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2017 DIGILAW 802 (HP)

State of Himachal Pradesh v. Sunil Dutt

2017-07-17

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. 1. The present criminal appeal, under Section 378 of the Code of Criminal Procedure has been maintained by the appellant-State, against the judgment of acquittal, dated 25.05.2007, passed by the learned Judicial Magistrate 1st Class, Rajgarh, District Sirmaur, H.P., in criminal case No. 37/2 of 2006. 2. The key facts, giving rise to the present appeal as per the prosecution story are that on 02.05.2006, at about 7.30 a.m., when Chiranjilal/complainant (here in after to called as “the complainant”) was irrigating his fields at Halonipul, he noticed that supply of the water from the baandh was stopped and when he went to ascertain the same, he found that baandh was broken by the accused persons and they were irrigating their fields, despite the fact that it was not their turn to irrigate the fields. When complainant objected and tried to make baandh again, all the accused persons started giving beating to the complainant and one of the co-accused, Sunita Sharma having darati in her hand, torn clothes of the complainant. On receiving beatings, the complainant raised cries and on hearing his cries, his brother Vinod Kumar came on to the spot and rescued him. Ex-Pradhan, Anil Kumar has also witnesses the whole incident. There after, the matter was reported to the Police, on the basis of which, FIR, Ext. PW- 1/A, was registered. During investigation spot map, Ext. PW- 6/A, was prepared and darati, Ext. P-2, was taken into possession, vide memo, Ext. PW-1/C. T-shirt, Ext. P-1, was also taken into possession, vide memo, Ext. PW-1/B. The complainant was medically examined and his MLC, Ext. PW- 3/A, was obtained. The statements of the witnesses under Section 161 Cr.P.C were recorded. After completion of investigation, challan was presented before the learned trial Court. 3. Prosecution, in order to prove its case, examined as many as six witnesses. Statements of the 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 25.05.2007, acquitted the accused persons. 4. I have heard the learned counsel for the parties and gone the record carefully. 5. Statements of the 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 25.05.2007, acquitted the accused persons. 4. I have heard the learned counsel for the parties and gone the record carefully. 5. Learned Deputy Advocate General has argued that learned Court below has failed to take into consideration the fact that the prosecution has proved the guilt of the accused beyond the shadow of reasonable doubt. He has further argued that as the learned Court below has given findings, which are perverse, the evidence on record be re-appreciated and the accused persons be convicted for the offences they are charged with. On the other hand, learned counsel for the respondents has argued that the respondents are innocent and have been falsely implicated in this case and the findings arrived at by the learned Court below are just, reasoned and as prosecution has failed to prove the guilt of the accused persons beyond the shadow of reasonable doubt, the findings of the learned Court below are not required to be interfered with. 6. To appreciate the arguments of learned Deputy Advocate General and learned defence counsel, this Court has gone through the record in detail and minutely scrutinized the statements of the witnesses. 7. The complainant, while appearing as PW-1 has deposed that he is a farmer and on the day of occurrence, when he was irrigating tomatoes in his fields, suddenly supply of water was stopped and when he went to baandh to check the water supply, he found that the accused persons have broken the baandh and they were irrigating their fields without their turn. When the complainant objected the same and tried to make the baandh again, accused persons attacked him and started beating him. One of the co-accused, Sunita Sharma, has also torn his clothes with darati and he was rescued by Vinod Kumar. In his cross-examination, he deposed that Vinod Kumar is the son of his uncle. He further deposed that the villager of Dhar Panjara uses the baandh for irrigation on Friday, Saturday and Sunday, whereas villagers of Halonipul uses the baandh on Monday, Tuesday, Wednesday and Thursday. He has admitted that accused, Sunil Dutt, has also registered FIR No. 25, dated 02.05.2006, against him. 8. He further deposed that the villager of Dhar Panjara uses the baandh for irrigation on Friday, Saturday and Sunday, whereas villagers of Halonipul uses the baandh on Monday, Tuesday, Wednesday and Thursday. He has admitted that accused, Sunil Dutt, has also registered FIR No. 25, dated 02.05.2006, against him. 8. PW-2, cousin brother of the complainant, has deposed that he went to the spot after hearing noise. In his cross-examination, he deposed that on the day of occurrence, he was working in his fields. He further deposed that his fields were at a kilometer away from the spot of occurrence and he reached there within 10 minutes. He further testified that at the place of occurrence, there are four residential houses, which are about 30 meters away from the spot. 9. PW-3, Doctor, Shruti Sharma, has examined the injured and issued MLC, Ext. PW-3/A and opined that injuries No. 1 & 2 can be caused by nails scratches, whereas injuries No. 3 to 7 can be caused by any sharp edged weapon like darati. She also suggested that the injuries, as mentioned in MLC, Ext. PW-3-A, can be self inflicted. 10. PW-4, Anil Kumar, has deposed that on the day of occurrence, he was working in his fields and on hearing noise, he went to the spot. He further deposed that when he reached on the spot, the quarrel has already taken place. In his cross-examination, he has deposed that after the occurrence, he went to the Police Station with the complainant. He has further deposed that he reached on the spot about half an hour later to the occurrence. He has also admitted that there are 4-5 residential houses near the spot of occurrence. He feigned ignorance, where recovery memo, Ext. PW-1/A, was prepared. 11. PW-5, Devraj, has not supported the case of the prosecution with respect to recovery of darati. 12. PW-6, ASI Salim Kureshi, Investigation Officer of the case, has deposed that he went to the spot on 03.05.2006. He has further deposed that when he reached on the spot, the complainant was not bleeding, however there were marks of scratches on his chest. 13. DW-1, MHC, Som Dutt, has proved on record the FIR of the same incidence which was recorded by Sunil Dutt. 14. He has further deposed that when he reached on the spot, the complainant was not bleeding, however there were marks of scratches on his chest. 13. DW-1, MHC, Som Dutt, has proved on record the FIR of the same incidence which was recorded by Sunil Dutt. 14. In the present case, the statements of the complainant and his brother cannot be taken as truth as they have enmity with the accused persons and FIR to this effect was also lodged against them by the accused persons. There are also contradictions in the statements of the complainant and PW-2, as to where T-shirt of the complainant was recovered. Further the recovery of darati has not been proved, PW-5, Devraj, in his examination-in chief, has specifically denied the recovery of darati from the accused persons. As per the prosecution, there are 4-5 residential houses at the place of occurrence, however no independent witnesses from these house were examined. In these circumstances, the mere statements of the complainant and his brother cannot be relied upon, as they are interested witnesses. In these circumstances, it is difficult to hold that the prosecution has proved the guilt of the accused persons beyond the shadow of reasonable doubt. 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/misappreciation 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 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.