Research › Search › Judgment

Himachal Pradesh High Court · body

2017 DIGILAW 1272 (HP)

State of Himachal Pradesh v. Milkhi Ram

2017-11-20

SANDEEP SHARMA

body2017
JUDGMENT : SANDEEP SHARMA, J. 1. By way of instant criminal appeal filed under Section 378 (3) of the Code of Criminal Procedure, challenge has been laid to the impugned judgment of acquittal dated 25.5.2007, passed by learned Additional Sessions Judge-II, Kangra at Dharamshala, H.P., in Criminal Appeal No. 33-P/2003, whereby the judgment of conviction and order of sentence dated 17/18.11.2003, passed by the learned Judicial Magistrate Ist Class Court No. II, Palampur, District Kangra in Crl. Case No. 31-II/2001, has been set aside. 2. Briefly stated facts, as emerge from the record, are that on 18.9.2001, Sh. Balwant Singh, Pardhan, Gram Panchayat, Ropa, telephonically informed the police with regard to alleged quarrel having taken place between complainant/injured Sh. Gian Chand and respondents-accused Milkhi Ram and others. Police party headed by Constable Vikram Singh went to the spot, where injured Gian Chand was found lying unconscious in his house, who was subsequently taken/shifted to the hospital and in the presence of Medical Officer, statement of injured came to be recorded under Section 154 Cr. P.C. Complainant, Gian Chand in his statement recorded under Section 154 Cr. P.C, alleged that on 18th September, 2001, he had gone to pay electricity bill at Sari and at about 1.30 P.M., when he reached near his house, accused namely Milkhi Ram, Pawna wife of Milkhi Ram and Nisha Devi, daughter of Milkhi Ram, gave him beatings with danda and darat, as a result of which, he suffered injuries on his person. Complainant further alleged that above named respondents-accused gave him beatings because of old enmity and he was rescued by his wife Indira Devi, who in that process was also given beatings by the above named respondents-accused. As per complainant, there was no other persons present on the spot and as such, respondents-accused, after having given beatings to them, had taken away the drat with them but left dandas on the spot. 3. On the basis of the aforesaid complaint, formal FIR No. 60/2001, Ex. PW6/A, came to be registered at police Station, Lambagoan, Tehsil Jaisinghpur, District Kangra, against the respondents-accused. 3. On the basis of the aforesaid complaint, formal FIR No. 60/2001, Ex. PW6/A, came to be registered at police Station, Lambagoan, Tehsil Jaisinghpur, District Kangra, against the respondents-accused. Police got complainant as well as his wife medically examined and all the injuries suffered by complainant were found to be simple in nature save and except injuries No. 9 and 12, which were opined to be grievous in nature being fracture of third metacarpal in left hand and fifth metacarpal in the right hand (bone in the right hand). Similarly, injuries on the person of wife of the injured were also opined to be simple in nature, caused with blunt weapon. After completion of the investigation, police presented the challan in the competent court of law i.e. learned Judicial Magistrate, Ist Class, Court No. II, Palampur, District Kangra, against the accused for having committed the offences punishable under Sections 323/325 read with Section 34 IPC. 4. Learned trial Court, on being satisfied that a prima-facie case exist against the respondents-accused, framed charges against them under Sections 323/325 read with Section 34 IPC, to which they pleaded not guilty and claimed trial. 5. Prosecution with a view to prove its case examined as many as 6 witnesses, whereas respondents-accused in their statements recorded under Section 313 Cr.P.C., denied the case of the prosecution in toto and in their defence, they had tendered a copy of judgment Ext. D-1, passed by learned trial Court, wherein, complainant/injured had faced trial for having committed offence under Sections 323 and 325 read with Section 34 IPC. Learned trial court on the basis of the evidence led on record by the prosecution held them guilty of having committed an offence punishable under Sections 323 and 325 read with Section 34 of IPC and accordingly, convicted and sentenced them under Section 323 read with Section 34 IPC to undergo simple imprisonment for 15 days each and also to pay a fine of Rs. 500/- each and in default of payment of fine, to further undergo simple imprisonment for 15 days each. Besides above, learned trial court also convicted the aforesaid respondents-accused under Section 325 read with Section 34 IPC and sentenced them to undergo three months simple imprisonment and to pay a fine of Rs. 1000/- each and in default of payment of fine, to further undergo simple imprisonment for one month each. 6. Besides above, learned trial court also convicted the aforesaid respondents-accused under Section 325 read with Section 34 IPC and sentenced them to undergo three months simple imprisonment and to pay a fine of Rs. 1000/- each and in default of payment of fine, to further undergo simple imprisonment for one month each. 6. Being, aggrieved and dissatisfied with the aforesaid judgment of conviction, recorded by the learned trial Court, respondents-accused, preferred an appeal under Section 374 Cr. P.C. in the court of Ld. Additional Sessions Judge-II, Kangra at Dharamshala, which came to be registered as Criminal Appeal No. 33-P/2003. However, fact remains that aforesaid appeal, having been preferred by the respondents-accused, came to be allowed, as a result of which, judgment of conviction recorded by the learned trial court was set aside. 7. In the aforesaid background, appellant-State has approached this Court in the instant proceedings, seeking therein conviction of respondents-accused for having committed the offences punishable under Sections 323 and 325 read with Section 34 of IPC, after setting aside the judgment of acquittal recorded by the learned Additional Sessions Judge-II, Kangra at Dharamshala. 8. Mr. M.L. Chauhan, learned Additional Advocate General, while inviting attention of this Court to the impugned judgment of acquittal recorded by the learned Additional Sessions Judge-II, Kangra at Dharamshala, strenuously argued that the same is not sustainable in the eye of law as the same is not based upon the correct appreciation of the evidence adduced on record by the respective parties, and as such, same deserves to be quashed and set-aside. To substantiate his aforesaid argument, Mr. To substantiate his aforesaid argument, Mr. Chauhan, made this Court to travel through the judgment of conviction recorded by the learned Judicial Magistrate and the entire evidence adduced on record by the prosecution to demonstrate that all the material prosecution witnesses, categorically deposed before the learned trial court that on the date of alleged incident, victim as well as his wife were given beatings by the respondents-accused, as a result of which, complainant as well as his wife suffered simple as well as grievous injuries and as such, there was no occasion for the learned Additional Sessions Judge-II, Kangra at Dharamshala to differ with the findings returned by the learned Judicial Magistrate, who after having carefully perused the evidence led on record by the prosecution held the respondents-accused guilty for having committed offence punishable under Sections 323/325 IPC, read with Section 34 IPC. 9. While referring to the statements made by PW-1 Shri Gian Singh and his wife PW-2 Indira Devi, learned Additional Advocate General, contended that statements of material prosecution witnesses, if are read in its entirety juxtaposing each other, it certainly suggest that prosecution was able to prove its case beyond reasonable doubt that on the date of alleged incident, beatings were given by the respondents-accused on the head and legs of complainant as well as his wife Indira Devi by the respondents-accused. Mr. Chauhan, while referring to judgment Ext. D-1, dated 22.06.2001, passed by the learned Judicial Magistrate, Ist Class, Court No. II, Palampur in Criminal Case No. 84-II/98, contended that there was no occasion for learned Additional Sessions Judge to take into consideration the same while ascertaining the guilt of respondents-accused in the instant case wherein, admittedly, respondents-accused gave blow of danda and darat on the head as well as legs of complainant and his wife. Mr. Chauhan, further stated that judgment Ext. D-1, and the complaint having been filed against victim at the behest of respondents-accused, further proves the case of the prosecution that the respondents-accused caused injuries on the body of complainant as well as his wife due to old enmity and as such, there is/was no occasion for learned Additional Sessions Judge to conclude that prosecution was not able to prove its case beyond reasonable doubt. With the aforesaid submissions, learned Additional Advocate General, sought conviction of the respondents-accused after setting aside the judgment of acquittal recorded by the learned trial Court. 10. With the aforesaid submissions, learned Additional Advocate General, sought conviction of the respondents-accused after setting aside the judgment of acquittal recorded by the learned trial Court. 10. Mr. Subhash Sharma, learned counsel representing the respondents-accused, supported the impugned judgment of acquittal recorded by the learned Additional Sessions Judge and contended that that there is no illegality and infirmity in the same and as such, same needs to be upheld. While refuting the aforesaid submissions having been made by the learned Additional Advocate General, Mr. Sharma contended that none of the prosecution witnesses was able to prove the case of prosecution beyond reasonable doubt that victim as well as his wife were given beatings by the respondents-accused and as such, learned Additional Sessions Judge has rightly held respondents-accused not guilty of having committed offence under Sections 323 and 325 read with Section 34 IPC. 11. While referring to the statements of PW-1 and PW-2, Mr. Sharma, contended that bare perusal of the same nowhere suggest that they were given beatings by the respondents-accused, rather careful perusal of the depositions made by the aforesaid witnesses clearly suggest that there are material contradictions in their statements and as such, no reliance if any, could be placed by the Court below while ascertaining the guilt of the respondents-accused, who by way of placing on record judgment Ext. D-1, passed by the learned Judicial Magistrate and the complaint having been filed by the respondents-accused successfully proved on record that instant complaint having been filed by the complainant is a counter blast to the FIR, which is/was filed earlier in point of time by the respondents-accused. While referring to the statements of PW-1 and PW-2, Mr. Sharma, contended that it has specifically come in their statements that at the time of alleged incident, no other person was present but if the cross-examination of PW-2 is perused carefully, she contradicted by stating that she was informed by some person, who at the relevant time was present on the spot but she does not want to disclose her/his name. Similarly, while referring to the statement of PW-5 Sh. Balwant Singh, Pardhan Gram Panchayat Sari, Mr. Similarly, while referring to the statement of PW-5 Sh. Balwant Singh, Pardhan Gram Panchayat Sari, Mr. Sharma, contended that he has nowhere supported the version put forth by PW-2, Indira Devi, wife of complainant Gian Singh that immediately after incident he had come to the spot rather he specifically stated that when he reached the spot, complainant Gian Singh was lying in his Varandha in injured condition, meaning thereby that PW-5 had no occasion to see the alleged incident with his own eyes. While concluding his arguments, Mr. Sharma, contended that there is no consistency in the statements/arguments put forth by the prosecution witnesses and as such, no reliance if any, could be placed on their versions by the learned trial Court while holding them guilty and as such, learned Additional Sessions Judge, after having carefully perused the versions, has rightly acquitted the respondents-accused of the charges framed against them. 12. I have heard learned counsel representing the parties and have carefully gone through the record made available. 13. PW-1 Sh. Gian Singh in his statement put forth below, stated that 2-3 years back, when he was coming back to his house after depositing the electricity bill, accused namely Milkhi Ram, his son and his wife gave blow of 'danda' on his head. He also stated that above named accused also hit him with the blunt side of darat, as a result of which, he suffered injuries on his head as well as his hand. It has specifically come in the statement of complainant PW-1 that he was given blow with 'danda' over his back. Milkhi Ram was armed with 'danda and 'darat', while his wife was having a 'danda'. As per this witness, he was rescued from the clutches of respondents-accused by his wife, who after hearing the noise, reached on the spot. This witness further stated that accused while leaving the spot of incident, took away 'darat', whereas, threw away 'danda' on the spot. 14. PW-2 Smt. Indira Devi, wife of complainant PW-1 also stated that two years back, when she was grazing the cattle, she heard noise and she was told by someone with regard to the alleged beatings given by the respondents-accused to her husband, where after, she reached on the spot and found that accused Milkhi Ram, his son Surjit and daughter Nishi Devi were giving beatings to her husband. As per this witness, accused Milkhi Ram was having 'darat' in his hand, whereas, Nishi Devi was having 'danda' in her hand. She further stated that when she tried to rescue her husband from the clutches of the respondents-accused, accused Milkhi Ram and his son gave 'danda' blows on her legs. This witness further stated that her husband had fallen down being unconscious and thereafter she called Pardhan of Gram Panchayat, who informed the police telephonically. She also stated that Ward Panch, also came on the spot. She further stated that during the investigation, she along with her husband were medically examined and danda Ext. P-1, Shirt Ext. P-2, Pajama Ext. P-3, Parna Ext. P-4 and Drat Ext. P-5 were taken in possession. 15. Conjoint reading of aforesaid depositions made by PW-1 Gian Singh and PW-2 Indira Devi though suggest that on the date of alleged incident, complainant Gian Singh suffered injuries on his person but there appears to be contradictions in the statements of aforesaid witnesses with regard to presence of respondents-accused on the spot at the time of alleged incident because PW-1 in his statement stated that when he reached near his house, accused Milkhi Ram, his son and his wife gave him 'darat' blow, whereas, PW-2 Indira Devi in her statement stated that when she having heard noise, reached the spot, she saw that Milkhi Ram, his son Surjit and daughter Nishi Devi, were giving beatings to her husband. Similarly, there is no mention, as such, in the statement of PW-1 with regard to presence of Pradhan Gram Panchayat as well as Ward Panch on the spot, whereas, PW-2 in her statement stated that after alleged incident, she called Pradhan, Gram Panchayat, who had come on the spot. But if the statement of PW-5 Balwant Singh, Pradhan Gram Panchayat is carefully perused/examined, his version is altogether different to the version put forth by PW-2 Indira Devi. PW-5 Balwant Singh, in his statement stated that PW-2 Indira Devi came out of his house and disclosed that her husband had been beaten by the accused persons and as such, he informed the police telephonically. PW-5 Balwant Singh, in his statement stated that PW-2 Indira Devi came out of his house and disclosed that her husband had been beaten by the accused persons and as such, he informed the police telephonically. He further stated that when he came on the spot, injured was lying in his own Varandha, whereas, statements having been made by PW-1 and PW-2 suggest that alleged incident, if any, had taken place near the house of the complainant and there is no mention, as such, of Varandha. None of material prosecution witnesses, had an occasion to see the incident with their eyes allegedly having taken place in the Varandha. 16. Leaving everything aside, if the version put forth by PW-5 that when he reached on the spot, injured was found lying in his own Varandha is totally contradictory to the statement of PW-2, who in her statement specifically stated that immediately after alleged beatings given by the respondents-accused to her husband, she informed Pradhan Gram Panchayat, who came on the spot. There is another aspect of the matter that PW-1 Gian Singh in his cross-examination categorically admitted that he had faced a criminal trial at the instance of respondent-accused Milkhi Ram. But, he denied specifically that he came to be convicted in the complaint registered at the behest of respondent-accused, but perusal of Ext. D-1, copy of judgment dated 22.6.2001, passed by learned Judicial Magistrate, Ist Class, Palampur in Criminal Case No. 84-II/98, titled as State v. Gian Singh, clearly suggests that PW-1 was held guilty of having committed an offence punishable under Sections 323/324 IPC. Similarly, PW-2 Indira Devi, wife of the complainant in her cross-examination though admitted the factum with regard to complaint lodged at the behest of accused Milkhi Ram but expressed her ignorance with regard to final outcome of the trial Court. Otherwise also, if statement of PW-1 and PW-2 are read in conjunction, there appears to be no attempt on the part of these witnesses to explain motive, if any, on the part of respondents-accused to give them beatings, rather accused by placing judgment Ext. Otherwise also, if statement of PW-1 and PW-2 are read in conjunction, there appears to be no attempt on the part of these witnesses to explain motive, if any, on the part of respondents-accused to give them beatings, rather accused by placing judgment Ext. D-1, dated 22.6.2001, has been able to prove on record that FIR, which is a subject matter of the present case, came to be lodged at the behest of complainant/victim as a counter blast to earlier FIR filed by the respondents against the complainant, wherein complainant came to be held guilty for having committed an offence punishable under Section 323, 324 IPC. Further cross-examination conducted on the PW-1 suggests that there are material contractions in the statements of aforesaid witnesses. In his cross-examination, he admitted that he was given beatings by 3-4 persons, whereas, in his examination-in-chief, he stated that Milkhi Ram, his son and his wife gave him blow with blunt side of drat on his head. If the first version put forth by the complainant in his statement under Section 154 Cr.P.C Ext. PW-1/A is examined juxtaposing his aforesaid statement/admission made during his cross-examination, it falsifies the story of the prosecution. Complainant in his statement recorded under Section 154 Cr.P.C has stated that he was given beatings by Milkhi Ram, his wife Pawna Devi and daughter Nishi Devi with danda and darat because of old enmity. But interestingly, in the statement of this witness before court below, he nowhere disclosed the name of Nishi Devi, daughter of Milkhi Ram, rather PW-1 in his statement stated that at the time of alleged incident Milkhi Ram, his wife Pawna Devi and his son Surjit were present on the spot of incident. Similarly, there is contradiction with regard to number of assailants present on the spot at the time of alleged incident. In his examination-in-chief, he stated that Milkhi Ram, his wife Pawna Devi and son Surjit Singh were present on the spot but in his cross-examination, he stated that 3-4 assailants were present on the spot. PW-2 in her examination-in-Chief stated that when she reached on the spot, Milkhi Ram, his son Surjit and wife Pawna Devi were giving beatings to her husband but in her cross-examination, she stated that she was informed with regard to incident by somebody whose name she cannot disclose. PW-2 in her examination-in-Chief stated that when she reached on the spot, Milkhi Ram, his son Surjit and wife Pawna Devi were giving beatings to her husband but in her cross-examination, she stated that she was informed with regard to incident by somebody whose name she cannot disclose. The aforesaid statement by this witness in her cross-examination creates doubt with regard to correctness of story put forth by the prosecution. As has been taken note above, Pradhan of Gram Panchayat PW-5, has nowhere supported the case of PW-2 that he immediately after having received information from PW-2 reached on the spot, rather he has stated that after incident, PW-2 came to his residence and informed him with regard to the alleged beatings given to her husband, where after, he informed the police with regard to alleged incident. 17. This Court after having carefully perused the statements made by these aforesaid material prosecution witnesses, sees substantial force in the arguments having been made by learned counsel representing the respondents that no much reliance could be placed upon the versions put forth by these witnesses being contradictory in nature. Similarly, there appears to be contradiction with regard to the alleged recovery of darat from the spot because both the material prosecution witnesses categorically admitted that immediately after alleged incident, darat was taken by accused Milkhi Ram with him, whereas, dandas alleged to be used by them, were left on the spot. 18. True, it is prosecution with the help of medical evidence adduced on record, has made an endeavour to prove on record that in the alleged incident, complainant as well as his wife suffered injuries but that may not be sufficient to conclude that respondents-accused committed an offence punishable under Sections 323 and 325 read with Section 34 IPC because there is no cogent and convincing evidence available on record, suggestive of the fact that injuries suffered by the complainant as well as his wife on their persons were on account of beatings allegedly given by the respondents-accused. Prosecution has not been able to connect accused with the alleged crime. In the case at hand, there is no eye witness save and except PW-1 and PW-2, whose statements/versions are totally contradictory to each other. So called independent witness PW-5 has also not corroborated the versions put forth by PW-1 and PW-2. 19. Prosecution has not been able to connect accused with the alleged crime. In the case at hand, there is no eye witness save and except PW-1 and PW-2, whose statements/versions are totally contradictory to each other. So called independent witness PW-5 has also not corroborated the versions put forth by PW-1 and PW-2. 19. By now it is well settled that in a criminal trial evidence of the eye witness requires a careful assessment and needs to be evaluated for its creditability. Hon'ble Apex Court has repeatedly held that since the fundamental aspect of criminal jurisprudence rests upon the well established principle that "no man is guilty until proved so", utmost caution is required to be exercised in dealing with the situation where there are multiple testimonies and equally large number of witnesses testifying before the Court. Most importantly, Hon'ble Apex Court has held that there must be a string that should join the evidence of all the witnesses and thereby satisfying the test of consistency in evidence amongst all the witnesses. In nutshell, it can be said that evidence in criminal cases needs to be evaluated on touchstone of consistency. In this regard, reliance is placed upon the judgment passed by Hon'ble Apex Court in C. Magesh and others v. State of Karnataka (2010) 5 Supreme Court Cases 645, wherein it has been held as under:- "45. It may be mentioned herein that in criminal jurisprudence, evidence has to be evaluated on the touchstone of consistency. Needless to emphasis, consistency is the keyword for upholding the conviction of an accused. In this regard it is to be noted that this Court in the case titled Surja Singh v. State of U.P. (2008)16 SCC 686 : 2008(11) SCR 286 has held:-(SCC p.704, para 14) "14. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witness is held to be credit-worthy; the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation." 46. In a criminal trial, evidence of the eye witness requires a careful assessment and must be evaluated for its creditability. In a criminal trial, evidence of the eye witness requires a careful assessment and must be evaluated for its creditability. Since the fundamental aspect of criminal jurisprudence rests upon the stated principle that "no man is guilty until proven so," hence utmost caution is required to be exercised in dealing with situation where there are multiple testimonies and equally large number of witnesses testifying before the Court. There must be a string that should join the evidence of all the witnesses and thereby satisfying the test of consistence in evidence amongst all the witnesses. 20. Consequently, in view of the detailed discussion made hereinabove as well as law laid down by the Hon'ble Apex Court, this Court sees no reason to differ with the judgment of acquittal recorded by the learned Additional Sessions Judge, which otherwise appears to be based upon correct appreciation of the evidence as well as law on the point. Accordingly, the present appeal is dismissed being devoid of any merit. Pending applications, if any, are disposed of.