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2016 DIGILAW 1096 (HP)

State Of H. P. v. Kishan Chand

2016-06-17

CHANDER BHUSAN BAROWALIA, SANJAY KAROL

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JUDGMENT : Sanjay Karol, J. - Assailing the judgment dated 02.06.2011, passed by the Additional Sessions Judge(II), Kangra at Dharamshala, District Kangra, H.P., in RBT S.C. No. 72-B/VII/2010/S.T. No. 14/2010, titled as State v. Kishan Chand, whereby accused stands acquitted, State has filed the present appeal under the provisions of Section 378 of the Code of Criminal Procedure, 1973. 2. It is the case of the prosecution that on 01.03.2010, a telephonic information was received at Police Station, Baijnath, that one dead body in a gunny bag was found lying in Parie Nalla. Rapat (Ex.PW.16/A) was recorded in the Police Station and SHO Joginder Singh (PW.16) proceeded to the spot. In the presence of accused Kishan Chand, Prem Bahadur (P W.1) and Lok Bahadur (PW.2) dead body was taken into possession by the police. On the basis of Rukka (Ex.PW.16/B), FIR No. 30/2010, dated 02.03.2010 (Ex.PW.13/A), came to be registered at Police Station, Baijnath, District Kangra, H.P., under the provisions of Sections 302 and 201 of the Indian Penal Code. Postmortem of the dead body was conducted by Dr. Raj Kumar (PW.10), who issued report (Ex.PW.10/D). 3. Investigation revealed that in the night of 27.02.2010, accused and the deceased had consumed liquor in the shop of Ram Lal (PW.9), where the accused had quarrelled with the deceased. Thereafter, accused killed the deceased and threw his body in the nalla. Such incident of throwing was witnessed by Prem Bahadur and Lok Bahadur. With the completion of investigation, which prima facie revealed complicity of the accused in the alleged crime, Challan was presented in the Court for trial. 4. Accused was charged for having committed offences punishable under the provisions of Sections 302 and 201 of IPC, to which he did not plead guilty and claimed trial. 5. In order to establish its case, in all, prosecution examined as many as sixteen witnesses. Statement of the accused under Section 313 of the Code of Criminal Procedure was also recorded, in which he took plea of innocence and false implication. No evidence in defence was led. 6. The trial Court, after appreciating the testimonies of the prosecution witnesses acquitted the accused. Hence the present appeal. 7. It is contended on behalf of the prosecution that both by way of circumstantial evidence as also through the eye witnesses, prosecution case stands proved against the accused. 8. We have heard Mr. No evidence in defence was led. 6. The trial Court, after appreciating the testimonies of the prosecution witnesses acquitted the accused. Hence the present appeal. 7. It is contended on behalf of the prosecution that both by way of circumstantial evidence as also through the eye witnesses, prosecution case stands proved against the accused. 8. We have heard Mr. D.S. Nainta, learned Additional Advocate General, on behalf of the State as also Mr. B.N. Mehta, learned counsel, on behalf of the respondent, and have also minutely examined the testimonies of the witnesses and other documentary evidence so placed on record by the prosecution. Having done so, we are of the considered view that no case for interference is made out at all. We find that the judgment rendered by the trial Court is based on complete, correct and proper appreciation of evidence (documentary and ocular) so placed on record. There is neither any illegality/infirmity nor any perversity with the same, resulting into miscarriage of justice. 9. It is a settled principle of law that acquittal leads to presumption of innocence in favour of an accused. To dislodge the same, onus heavily lies upon the prosecution. Having considered the material on record, we are of the considered view that prosecution has failed to establish the essential ingredients so as to constitute the charged offence. 10. In Prandas v. The State, AIR 1954 SC 36 , Constitution Bench of the apex Court, has held as under: "(6) It must be observed at the very outset that we cannot support the view which has been expressed in several cases that the High Court has no power under Section 417, Criminal P.C., to reverse a judgment of acquittal, unless the judgment is perverse or the subordinate Court has in some way or other misdirected itself so as to produce a miscarriage of justice. In our opinion, the true position in regard to the jurisdiction of the High Court under Section 417, Criminal Procedure Code in an appeal from an order of acquittal has been stated in-Sheo Swarup v. Emperor, AIR 1934 PC 227 (2) at pp.229, 230(A), in these words: "Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognised in the administration of justice." 11. Ram Lal (PW.9) does state that one day prior to Holi, accused and the deceased had consumed alcohol in his shop when both the accused and the deceased had exchanged hot words. Now significantly, this witness admits not to have known either of them. He does not even remember the names or the faces of the persons who visited his shop that day. The question which arises for consideration is as to how is it that this witness was able to identify the accused, for it is not his case that the police had made inquiries from him or that he had disclosed the description of the accused or the deceased to the police. The question which arises for consideration is as to how is it that this witness was able to identify the accused, for it is not his case that the police had made inquiries from him or that he had disclosed the description of the accused or the deceased to the police. It is also not his case that hearing the death of a man in the neighbourhood, he himself had gone to the police narrating the incident which took place in his shop. Presence of the accused in his shop or the witness hearing the exchange of hot words is thus rendered doubtful. What were these "hot words" also remains unexplained by him. He does not state that both had any quarrel or that the accused had threatened to kill the deceased. The circumstance of last seen or motive is thus not established on record. 12. Prosecution further wants the Court to believe that while in police custody, accused made a disclosure statement, which led to the recovery of clothes of the deceased from Parie Nalla, but then Anil Kumar (PW.6), witness to such disclosure statement has not supported the prosecution and in any event clothes recovered by the police, in no manner links the accused to the alleged crime through any scientific evidence. 13. Through the testimony of Dr. Raj Kumar (PW.10), it stands proved that deceased had died as a result of head injury leading to coma. According to the doctor, such injuries could have been caused even as a result of fall. Possibility of deceased falling down the cliff is not ruled out. 14. Prosecution further wants the Court to believe that the incident came to be witnessed by Prem Bahadur (PW.1) and that the accused had confessed his crime with Lok Bahadur (PW.2). 15. However, when we peruse their testimonies, we do not find them to be inspiring in confidence, apart from the fact that they are contradictory in nature. The witnesses are wholly unreliable and their version unbelievable. Prem Bahadur states that on 27.02.2010 at about 10.00 PM, accused came to him and informed that one person had fallen into the gorge. Thereafter, they went to Village Tar and with the help of the torch, accused noticed a dead body lying at a distance of 10 meters. The accused put the dead body in a gunny bag and threw it into the water. Thereafter, they went to Village Tar and with the help of the torch, accused noticed a dead body lying at a distance of 10 meters. The accused put the dead body in a gunny bag and threw it into the water. This fact was witnessed both by him and Lok Bahadur. Significantly, this witness does not state that accused had murdered the deceased or that he prevented the accused from destroying the evidence. The witness further states that thereafter he returned to his residence (Quarter) and two days thereafter i.e. 01.03.2010, informed the police about the incident. They all went with the police to recover the dead body. 16. Now crucially, this witness did not inform the police about the situs of dead body as is so evident from the testimony of Joginder Singh (PW.16), according to whom, information was furnished by an unknown person on telephone. Also FIR (Ex.PW.13/A) does not record the events to be the one which this witness has deposed in Court. The witness admits that the police official spent the night with them. Also the police had asked them to reveal the truth otherwise they would arrest them. Obviously out of fear and threat the witness deposed in Court. Be that as it may, when we examine the cross-examination part of the testimony of this witness, we find him to have contradicted his version. 17. Lok Bahadur (PW.2) states that on 27.02.2010, accused confessed of having killed the deceased and on his asking he went to the place where the dead body was lying. On 02.03.2010, when police came to the spot, he was present. Now crucially, Prem Bahadur (PW.1) does not state such fact, for the witness admits in the night when the accused had visited him, both he and Lok Bahadur were together. He further admits that police had interrogated all the labourers. Again the question which arises for consideration is as to why is it that this witness did not inform the police about the incident or accused having confessed his guilt, immediately after the incident. 18. Significantly, for more than two days Prem Bahadur kept quiet and for more than three days Lok Bahadur kept quiet and did not narrate the incident to anyone, including the local Pradhan. 19. 18. Significantly, for more than two days Prem Bahadur kept quiet and for more than three days Lok Bahadur kept quiet and did not narrate the incident to anyone, including the local Pradhan. 19. Thus, to our mind, prosecution has not been able to establish by leading clear, cogent, convincing and reliable piece of evidence so as to prove that accused intentionally caused death of Sohan (deceased) by inflicting him head injury and after committing murder disappeared the dead body by putting into one gunny bag and threw the same into Parie nalla with an intention to screen himself. 20. The Court below, in our considered view, has correctly and completely appreciated the evidence so placed on record by the prosecution. It cannot be said that judgment of trial Court is perverse, illegal, erroneous or based on incorrect and incomplete appreciation of material on record resulting into miscarriage of justice. 21. The accused has had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down by the Apex Court in Mohammed Ankoos and others v. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad (2010) 1 SCC 94 , since it cannot be said that trial Court has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice, no interference is warranted in the instant case. For all the aforesaid reasons, present appeal, being devoid of merit, is dismissed, so also the pending applications, if any. Bail bonds furnished by the accused are discharged. Record of the trial Court be immediately sent back.