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Himachal Pradesh High Court · body

2012 DIGILAW 282 (HP)

STATE OF HIMACHAL PRADESH v. DEVINDER KUMAR

2012-05-14

DEV DARSHAN SUD, R.B.MISRA

body2012
JUDGMENT : DEV DARSHAN SUD, J. 1. The State has appealed against the judgment of the learned Additional Chief Judicial Magistrate, Palampur acquitting the respondents for offences under Sections 392, 323, 341 read with Section 34 of the Indian Penal Code (hereinafter referred to as the IPC). The prosecution case in brief is that on 14.2.1995 at around 6.30 P.M. accused/respondents, namely, Devinder, Harjit Singh and Tajinder Singh hired the taxi of complainant Arvind Kumar (PW1) to travel from Palampur to Chamunda. The fare was settled at Rs. 120/-. When they reached at Chimbalhar, accused Devinder asked Arvind Kumar (PW1) to stop the taxi so that he could get down and urinate. He complied with the request. Accused Devinder got down and the other two remained seated in the taxi. They started whispering in conspiratorial tone which excited his suspicion. He feigned that the taxi had developed some engine problem and that transport would be needed to return to Palampur. At this accused caught hold of him and tried to smother his face with a handkerchief full of chloroform. He resisted and raised an alarm at which accused tried to pin him down but did not succeed. On hearing the commotion, number of people gathered at the spot and the police was informed immediately. 2. While appearing as PW1 Arvind Kumar says that the accused left behind two 'kirchey' (knives) Ex. P1 and P2, one pair of gloves Ex. P3, one muffler Ex. P4 and one white cloth Ex. P-5 which were taken into possession by the police vide recovery memo Ex. PW1/B. His statement Ex. PW1/A was recorded and the investigation commenced. According to the prosecution case, the accused had fled from the spot and were apprehended and arrested at Nagrota. 3. PW-2, Sardar Singh is a shopkeeper of Village Menjha who states that on 14.2.1995 all three accused had come to his shop to take water. Thereafter they went to Nagrota side. PW3, Kewal Kumar stated that he was driver of taxi No. HP-02-3981 and on 14.2.1995 at around 7.30 P.M., the accused hired his taxi at Menjha to travel to Nagrota, where he dropped them and they were carrying bag Ex. P7 with them. When he was returning to Palampur, the occupants of jeep travelling from Palampur to Nagrota inquired from him about the accused. P7 with them. When he was returning to Palampur, the occupants of jeep travelling from Palampur to Nagrota inquired from him about the accused. PW-4, Ramesh Chand states that at Chimbalhar on the date and time of the incident, he heard some commotion and came out of his house and saw the accused running away with an attache case , Ex. P6 and bag, Ex. P7. He also states that the accused had left behind articles Ex. P1 to P5 which were later on recovered by the police as stated by PW1, Arvind Kumar. PW-8 is Colonel B.K. Shukla (Retired) who states that on 14.2.1995 he was informed about the occurrence when he was in his house. He immediately informed the police. PW6, Constable Amrit was posted in Police Post Nagrota at the relevant time. He took into possession brief case Ex. P-6 and bag Ex. P-7 from the rain shelter vide recovery memo Ex. PW6/A. PW7, H.C. Sawroop Kumar proves that FIR Ex. PW7/A was recorded and registered at Police Station Palampur. PW-9 is ASI Krishan Kumar who was in charge of police Post Nagrota states that one brief case and a bag were taken into possession by the police from the rain shelter. PW-10, Inspector Gulab Singh was the SHO of Police Station, Palampur who prepared the challan and PW11, Sant Ram' was posted as SI/SHO at Police Station Palampur and had recorded the statement of complainant Ex. PW1/A. This is the entirety of the prosecution evidence. 4. On the evidence of the prosecution, the learned trial Court acquitted all the accused as ingredients of the offences for which the accused were charged, were not established. The learned trial Court, in order to arrive at this conclusion, considered the evidence of the complainant holding that his statement left much to be proved. The learned trial Court holds on the statement of complainant, that there was no evidence to prove that he was assaulted/beaten up or that he was threatened the accused with the knives purportedly recovered from the vehicle. The only part of his statement relied upon is when he tried to drive away the taxi, he was wrongfully restrained by the accused. Further there was no evidence as to what made him think that when the two accused started whispering they were trying to over power the complainant or trying to hatch a conspiracy against him. The only part of his statement relied upon is when he tried to drive away the taxi, he was wrongfully restrained by the accused. Further there was no evidence as to what made him think that when the two accused started whispering they were trying to over power the complainant or trying to hatch a conspiracy against him. The complainant also states that on the same night the accused persons had stayed in one "Sarai" (Inn) at Chamunda. In these circumstances, it was not possible that they could be present on the same day at two places namely Nagrota as also Chamunda. He admits in his cross-examination that he had made entries in the log book with respect to the taxi being hired by the tourists and passengers but this log book has not been produced in evidence. On the evidence of Sardar Singh, PW2, the learned trial Court holds that no test identification parade was conducted after the occurrence so that he could identify the accused. This observation was made by the Court taking into consideration the fact that the accused were being identified in Court for the first time when evidence was being recorded. The case of the prosecution was that the test identification parade had been conducted but why this witness was not associated is not clear from the evidence/record. On the evidence of PW4, Ramesh Chand, the Court holds that he was emphatic that the accused ran towards Palampur, but according to the prosecution they ran towards Menjha where they hired another taxi to Nagrota. Chimbalhar is midway between Menjha and Palampur. This witness also stated when he reached the spot he found that two persons in the maruti van (taxi) were quarreling. He was confronted with the fact that this was not recorded u/s 161 and that the complainant Arvind Kumar had not stated anything that in the maruti van (taxi) two persons had been quarreling. The evidence of PW5, Madan Lal did not in any manner implicate the accused. The log book of the taxi which he was driving and which contained all the entries has not been produced in evidence. PW-8 Col. B.K. Shukla (sic. wrongly typed PW18) who informed the police telephonically, had stated that one J.E. of PWD, namely, Narang informed him about the incident and whereupon he immediately conveyed this information to the police. The log book of the taxi which he was driving and which contained all the entries has not been produced in evidence. PW-8 Col. B.K. Shukla (sic. wrongly typed PW18) who informed the police telephonically, had stated that one J.E. of PWD, namely, Narang informed him about the incident and whereupon he immediately conveyed this information to the police. There is no clue who this Narang is and as to how he knew about this occurrence. The learned Court also refers to one more fact which was that the accused were badly injured after having been beaten up by the public, but PW-11, Sant Ram states that no medical examination of the accused was conducted. In fact in his cross-examination he states that accused were beaten up by 40-50 people. He further states that their clothes were torn and that they were bleeding. He then states that it is wrong that he has not got the medical examination of the accused conducted. Accepting this submission as such we do not find on record any medical examination MLC/certificate of the accused. 5. Learned Senior Additional Advocate General submits that the evidence of the witnesses had been misread by the learned trial Court and that there were no major contradictions and such conviction could be based on their evidence. 6. We have considered the evidence on record and do not find that it is in concord with the submissions of the State. We have considered the evidence in detail to ascertain as to whether the guilt of the respondents is established. We reiterate that the prosecution has to bring its case within the ambit of Section 3 of the Evidence Act to prove those facts which constitute the basis and foundation of the accusation made against the accused. In this case, we advert to the last circumstance brought on record which is that both the accused were thrashed by a mob, surely, in these circumstances, they would have sustained injuries and could not have gone unscathed. We need not reaffirm the principle in criminal law that in order to prove a fact the best possible evidence should be brought on record. In R.V.E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami and V.P. Temple and Another, AIR 2003 SC 4548 the Court holds: 28. We need not reaffirm the principle in criminal law that in order to prove a fact the best possible evidence should be brought on record. In R.V.E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami and V.P. Temple and Another, AIR 2003 SC 4548 the Court holds: 28. Whether a civil or a criminal case, the anvil for testing of "proved", "disproved" and "not proved", as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same. A fact is said to be "proved" when, if considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of a particular case, to act upon the supposition that it exists. It is the evaluation of the result drawn by the applicability of the rule, which makes the difference. The probative effects of evidence in civil and criminal cases are not, however, always the same and it has been laid down that a fact may be regarded as proved for purposes of a civil suit, though the evidence may not be considered sufficient for a conviction in a criminal case. Best says: 'There is a strong and marked different as to the effect of evidence in civil and criminal proceedings. In the former a mere preponderance of probability, due regard being had to the burden of proof is a sufficient basis of decision : but in the latter, especially when the offence charged amounts to treason or felony, a much higher degree of assurance is required.' (Best, $ 95) While civil cases may be proved by a mere preponderance of evidence, in criminal cases the prosecution must prove the charge beyond reasonable doubt." (See Sarkar on Evidence, 15th Edn., pp 580-59) In the words of Denning, L.J. (Bater v. Bater (1950) 2 All ER 458 at P. 459 B-C): It is true that by our law there is a higher standard of proof in criminal cases than in civil cases, but this is subject to the qualification that there is no absolute standard in either case. In criminal cases the charge must be proved beyond reasonable doubt, but there may be degrees of proof within that standard. So also in civil cases there may be degrees of probability. In criminal cases the charge must be proved beyond reasonable doubt, but there may be degrees of proof within that standard. So also in civil cases there may be degrees of probability. Agreeing with this statement of Law, Hodson, L.J. said: Just as in civil cases the balance of probability may be more readily titled in one case than in another, so in criminal cases proof beyond reasonable doubt may more readily be attained in some cases than in others. (Hornal v. Neuberger Products Ltd. (1956) 3 All ER 970 at p. 977 D). (pp. 767) 7. In the present case we find that the evidence which has been brought on record leaves much to be desired as noted by us. PW8 Col. B.K. Shukla states that one Narang who was J.E. in PWD informed him about the incident. It is for reasons best known to the prosecution that Sh. Narang was not examined as a witness. We also find that the presence of the accused at two different places at the same time having been established by the prosecution itself namely at Nagrota as also in the Sarai at Chamunda. There is no explanation as to why the accused were not taken for medical examination after they had been thrashed by a mob. Punishment of accused on moral conviction or suspicion is not permissible under law. In Mousam Singha Roy and Others Vs. State of West Bengal, (2003) 7 JT 176 , the Court holds: 27. Before we conclude, we must place on record the fact that we are not unaware of the degree of agony and frustration that may be caused to the society in general and the families of the victims in particular, by the fact that a heinous crime like this goes unpunished, but then the law does not permit the Courts to punish the accused on the basis of moral conviction or on suspicion alone. The burden of proof in a criminal trial never shifts, and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence. In a similar circumstances this Court in the case of Sarwan Singh Vs. The State of Punjab, AIR 1957 SC 637 stated thus : (AIR p.645, para 12) It is no doubt a matter of regret that foul cold-blooded and cruel murder should go unpunished. In a similar circumstances this Court in the case of Sarwan Singh Vs. The State of Punjab, AIR 1957 SC 637 stated thus : (AIR p.645, para 12) It is no doubt a matter of regret that foul cold-blooded and cruel murder should go unpunished. There may also be an element of truth in the prosecution story against the accused. Considered as a whole, the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted. 28. It is also a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof, since a higher degree of assurance is required to convict the accused. (p.394) Even after we have re-appreciated the entire evidence, we cannot persuade ourselves to hold that the participation of the accused in the crime for which they have been charged has been established on record beyond reasonable doubt. We, therefore, find no merit in this appeal which is dismissed accordingly. Bail bonds furnished by the accused are discharged.