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2013 DIGILAW 1608 (PNJ)

Om Parkash v. State of Haryana

2013-12-05

KUMAR SANGHI

body2013
JUDGMENT Mr. Naresh Kumar Sanghi, J.:- Challenge in this criminal revision petition is to the judgment, dated 6.3.2009, passed by the learned Sessions Judge, Narnaul, whereby respondent Nos. 2 and 3, namely, Kanwar Singh @ Kalia, and Parveen Kumar @ Pardhan, were acquitted of the charge, under Section 306 read with Section 34, IPC. 2. The brief facts of the case are that on 6.5.2007, the petitioner-complainant, Om Parkash, moved an application alleging therein that on 5.5.2007, at about 8.00 a.m., respondent No. 2, Kanwar Singh @ Kalia, and respondent No. 3, Parveen@ Pardhan, came to village Seka and took away Parvesh, son of Ram Niwas, with them. At about 2.00 p.m., Bablu, resident of village Neerpur, who was accompanied by one young boy, came to his (Om Parkash) house and asked him to bring Parvesh from the well near the canal. Later, the dead body of Parvesh was found in the well. A doubt was expressed in the application that Parvesh had been killed by the respondents-accused, Parveen @ Pardhan and Kanwar Singh @ Kalia. On the basis of the said application, FIR No. 104, dated 6.5.2007, under Section 306 read with Section 34, IPC, was registered at Police Station, Sadar, Narnaul. 3. After investigation, the charge-sheet (report under Section 173, Cr.P.C.) was presented before the learned Area Judicial Magistrate, Narnaul. Since the offence under Section 306, IPC, was triable by the Court of Session, therefore, the case was committed to the Court of Session at Narnaul. 4. Finding a prima facie case, the charge under Section 306 read with Section 34, IPC, was framed against the respondents-accused, to which they pleaded not guilty and claimed trial. 5. In order to substantiate its allegations, the prosecution examined the following witnesses:- 6. PW-1 – Om Parkash deposed that on 5.5.2007, at about 8.00 a.m., Parveen and Kanwar Singh came to his house and took Parvesh with them. At about 2.00 p.m., an information was received that Parveen and Kanwar Singh had killed Parvesh and thrown him in the well. He, along with his family members, rushed to the place and took out Parvesh from the well, who was found to be dead. The dead body was taken to the General Hospital, Narnaul, and thereafter he went to the police station and moved an application (Ex. PA). He, along with his family members, rushed to the place and took out Parvesh from the well, who was found to be dead. The dead body was taken to the General Hospital, Narnaul, and thereafter he went to the police station and moved an application (Ex. PA). He further deposed that after two days of the occurrence, Lalit, who was on the driving seat of the vehicle in which Parvesh (deceased) was taken away by the accused, told that he left the vehicle about 100 yards away from the well and the accused persons drove the vehicle towards the well and killed Parvesh and threw him in the well. 7. PW-2 Satpal deposed that on 5.5.2007, at about 2.00 p.m., Vikas and two boys of village Neerpur came to him and told that Parvesh was thrown in the well. He along with the family members and other villagers went to the well and took Parvesh out, who was found dead. 8. PW-3 HC Mahesh (Draftsman) deposed that he had gone to the spot in village Seka on 18.5.2007 and prepared the site plan (Ex. PB) on the demarcation of the complainant, Om Parkash. 9. PW-4, Smt. Poonam, deposed that one day in the month of May, 2007, she was standing at the bus-stop of village Sherpur, when a car arrived there from the side of Behror and she got lift in the car for going to her village. On reaching near canal, in the area of village Seka, Parvesh (deceased) got the car stopped on the pretext of Urination. He got down and reached towards a well and jumped into it. She further deposed that the deceased was not known to her by that time and no other person was there in the car, besides herself, the deceased and the driver. She further deposed that she boarded a tempo and came back home. In her deposition, she did not tell the name of the driver of the car. She was clear in her deposition that Sunil and Satender, residents of village Neerpur, were not known to her. 10. PW-5 Sunil @ Bablu deposed that the respondents accused had not come to his house on 5.5.2007. When he did not supported the prosecution, then he was declared hostile with the permission of the Court, but nothing favourable to prosecution could be elucidated in his cross-examination by the Public Prosecutor. 11. 10. PW-5 Sunil @ Bablu deposed that the respondents accused had not come to his house on 5.5.2007. When he did not supported the prosecution, then he was declared hostile with the permission of the Court, but nothing favourable to prosecution could be elucidated in his cross-examination by the Public Prosecutor. 11. PW-6 Satender @ Bhola also deposed that he did not know the accused before the death of Parvesh. He further deposed that even Smt. Poonam was not known to him. He did not tell as to how Parvesh had died. He too was declared hostile. 12. PW-7 Vikas deposed that on 5.5.2007, Sunil and Satender came to his village and told that Parvesh had died by jumping into the well. Thereafter, he informed the family members of Parvesh. He along with the family members went to the well and the dead body of Parvesh was taken out by the villagers. He was very categoric in his deposition that Smt. Poonam was not known to him. 13. PW-8 Lalit Kumar deposed that he had been driving an Indica car, which was owned by his brother. He deposed that Parvesh (since deceased) had hired the said car on 5.5.2007 for going to Neemrana from Narnaul. He further deposed that they left Narnaul at about 10.00 a.m. and on the way at Behror Chowk, a girl, namely, Poonam also sat in the car. Poonam and Parvesh went to a hotel at Neemrana and after an hour, they started back journey. Poonam and Parvesh alighted from the car at village Seka. He further deposed that Parvesh got down from the car on the pretext of Urination. After alighting from the car, Poonam had a conversation with Parvesh for about 5 minutes. Thereafter, he (Parvesh) ran towards the well and Poonam called some persons by making a telephone call. Many villagers reached there. The villagers took out Parvesh from the well and carried his body to the hospital. He further deposed that the respondents-accused were not present at the place of occurrence. 14. PW-9 HC Amandeep had taken the photographs (Ex. P1 to P4) of the dead body. 15. PW-10 SI Ram Saroop deposed about the investigation conducted by him. 16. PW-11 Dr. Sanjay Bishnoi, Medical Officer, General Hospital, Narnaul, along with Dr. He further deposed that the respondents-accused were not present at the place of occurrence. 14. PW-9 HC Amandeep had taken the photographs (Ex. P1 to P4) of the dead body. 15. PW-10 SI Ram Saroop deposed about the investigation conducted by him. 16. PW-11 Dr. Sanjay Bishnoi, Medical Officer, General Hospital, Narnaul, along with Dr. Rattan Lal, had conducted the autopsy on the dead body of Parvesh on 6.5.2007 and found as many as eight injuries. 17. PW-12 Inspector Mahesh Kumar had also investigated the case and filed the report under Section 173, Cr.P.C. 18. After conclusion of the prosecution evidence, the respondents-accused were examined in terms of Section 313, Cr.P.C. They denied the allegations of the prosecution and pleaded innocence. No evidence in defence was led. 19. After scanning the material available on record, the learned Trial Court acquitted the respondents-accused and, hence, the present criminal revision petition by the complainant for setting aside the said judgment of acquittal. 20. I have heard learned counsel for the petitioner and gone through the material available on record. 21. By now it is settled that it is not permissible for the Appellate Court to interfere with an order of acquittal passed by the learned Trial Court without rendering specific finding that the decision of the Trial Court is perverse or un-reasonable resulting in miscarriage of justice. The Appellate Court while entertaining an appeal against the judgment of acquittal by the Trial Court is entitled to re-appreciate the evidence and come to an independent conclusion and while doing so it may consider every material on record and the reasons given by the Trial Court in support of its order of acquittal. It is also settled proposition that if two views are possible on a set of evidence, then the Appellate Court need not to substitute its own view in preference to the view of the Trial Court, which has recorded an order of acquittal. It has also been settled by various precedents that presumption of innocence of the accused is strengthened with the Trial Court’s order of acquittal. Moral consideration cannot be a substitute for legal evidence. 22. If an order of acquittal has been challenged by way of a criminal revision petition, in that eventuality, the scope of setting aside the well reasoned order of acquittal becomes more narrow. Moral consideration cannot be a substitute for legal evidence. 22. If an order of acquittal has been challenged by way of a criminal revision petition, in that eventuality, the scope of setting aside the well reasoned order of acquittal becomes more narrow. In the case in hand, it is apparent from the certificate issued from the office of the Advocate General, Haryana, enclosed with the present case, that the State Government had proposed not to file an appeal in the present case. 23. Though the scope for interference with an order of acquittal, while exercising the jurisdiction as a Revisional Court is very limited, but to satisfy the conscience of this Court, the whole evidence available on record has been re-scanned. It is found that there is not an iota of legal evidence connecting respondent Nos. 2 and 3 with the offence punishable under Section 306 read with Section 34, IPC. The two material witnesses, namely, Smt. Poonam (PW-4) and Lalit Kumar (PW-8), had not uttered anything with regard to the presence of respondent Nos. 2 and 3-accused on the spot. According to the prosecution, the presence of Smt. Poonam (PW-4) and Lalit Kumar (PW-8), driver of Indica Car, was well established, but the Public Prosecutor could not bring anything on record from their cross-examination that respondent Nos. 2 and 3/accused were present on the spot and instigated/abetted Parvesh (since deceased) to commit suicide. Sunil @ Bablu (PW-5) also failed to support the prosecution case with regard to arrival of respondent Nos. 2 and 3/accused to him. He also denied that they ever narrated to him regarding the incident. The only piece of evidence at best in favour of the prosecution was the statement of the complainant-Om Parkash (PW-1), who stated that the respondents-accused came to his house in the morning on the date of incident and took away Parvesh (since deceased). That by itself would not be sufficient to presume that the respondents-accused abetted Parvesh to commit suicide. Sunil and Satender (PW-5 and PW-6, respectively) failed to support the prosecution version and, as such, the prosecution could not prove the extra-judicial confession allegedly suffered by the respondents-accused. Therefore, there was a severe dent in the link of the prosecution version. 24. That by itself would not be sufficient to presume that the respondents-accused abetted Parvesh to commit suicide. Sunil and Satender (PW-5 and PW-6, respectively) failed to support the prosecution version and, as such, the prosecution could not prove the extra-judicial confession allegedly suffered by the respondents-accused. Therefore, there was a severe dent in the link of the prosecution version. 24. After taking into consideration the evidence led by the prosecution and the judgment passed by the learned Sessions Judge, Narnaul, this Court is of the firm view that there is no perversity, illegality or infirmity in the impugned judgment. Therefore, there is no force in the present criminal revision petition and the same is hereby dismissed.