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Himachal Pradesh High Court · body

2018 DIGILAW 116 (HP)

State of H. P. v. Chet Ram

2018-01-10

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. 1. The present appeal is maintained by the appellant/State, laying challenge to judgment dated 28.12.2007, passed by learned Special Judicial Magistrate 1st Class, Court No. III, Mandi, District Mandi, H.P. in Criminal Case No. 117-II of 2004/03, whereby the accused/ respondent (hereinafter referred to as “the accused”) was acquitted for the commission of offence punishable under Sections 325 and 504 of Indian Penal Code, 1860 (hereinafter referred to as “IPC”). 2. The background facts, as projected by the prosecution, can tersely be summarized as under: On 01.01.2003, at about 08:00 p.m. Shri Chuni Lal (hereinafter referred to as “the complainant”) alongwith his wife, Smt. Raj Kumari, went for dinner to the house of his brother, Shri Balak Ram. On that day Smt. Salochna Devi, maternal aunt of the complainant had also come there. While returning back, the complainant and his wife went to the cow-barn, as their cow was about to give birth. When they went inside the cow-barn the cow was calving, so he again went to the house of his brother and his brother, Shri Balak Ram and Smt. Kamla Devi accompanied him to the cow-barn. After some time, Shri Balak Ram and Smt. Kamla Devi went to their house and the complainant and his wife kept sitting in the cow-barn. At about 01:00 a.m. the placenta got separated from the cow and the complainant buried the same in his field. When the complainant started to his house, his cousin Tula Ram called Chet Ram (accused) and told him that the complainant was digging his land. The accused and his family members started abusing the complainant and ran towards the complainant. The complainant and his wife went to the house of Shri Balak Raman Lal. The complainant narrated the truth to the accused and others. The accused alongwith his brother, Tula Ram and son went to their courtyard. The complainant started moving towards the house of his brother and Shri Balak Ram, Smt. Salochna Devi, Smt. Kamla Devi and Smt. Raj Kumari met him on the way. Subsequently, they all came back to the house of the complainant. The accused on seeing them started pelting stones on them and also abused them. A stone hit against Smt. Salochna Devi and she sustained injury on her waist. Thereafter, the accused went inside his house with his family members. Subsequently, they all came back to the house of the complainant. The accused on seeing them started pelting stones on them and also abused them. A stone hit against Smt. Salochna Devi and she sustained injury on her waist. Thereafter, the accused went inside his house with his family members. Ward Members, Shri Dev Raj and Shri Khem Chand were called on the spot and the matter was reported at Police Post, Rewalsar. Injured, Smt. Salochna Devi, was medically examined at PHC, Rewalsar. The X-ray report of the injured showed that she had suffered fracture of left iliac bone and as per the medical opinion the injury was opinioned to be grievous in nature. During the course of investigation, police prepared the spot map and recorded the statements of the witnesses. Injured produced a vest and a duptta, which were sealed in a separate parcels and taken into possession. After conclusion of investigation, challan was presented in the Court. 3. The prosecution, in order to prove its case, examined as many as seven witnesses. Statement of the accused was recorded under Section 313 Cr.P.C. wherein he pleaded not guilty. The accused did not lead any evidence in his defence. 4. The learned Trial Court, vide impugned judgment dated 28.12.2007, acquitted the accused for the offence punishable under Section 325 and 504 IPC, hence the present appeal. 5. The learned Additional Advocate General has argued that the learned Trial Court has not appreciated the evidence correctly and the accused has been acquitted on the basis of surmises and conjectures. He has further argued that the learned Trial Court has not correctly applied the law. The prosecution has proved the guilt of the accused beyond the shadow of reasonable doubt. Conversely, the learned vice counsel appearing on behalf of the accused has argued that the accused is innocent and has been falsely implicated in the present case and nothing has been proved against him. The entire prosecution story is concocted, as the relations between the parties are inimical. He has further argued that the prosecution has failed to prove the guilt of the accused and also failed to connect the accused with the injuries, as alleged, and there is no evidence on record against the accused. The entire prosecution story is concocted, as the relations between the parties are inimical. He has further argued that the prosecution has failed to prove the guilt of the accused and also failed to connect the accused with the injuries, as alleged, and there is no evidence on record against the accused. So, the judgment, as passed by the learned Trial Court is the result of proper appreciation of evidence and the same is as per the law and needs no interference. 6. In rebuttal, the learned Assistant Advocate General has argued that the accused be convicted after re-appreciating the evidence as the learned Trial Court has miserably failed to appreciate the evidence correctly. 7. In order to appreciate the rival contentions of the parties we have gone through the record carefully. 8. The complainant, Shri Chuni Lal, was examined as PW-1. He has deposed that on 01.01.2003, at 10 p.m. they went to their cow-barn and saw that their cow was calving. Subsequently, he went to the house of his brother Shri Balak Ram (PW-2) where his sister Smt. Kamla Devi and maternal aunt Smt. Salochna Devi (PW-6) were present. He has further deposed that he alongwith Smt. Kamla Devi and his brother came to the cow-barn, milched the cow and thereafter his sister and brother went to their house. The complainant and his wife were there and the complainant buried the placenta of the cow in his field. Thereafter, they started for their house, but brother of the accused, Tula Ram, went to the house of the accused and informed him that the complainant was digging his field. The accused and his family members came in the courtyard. The complainant told the accused that he has not dug his land and his cow has calved, so they went to their cow-barn, but the accused did not listen to him. In the interregnum, the brother of the complainant, Shri Balak Ram (PW-2), Smt. Kamla Devi and maternal aunt, Smt. Salochna Devi (PW-6), came there. The accused started pelting stones and a stone hit on the waist of Smt. Salochna Devi (PW-6) and she fell down. Subsequently, police was informed and they went to the police station alongwith Ward Member, Shri Dev Raj. The accused started pelting stones and a stone hit on the waist of Smt. Salochna Devi (PW-6) and she fell down. Subsequently, police was informed and they went to the police station alongwith Ward Member, Shri Dev Raj. This witness, in his cross- examination, has denied that he had any litigation with the accused, however, he has deposed that accused had litigation with his father, who has died. The complainant has deposed that after the death of his father they are pursuing the cases and a case of demarcation was pending before the Tehsildar. As per this witness, one civil suit had been dismissed and he has maintained an appeal. The complainant has admitted that they had maintained three contempt petitions against the accused and the same were dismissed. The complainant has deposed that a big rock is there by the side of the path in between the house of the complainant and the accused. The accused pelted stones from the distance of 15 to 20 meters. He could not identify the family members of the accused due to darkness. As per the version of the complainant, they hid themselves behind a rock and saved themselves. 9. PW-2, Shri Balak Ram, deposed that on 01.01.2003 Smt. Salochna Devi (PW-6) came to his house and the complainant, at about 10 p.m. went to his house, however, after some time he came and asked them to accompany to his cow-barn. He alongwith his sister, Smt. Kamla Devi, went there and milched the cow and returned. Subsequently, wife of the complainant came to his house and disclosed that inhabitants of the house, which is situated on the upper side, are giving beatings to them, so he alongwith his maternal aunt, Smt. Salochna Devi (PW-6, injured) and Smt. Kamla Devi went on the spot. When they reached the spot, the accused started pelting the stones and a stone hit Smt. Salochna Devi and she fell down. The complainant telephonically informed the police and his sister called Dumnu Ram on the spot. Injured was taken to police post and the Ward Member was also called on the spot. This witness, in his cross-examination, has deposed that he has no litigation with the accused and the case maintained by his father had been dismissed. The complainant telephonically informed the police and his sister called Dumnu Ram on the spot. Injured was taken to police post and the Ward Member was also called on the spot. This witness, in his cross-examination, has deposed that he has no litigation with the accused and the case maintained by his father had been dismissed. He admitted that at the time of occurrence it was dark, however, bulb of the house of the complainant was on and he has seen the accused pelting the stones. They were behind a rock and the accused was pelting stones from a distance of 15 to 20 meters. This witness admitted that he had litigation with the accused since the time of his ancestors. 10. PW-3, Dr. Narender Kumar, on 02.01.2003 medically examined the injured. As per this witness, he found an injury on the persons of the injured near spine. He advised for conducting x-ray examination of the injured. On the basis of the receipt of radiological report, he opined the injury grevious, as there was fracture of left iliac bone. He issued medico legal certificate, Ex. PW- 3/B, which bears his signatures. This witness, in his cross-examination, has deposed that the injury could be suffered by fall. PW-4, Dr. Rakesh Kumar, Radiologist, deposed that under his supervision x-ray examination of the injured was conducted and he found fracture of left iliac bone. His report in this regard is Ex. PW- 4/C, which bears his signatures. As per this witness, the injury could be caused by a stone. This witness, in his cross-examination, has deposed that the injury can be possible by fall on a hard surface or stone. 11. PW-5, ASI Ram Lal, deposed that on 02.01.2003 a rapat was received, through constable Dhandev, in Police Station Balh, whereupon FIR, Ex. PW-5/A, was registered, which bears his signatures. Endorsement on the rapat is Ex. PW-5/B. 12. In the case in hand, the statement of the injured (PW-3, Smt. Slochna Devi) is important. She has deposed that she had gone to the house of her nephew. PW-2, Shri Balak Ram, and his sister Smt. Kamla Devi went to the house of the complainant around 08:00 p.m. and returned around 12 midnight. As per this witness, wife of the complainant told them that the accused is giving beatings to her. She has deposed that she had gone to the house of her nephew. PW-2, Shri Balak Ram, and his sister Smt. Kamla Devi went to the house of the complainant around 08:00 p.m. and returned around 12 midnight. As per this witness, wife of the complainant told them that the accused is giving beatings to her. When they standing in khawara, the accused pelted stones and a stone hit against her hip joint and due to which she sustained injury and blood started oozing. Subsequently, she was shifted to hospital. As per this witness, Member and Pradhan were also called on the spot and a report was lodged. This witness, in his cross-examination, has deposed that she suffered sever injuries, so she fell down unconscious and regained consciousness after an hour. The wife of the complainant came from the courtyard of Shri Balak Ram (PW-2). There is big rock in between the thrashing floor of the complainant and the house of the accused. The house of the accused is not visible from behind the rock. She did not go to the house of the complainant and the place of occurrence is located at a distance of 250/300 meters from the house of the accused and the house of the complainant is located in front of the house of the accused. As per this witness, the complainant and the accused were having hostile relations. She remained admitted in the hospital for 5-7 days. 13. PW-7, HC Maan Singh, is the Investigating Officer in the present case. This witness, in his cross-examination, has deposed that he recorded the statement of Smt. Salochna Devi (PW-6, injured). As per the version of this witness, the injured did not fall unconscious on the spot and she was not admitted in the hospital. He has further deposed that the spot was well lit, as the light was fixed in the house. It has come in the investigation of this witness, that 3-4 persons from the family of the accused accompanied the accused at the time of occurrence. 14. Now, the evidence of the prosecution is to be tested on the anvil of its wholesomeness and veracity. It has come in the investigation of this witness, that 3-4 persons from the family of the accused accompanied the accused at the time of occurrence. 14. Now, the evidence of the prosecution is to be tested on the anvil of its wholesomeness and veracity. PW-1, Shri Chuni Lal (complainant) has deposed that his family members came out of the house and started running towards him, so his wife went to the house of his brother, Shri Balak Ram (PW-2) and the complainant went inside the kitchen. He has further deposed that he told the accused that he did not dig his land, but the accused did not listen and ran towards him. However, the complainant in his statement given to the police stated that he, from his kitchen, told the accused that his cow has calved, so he alongwith his wife went there and dug his land. He has further divulged to the police that thereafter the accused alongwith his brother, Tula Ram and son went to his courtyard. There is another lacuna in the statement of the complainant given in the Court and what he has stated to the police, which is contained in Ex. PW-7/A. He deposed to the police that accused alongwith his brother and son went to his courtyard and he started moving towards the house of his brother. On the way Shri Balak Ram, Smt. Salochna Devi, Smt. Kamla Devi and Smt. Raj Kumari (wife of the complainant) met and on seeing them, the accused started pelting stones from his courtyard. The accused also started abusing them. A stone pelted by the accused hit Salochna Devi. Conversely, the complaint in his deposition before the Court nowhere deposed that when he told the accused that he did not dig his land, the accused alongwith son went to his courtyard, but he has deposed that the accused came running towards him and in the interregnum Balak Ram (PW-2), Kamla Devi and Salochna Devi came running to his house and the accused started pelting stones and a stone hit on the waist of Salochna Devi. Therefore, the complainant has contradicted his own version. 15. Therefore, the complainant has contradicted his own version. 15. PW-2, Shri Balak Ram, the brother of the complainant told that inhabitants of the house located on the upper side are giving beatings to them, so he alongwith Salochna Devi and Kamla Devi went there and when they reached the spot, they started pelting stones at them and a stone hit Salochna Devi. This witness while deposing in the Court deposed that the complainant was coming to his house and met him on the way. However, Smt. Salochna Devi (PW-6) deposed that wife of the complainant told them that the accused is giving beatings to her, whereas it is not the case of the prosecution that the accused ever gave beatings to the wife of the complainant. The wife of the complainant further deposed that when they were standing on the threshing floor, the accused pelted stones on them and a stone hit on her hip joint. PW-1, Shri Chuni Lal (complainant) and PW-2, Shri Balak Ram, nowhere deposed that when they were standing on the threshing floor, the accused pelted stones. 16. At the same point of time, Smt. Salochna Devi (PW-6) has deposed that she became unconscious, but no other witness has deposed that PW-6 became unconscious, so this is an improvement in the prosecution case. Apparently, there are major infirmities, contradictions and omissions in the statements of PW-1, PW-2 and PW-6 and the whole edifice of the prosecution case rests on the pillars of the statements of these witnesses. In fact, PW-1, PW-2 and PW-6 are relatives and they could have admitted that they have hostile relations with the accused and they are litigating with him. All these witnesses have contradicted the version of each other on material aspects and are lacking unanimity. Even these witnesses have divulged different places of occurrence, so they are not sure about the exact place of occurrence and this makes the prosecution story unbelievable. No explanation is forthcoming qua how the accused was identified, as it was dark. 17. Now coming to the statements of Dr. Narender Kumar and Dr. Rakesh Kumar (PW-3 and PW-4). It is clear that there was only injury, but how the fracture of iliac bone, as sustained by the injured, is connected with the prosecution story. The evidence nowhere connects the accused with the injury sustained by the injured. 17. Now coming to the statements of Dr. Narender Kumar and Dr. Rakesh Kumar (PW-3 and PW-4). It is clear that there was only injury, but how the fracture of iliac bone, as sustained by the injured, is connected with the prosecution story. The evidence nowhere connects the accused with the injury sustained by the injured. So, the medical evidence is also of no help to the prosecution in the wake of prosecution evidence. The injury sustained by the injured might have been suffered by her earlier or in some other incident. In fact, the prosecution has failed to prove that the injured sustained injury in the alleged incident, as the prosecution evidence does not establish it conclusively and the prosecution has failed to connect the accused with the alleged occurrence. 18. The net result of the above discussion is that the prosecution has miserably failed to prove the case against the respondent, thus he cannot be convicted. The respondent has been rightly acquitted and it is not possible to hold that the learned Trial Court’s view is perverse. Hence, there is no occasion to interfere with the well reasoned judgment of the learned Trial Court. 19. 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. 20. 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. 21. 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, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. 2. 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, re-appreciate 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.” 22. In view of the settled legal position, as aforesaid, and on the basis of material, which has come 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 Trial Court, needs no interference, as the same are the result of appreciating the facts and law correctly and to their true perspective. Accordingly, the appeal, which sans merits, deserves dismissal and is dismissed. 23. In view of the above, the appeal, so also pending applications, if any, stands disposed of. Bail bonds are cancelled.