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