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Himachal Pradesh High Court · body

2018 DIGILAW 1503 (HP)

MAHINDER SINGH v. DUNI CHAND

2018-08-10

SANDEEP SHARMA

body2018
JUDGMENT : Sandeep Sharma, J. 1. By way of instant criminal revision petition filed under Section 397 read with Section 401 of the Cr.PC., challenge has been laid to judgment dated 20.11.2017, passed by the learned Sessions Judge, Kullu, H.P., in Criminal Appeal No. 41 of 2015, affirming the judgment of acquittal dated 14.5.2015, recorded by the learned Chief Judicial Magistrate, Lahaul-Spiti, at Kullu, H.P. in criminal case No. 97-I of 2008/151-II/2009, titled State of H.P. vs. Duni Chand and Ors., whereby the learned trial Court, held the respondents-accused not guilty of having committed offence punishable under Sections 147, 341, 323, 325 read with Section 149 of IPC. 2. Briefly stated facts, as emerge from the record are that FIR Ext.PW1/A dated 20.9.2007, came to be lodged at the behest of the complainant Kaul Singh PW1, who alleged that on 19.12.2007, around 5:30 PM, he and Mahender Singh S/o Sh. Duryodhan, were going back to their houses after casting their votes for Vidhan Sabha and when they reached near Village Puin, accused persons formed unlawful assembly and wrongfully restrained them and started giving beatings to them. Complainant further alleged that accused persons were carrying "dandas" in their hands and on account of beatings given to the complainant, he sustained injuries on his head, whereas person namely Mahinder Singh S/o Sh. Jeet Ram sustained injury on his face and head. Allegedly, Mahender Singh, S/o Shri Duryondhan also sustained injury on his back. The complainant further reported to the police that Devinder Singh and Tara Chand saved them from the clutches of the respondents-accused. Police after completion of the investigation, presented the challan before the competent court of law, who on being satisfied that prima-facie case exists against the accused persons, charged them under Sections 147, 341, 325 and 323, read with Section 149 IPC, to which accused pleaded not guilty and claimed trial. 3. Learned trial Court on the basis of material adduced on record by the respective parties held the accused persons not guilty of having committed aforesaid offences and accordingly, acquitted them. 4. 3. Learned trial Court on the basis of material adduced on record by the respective parties held the accused persons not guilty of having committed aforesaid offences and accordingly, acquitted them. 4. Being aggrieved and dissatisfied with the aforesaid judgment of acquittal recorded by the court below, present petitioner-Mahender Singh preferred an appeal in the court of learned Sessions Judge, Kullu, H.P., which came to be dismissed vide judgment dated 20.11.2017, as a consequence of which, judgment of acquittal recorded by the learned trial Court, came to be upheld. In the aforesaid background, present petitioner has approached this Court by way of instant proceedings, seeking therein conviction of the respondents-accused after setting aside the judgments of acquittal recorded by the courts below. 5. I have heard the learned counsel for the parties and perused the records of the case. 6. Having carefully perused material available on record, be it ocular or documentary, adduced on record by the prosecution vis-a-vis impugned judgment of acquittal recorded by the courts below, this Court is not persuaded to agree with contention of Sh. Dibender Ghosh, learned counsel representing the petitioner, that court below failed to appreciate the evidence in its right perspective, as a result of which, erroneous findings have come to the fore to the detriment of the present petitioner, who was allegedly given beatings on the alleged date of incident by the respondents-accused. 7. This Court further finds no force in the argument of learned counsel representing the petitioner that courts below misread, misinterpreted and misconstrued the evidence led on record by the respective parties, rather this Court having carefully examined the evidence available on record, has no hesitation to conclude that prosecution miserably failed to prove beyond reasonable doubt that on the date of alleged incident, the complainant as well as other persons were given beatings by the respondents-accused. If the statements of material prosecution witnesses are read in its entirety juxtaposing each other, it certainly compels this Court to agree with contention of Shri Arjun Lal, learned counsel representing the respondents-accused, that there are material contradictions and in-consistencies in the statements of prosecution witnesses and as such, courts below rightly arrived at a conclusion that no much reliance could be placed upon the versions of material prosecution witnesses while ascertaining the guilt, if any, of the respondents-accused. 8. 8. In the case at hand, prosecution with a view to prove its case, examined as many as eight witnesses, whereas accused in their statement recorded under Section 313 Cr.PC., denied the case of the prosecution in toto and claimed themselves to be innocent, however fact remains that they did not lead any evidence in their defence. 9. In nutshell, case of the prosecution is that on 19.12.2007, complainant Kaul Ram (PW1), Mahender Singh and another Mahender Singh, were going back home after casting votes for the legislative assembly from Ashni School. When they reached near Khashambhli Dhar, they were assaulted by the accused persons. Aforesaid persons also claimed that subsequently, they were rescued by PW3 Tara Chand and PW4 Devender Singh, but as clearly emerge from the material available on record that FIR was not registered on the same day and in this regard, explanation rendered on record by the complainant does not appear to be plausible because they stated that since they were feeling pain and had no means of transportation, they could not report the matter to the police, however it is a matter of fact that matter was reported to the police by the complainant next day vide FIR No. 321 of 2018. It also emerges from the careful perusal of the material available on record that cross-FIRs came to be filed/lodged on behalf of both the parties i.e. complainant and respondents-accused, against each other alleging therein assault done by the other party. 10. Accused Duni Chand lodged FIR No. 744 at Police Station Kullu on 20.12.2017, against the complainant Kaul Singh, alleging therein that he and his family members were assaulted by him (complainant) on the night of 19.12.2007, whereas record further reveals that prior to lodging of aforesaid FIR bearing No. 744 in police Station Kullu, rapat No. 13 was reported in police post Bhunter by the accused, on the basis of which, formal FIR as referred herein above, came to be lodged against the complainant Kaul Singh. Complainant Kaul Singh lodged rapat No. 16 dated 20.12.207, but that came to be lodged after filing of aforesaid FIR No.744 by the accused Dunni Chand. 11. Complainant Kaul Singh lodged rapat No. 16 dated 20.12.207, but that came to be lodged after filing of aforesaid FIR No.744 by the accused Dunni Chand. 11. PW1 Kaul Singh, in his statement before the Court below deposed that when he after having cast his vote at 12 in the noon, was coming back to home, he along with others were assaulted by the accused persons at Shambhli Dhar He further deposed that accused persons lodged FIR on 20.12.2007 at 8:30 in the morning alleging therein that he (complainant) and Mahender Singh had given beating to Duni Chand (accused). He admitted that case registered at the instance of the accused is against him. Careful perusal of FIR lodged at the behest of PW1 Kaul Singh certainly suggests that factum with regard to filing of the FIR in the morning of 20.12.2007 by the accused Dunni Chand, was suppressed by the complainant PW1 while lodging FIR against the respondents-accused. It has come in the statement of PW1 that when he along-with other persons was coming back after having cast his vote and had reached Shambhali Dhar, accused persons met them and at that time they had no talk, if any, with the accused and thereafter, they all came to the village directly. 12. If the statement of PW2 Mahinder Singh, is read in its entirety juxtaposing statement of PW1, it certainly compels this Court to agree with contention of Shri Arjun Lal that PW2 gave altogether different narration of facts while throwing light on the case set-up by the prosecution. PW2 in his cross-examination admitted that Kaul Singh Devender Singh and Tara Chand had gone to cast their vote at Ashni School at 4:00 pm and had cast their vote at 4:30 pm, which version of him creates serious doubt with regard to the correctness of version put forth by the complainant PW1 Kaul Singh, wherein he claimed that he cast his vote at 12 noon, whereafter he was allegedly attacked by the accused. There is material contradiction in the statements of PW1 and PW2 with regard to the timing of the alleged incident because both the material prosecution witnesses have given altogether different timings with regard to Kaul Singh's having cast vote and arrival on the spot of alleged incident. 13. Similarly, statement of PW3 Tara Chand, also does not inspire confidence. There is material contradiction in the statements of PW1 and PW2 with regard to the timing of the alleged incident because both the material prosecution witnesses have given altogether different timings with regard to Kaul Singh's having cast vote and arrival on the spot of alleged incident. 13. Similarly, statement of PW3 Tara Chand, also does not inspire confidence. He failed to corroborate the versions put forth by PW1 and PW2 that he and Devender Singh saved the complainant from the clutches of the accused persons. In his cross-examination, this witness stated that Mahender Singh is son of his sister and he had visited police post Bhunter alongwith Kaul Singh and Mahender Singh, but there is nothing on record to suggest that statement of this witness was recorded by the Police at the time of lodging of FIR by the complainant Kaul Singh. In case, he had accompanied PW1 Kaul Singh to the police station, police ought to have recorded his statement under Section 161 Cr.PC, while recording FIR. 14. If the statement of PW4 Devender Singh is read in its entirety, it gives altogether new facts. As per this witness, Mahender Singh, S/o Chet Ram, fell unconscious, whereas Kaul Singh stated nothing with regard to this. He stated that danda was given to the police in the police station and he was not present at that time. He stated that danda was handed over on 21.12.2007, whereas same was taken into possession vide memo Ext.PW1/C on 26.12.2007 and this witness was not present at that time. Interestingly, it has come in the statement of this witness that he had come to cast his vote alone at 4:30 in the noon and as such, it is not understood that how could he meet Kaul Singh, Mahender Singh and Tara Singh at 12 noon. He did not state that he met Kaul Singh, while they were going back to their place that too at 4:00/4:30 pm. 15. PW6 Kanta Devi, deposed that accused gave beatings to her husband Mahender Singh at Village Puin, which statement of her is in total contradiction of aforesaid prosecution witnesses because if the statements of PW1, PW2 and PW3 are read, alleged incident took place at Shambhlil Dhar. She further stated that PW3 and PW4 informed her about the occurrence. 15. PW6 Kanta Devi, deposed that accused gave beatings to her husband Mahender Singh at Village Puin, which statement of her is in total contradiction of aforesaid prosecution witnesses because if the statements of PW1, PW2 and PW3 are read, alleged incident took place at Shambhlil Dhar. She further stated that PW3 and PW4 informed her about the occurrence. This witness also admitted that accused Dunni Chand had lodged the case against her husband to the effect that they had beaten Dunni Chand and his son Subhash by trespassing into their house. She further admitted that PW1 and PW2 lodged case against the accused persons after having received information that one of the accused i.e. Dunni Chand has also lodged a report against PW1, PW2 and others She also admitted that PW1 Kaul Singh (complainant) sought help from MLA in lodging the case. If statement of this witness is read in its entirety, it demolishes the case of the prosecution because statement of this witness proves on record that FIR lodged by PW1 Kaul Singh is/was counter blast to the FIR lodged by the Dunni Chand, which was prior in time. As has been noticed herein above that FIR No. 744/20007 dated 19.12.2007 was lodged at the first instance by the accused Dunni Chand, specifically alleging therein that he and his son were given beatings by PW1 and PW2, whereas FIR Ext. PW1/A came to be lodged, though on the same day in afternoon, but PW1 alleged that he and other persons were given beatings on the previous day i.e. 19.12.2007. But as has been observed above, there is no plausible explanation rendered on record that what prevented PW1 from lodging complaint on the same day, especially when there is nothing on record to infer that police post/station was far away from the spot of alleged incident. 16. There is another aspect of the matter with regard to recovery of weapon of offence i.e. danda as well as blood stained clothes. It clearly emerges from the record that prosecution miserably failed to prove recovery of weapon of offence as well as blood stained clothes. Record reveals that danda shown to PW4 Devender Singh during his evidence before the learned trial Court was bearing date 20.12.2007 over it, whereas alleged occurrence took place on 19.12.2007. It clearly emerges from the record that prosecution miserably failed to prove recovery of weapon of offence as well as blood stained clothes. Record reveals that danda shown to PW4 Devender Singh during his evidence before the learned trial Court was bearing date 20.12.2007 over it, whereas alleged occurrence took place on 19.12.2007. Similarly PW1 Kaul Singh deposed that he produced the shirt, piece of cloth and a shawl before the police, but he nowhere stated that he had produced the blood stained check shirt before the police, which was actually produced before the court below at the time of recording of his statement. 17. Having carefully perused the statements made by the prosecution witnesses, this Court is persuaded to agree with contention of Mr. Arjun Lal that in view of the material contradictions and inconsistencies in the statements of prosecution witnesses, no much reliance could be placed upon the same and as such, learned trial court below rightly ignored them while ascertaining the guilt, if any, of the respondents-accused. 18. The Hon'ble Apex Court has repeatedly held that since the fundamental aspect of criminal jurisprudence rests upon the well established principle that "no man is guilty until proved so", utmost caution is required to be exercised in dealing with the situation where there are multiple testimonies and equally large number of witnesses testifying before the Court. Most importantly, the Hon'ble Apex Court has held that there must be a string that should join the evidence of all the witnesses and thereby satisfying the test of consistency in evidence amongst all the witnesses. In nutshell, it can be said that evidence in criminal cases needs to be evaluated on touchstone of consistency. Reliance is placed on Judgment passed by the Hon'ble Apex Court in C. Magesh and Ors. vs. State of Karnataka (2010) 5 SCC 645 , wherein it has been held as under:- "45. It may be mentioned herein that in criminal jurisprudence, evidence has to be evaluated on the touchstone of consistency. Needless to emphasise, consistency is the keyword for upholding the conviction of an accused. In this regard it is to be noted that this Court in the case titled Suraj Singh vs. State of U.P. 2008 (11) SCR 286 has held:- (SCC p. 704, para 14) "14. Needless to emphasise, consistency is the keyword for upholding the conviction of an accused. In this regard it is to be noted that this Court in the case titled Suraj Singh vs. State of U.P. 2008 (11) SCR 286 has held:- (SCC p. 704, para 14) "14. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witness is held to be creditworthy. The probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation." 46. In a criminal trial, evidence of the eye witness requires a careful assessment and must be evaluated for its creditability. Since the fundamental aspect of criminal jurisprudence rests upon the stated principle that "no man is guilty until proven so", hence utmost caution is required to be exercised in dealing with situations where there are multiple testimonies and equally large number of witnesses testifying before the court. There must be a string that should join the evidence of all the witnesses and thereby satisfying the test of consistency in evidence amongst all the witnesses." 19. Leaving everything aside, this Court is conscious of the fact that this Court has very limited jurisdiction to re-appreciate the evidence while exercising revisionary jurisdiction under Section 397 of Cr.PC. No doubt, court with a view to do substantial justice and to correct error of law, if any, committed by the courts below, can certainly set-aside the order passed by the learned trial Court, if it is not based upon proper/correct appreciation of evidence, but in the case at hand, learned counsel for the petitioner, was unable to point out any material illegality and irregularity, if any, committed by the learned courts below while appreciating the evidence and as such, this Court sees no reason to interfere with the legal and well reasoned judgments passed by the learned courts below, which are otherwise based upon the proper appreciation of evidence. Reliance is placed on judgment passed by the Hon'ble Apex Court in case titled Sheetala Prasad and Ors vs. Sri Kant and Anr. (2010) 2 SCC 190 , wherein Hon'ble Apex Court has held that while exercising jurisdiction at the instance of the private complainant, it is necessary for the High court to notice the principles on which such revisional jurisdiction can be exercised. (2010) 2 SCC 190 , wherein Hon'ble Apex Court has held that while exercising jurisdiction at the instance of the private complainant, it is necessary for the High court to notice the principles on which such revisional jurisdiction can be exercised. Sub-Section (3) of section 401 of Code of Criminal Procedure, 1973 prohibits conversion of a finding of acquittal into one of conviction. It would be profitable to take note of following paragraph of the judgment referred-herein above:- "12. The High Court was exercising the revisional jurisdiction at the instance of a private complainant and, therefore, it is necessary to notice the principles on which such revisional jurisdiction can be exercised. Sub-Section (3) of section 401 of Code of Criminal Procedure, 1973 prohibits conversion of a finding of acquittal into one of conviction. Without making the categories exhaustive, revisional jurisdiction can be exercised by the High Court at the instance of private complainant: (1) where the trial court has wrongly shut out evidence which the prosecution wished to produce. (2) where the admissible evidence is wrongly brushed aside as inadmissible. (3) where the trial court has no jurisdiction to try the case and has still acquitted the accused. (4) where the material evidence has been overlooked either by the trial court or the appellate court or the order is passed by considering irrelevant evidence. (5) where the acquittal is based on the compounding of the offence which is invalid under the law." It is quite apparent from the aforesaid exposition of law that though there is no complete bar for High Court to re-appreciate the evidence while exercising its revisionary jurisdiction under Section 397 Cr.PC., but that can be only exercised if it arrives at conclusion that learned court below has wrongly shut out the evidence, which prosecution wished to produce. Revisionary jurisdiction can be also exercised if court comes to conclusion that trial court while determining guilt, if any, of the accused wrongly brushed aside admissible evidence as inadmissible. Apart from above, if court comes to conclusion that court below has overlooked material evidence while considering the material placed before it by the prosecution or learned trial Court had no jurisdiction at all to try the case, in those eventualities, High Court is well within its power to exercise revisionary jurisdiction under Section 397 and can re-appreciate the evidence to adjudicate the controversy. But in the instant case, this Court has no hesitation to conclude that courts below have dealt with each and every aspect of the matter very meticulously and there is no scope left for the court below to interfere with well reasoned judgments passed by the courts below and as such, same deserve to be upheld. 20. Consequently, in view of the detailed discussion made herein above as well as law laid down by the Hon'ble Apex Court, the petition fails and dismissed accordingly.