa of a foreign country.
It is correct that Usha Thakur was being prosecuted in Bimbra Mohan Lal 2014.01.23 11:27 I attest to the accuracy and integrity of this document Chandigarh Crl.
Revision No.847 of 1998 (O&M) 8 District Kurukshetra for issuing false Visas and passport when she was living there.
A case under Terrorists and Disruptive Activities Act was also registered against her in District Kurukshetra.
Earlier to her shifting to Kurukshetra, she was residing at Chandigarh.
I am not aware if one Balbir Singh ASI of Punjab Police was on visiting terms with her and was involved in the murder of Sheetal Dass, SSP and Baldev Singh Brar, SP of Patiala.
I do not know if Usha Thakur was arrested in that case or not.”
.
Still further, the witness deposed as quoted thus:- “I had come to know on the next morning at about 7.00 am that the police had come to the village.
After about 15 minutes thereof, I went to the house of Usha Thakur.
The police was asking the people present there if any one of them knew about the occurrence.
I myself did not give any statement to the police.
I gave the names of accused Girdhari Lal etc.on the information of the villagers and due to fear of the police.
A case of abduction of daughter of Girdhari Lal accused had been registered against Usha Thakur, Mandeep Singh and Usha Thakur's daughter Arti.
I was also mentioned as an accused in that case.
I did feel it that my name had been falsely implicated in that case by Girdhari Lal.
I along with Usha Thakur etc.filed a petition in the High Court for quashing of that FIR.”
.
Now the question arises whether any material evidence has been overlooked by the trial Court while passing the judgment.
As has been noticed earlier, the prosecution hinges upon evidence of Parveen Kumar alone, alleged eye witness to the occurrence.
Bimbra Mohan Lal 2014.01.23 11:27 I attest to the accuracy and integrity of this document Chandigarh Crl.
Revision No.847 of 1998 (O&M) 9 A careful reading and due consideration of the statement of Parveen Kumar (PW7) makes it evident that Parveen Kumar had hostility against Girdhari Lal, accused because Girdhari Lal indicted Parveen Kumar for kidnapping of Sapna by accused Mandeep.
It has also come on record that Usha Thakur was a lady with suspicious character/credentials and she faced criminal proceedings for commission of fraud as well as indulgence in activities under the Terrorists and Disruptive Activities Act.
Parveen Kumar did not inform his father, uncle or other family members that his friend Mandeep, his wife Sapna and mother Usha Thakur have been done to death in brutal attack by the assailants.
It is difficult to digest and accept that if a person has seen an occurrence involving murder of three persons including one of his close friends, he would not disclose it to his father and other family members immediately on arrival to his house.
A person who has seen such a crime would ordinarily be totally shaken.
It is not the plea of Parveen Kumar that he did not meet his father and uncle or other family members on return to his house.
Parveen Kumar did not report the matter to the police or any resident of the village.
The silence of Parveen Kumar creates a serious doubt that he was present on the spot at the time of alleged occurrence.
It appears that Parveen Kumar was introduced as a witness being a friend of Mandeep (since deceased) and he came forward to become a witness of the prosecution due to his grudge against Girdhari Lal.
The statement of Parveen Kumar, in the present circumstances, cannot hold good to form basis for conviction of the accused under Section 302 IPC, a crime involving minimum sentence of life imprisonment.
There is no gain-saying that the standard of proof is expected to be comparatively higher in serious crimes when otherwise the Bimbra Mohan Lal 2014.01.23 11:27 I attest to the accuracy and integrity of this document Chandigarh Crl.
Revision No.847 of 1998 (O&M) 10 prosecution undoubtedly has to establish culpability of the accused beyond a shadow of reasonable doubt.
The Court has to balance the conflicting interests of the parties.
In an appeal against acquittal, if two views are possible, the one already taken by the trial Court in favour of the accused is to be preferred unless there are compelling reasons to differ with the view of the trial Court.
In view of the above, I do not think it to be a fit case, wherein an intervention by this Court is warranted to remit the matter to the Court below for reconsideration.
For the aforesaid reasons, the petition is dismissed.
(Rekha Mittal) Judge 16.01.2014 mohan Bimbra Mohan Lal 2014.01.23 11:27 I attest to the accuracy and integrity of this document Chandigarh