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Himachal Pradesh High Court · body

2012 DIGILAW 778 (HP)

State of Himachal Pradesh v. Bhag Singh

2012-11-02

DHARAM CHAND CHAUDHARY

body2012
Judgment Dharam Chand Chaudhary, J. The challenge herein is to the judgment dated 21.10.2005 passed by learned Sessions Judge, Bilaspur in Criminal Appeal No.9 of 2002 acquitting thereby respondent (hereinafter referred to as ‘the accused’) of the charges under Sections 332, 353 and 506-II read with Section 34 IPC while reversing the judgment dated 20.4.2002 of Chief Judicial Magistrate in Criminal Case No.195/1 of 1998 and 56/2 of 1998 whereby the accused were convicted. 2. As claimed in the police report and the documents annexed therewith, accused Bhag Singh was running a shop at Shri Naina Devi Ji in district Bilaspur. On 30.3.1998 in the night, he allegedly assaulted PW-10, Narinder Kumar and inflicted injuries on his person. This allegedly led to making a complaint Ex.PW-4/B in Police Chowki, Shri Naina Devi Ji at 10 p.m., entered in Rapat Rojnamcha at Sr. No.21. Another rapat No.23 Ex.PW-4/A also came to be entered in the said Police Post, on 30.3.1998 itself at 10.45 p.m. which reveals that accused Bhag Singh under the influence of liquor had indulged in rowdyism and hurling abuses and as a result thereof was apprehended under Section 34/5/61 of the Police Act and brought to Police Chowki. He was entrusted to the custody of Constable Kishori Lal, No.73 (PW1-complainant) and Constable Gian Chand, No.220 under the supervision of Head Constable Rattan Lal, No.150 of Police Post, Shri Naina Devi Ji for being taken to Community Health Centre, Ghuwandal for medical examination. When they reached near zero point of the stairs leading to temple of Shri Naina Devi Ji, accused Bhag Singh tried to flee away from the custody of PW-1, Kishori Lal, however, apprehended by the police escort below 8-10 stairs. In the meanwhile his co-accused and mother Lajya Devi, brother, who is also running a shop there and sister came to his rescue. PW-1, Kishori Lal was caught hold of from his legs by the brother of accused Bhag Singh. PW-1, Kishori Lal, PW-2 Rattan Lal and Constable Gian Chand who were escorting the said accused, however, had caught hold of him and not allowed to flee away from their custody. In this process, the accused allegedly caught hold of PW-1 from his neck and also inflicted a fist blow on his nose. Such blow resulted in injury which started bleeding. In this process, the button of the jersey worn by PW-1 had also broken. 3. In this process, the accused allegedly caught hold of PW-1 from his neck and also inflicted a fist blow on his nose. Such blow resulted in injury which started bleeding. In this process, the button of the jersey worn by PW-1 had also broken. 3. On completion of investigation, a report under Section 173 Cr.P.C. was filed in the trial Court. 4. Learned Chief Judicial Magistrate, Bilaspur while satisfying himself, prima facie, qua the commission of a cognizable offence by the accused, framed charge under Sections 332, 353 and 506-II read with Section 34 IPC against them. 5. The prosecution, in order to substantiate the charge against the accused, has examined 10 witnesses in all. 6. The complainant, Constable Kishori Lal himself has stepped in the witness box as PW-1. Head Constable Rattan Lal under whose supervision accused Bhag Singh was being taken to hospital has appeared as PW-2, whereas, PW-3 is HHG Madan Lal, who allegedly escorted PW-10 Narender Kumar to Community Health Centre, Ghuwandal for his medical check up. PW-4 was working as Moharrar Constable in Police Post, Shri Naina Devi Ji at the relevant time and entered Rapat No.21 Ex.PW-4/B and Rapat No.23 Ex.PW-4/A in the Rojnamcha. PW-5, Kashmiru Ram, the then SHO, Police Station, Kot Kehloor had registered the FIR Ex.PW-5/A. PW-6, A.S.I. Tameshwar Singh is the Investigating Officer, whereas, PW-7, Dr. Jitender Mahajan posted at the relevant time in Community Health Centre, Ghuwandal had conducted the medical examination of PW-1, Kishori Lal and issued MLC Ex.PW-7/A. Shri Ramesh Kumar, Assistant Reader in the office of Superintendent of Police has proved the appointment letter Ex.PW-6/B and posting order Ex.PW-6/C of the complainant, PW-1. PW-9, Shashi Pal, the so called eye witness has no doubt been examined, however, he did not support the prosecution case and turned hostile. PW-10, Shri Narender Kumar allegedly the author of Rapat No.21, Ex.PW-4/B also did not support the prosecution case and turned hostile. 7. On the other hand, the accused in their statements recorded under Section 313 Cr.P.C. have denied the entire prosecution case being wrong and in their defence stated that they are shopkeepers at Shri Naina Devi Ji. The local police is habitual of teasing them during night under the influence of liquor. 7. On the other hand, the accused in their statements recorded under Section 313 Cr.P.C. have denied the entire prosecution case being wrong and in their defence stated that they are shopkeepers at Shri Naina Devi Ji. The local police is habitual of teasing them during night under the influence of liquor. Against such conduct of the local police they had made a complaint to the higher authorities and it is for this reason a false case has been registered against them. 8. In view of the evidence available on record, learned trial Court has held the accused guilty for the commission of offence under Sections 332 and 353 read with Section 34 IPC and they were accordingly convicted and sentenced to pay a fine of Rs.2,000/- each and in default of payment of fine to undergo simple imprisonment for three months. The accused, however, were acquitted of the charge under Section 506 read with Section 34 IPC. 9. Learned lower appellate Court on re-appraisal of the facts and circumstances of this case as well as the evidence available on record has arrived at a conclusion that the prosecution has failed to prove the charge against the accused beyond all reasonable doubt and consequently they were acquitted. 10. Aggrieved by the judgment passed by the lower appellate Court, the State has come up in appeal before this Court for quashing the same on the ground, inter alia, that the learned lower appellate Court should have given sound reasoning while disagreeing with the findings recorded by the trial Court and should have not based its findings on hypothesis, surmises and conjectures. Also that the lower appellate Court has appreciated the evidence, as has come on record by way of the testimony of PWs-1 to 3 in a slipshod and perfunctory manner which allegedly could have not been disbelieved nor brushed aside. 11. Having gone through the entire evidence and also the submissions made by learned Additional Advocate General as well as learned defence counsel, the only point which arises for determination is as to whether the lower appellate Court was not justified in reversing the judgment and setting aside the conviction of the accused. The point in issue needs to be adjudicated upon with the assistance of the given facts and circumstances of this case and evidence available on record. 12. The point in issue needs to be adjudicated upon with the assistance of the given facts and circumstances of this case and evidence available on record. 12. The very first version of the occurrence mentioned in the statement of PW-1/complainant Kishori Lal (Ex.PW-1/A) recorded under Section 154 Cr.P.C. reveals that the occurrence took place in the manner as claimed by the prosecution in report under Section 173 Cr.P.C. The testimony of complainant while in the witness box as PW-1 is also to the similar effect except for catching hold of him from the legs, because as per Ex.PW-1/A he was caught hold only by the brother of accused Bhag Singh, whereas, while in the witness box, it is stated that he was caught hold of from his legs by the brother of accused Bhag Singh, his mother and sister also. If the testimony of PW-2, Head Constable Rattan Lal, under whose supervision accused Bhag Singh was being taken to hospital for medical examination is seen, no doubt, he has deposed that the said accused tried to flee away at zero point on the stairs and also that his brother, mother and sister came there to save him from the police custody, however, according to him, it is accused Balwinder Singh who caught hold of the legs of PW1 Kishori Lal. There is no accused namely Balwinder in this case. If the version of PW-3, HHG Madan Lal is seen, he has stated in his cross-examination that accused Bhag Singh had slipped away from the hands of police escort and fell down. Thereafter he tried to run away and his mother, the co-accused, his brother and sister also came there, however, he was caught hold by PW-1, Kishori Lal. However, when cross-examined, he stated categorically that the said accused slipped away on the stairs, however, the police escort thought that he was trying to flee away. Thus, no doubt, as per the testimony of PW-1 and PW-2, accused Bhag Singh had tried to flee away from the police custody, however, as per the version of PW-3 in cross-examination, he slipped away on the stairs and the police escort thought that he was trying to flee away from their custody. The testimony of PW-3 in his cross-examination has caused a big dent in the prosecution story and renders the same highly doubtful. The testimony of PW-3 in his cross-examination has caused a big dent in the prosecution story and renders the same highly doubtful. No doubt, as per the version of PWs.1 and 2, a fist blow on the nose of PW-1 was inflicted by the accused and blood started oozing out of the wound, however, PW-3 who as per prosecution case also happened to be present there, had expressed his ignorance in his cross-examination qua any such injury having been inflicted to PW-1. Significantly, the fair of Shri Naina Devi Ji was being celebrated during those days and as per the case of prosecution itself not only the general public had ingress and egress, but the temple and shops also used to remain open day and night and the spot where occurrence took place was a thorough fare to the temple. In such a situation, the prosecution should have associated some persons/passerby as independent witnesses and not relied upon PW-1 and PW-2 alone who being police officials and one of them even complainant also can reasonably be believed to be interested in the success of the prosecution case. It is thus not safe to place reliance on their testimonies, particularly, when independent witnesses were available and could have easily been associated. This renders the prosecution story highly improbable. 13. The testimony of PW-9, Shri Shashi Pal, who seems to be associated as an eye witness to the occurrence did not support the prosecution case at all and when cross-examined by the learned Public Prosecutor, he has stated that 4-5 police officials were beating accused Bhag Singh, who was crying for help. Not only this, but the suggestion given to this witness that during fair of Shri Naina Devi Ji, the local police unnecessarily torture and harass the people and as a protest was lodged qua that against the local police, therefore, it is for this reason the case against the accused was registered falsely, was admitted to be correct. 14. Interestingly, rapat No.21 Ex.PW-4/B has been entered at the instance of PW-10, Narender Kumar. The prosecution has relied upon this rapat to connect accused Bhag Singh with the commission of the alleged offence because as per this rapat, the said accused had assaulted PW-10, Narender Kumar while under the influence of liquor. 14. Interestingly, rapat No.21 Ex.PW-4/B has been entered at the instance of PW-10, Narender Kumar. The prosecution has relied upon this rapat to connect accused Bhag Singh with the commission of the alleged offence because as per this rapat, the said accused had assaulted PW-10, Narender Kumar while under the influence of liquor. However, PW-10 did not support this part of the prosecution case at all and rather came forward with the version that he never lodged any rapat with the local police against accused Bhag Singh nor the said accused assaulted him. Also that he was not being taken to hospital by the police for his medical examination. He also denied that the accused under the influence of liquor was being taken by the police escort to hospital for medical examination and he tried to flee away. 15. The testimony of PW-9 and PW-10 has thus demolished the entire prosecution case. It is significant to note that as per the settled legal principles in the criminal administration of Justice in a case where on the basis of evidence available on record there are two views possible, the view favourable to the accused has to be taken into consideration. Thus, learned lower appellate Court has not committed any illegality or irregularity while acquitting the accused of the charge framed against each of them. 16. The remaining witnesses produced by the prosecution are formal in nature as Shri Krishanu Ram, the then SHO, Police Station Kot Kehloor has proved FIR Ex.PW-5/A, whereas PW-8 Shri Ramesh Kumar, Assistant Reader in the office of Superintendent of Police, Bilaspur has proved the copy of appointment letter of PW-1, Kishori Lal, Ex.PW-8/B and that of his posting orders Ex.PW-8/C in Police Chowki, Shri Naina Devi Ji. Dr. Jitender Mahajan has proved the MLC Ex.PW-7/A and PW-6 Shri Tameshwar Singh is the Investigating Officer. The evidence as has come on record by way of the testimony of these witnesses could have only been taken into consideration as link evidence had the prosecution been otherwise able to bring home the guilt to the accused. The prosecution, however, has miserably failed to do so. 17. This Court thus finds no reason to interfere with the judgment under challenge in the present appeal as learned lower appellate Court has passed the same after appreciation of the evidence available on record in its right perspective. The prosecution, however, has miserably failed to do so. 17. This Court thus finds no reason to interfere with the judgment under challenge in the present appeal as learned lower appellate Court has passed the same after appreciation of the evidence available on record in its right perspective. Above all, the defence of the accused that the local police is in the habit of torturing the people during the fairs of Shri Naina Devi Ji as emerges from the trend of cross-examination of the prosecution witnesses, seems to be plausible and nearer to the factual position being not only supported by the testimony of PW-9 and PW-10 in their cross-examination, but also finds support from the reply to last question in their statements recorded under Section 313 Cr.P.C by the accused persons. 18. The contentions to the contrary in the present appeal being without any substance hardly carry any force nor on the basis thereof the impugned judgment which otherwise is well reasoned and based upon proper appreciation of the evidence available on record, can be quashed. 19. In view of the foregoing reasons this appeal fails and the same is accordingly dismissed. Personal bond stands cancelled and surety bond is discharged. Records be sent down.