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2016 DIGILAW 1879 (HP)

State of Himachal Pradesh v. Parvesh Kumar

2016-09-05

SANJAY KAROL, VIVEK SINGH THAKUR

body2016
JUDGMENT : Vivek Singh Thakur, J. Aggrieved by acquittal of respondent-accused vide judgment dated 11.03.2010, passed by the learned Additional Sessions Judge (Fast Track Court), Kangra, at Dharamshala, in RBT Sessions Case No. 35-D/VII/07, in case FIR No. 14/05, dated 21.01.2005, registered under Sections 148, 324/149 & 307/149 of the Indian Penal Code in Police Station, Dharamshala District Kangra, H.P., the State has preferred present appeal with prayer to set aside impugned judgment and to convict respondent-accused under Sections 148, 324/149 & 307/149 of the Indian Penal Code 2. Mr. V.S. Chauhan learned Additional Advocate General for the appellant-State has advanced arguments that there is sufficient circumstantial evidence on record to prove the guilt of respondent-accused and prayed for allowing the appeal to punish respondent-accused whereas Mr. Naresh Verma and Mr. S. M. Goel, learned counsel for respondents-accused have strenuously argued that prosecution has failed to prove the case beyond reasonable doubt and there is no circumstance incriminating respondent-accused and have sought dismissal of the appeal. 3. As per prosecution case PW-4 Hitesh Kumar made a statement under Section 154 Cr.PC., stating that on 21.01.2005 at about 8.45 PM, PW-10 Pankaj Thakur alongwith his friends PW-4 Hitesh Kumar and PW-11 Amit Kumar was going in his car from his hotel Himalyan Wonder to his house. On the way near Midway Resorts, two vehicles i.e. one Mahindra Utility and one motorcycle were parked on the road side and the moment car of PW-10 Pankaj Thakur crossed these vehicles respondent Sanjiv, one of the occupants of these vehicles, called him to come out, upon which he stopped his vehicle and started moving towards the parked vehicles. Occupants of those two vehicles alighted quickly and firstly respondents namely Vinay alias Guzar, Sanjiv Kumar, Munish alias Gadhu and later on all respondents attacked Pankaj with swords and khukaries with common intention to kill him. PW-10 Pankaj Thakur received injuries on his head, arms and other parts of body. Thereafter, within few minutes, they fled away from the spot in their vehicles, by taking advantage of darkness. Name of other persons were not known to Hitesh Kumar. However, he had noticed registration number of vehicles. Because of severe bleedings PW-10 Pankaj Thakur was brought the Zonal to hospital, Dharamshala immediately by PW-4 Hitesh Kumar and PW-11 Amit Kumar. 4. After registration of FIR (Ex. Name of other persons were not known to Hitesh Kumar. However, he had noticed registration number of vehicles. Because of severe bleedings PW-10 Pankaj Thakur was brought the Zonal to hospital, Dharamshala immediately by PW-4 Hitesh Kumar and PW-11 Amit Kumar. 4. After registration of FIR (Ex. PX) at Police Station, Dharamshala, on the basis of statement Ex.PW-4/A investigation was carried on and after its completion challan was put in the Court. 5. Prosecution has examined 17 witnesses and statement of respondents under Section 313 Cr.PC wee recorded and respondents have chosen not to lead any defence evidence. After conclusion of trial, respondents stand acquitted by trial Court. 6. Whole case of prosecution depends upon statements of injured PW-10 Pankaj Thakur and his eye witness friends PW-4 Hitesh Kumar, PW-11 Amit Kumar and other witnesses are doctors who have performed their duties of medically examining and giving treatment to the injured PW-10 Pankaj Thakur and police officials who have performed their part for conclusion of investigation. 7. On the day of alleged incident, police had reached in the hospital, on the basis of information received from hospital, at 9.30 PM. As per prosecution case at that time, injured PW-10 Pankaj Thakur was not fit to give statement. However, at about 11.30 PM, the statement of PW-4 Hitesh Kumar (Ex. PW-4/A) was recorded under Section 154 Cr.P.C. 8. On deposition in Court, in examination-in-chief, PW-4 Hitesh Kumar has stated that he had seen six persons on the spot but has shown his inability to identify them after a lapse of four years. He has further stated that he can identify Vinay, Sanjay, Munish and Parvesh and remaining accused are known to him only by face. He has stated that accused had run away in Mahindra Pick-up. He was declared hostile for resiling from his previous statement recorded by police and was subjected to cross-examination by learned Public Prosecutor. During cross-examination, he has admitted suggestions put up by learned Public Prosecutor and also statement made by him before Police and has explained that due to lapse of time, he had forgotten these facts. In his cross-examination by defence counsel, he has admitted that there was dark on the spot at the time of incident. There were lights of Hotel Midway Resorts and lights of vehicles were also on. In his cross-examination by defence counsel, he has admitted that there was dark on the spot at the time of incident. There were lights of Hotel Midway Resorts and lights of vehicles were also on. He has stated that he had not disclosed names of Awasthi and Piada in his statement which has been found contrary to his earlier statement made before police. He has admitted that police had not carried out identification parade of respondents accused in his presence. 9. PW-10 Pankaj Thakur has reiterated the manner of occurrence of incident, qualifying further that respondent Sanjeev called him and when he had started moving towards him all of a sudden respondents attacked him with swords and khukharies and thereafter they went towards Kangra in the vehicle. As per him, he had lost his consciousness which he regained in the hospital at Dharamshala. In cross-examination, he has denied that Doctors had obtained his consent before medical examination. He has stated that he had disclosed the names of all six accused persons present in the Court to the police but said fact has been found contrary to record. He has admitted that on the same day at about 4.00 PM, PW- 11 Amit Kumar and PW-4 Hitesh Kumar had gone to Kotwali Bazaar, Dharamshala where hot words were exchanged with Vinay and Sanjay in Bedi’s Office. 10. PW-11 Amit Kumar had also not lent any support in favour of prosecution and was declared hostile and was subjected to cross-examination by the Public Prosecutor. In cross-examination also he has not supported the prosecution case. He has stated that he did not remember that the day of incident was 21.01.2005 He has denied that in his presence respondents Sanjeev had called PW-10 Pankaj Thakur. He has also stated it to be incorrect that Sanjeev Kumar was already known to him. He has stated that he did not know whether all the accused fled towards Kangra after beating Pankaj Thakur. Further in crossexamination he states that due to darkness on the spot he could not see anything. 11. PW-11 Amit Kumar has stated that due to darkness, he could not recognize the boys and later on he came to know that PW-10 Pankaj was called by them. He has disclosed the names of Sanjeev, Vinay etc. to the Police. Further in crossexamination he states that due to darkness on the spot he could not see anything. 11. PW-11 Amit Kumar has stated that due to darkness, he could not recognize the boys and later on he came to know that PW-10 Pankaj was called by them. He has disclosed the names of Sanjeev, Vinay etc. to the Police. He has stated that it was incorrect that the aforementioned persons had beaten Pankaj Thakur in his presence. 12. As per statement Ex.PW-4/A, respondents had fled away from the spot in their vehicles. However, as per PW-8 ASI Bansi Lal, Investigating Officer, motorcycle was taken into possession from Nallah nearby the Midway Resorts vide recovery memo. Ex.PW-7/A. Recovery of motorcycle from the Nallah adjacent to alleged place of occurrence falsifies the fact narrated in statement Ex.PW- 4/A on the basis of which the case was investigated and registered. 13. PW-4 Hitesh Kumar and PW-11 Amit Kumar, friends of PW-10 Pankaj Thakur, who were claimed to be with him at the time of incident, did not go with him (PW-10) and remained sitting in the car, when he was allegedly beaten up by the respondents. As such conduct of these witnesses renders their veracity doubtful. 14. PW-2 Dr. Atul Gupta who medically examined PW-10 Pankaj Thakur in General Hospital, Dharamshala, had admitted in his cross examination that he has nowhere mentioned in MLC that the patient was unconscious. He has further stated that he had personally asked the patient whether he was ready for his medical examination and had also taken his consent. He has further admitted that injured had not disclosed names of accused whereas as per Investigating Officer he (PW-10) was not in a position to give his statement and certificate to this effect was also issued by the Doctor and due to inability of his injured. Statement of PW-4 Hitesh Kumar was recorded. 15. In case patient was unconscious, there was no question of his consenting for medical examination for Doctor and in case he was conscious then there was no impediment to police to record his statement under Section 154 Cr.P.C. immediately on arrival of police in the hospital. Statement of PW-4 Hitesh Kumar was recorded. 15. In case patient was unconscious, there was no question of his consenting for medical examination for Doctor and in case he was conscious then there was no impediment to police to record his statement under Section 154 Cr.P.C. immediately on arrival of police in the hospital. In case PW-10 Pankaj Thakur was really not in a position to make statement then also statement PW-4 Hitesh Kumar should have been recorded immediately but the statement of PW-4 Hitesh Kumar had been recorded at 11.45 PM reflecting that before making statement Ex. PW-4/A, of evidence due deliberation and consultations were going on, particularly, for the reason that PW-10 Pankaj Thakur had received injuries in the manner other than purported to be reflected by prosecution. It took three hours for recording statement under Section 154 Cr.PC despite the fact that police had arrived in the hospital at 9.30 PM and alleged eye witness were available in the hospital. 16. It is also admitted by PW-10 Pankaj Thakur that on the same day PW-4, PW-10 and PW-11 had gone to Kotwali Bazaar Dharamshala and exchange of hot words took place between them and respondents Vinay and Sanjeev. Therefore, it is unbelievable that despite such incident on calling of Sanjeev, PW-10 Pankaj Thakur had stopped his car and had started moving towards him and further car of PW-10 was not stopped by respondent but he had stopped the car on his own. 17. PW-11 Amit Thakur has stated that PW-10 Pankaj Thakur had driven his vehicle to the hospital. It is again major discrepancy to the effect that PW-10 Pankaj Thakur was able to drive the vehicle and to give consent to Doctor for his medical examination but was not able to make statement to the police. 18. There are material contradictions and major improvements in the statement of PW-10 Pankaj Thakur which cast doubt on his trustworthiness. Firstly he had his statement was recorded by Police on 31.01.2005 but again stated that it was recorded on 22.01.2005 and second time it was recorded on 31.01.2005. He has stated that on 22.10.2005 he had disclosed the names of four accused persons namely Vinay, Sanjeev, Manish and Parvesh to the police whereas in his statement (Mark X) recorded by Police on 22nd January,2005 such names were not disclosed. He has stated that on 22.10.2005 he had disclosed the names of four accused persons namely Vinay, Sanjeev, Manish and Parvesh to the police whereas in his statement (Mark X) recorded by Police on 22nd January,2005 such names were not disclosed. He has stated that he had disclosed the names of all six accused persons present in the Court to the Police. This statement was also found contrary to record. He has further stated that he had disclosed to police the description of weapon carried by respective accused-respondents but said statement was found incorrect. His claim of telling police regarding action of each accused attacking him, with description of weapon, was also found incorrect. He has admitted that at the time of incident, it was dark but lights of hotels and vehicles were on at that time. He has stated that by the time his companion came out of the car, the accused persons had already run away but the said statement was not corroborated by statements of PW-4 and PW-11. 19. Investigating Officer has admitted that there were other persons also present in the hospital accompanying Pankaj Thakur and it is very strange that none of the companions of PW-10 Pankaj Thakur had approached police after the incident which also creates doubt of credibility of PW-10 Pankaj Thakur and his companions, particularly, when even after arrival of police in Hospital at 9.30 PM, there is a considerable delay in making statement under Section 154 of Cr.PC. 20. The defence of respondents is that it was the complainants and his companions who had attacked Vinay and Sanjeev with Khukari and had thrown motorcycle of accused in the khad. It was also suggested that sword was also taken into possession by Kangra Police from PW-10 Pankaj Thakur in another case registered against him. These suggestions have been denied by PW-10 but it has come in the statement of Investigating Officer PW-8 Bansi Lal that motorcycle was taken into possession by the police from Nullah vide recovery memo Ex.PW-7/A. There is nothing on record to show reasons for the motorcycle to be in the Nullah, especially, when it was claimed by PW-4 Hitesh Kumar in his statement that respondent had fled away from spot in Mahindra Utility and motorcycle. 21. 21. Scrutiny of evidence of PW-4, PW-10, PW-11 and PW-8 Investigating Officer, ASI Bansi Lal indicates true version of the incident which was not placed before the trial Court and occurrence, if any, had taken place in a manner other than as is being posed by prosecution witnesses. 22. PW-15 Prem Lal Thakur has also admitted that he had taken into possession one Khukri in case No.15/5 on 09.02.2005. There is no other reference or detail in the evidence of prosecution w.r.t. case No.15 of 2005. It creates doubt on the fairness of investigation conducted by police. All these facts probablise the defence taken by respondents. 23. Therefore, in present case, there is no cogent reliable and trustworthy evidence on record to prove the guilt of respondents, rather, there is material on record probablising the defence plea raised by respondents. 24. In view of the above contradictions and discrepancies, testimonies of PW-10 Pankaj Thakur, PW-4 Hitesh Kumar and PW-11 Amit Thakur are not reliable and trustworthy for convicting respondents and therefore rest of the evidence is not necessary to be discussed. 25. It is evident from the aforesaid discussion that evidence to prove the guilt of accused beyond reasonable doubt, is not sufficient. Thus, having perused the testimonies of prosecution witnesses on record, it cannot be said that prosecution has been able to prove its case that accused-respondents have committed offence under Sections 148, 324/149 & 307/149 of the Indian Penal Code. It cannot be said that the trial court has appreciated the evidence correctly and completely and acquittal of the accused has resulted into travesty of justice or has caused mis-carriage of justice. 26. 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. The accused has been acquitted by the trial Court. No case for interference is made out. 27. The present appeal, devoid of any merit, is dismissed, so also pending applications, if any. Bail bonds, if any, furnished by the accused are discharged. Records of the Court below be sent back forthwith.