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2017 DIGILAW 629 (HP)

State of Himachal Pradesh v. Chuni Lal

2017-06-01

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. The present criminal appeal, under Section 378 of the Code of Criminal Procedure has been maintained by the State of Himachal Pradesh, against the judgment of acquittal, dated 17.03.2008, passed by the learned Additional Chief Judicial Magistrate, Sarkaghat, District Mandi, H.P., in Police challan No. 260-II/2003. 2. During the pendency of the appeal accused/respondent No. 1, Chuni Lal has expired, now the appeal against him stands abated. 3. The key facts, giving rise to the present appeal as per the prosecution story are that on 02.10.2003, at about 2.00 p.m., Bansi Lal/complainant (hereinafter to be called as “the complainant”) has gone to cut the grass from his land, at Village Nabahi. When he reached at the spot he noticed that the Chuni Lal (respondent No. 1) and his son Arun Sharma (respondent No. 2) (hereinafter to be called as the “accused persons”) were cutting trees from his land. When complainant asked them about the same, accused persons tied him with rope in their courtyard and gave beatings to the complainant. The complainant was rescued by Ishwar Dass, President, Gram Panchayat Nabahi. On next day, the matter was reported to the Police, on the basis of which, FIR, under Sections 342, 323 and 325, read with Section 34 of IPC was registered against the accused. 4. Prosecution, in order to prove its case, examined as many as 8 witnesses. Statements of accused persons were recorded under Section 313 Cr.P.C, wherein they denied the prosecution case and claimed innocence. Accused persons did not lead any defence evidence. The learned trial Court, vide impugned judgment dated 17.03.2008, acquitted the accused persons for the commission of offence punishable under Sections 342, 323 and 325, read with Section 34 IPC, hence the present appeal. 5. I have heard the learned counsel for the parties and gone the record carefully. 6. Learned Additional Advocate General has argued that the prosecution has proved the guilt of the accused persons beyond the shadow of reasonable doubt and accused/ respondent No. 2 is liable to be convicted for the offences, he was charged with. On the other hand learned counsel for the accused-respondent has argued that the prosecution has failed to prove the guilt of the accused and even the Investigating Officer has not appeared in the present case as witness, the recovery of the plants has not been affected by the prosecution. On the other hand learned counsel for the accused-respondent has argued that the prosecution has failed to prove the guilt of the accused and even the Investigating Officer has not appeared in the present case as witness, the recovery of the plants has not been affected by the prosecution. He has further argued that as per the medical examination, no injuries were found on the accused persons and no trees were recovered from their possession. There is also variation in statement of the complainant given by him in the Court and in his complaint, Ex. PW-1/A. In rebuttal, learned Additional Advocate General has argued that the prosecution has duly proved the injuries sustained by the accused persons and also proved the guilt of the accused beyond the shadow of reasonable doubt, thus the present judgment of acquittal, passed by learned trial Court is required to be set aside and accused/respondent No. 2 is liable to be convicted for the offences, he was charged with. 7. To appreciate the arguments of learned Additional Advocate General and learned defence counsel, this Court has gone through the record in detail and minutely scrutinized the statements of the witnesses. 8. PW-1, Bansi Lal, complainant, has deposed that on 02.10.2003, at about 2.30 p.m., when he has gone to cut the grass from his land, he noticed that Chuni Lal and his son were cutting the trees from his land, when he asked them about this, they gave beatings to him, prior to taking him to their courtyard and then tied him with rope at their courtyard. He further deposed that when Arun Lal alongwith Ishwar Dass, President, Gram Panchayat Nabahi, came there, they rescued the complainant from the accused persons. In his cross-examination, he denied that he has any dispute with the accused persons and so he is falsely implicating them. 9. PW-2, Ishwar Lal, President, Gram Panchayat, Nabahi, has denied that on 02.10.2003 at about 3.15 p.m., Arun Kumar has come to his shop and told him that accused persons have tied Bansi Lal, with rope, in their courtyard and he rescued the complainant. PW-3, Gian Chand, who was the witness of recovery memo Ext. PW-3/A, through which rope was taken into possession, has specifically denied the recovery of the rope. PW-6, Inspector, Aashish Sharma, has registered the FIR, Ext. PW- 6/A and prepared the challan in the present case. PW-7, Dr. PW-3, Gian Chand, who was the witness of recovery memo Ext. PW-3/A, through which rope was taken into possession, has specifically denied the recovery of the rope. PW-6, Inspector, Aashish Sharma, has registered the FIR, Ext. PW- 6/A and prepared the challan in the present case. PW-7, Dr. P.C. Saini, has medically examined the complainant and issued MLC Ext. PW-7/A. Other witnesses are the formal witnesses. 10. The case of the prosecution is that the accused persons gave beatings to the complainant, however as per evidence produced by the prosecution, this fact has not been supported by any witness. Even Arun Kumar, eye witness has not been examined in this case. As far as the rope is concerned, with which the accused persons have allegedly tied the complainant, recovery of the same has not been proved. The Investigating Officer of the case has not been examined and relevant document, i.e., site plan has also not been proved on record. Furthermore, the complainant has himself given different version in the Court by deposing that accused persons initially given beatings to him and thereafter he was taken to courtyard, whereas in his complaint, Ext. PW-1/A, he deposed that he was beaten by the accused persons at their courtyard. 11. Keeping in view the aforesaid discussion and the fact that there is material contradiction even in the statement of the complainant, and as no other witness has supported the case of the prosecution, Investigation Officer was not examined and recovery was not proved, so this Court finds that the prosecution has failed to proved the guilt of the accused at all. 12. 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. 13. 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. 14. 13. 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. 14. In view of the aforesaid decisions of the Hon’ble Supreme Court and the discussion made hereinabove, I find no merit in this appeal and the same deserves dismissal and is accordingly dismissed. Pending applications, if any, shall also stands disposed of.