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2013 DIGILAW 643 (HP)

State of Himachal Pradesh v. Hari Singh

2013-07-04

DEV DARSHAN SUD, SANJAY KAROL

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JUDGMENT Dev Darshan Sud, J. The State is aggrieved by the judgment of the learned Additional Sessions Judge, Fast Track Court, Shimla, H.P. acquitting the respondent-accused for having committed offences punishable under Sections 451, 326, 324 and 506 of the Indian Penal Code. 2. On the evidence produced, the trial Court convicted the respondent to undergo imprisonments:- i) Under Section 326 IPC, simple imprisonment for 2 years. ii) Under Section 324 IPC, simple imprisonment for one year. iii) Under Section 506 IPC, simple imprisonment for 6 months. iv) Fine of Rs. 2000/-. All the sentences were ordered to run concurrently. 3. The judgment of conviction was challenged by the respondent. The appellate Court on re-appreciation of the evidence acquitted the respondent. Hence the present appeal. 4. The learned appellate Court reconsidered the facts as urged by the prosecution, which were that the complainant Sh. Kedar Singh (PW-1) and other villagers had gone to work (“Bawra”) for Sh. Padam Singh (PW-2) on 21.5.2002. According to local custom known as “Bawara” persons who performed work for another person dined at the house of the person they had worked for. It is alleged that at a round 9 p.m. on that day complainant Kedar Singh (PW-1) was going to the house of PW-2 for whom he had worked during the day, accused called from behind. It is alleged that when the complainant reached in the courtyard of the house of Padam Singh (PW-2) accused chased him. Accused who was carrying a “Basola” (instrument of carpentry used for shaving wood) assaulted the complainant and hit him on the forehead as a result of which the complainant fell down. On hearing his cries Sh. Padam Singh (PW-2) came out of his house and accused also struck him with the “Basola” on his back resulting in injuries to him also. Both the injured cried for help and on hearing their cries Sh. Kontu Ram (PW-3), Sh. Kewal Ram (PW-4) and Sh. Karam Dass rushed to the spot and rescued them from the clutches of the accused and snatched the “Basola” from the accused. It is alleged that the accused threatened them with dire consequences and ran away from the spot. The complainant Sh. Kedar Singh (PW-1) and injured Sh. Padam Singh (PW-2) were shifted to their respective houses by the neighbours and “Basola” was retained by Sh. Kontu Ram (PW-3). It is alleged that the accused threatened them with dire consequences and ran away from the spot. The complainant Sh. Kedar Singh (PW-1) and injured Sh. Padam Singh (PW-2) were shifted to their respective houses by the neighbours and “Basola” was retained by Sh. Kontu Ram (PW-3). On the next day both the injured were brought to Police Post Nerwa where the matter was reported vide report No. 5 (Ext. PW 5/A) on the basis of which F.I.R. (Ext. PW6/A) under Sections 451, 323, 506 IPC was lodged against the accused. Investigation was conducted and the case proceeded thereafter. 5. The trial Court on the points framed for adjudication concluded that the respondent was guilty of the offences as charged and proceeded to convict him. In appeal, the learned appellate Court re-appreciated the entire evidence before concluding that the respondent was not guilty of the charged offences. Learned appellate Court adverting to the testimony of Padam Singh (PW-2) notes that on the date and time of the incident i.e. 21.5.2002 at 9 p.m. there was no light in the courtyard. It was also elicited from his evidence that there was no light coming from the window and the door of the house which would have lighted up the courtyard. Court then records that the FIR was lodged on the next date i.e. 22.5.2002 at about 8.30 a.m. at Police Post Nerwa. Court also noticed that the FIR (Ext. PW 6/A) does not incorporate the fact that Sh. Kontu Ram (PW-3) had taken away the “Basola” and kept it in his custody. It is also clear from the record that there is litigation inter se between the accused and the complainant party. From his statement Court also concluded that there are about 18 houses in the village where 150 to 200 people are living and if anybody cries then the cries/shouts can be heard all over the village. 6. The appellate Court also notes that it is not disputed that the complainant and his other witnesses suspected that Smt. Prem Lata the elder brother’s wife of the complainant was having illicit relations with the accused. Complainant Sh. Kedar Singh (PW-1) has stated that he had seen his Bhabhi in suspicious circumstances with the accused when he was going to attend the call of the nature. Litigation between the parties was with regard to this incident. Complainant Sh. Kedar Singh (PW-1) has stated that he had seen his Bhabhi in suspicious circumstances with the accused when he was going to attend the call of the nature. Litigation between the parties was with regard to this incident. Defamation case was pending inter se between the parties. Prem Lata had also instituted case for defamation against Lata and Kamla (from the family of the complainant). 7. The defence version was that Kontu Ram (PW-3), both the injured (PW-1 and PW-2) and other persons had consumed liquor in Kontu Ram’s house and during this they had a quarrel after which a fight ensued. Injuries were sustained by them due to a fall. This version has been supported by Sh. Madia Ram (DW-1) whose house is adjoining the house of Kontu Ram (PW-3). Dr. J. S. Chahal (PW7) admits that injury on the person of the complainant and the injured could have been caused by way of fall on sharp edged stone. It is in these circumstances that the learned Appellate Court considered the case namely (i) that there was enmity between the complainant and his witnesses as also accused as the later was suspected of having illicit relations with the sister-in-law of complainant (ii) there were 150 to 200 people living in the village in the vicinity of the place of incident and nobody came to the scene of occurrence despite admission by the injured that if anybody cries for help the same can be heard in the entire village and people would come there (iii) there is no explanation as to how the weapon of offence was kept by Kontu Ram (PW-3) and this fact does not find mention in the F.I.R. (iv) that the version of Sh. Madia Ram (DW-1) who stated that the complainant and other witnesses had entered into a fight while consuming liquor in the house of Kontu Ram (PW3) was established by evidence. 8. It is contended by the learned Additional Advocate General that the learned appellate Court does not follow the principle in criminal law that in assessing the evidence of the prosecution witnesses the entire evidence is to be considered. Learned Additional Advocate General in particular submits that the statements of the injured/complainant Sh. Kedar Singh (PW-1) and injured Sh. Padam Singh (PW-2) have been discarded without any cogent reason. Learned Additional Advocate General in particular submits that the statements of the injured/complainant Sh. Kedar Singh (PW-1) and injured Sh. Padam Singh (PW-2) have been discarded without any cogent reason. He submits that the injured person is the best witness and cannot be treated as a partisan witness. 9. The Supreme Court in (1) Sevi and another (2) Koodakkal Karian and others vs. State of Tamil Nadu and another, AIR 1981 SC 1230 while considering the question of a witness being partisan and their credibility holds:- “3. … … … All the eye-witnesses are partisan witnesses and notwithstanding the fact that four of them were injured we are unable to accept their evidence in the peculiar circumstances of the case. Where the entire evidence is of a partisan character impartial investigation can lend assurance to the Court to enable it to accept such partisan evidence. But where the investigation itself is found to be tainted the task of the Court to sift the evidence becomes very difficult indeed. Another feature of the case which makes us doubt the credibility of the witnesses is the photographic and somewhat dramatic account which they gave of the incident with minute details of the attack on each of the victims. According to the account of the witnesses it was as if each of the victims of the attack came upon the stage one after the other to be attacked by different accused in succession, each victim and his assailant being followed by the next victim and the next assailant. Surely the account of the witnesses is too dramatic and sounds obviously invented to allow each witness to give evidence of the entire attack. But the witnesses themselves admit in cross examination that they were all attacked simultaneously. If so, it was impossible for each of them to have noticed the attack on everyone else. … … … … … … …”. (p. 1232) 10. In this case we are not oblivious of the fact that the accused and the complainant are at loggerheads over some previous sexual relations of the accused with the sister-in-law of the complainant. It is here that we are called upon to sift the evidence to ascertain as to what is the truth. 11. Learned Addl. Advocate General submits that the statement of Sh. Madia Ram (DW-1) cannot be accepted as it is unsubstantiated. It is here that we are called upon to sift the evidence to ascertain as to what is the truth. 11. Learned Addl. Advocate General submits that the statement of Sh. Madia Ram (DW-1) cannot be accepted as it is unsubstantiated. He submits that this evidence cannot be basis for acquittal. There is no rule in law or evidence that a particular number of witnesses prove a case, it is the consistency of the testimony which has to be considered. The admission of the witnesses of the prosecution is that it is normal to get drunk and eat meat in “Bawara”. What we note from this evidence is that he was present next door to the place where the complainant party got drunk and possibly entered into a fight and fell down. We also note that when coupled with the fact that when the FIR was lodged next day of the incident i.e. on 22.5.2002 at 10.15 a.m. the evidence of the defence becomes more credible for the reason that the complainant and Sh. Padam Singh PW-2 had purportedly suffered serious injuries but do not report any medical treatment and the FIR is also delayed. Lodging of FIR after delayed period is per se not fatal to the case but what we find is that there is no evidence on record to the effect that the so called injuries sustained by them was attended to by any medical professional. It is in these circumstances and the fact that the complainant his witnesses are inimical to the accused as also there are number of cases pending between them, we find that the learned appellate Court has been correct in reassessing the evidence. We find no reason to differ with the findings of acquittal arrived at by the learned appellate Court. We, therefore, hold that the prosecution has been unable to prove its case against the accused in accordance with law. Appeal stands dismissed. Bail bonds furnished by the accused stand discharged. Pending application(s) disposed of.