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2017 DIGILAW 595 (HP)

Milap Chand v. State Of Himachal Pradesh

2017-05-25

VIVEK SINGH THAKUR

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JUDGMENT Vivek Singh Thakur, J. (Oral) - On lodging complaint by PW4 Puran Chand, FIR Ext.PW3/A was registered under Sections 147, 148, 149, 323, 506 IPC in P.S. Lamba Gaon, District Kangra on 3.5.2001 at about 2.05 PM, wherein it was stated that on 2.5.2001 at about 8/9 PM when PW4 Puran Chand was present in house of one Tarlok Singh, at that time, Petitioner/Accused Milap Chand along with Must Ram, Subhash Chand, Guddu, Ajju and Shambhu came and started abusing complainant, to which complainant did not respond, whereupon, after 10-15 minutes, all of them attacked complainant with fist blows and sticks (dandas) and when he was overpowered by Mast Ram and Shambhu, Petitioner/Accused Milap Chand gave a fist blow on his chin resulting into extraction of two teeth. It was also stated that assailants were intending to kill him (complainant) and he rushed inside the house of Tarlok Chand who witnessed entire episode and Accused/Petitioner and Shambhu beat him in house of Tarlok Chand whereupon Tarlok Chand and his family members saved him by pushing them outside the house. It was also alleged that during this scuffle, his golden chain and Rs. 1000/- were lost and assailants had attacked him because of old enmity on account of property dispute. 2. After lodging complaint, police came into action and carried on investigation. During investigation, spot map Ext.PW7/A was prepared. Complainant was medically examined and weapons of offence were also taken into possession. On completion of investigation, finding prima facie complicity of all six Accused, challan was presented in the Court. On conclusion of trial, learned Judicial Magistrate 1st Class convicted all Accused under Sections 147, 323, 325 and 506 IPC read with Section 149 IPC and acquitted them under Section 148 read with Section 149 IPC vide judgment dated 4.8.2005 in criminal case No. 454-II/2004/02. 3. In Appeal preferred against the trial Court''s judgment, learned Sessions Judge, Kangra at Dharamshala vide judgment dated 22.8.2007 passed in criminal Appeal No. 20-P/X/2005 acquitted all Accused except convicting present Accused/Petitioner Milap Chand under Section 325 IPC. 4. Present Petition has been filed assailing conviction of Petitioner/Accused under Section 325 IPC upheld by learned Sessions Judge in Appeal. No Appeal against acquittal of other Accused, passed by learned Sessions Judge, has been preferred. 5. I have heard learned counsel for parties and have also gone through record. 6. 4. Present Petition has been filed assailing conviction of Petitioner/Accused under Section 325 IPC upheld by learned Sessions Judge in Appeal. No Appeal against acquittal of other Accused, passed by learned Sessions Judge, has been preferred. 5. I have heard learned counsel for parties and have also gone through record. 6. Learned counsel for Petitioner submits that for same set of evidence, which is inseparable with respect to offence allegdly committed by all Accused persons, learned Sessions Judge has erred in convicting Petitioner/Accused despite the fact that the same evidence was disbelieved for upholding conviction of co-Accused and further submits that grounds on which other co-Accused have been acquitted, Petitioner/Accused is also entitled for acquittal. He also relied upon prouncement of the Supreme Court in Ram Laxman vs. State of Rajasthan, (2016) 12 SCC 389 wherein it is held:- "6. Strangely, the High Court disbelieved Ganesh qua the other co-Accused and granted them acquittal but accepted his testimony in respect of the appellants by explaining that the maxim "falsus in uno, falsus in omnibus" stands disapproved since long as per the judgment of this Court in Ugar Ahir vs. State of Bihar, AIR 1965 SC 277 . 7. No doubt, it is an established principle of criminal law in India that only on account of detecting some falsehood in the statement of a witness who is otherwise consistent and reliable, his entire testimony should not be discarded. It is equally settled law that if a witness is found undependable and unreliable his evidence cannot be split to grant benefit to some co-Accused while maintaining conviction of another when in all respects he stands on the same footing and deserves parity."(at p.392) 7. Whereas, learned Deputy Advocate General has supported the impugned judgment stating that act of Petitioner/Accused i.e. giving fist blows to complainant Puran Chand is distinct, different and separable from other Accused and therefore, learned Sessions Judge has committed no mistake in convicting the Petitioner/Accused on the basis of evidence which is separable qua Petitioner/Accused. 8. In FIR Ext.PW3/A Tarlok Chand and his family members have been mentioned as persons present on spot who saved complainant but there is no reference of presence of PW5 Jagdish Chand, whereas in Court Tarlok Chand was not examined, but PW5 Jagdish was examined as a witness claiming that he saved the complainant from clutches of Accused persons. 8. In FIR Ext.PW3/A Tarlok Chand and his family members have been mentioned as persons present on spot who saved complainant but there is no reference of presence of PW5 Jagdish Chand, whereas in Court Tarlok Chand was not examined, but PW5 Jagdish was examined as a witness claiming that he saved the complainant from clutches of Accused persons. FIR was lodged after fourteen hours from alleged incident. It is not a case where statement of complainant was recorded on spot or immediately after incident, but the same was recorded on next day at 2.05 PM i.e. after fourteen hours of the incident. Therefore, omission to mention the name of PW5 Jagdish Chand is serious lapse. It appears that this witness was introduced at later stage to substantiate the story of prosecution as claimed by complainant. It also stands fortified from statement of complainant PW4 Puran Chand, as in FIR Ext.PW3/A and also in his statement in Court, he stated that Accused persons gave beatings to him in courtyard of Tarlok Chand from where he ran into house of Tarlok Chand, where he was saved from clutches of Petitioner/Accused and Shambhu by Tarlok Chand and his family members by pushing those persons out of the house. But PW5 Jagdish Chand stated that when he reached on spot, PW4 complainant was being beaten outside the house where he intervened and saved PW4 from clutches of Accused. There is no reference in his statement with respect to fact that Mast Ram, other Accused and Shambhu were chasing complainant PW4 Puran Chand inside the house of Tarlok Chand. These discrepancies not only render testimony of PW5 unreliable but also caste doubt about veracity of complainant PW4. Presence of PW5 on spot is doubtful for absence of his name in FIR and further in his deposition in Court he has given a different version about incident. 9. Now only statement of complainant remains to be assessed. It is true that it is quality of evidence which matters and conviction can be based upon sole evidence of complainant, more particularly when the same is corroborated by medical evidence or other evidence on record and for that reason learned Deputy Advocate General submits that in present case evidence of PW4 qua the fist blows given by Petitioner/Accused is corroborated by statements of PW1 Dr. Sunil Tiyari and PW6 Dr. Sunil Tiyari and PW6 Dr. Sandeep Rena and there is ample evidence to convict the Petitioner/Accused under Section 325 IPC. Had there been only the Petitioner/Accused impleaded as an Accused in the case, the statement of complainant would have been sufficient to convict the Petitioner/Accused. But in present case there are six Accused implicated for commission of one and the same offence in one episode and five out of six have been acquitted disbelieving the statement of complainant PW4 against them but Petitioner/Accused has been convicted on the basis of the same evidence. Pertinently, State or complainant has not assailed acquittal of other coAccused. 10. It is well settled that on the basis of acquittal of co-Accused, acquittal of another Accused cannot be claimed in case evidence qua each of them is distinct, different and separable. But in present case only statement of PW4 that Shambhu and Mast Ram caught hold and Petitioner/Accused gave fist blow to chin is the basis to convict the Petitioner/Accused but Mast Ram and Shambhu have been acquitted despite the fact that they had also been charged under Section 325 read with Section 149 IPC along with other Accused. Statement of PW4 Puran Chand that all Accused attacked him, gave beatings and Mast Ram and Shambhu overpowered him and Petitioner/Accused gave fist blows on his chin and he was beaten by all Accused with fist blows and sticks is inseparable. It cannot be bisected for punishing the Petitioner in isolation and statement that Milap Chand gave a blow to complainant Puran Chand can also not be taken into consideration in isolation. Therefore, learned Sessions Judge has committed a mistake by convicting Petitioner/Accused under Section 325 IPC while acquitting co-Accused on the same set of evidence. 11. In present case statement of PW5 Jagdish was found to be undependable and unreliable and statement of complainant PW4 Puran Chand with respect to alleged involvement of all Accused and their individual act in alleged incident is inseparable and has been discarded in case of other co-Accused and once it has been considered unreliable qua co-Petitioner, it cannot be relied upon to convict the Petitioner/Accused. Therefore, in view of above discussion, Appeal is accepted and Petitioner/Accused is acquitted for offence under Section 325 IPC his bail bonds stand discharged. Record of the Courts below be sent back forthwith. Therefore, in view of above discussion, Appeal is accepted and Petitioner/Accused is acquitted for offence under Section 325 IPC his bail bonds stand discharged. Record of the Courts below be sent back forthwith. All pending miscellaneous application(s), if any, also stands disposed of in above terms.