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Kusum Lata v. Jaswinder Beniwal - CRM-443-ma-2003 [2006] RD-P&H 2110 (29 March 2006)


Criminal Misc. No. 443-MA of 2003

Date of Decision: March 27, 2006

Kusum Lata .......Applicant


Jaswinder Beniwal .......Respondent

Coram: Hon'ble Mr.Justice K.S.Garewal

Hon'ble Mr.Justice Mahesh Grover

Present: Mr.R.S.Rai,Advocate,

for the appellant.


for the respondent.



This application has been filed under Section 378(4) by the applicant seeking leave to appeal against the decision of the learned Additional Sessions Judge, Hisar dated 14.12.2002 vide which the accused Jaswinder was acquitted of offence under Section 307 of the Indian Penal Code.

Notice of motion was given in the aforementioned application pursuant to which Sh.N.S.Shekhawat, learned counsel for the respondent has put in appearance.

An application for condonation of delay has also been filed by the learned counsel for the applicant which is not seriously opposed by the respondent and is,therefore, allowed. Delay in filing the application is condoned.

Application under Section 378(4) of the Code of Criminal Procedure is proposed to be disposed of by the present order.

Jaswinder accused was sent to face trial under the provisions of Sections 307/147/148/149/452/427/506/34 of the Indian Penal Code on a complaint preferred by Smt. Kusum Lata, daughter of Mohinder Singh and Roshni Devi alleging that on 14.7.2000, accused-Jaswinder had come to the house of Kusum Lata and had fired upon the car and threatened to kill her in case she did not withdraw the case which Kusum Lata had preferred against Jaswinder. Prior to the filing of the complaint, Kusum Lata had made a similar complaint to SHO Police Station Civil Lines, Hisar on 15.7.2000 and it was alleged that on the failure of the police to take action, the present complaint under the aforementioned Sections was filed by her on 3.8.2000.

Broadly, the allegations made in this complaint were that the complainant had filed a petition under Sections 494/109/34 of the Indian Penal Code against the accused Jaswinder which was pending before the competent Court and that summoning orders had been issued and since Jaswinder had come to know about the complaint, he had been holding out threats to her. On 14.7.2000, at about 11.00 in the night, Jawinder came, with four other boys, in a Maruti car, to the house of the complainant and fired a shot with a gun. When the complainant and her mother Roshni Devi peeped outside their house through the glass, Jaswinder accused was seen with a gun in his hand and on seeing the complainant and his mother, he said, he would teach them a lesson for appearing as witness against him and at the asking of his companions, three shots were fired from his gun but the bullet hit the backside glass of the car and did not hurt anybody. The occurrence was narrated to the police, who did not take any action because SHO was related to the accused. An application was also moved by the complainant to Inspector General, Hisar for transferring the investigation of the case to some higher police officer but the police being under the pressure did not take any action. It was then that the complainant preferred the present complaint on 3.8.2000 under the provisions of Sections 307/147/148/149/452/427/506/34 of the Indian Penal Code.

Preliminary evidence was recorded and the accused-Jaswinder was summoned under the provisions of Sections 307, 452, 427, 506 of the Indian Penal Code vide order of the learned Court dated 16.9.2000.

Subsequently, the matter was committed on 3.1.2001 to the Court of Sessions for trial and the accused was charged under the provisions of Sections 307 and 427 vide order dated 26.4.2001.

The accused pleaded not guilty and claimed trial.

The prosecution examined, as many as, five witnesses while the accused in his statement under Section 313 of the Code of Criminal Procedure claimed his innocence and said that Kusum Lata was a woman of wayward nature and that she had eloped once with one Sanjay Phogat and that on 14.7.2000, there was a firing at many places in the city and that the case filed against him was false and was an attempt to blackmail him. He denied that he had gone to the house of Kusum Lata on 14.7.2000.

The learned Additional Sessions Judge came to the conclusion that the complainant had not been able to prove its case against the accused beyond reasonable doubt and, therefore, acquitted the accused of the charges under Sections 307, 427 of the Indian Penal Code.

The complainant seeks leave under the provisions of Section 378(4) of the Code of Criminal Procedure to appeal against this judgment.

Shri R.S.Rai, learned counsel for the applicant has highlighted the seriousness of the offence by saying that there was history of litigation between the applicant and accused and that this is sufficient motive for the accused to try to eliminate the applicant and in pursuance to his objective, he had come on 14.7.2000 and fired upon the house of the applicant and consequently the commission of an offence was ipso facto writ large on the face of it and it cannot be wished away.

We have considered the submission made by Sh.Rai and have also gone through the record, with his assistance.

To our mind, the argument raised by Shri Rai that there was a litigation between the complainant and the accused and that provided a motive for him to make an attempt on the life of the applicant, cannot be accepted in the peculiar circumstances of the case. The accused was married to the complainant and there was history of deep rooted litigation between the two, after the marital discord had set in. It is common knowledge that in such like situations, the spouses spurred by their egos can go to any extent to drag the other side into litigation. History of previous litigation is a double edged sword; it can provide motive to commit an offence and at the same time instigate any person into involving the other side in a frivolous litigation as well. Considering the facts of the case, where the conduct of the applicant is also not above-board and there are serious allegations against her as well, of which there is a reference by way of record and which reflects on her irresponsible nature; we cannot accept the plea raised by Shri Rai. Apart from this, it has come in evidence that similar incidents of firing had taken place in city at 3 or 4 places and the fact that the same group could have indulged in this mischief, cannot be ruled out. If at all, the accused had come with a motive of creating mischief and making an attempt on the life of the complainant, then it is highly improbable that he would go around town firing in the air against the complainant. Applicant,therefore, has miserably failed to bring out any evidence against Jaswinder, accused.

There is,thus, no material before us which could persuade us to deviate from the findings of the learned trial Court.

Leave to appeal against the judgment of acquittal is to be granted only where there is sufficient evidence on record which has been overlooked by the learned trial Court and further there is a substantial question of law which arises in relation to the facts and evidence on record .

We have perused the record and are convinced that this is not a fit case where the prayer under Section 378(4) of the Code of Criminal Procedure can be granted by this Court, the elaborate reasons for which has been given in the foregoing paragraphs.

Consequently, we find no merit in the application and accordingly, decline the Special Leave to Appeal, as prayed for by the applicant.

(Mahesh Grover)




March 27, 2006



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