Research › Search › Judgment

Himachal Pradesh High Court · body

2017 DIGILAW 1303 (HP)

State of Himachal Pradesh v. Jeet Ram

2017-11-25

CHANDER BHUSAN BAROWALIA

body2017
JUDGMENT : Chander Bhusan Barowalia, J. The present appeal has been preferred by the State-appellant (hereinafter to be referred to as ‘the appellant’) against the judgment, dated 31.12.2007, passed by the learned Sessions Judge, Kullu, (HP), in Criminal Appeal No. 9/06, whereby the judgment of conviction, dated 01.03.2006, passed by the learned Judicial Magistrate 1st Class, Manali, District Kulu, H.P., in Criminal Case No. 218-1/2004/110-II/2004, against the respondent/accused (hereinafter to be referred to as ‘the accused’), was set aside. 2. In nutshell, the facts giving rise to the present appeal, as per the prosecution, are that on 04.10.2004, at about 11.15 p.m., complainant-Sandeep Chauhan, (hereinafter to be referred to as ‘the complainant’) left for his house after closing his shop at N.A.C., Manali. When he reached near his house at Old Manali, the accused asked him to accompany him to his house, but the complainant refused. Thereafter, the accused entered into the building of the complainant, gave him legs and fists flows and threatened him to do away with his life. The accused also damaged the window pane of the house of the complainant. The aforesaid occurrence was witnessed by Vineet Chauhan, Durga Singh, Urmila and Budh Ram. Thereafter, the complainant reported the matter to the police, on the basis of which, Rapat, Ext. PW-4/A was recorded. Then, the police party rushed to the spot, where the statement of the complainant under Section 154 of the Code of Criminal Procedure (for short ‘the Cr.P.C.) was recorded. On the basis of the statement of the complainant, formal FIR, Ext. PW-5/A was registered against the accused. Thereafter, the police prepared Spot Map, Ext. PW-5/B and took into possession the glasses vide Seizure Memo, Ext. PW-1/B. The complainant was got medically examined vide MLC, Ext. PW/3/A. On completion of the investigation, challan was presented against the accused before the learned Trial Court, under Sections 452, 506, 323 & 427 of the Indian Penal Code (hereinafter to be referred to as ‘IPC’). 3. The prosecution, in order to prove its case, examined as many as five witnesses. Statement of the accused was recorded under Section 313 Cr.P.C., wherein he denied the prosecution case and claimed innocence, however, he did not examine any defence witness. 4. 3. The prosecution, in order to prove its case, examined as many as five witnesses. Statement of the accused was recorded under Section 313 Cr.P.C., wherein he denied the prosecution case and claimed innocence, however, he did not examine any defence witness. 4. The learned Trial Court, vide judgment dated, 01.03.2006, convicted the accused for the offences punishable under Sections 452, 323, 506 & 427 of the IPC and sentenced him to undergo rigorous imprisonment for a period of six months and to pay fine of Rs.1,000/- under Section 452 IPC and in default of payment of fine, to further undergo simple imprisonment for one month. The accused/convict was also sentenced to undergo rigorous imprisonment for a period of three months and to pay a fine of Rs.1,000/- under Section 323 IPC and in default of payment of fine, to further undergo simple imprisonment for one month. He was also sentenced to undergo rigorous imprisonment for a period of three months and to pay a fine of Rs. 500/- under Sections 506 & 427 IPC each, and in default of payment of fine, to further undergo simple imprisonment for fifteen days, each. 5. The accused laid challenge to the judgment of conviction, passed by the learned Trial Court, by maintaining an appeal in the learned First Appellate Court and the learned First Appellate Court, vide impugned judgment, dated 31.12.2007, set aside the judgment passed by the learned Trial Court and acquitted the accused, hence the present appeal. 6. The learned Additional Advocate General has argued that the learned Lower Appellate Court, in spite of the fact that the prosecution has proved the guilt of the accused beyond the shadow of all reasonable doubts, allowed the appeal of the accused and acquitted him, ignoring the fact that the injuries were found on the person of the complainant and his statement was duly supported by independent witness-Budh Ram. He prayed that after appreciating the evidence, the accused be convicted for the offences, he was charged with. 7. On the other hand, learned Counsel for the accused has argued that the doctor has not found any injury on the elbow of the complainant, whereas the complainant has stated that he sustained injuries on his elbow and incisor and at the same point of time, the Dentist was not examined by the prosecution. 7. On the other hand, learned Counsel for the accused has argued that the doctor has not found any injury on the elbow of the complainant, whereas the complainant has stated that he sustained injuries on his elbow and incisor and at the same point of time, the Dentist was not examined by the prosecution. He has further argued that the injury was only on the elbow, which shows that no scuffle has taken place. He has further argued that as per the statement of the complainant before the police, he alighted from the three wheeler and the accused wanted to go to his home in that three wheeler, but while appearing in the witness box as PW-1, the complainant has deposed that he was in his vehicle, so such improvement shows that the story of the prosecution was highly doubtful. He has further argued that independent witness-Budh Ram, while appearing in the witness box as PW-2, stated that he was the only person present on the spot, whereas the complainant stated that 4-5 persons were present on the spot. He has further argued that no interference with the findings recorded by the learned Lower Appellate Court, is required. 8. In rebuttal, learned Additional Advocate General has argued that the learned Lower Appellate Court has failed to take into consideration the evidence, which has come to its totality and the fact that there was no cross-examination, as argued by the learned Counsel for the accused and at the same point of time, no evidence in defence has been led by the accused, so the accused be convicted, after setting aside the judgment of the learned Lower Appellate Court. 9. In order to appreciate the rival contentions of the parties, I have gone through the record carefully and in detail. 10. Complainant/Sandeep Chauhan, while appearing in the witness box as PW-1, has stated that when he was on the way to his house, the accused, under the influence of liquor, interrupted him, asked him to accompany him to his house and when he refused to do so, the accused committed house trespass by entering into his house, broke the window pane of his house and voluntarily caused hurt to him, by giving fist and leg blows on his mouth and threatened him to do away with his life. According to him, his mother, brother, Durga Singh and Budh Ram came on the spot and rescued him from the clutches of the accused. He has further alleged that thereafter, he telephonically informed the police. The police came on the spot and recorded his statement under Section 154 Cr.P.C. (Ext. PW-1/A). He has proved on record, Seizure Memo (Ext. PW-1/B), vide which, the broken pieces of glasses were taken into possession by the police. In his cross-examination, he has stated that accused knocked at the door before entering into his house. However, he has denied the suggestion that the accused did not enter into his house and beat him. He has further stated that Budh Ram came at the spot within 5-7 minutes of the occurrence. 11. PW-2, Budh Ram has stated that on 04.10.2004, when at about 11.15 p.m., he heard noise in the house of the complainant, he went to the spot and found that the accused was beating the complainant. He has further stated that he rescued the complainant from the clutches of the accused and at that time, the accused was also threatening the complainant to do away with his life. He has further deposed that the accused also broke the window pane of the house of the complainant. Then, the police came on the spot and took into possession the broken pieces of glasses, vide Seizure Memo, Ext. PW-1/B. In the cross-examination, he has stated that the complainant is his neighbour and the noise continued for at least 15-20 minutes. According to him, nobody came on the spot except him. However, he has denied the suggestion that he has deposed against the accused, as he is neighbour of the complainant. 12. The learned Trial Court has relied upon the testimonies of PW-1 and PW-2. But, at the same point of time, PW-1 has stated that he received injuries, as the accused had given him fist blows in his mouth, but there was no injury on the lip of the complainant and non-examination of the Dentist itself shows that the story with regard to the injury on the incisor of the complainant, is concocted one and not reliable. 13. PW-3, Dr. Shashi Wapa, deposed that on 05.10.2004, he examined injured-Sandeep Chuahan and found the following injuries: (i) Tenderness right elbow joint. No localized redness or injury marks seen. (ii) Tenderness on lower incisor. 13. PW-3, Dr. Shashi Wapa, deposed that on 05.10.2004, he examined injured-Sandeep Chuahan and found the following injuries: (i) Tenderness right elbow joint. No localized redness or injury marks seen. (ii) Tenderness on lower incisor. He has deposed that thereafter the case was referred to Dental Surgeon for his opinion. After receiving the opinion of the Dental Surgeon, it was opined by PW-3 that both the injuries were simple, having been caused with blunt weapon. He further deposed that MLC, Ext. PW-3/A was issued by him. In the cross-examination, he deposed that he examined the whole body of the complainant/injured, but no injury marks were found. Moreover, as per MLC, Ext. PW-3/A, no tooth of the injured/complainant was found broken and there was only tenderness on his frontal lower incisor. Therefore, the uncorroborated statement of the complainant to the effect that his teeth got broken due to the fist blows given by the accused and he suffered other injuries on the various parts of his body, does not inspire confidence. The complainant further deposed that his mother, brother, Durga Singh and Budh Ram came to the spot on hearing his noise and he was rescued from the clutches of the accused by them. However, this part of his statement is not in conformity with the statement of PW-2, Budh Ram, who deposed that only he rescued the complainant from the clutches of the accused on the spot and he further admitted in his cross-examination that except him, nobody had reached the spot. Further more, the statements of PWs-Durga Singh, Vineet and Urmila Devi have been withheld by the prosecution, despite the fact that they were cited as witnesses by the prosecution. In my opinion, the statements of the aforesaid witnesses were essential to the unfolding of the narrative, on which the prosecution has based its case, but they have been kept back by the prosecution, without any cogent explanation and the non-examination of these witnesses acquires special significance, particularly, in view of the fact that the complainant himself deposed in his examination-in-chief that his mother Urmila, his brother Vineet and one Durga Singh also came to the spot besides Budh Ram and they rescued him from the clutches of the accused. Therefore, in these circumstances, legitimate presumption under Section 114 (g) of the Indian Evidence Act has to be drawn against the prosecution on the ground that had these witnesses been examined by the prosecution, they would not have supported the version of the complainant. At the same point of time, it is found that as per the statement of the complainant (Ext. PW-1/A), the accused had asked the Auto Driver to drop him at his home. In these circumstances, the complainant has not stated what role he had played in the quarrel with the accused. While appearing before the learned Trial Court, he has tried to show that he came to his home in his own vehicle. So, in these circumstances, the statement of the complainant is not at all confidence inspiring. At the same point of time, neither the Auto Driver was associated by the police nor he was examined in the Court to elicit the truth. The contradictions in the statement of the complainant (Ext. PW-1/A) with regard to the entry of the accused in his house, are material. At the same point of time, the injury as found on the elbow of the complainant by the doctor, which is proved on record, nowhere shows that such injury can be caused by fist and kick blows, as stated by the complainant. As per the complainant, the accused also inflicted a fist blow on his mouth, due to which, his front teeth broke partially. If there was even an iota of truth in this allegation, then there ought to have been correspondent contusion over the lips of the complainant. The absence of correspondent injuries, points out towards the incredibility of the allegations made by the accused. 14. In these circumstances, this Court even after re-appreciating the evidence on record, finds that the prosecution has failed to prove the guilt of the accused, beyond the shadow of all reasonable doubts. 15. It has been held in K. Prakashan vs. P.K. Surenderan ( 2008 1 SCC 258 ) that when two views are possible, appellate Court should not reverse the judgment of acquittal merely because the other view was possible. When judgment of trial Court was neither perverse, nor suffered from any legal infirmity or non consideration/mis-appreciation of evidence on record, reversal thereof by High Court was not justified. 16. When judgment of trial Court was neither perverse, nor suffered from any legal infirmity or non consideration/mis-appreciation of evidence on record, reversal thereof by High Court was not justified. 16. The Hon’ble Supreme Court in T. Subramanian vs. State of Tamil Nadu (2006) 1 SCC 401 , has held that where two views are reasonably possible from the very same evidence, prosecution cannot be said to have proved its case beyond reasonable doubt. 17. In Chandrappa vs. State of Karnataka, (2007) 4 SCC 415 , the Hon’ble Supreme Court has culled out the following principles qua powers of the appellate Courts while dealing with an appeal against an order of acquittal: “42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: 1. An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. 2. The Code of Criminal Procedure, 1873 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. 3. Various expressions, such as, ‘substantial and compelling reasons’, ‘good and sufficient grounds’, ‘very strong circumstances’, ‘distorted conclusions’, ‘glaring mistakes’, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of ‘flourishes of language’ to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. 4. An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court. 5. If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial Court.” 18. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court. 5. If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial Court.” 18. In view of the settled legal position, as aforesaid, and the material on record, it is more than safe to hold that the prosecution has failed to prove the guilt of the accused and the findings of acquittal, as recorded by the learned First Appellate Court, needs no interference, as the same are the result of appreciating the evidence correctly and to its true perspective. Accordingly, the appeal, which sans merits, deserves dismissal and is accordingly dismissed. 19. As the main appeal against the accused stands dismissed, the proceedings drawn against the accused and his surety, under Section 446 Cr.P.C. are required to be dropped in the facts and circumstances of the case. Accordingly, the same are ordered to be dropped and Cr.MPs (M) No. 1150 & 1151 of 2008 stand disposed of. 20. Pending applications, if any, also stands disposed of.