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2005 DIGILAW 499 (HP)

STATE OF H. P. v. KARAM SINGH

2005-12-28

ABHILASHA KUMARI

body2005
JUDGEMENT Abhilasha Kumari, J.: This appeal has been filed by the State of Himachal Pradesh (hereafter referred to as the appellant) whereby the impugned judgment passed by the learned Additional Chief Magistrate, Ghumarwin, District Bilaspur, H.P., in case No. 7/1 of 1998, decided on 30.7.1999, has been challenged. The learned Additional Chief Judicial Magistrate has acquitted respondent No.1, Karam Singh and respondent No.2 Sheela Devi (hereafter referred to as the respondents) of charges under Sections 325, 506 read with Section 34 of the Indian Penal Code. 2. Briefly stated, the case of the prosecution is that on 7.12.1997 at about 61 p.m., the respondents caused grievous hurt to complainant Ram Singh after forming common intention. It is alleged that the respondents also threatened the complainant with dire consequences. The matter was reported to the police vide Rapat Ex. PW-7/A, on the basis of which FIR Ex. PW-8/A was registered against the respondents. During the investigation, the police visited the spot and prepared site plan Ex. PW-10/A. The alleged incriminating article that is stick, was taken into possession by the police vide Memo Ex. PW-1/B. The complainant was medically examined vide MLC Ex. PW-5/A and X-Ray was also conducted, which is Ex. PW-5/A and Ex/ PW-6/A. The Inquiry, fracture of nasal bone, was opined to be grievous in nature. On completion of the investigation, the challan against the respondents was filed in the trial Court and the respondents were charged under Sections 325, 506 read with Section 34 of the Indian Penal Code to which they pleaded not guilty and claimed to be tried. The prosecution has examined 10 witnesses in support of its case. In their statements under Section 313 of the Code of Criminal Procedure, the respondents pleaded their innocence. However, no defence evidence has been led by the respondents. 3. I have heard Mr. Som Dutt Vasudeva, learned Additional Advocate General for the appellate-State and Mr. Bhupender Pathania, learned counsel for the respondents and have also gone through the material on record. 4. What emerges from the record is that the complainant as well as respondent No.1 are real brothers and respondent No.2 is the wife of respondent No.1. The prosecution witnesses are also closely related to the complainant and the respondents. Bhupender Pathania, learned counsel for the respondents and have also gone through the material on record. 4. What emerges from the record is that the complainant as well as respondent No.1 are real brothers and respondent No.2 is the wife of respondent No.1. The prosecution witnesses are also closely related to the complainant and the respondents. PW-2 Krishni Devi is the wife of complainant Ram Singh, PW-3 Mani Ram is the real brother of the complainant and respondent No.1 and PW-4 Vidya Devi is the wife of Mani Ram. 5. Mr. Som Dutt Vasudeva, learned Additional Advocate General, has assailed the judgment of the trial Court on the ground that the benefit of doubt has wrongly been given to the respondents. The trial Court has not appreciated the evidence on record, and the testimony of the complainant and the prosecution witnesses in a proper perspective. According to him, the mere factum of close relationship between the complainant and the prosecution witnesses, who belong to the same family, does not render their testimony untrustworthy. He argued that the medical evidence is the conformity with the ocular version of the complainant and PWs No.3 and 4. Regarding the factum of animosity, which exists between the complainant and the respondents, which has been suggested to PW-1 and admitted by PWs No.3 and 4, the learned Additional Advocate General has argued that the testimony of eyewitnesses cannot be discarded merely on the ground of enmity, if it is otherwise convincing. In this context, he has placed reliance upon (2201) 7 Supreme Court Cases 313, titled Anil Rai Versus State of Bihar. The relevant portion of Para-18 of this judgment is quoted herein below: "The admitted position of law is that enmity is a double-edged weapon which can be a motive for the crime as also the ground for false implication of the accused persons. In case of inimical witnesses, the courts are required to scrutinise their testimony with anxious care to find out whether their testimony inspires confidence to the acceptable notwithstanding the existence of enmity. Where enmity is proved to be the motive for the commission of the crime, the accused cannot urge that despite proof of the motive of the crime, the witnesses proved to be inimical should not be relied upon. Where enmity is proved to be the motive for the commission of the crime, the accused cannot urge that despite proof of the motive of the crime, the witnesses proved to be inimical should not be relied upon. Bitter animosity, held to be a double-edged weapon, may be instrumental for false involvement or for the witnesses inferring and strongly believing that the crime must have been committed by the accused. Such possibility has to be kept in mind while evaluating the prosecution witnesses regarding the involvement of the accused in the commission of the crime. Testimony of the eyewitnesses, which is otherwise convincing and consistent, cannot be discarded simply on the ground that the deceased were related to the eyewitnesses or previously there were some disputes between the accused and the witnesses may, in some cases, give rise to the possibility of the witnesses exaggerating the role of some of the accused or trying to rope in more persons as accused persons for the commission of the crime. Such a possibility is required to be ascertained on the facts of each case....." 6. On the other hand, Mr. Bhupender Pathania, learned counsel for the respondents, has argued in support of the impugned judgment to the effect that the same suffers from no infirmity and the trial Court has come to the correct conclusion after appreciating the evidence, by acquitting the respondents. According to him, the testimony of the complainant, coupled with the statements of PWs No.2, 3 and 4, is full of material contradictions and discrepancies. This factor, coupled with the animosity, which these witnesses and the complainant nurse towards the respondents, does not render their evidence worthy of belief. 7. I have carefully heard the rival contentions of the parties and have gone though the evidence on record. If the statement of PW-1 Ram Singh, complainant, is seen, he has stated that on 7.12.1997, he asked respondent No.1 to remove the hen from his land and on that, respondent No.1 got enraged and threatened to kill him. At that point of time, respondent No.2 also came and both the respondents inflicted stick and foot blows upon the complainant. The complainant, having suffered an injury on his nose started bleeding and at that time PW-3 Mani Ram, his brother, came on the spot after hearing the noise. At that point of time, respondent No.2 also came and both the respondents inflicted stick and foot blows upon the complainant. The complainant, having suffered an injury on his nose started bleeding and at that time PW-3 Mani Ram, his brother, came on the spot after hearing the noise. The complainant states that the respondents fled from the scene and thereafter he reported the matter to the police. If the version of the complainant is compared with the narration given by PW-3, it is not corroborated in material particulars. Rather, there are material contradictions in their statements. PW-3 has stated that he saved the complainant from the clutches of the respondents whereas PW-1 states that on his screaming PW-3 came to the spot and the respondents ran away. If the respondents had run away when PW-3 came on the spot then it is not possible for PW-3 to have saved the complainant from their clutches. PW-4 is the wife of PW-3. She states that on the day of the incident she heard PW-1 screaming while she was in her kitchen. She further states that she does not know what the complainant was doing on that day or why the altercation took place. PW-4 categorically admits that she is not on talking or visiting terms with the respondents. PW-4 also states that she does not know how many blows the respondents have inflicted upon the complainant or where he is injured and has denied the suggestion that the complainant was injured because he fell down. In the very same statement, PW-4 adds an improvement that the respondents inflicted the danda blow on the nose of the complainant in front of her and threatened the complainant with his life. In the same statement, she contradicts herself and says she did not see any witness on the spot. According to her, PW-3 and PW-2 came to the spot later than her. However, complainant Ram Singh has not stated that PW-4 Vidya Devi was present at the spot when the respondents allegedly gave danda blow to him but he says PW-3 came there. Even PW-3 has not mentioned that PW-4 was present at the spot at the time of the occurrence. Therefore, her statement does not inspire confidence. 8. However, complainant Ram Singh has not stated that PW-4 Vidya Devi was present at the spot when the respondents allegedly gave danda blow to him but he says PW-3 came there. Even PW-3 has not mentioned that PW-4 was present at the spot at the time of the occurrence. Therefore, her statement does not inspire confidence. 8. No independent witness has not been examined, even though the I incident took place at about 6 p.m. The houses of the respondents and the | complainant party are situated in the village and it was not so late in the night that no other persons living in the vicinity could have been available or that no other independent person witnessed the incident. PW-4 mentions that one Sanjeev Kumar, Ramesh and Banshi were also at the scene of occurrence, but they have not, been examined for reasons best known to the prosecution. There seems to be a! family feud between two brothers and their wives, i.e. the complainant and Mani Ram on one side and respondent No.1 and his wife respondent No.2 on the other» side and there is evidence of inimical relations between the parties. PW-3 has stated ! that he had filed a complaint against respondent No.1 and the complainant and PW-2 are witnesses in that case. The possibility of the prosecution witnesses, exaggerating the role of the respondents and trying to rope them in due to animosity. cannot be ruled out. 9. Although, the factum of relationship or the existence of enmity is not a ground by itself, for discarding the testimony of the prosecution witnesses, yet it also has to be seen whether their testimony is otherwise convincing and consistent. In the present case, it cannot be said that leaving apart the factum of animus in the minds of the complainant party against the respondents, the testimony of PWs No.1,2,3 and 4 can be implicitly relied upon or be considered convincing and consistent. The narration of the occurrence by the complainant (PW-1), PW-2, PW-3 and PW-4 are inter se inconsistent and contradictory. In such a situation, it is not safe to rely upon this testimony. In Anil Rais case (supra), their Lordships of the Supreme Court have come to the conclusion that the testimony of the witnesses can be relied upon in the facts and circumstances of that particular case. The facts of the present case are entirely different. In such a situation, it is not safe to rely upon this testimony. In Anil Rais case (supra), their Lordships of the Supreme Court have come to the conclusion that the testimony of the witnesses can be relied upon in the facts and circumstances of that particular case. The facts of the present case are entirely different. In Anil Rais case (supra), the testimony of eyewitnesses was found to be trustworthy whereas in the present case this is not so. Each case has to be seen in the context and background of its own facts, and in the present case, even if the factum of enmity is excluded, the evidence on record is insufficient to conclusively point towards the guilt of the respondents. The prosecution has failed to prove its case beyond reasonable doubt and the respondents have rightly been given the benefit of such doubt. It is the settled position of law that where doubt exits and two views are possible, the one favourable to the accused person should be preferred. 10. As a result of the above discussion, I am of the considered view that the impugned judgment of the trial Court does not call for any interference by this Court. 11. There is no merit in this appeal, which is accordingly dismissed.