Research › Search › Judgment

Himachal Pradesh High Court · body

2018 DIGILAW 1918 (HP)

State Of Himachal Pradesh v. Baldev Kumar

2018-11-02

SANDEEP SHARMA

body2018
JUDGMENT Sandeep Sharma, J. - Mr. Aman Parth, Advocate has filed Power of Attorney on behalf of the sole respondent. 2. Record of the learned trial Court stands received, perusal whereof reveals that complainant Krishna Devi(PW-1) reported the matter to the police, alleging therein that on 18.5.2011, at around 8.30 PM, she was going to her field and in the meanwhile, accused while hurling abuses restrained her from proceeding further and started punching her. On the basis of aforesaid report, a formal FIR Ex.PW1/A came to be lodged against the respondentaccused(hereinafter referred to as ''accused''). Complainant also alleged that accused proclaimed that he would kill her in case she sows the field. PW-2, Ram Dev i.e. husband of the complainant after having heard cries of the complainant reached the spot and rescued her from the clutches of the accused. Accused then started thrashing the husband of the complainant and ultimately after having seen the people coming to the spot, he fled away from the spot. After completion of the investigation, police presented the challan in the competent court of law i.e. Chief Judicial Magistrate, Lahaul-Spiti at Kullu, H.P., who being satisfied that a prima-facie case exists against the accused, charged him under Sections 341, 325, 504 and 506 of IPC, to which he pleaded not guilty and claimed trial. 3. Learned trial Court vide judgment dated 13.4.2017, held accused not guilty of having committed the offences punishable under Sections 341, 325, 504 and 506 of IPC and accordingly acquitted him of the charges framed against him. In the aforesaid background, appellant-State has approached this Court in the instant appeal filed under Section 378 of the Code of Criminal Procedure, seeking therein conviction of accused after setting aside the judgment of acquittal recorded by the learned Court below. 4. Having heard learned counsel representing the parties and perused the material available on record vis-a-vis impugned judgment of acquittal recorded by the learned court below, this Court is not persuaded to agree with the contention of Mr. 4. Having heard learned counsel representing the parties and perused the material available on record vis-a-vis impugned judgment of acquittal recorded by the learned court below, this Court is not persuaded to agree with the contention of Mr. Sanjeev Sood, learned Additional Advocate General that judgment of acquittal recorded by the learned court below is not based upon the correct appreciation of the evidence and as such, same deserves to be quashed and set-aside, rather this Court having carefully gone through the reasoning assigned by the learned Court below while acquitting the accused of the charges framed against him vis-a-vis evidence adduced on record by the prosecution, has no hesitation to conclude that learned court below has dealt with each and every aspect of the matter very meticulously and there is no scope left for this Court to interfere in the findings returned by the learned Court below. This Court is also not inclined to accept the submissions having been made by learned Additional Advocate General that prosecution was able to prove beyond reasonable doubt that complainant(PW-1) and her husband(PW-2) were given merciless beatings and hurled abuses by the accused. If the statement having been made by the prosecution witnesses are read in conjunction, it seriously creates doubt with regard to correctness and genuineness of the story put forth by the prosecution and as such, leaned court below rightly acquitted the accused of the charges framed against him. 5. Smt. Krishana Devi(PW-1) while appearing before the Court below deposed that in the morning of 12.5.2011 she was going through the field and in the meanwhile, accused thrashed her, as a consequences of which, she sustained injuries on her eye, nose and teeth. She further stated that accused did not say anything. Her husband (PW-2) rescued her from his clutches. She further stated that at the time of alleged incident, she was not in her senses as such did not know as to what he said to her. She also stated that she could not recollect anything else about the case. This witness was declared hostile and was cross-examined by the prosecution. In her cross-examination, she stated that accused while abusing had restrained her and had told that he would kill her and her family, if she sows the field. She also stated that she could not recollect anything else about the case. This witness was declared hostile and was cross-examined by the prosecution. In her cross-examination, she stated that accused while abusing had restrained her and had told that he would kill her and her family, if she sows the field. In her cross-examination by the defence, she had admitted that her husband and the accused are real brothers and their land was joint. She stated that their ancestors had partitioned the same. She also admitted that about 8 -10 people were present on the spot and on seeing them accused fled away therefrom. Interestingly, police only associated Prem Lata (PW-3), who admittedly resided at the distance of 2-3 Km away from the place of alleged incident. It is also not in dispute that said Prem Lata was not having landed property near the spot of alleged incident. She also stated that though police visited the spot, however did not inquire about the incident. She stated that she remained in the police station since morning till 2:00/2:30 PM and thereafter went to the hospital from the police station and had given her clothes to the police. She admitted that her husband had reached the spot after an hour later. 6. Pw-2, Ram Dev husband of the complainant(PW-1) stated that on 18.5.2011, around 8.30 AM, he in his house heard the cries of the complainant(PW-1) and went out and saw the accused beating the complainant. He deposed that he rescued her from the clutches of the accused. He deposed that accused threatened to kill his family. Had he not rescued the complainant, the accused would have killed her. He further stated that accused did not allow him to sow the field, which had fallen in his share. In his cross-examination, he admitted that there is kitchen garden in front of their house. He denied that half of the kitchen garden towards Mohal side came to his share and half of the kitchen garden towards Bhunter side came to the share of the accused. He admitted that there land has not been partitioned. He also admitted that Prem Lata(PW-3) was/is his neighbour and she resides 15 steps away from his house and also lives at Dohra Nallah. He feigned his ignorance that accused had sold the grass to Prem Lata, as a result whereof they were inimical against each other. He admitted that there land has not been partitioned. He also admitted that Prem Lata(PW-3) was/is his neighbour and she resides 15 steps away from his house and also lives at Dohra Nallah. He feigned his ignorance that accused had sold the grass to Prem Lata, as a result whereof they were inimical against each other. He also stated that they had handed over clothes to the police on the day of occurrence. In cross-examination, he admitted that he was all alone at that time and after giving clothes, he came to his house, he stated. 7. Prem Lata (PW-3) stated before the Court below that in the month of Baisakh 2011, she was working in the field and on hearing cries, she rushed to the spot and saw the accused beating and abusing the complainant (PW-1). In her cross-examination, she admitted that Ram Dev (PW-2) used to cultivate the land from the stairs towards Mohal side and the accused used to cultivate the same towards Bhunter side. She admitted that their land was not partitioned. She denied that she was having dispute with the accused. 8. Pw-4, Dr. Rituvesh Negi, who had examined the complainant stated that on18.5.2011 around 9:45 AM, he examined the complainant and referred her to Kullu for ENT opinion. On receipt of the ENT report, she was found to have received grievous injuries. He issued MLC Ex.PW4/A to that effect. In his cross-examination, he stated that he could not state as to whether the injuries suffered by the complainant could be caused by fall. 9. Pw-5, Dalip Singh, investigating Officer in his crossexamination admitted that parties were having joint land. He was unable to state as to whether the land of Prem Lata(PW-3) exists near the house of the complainant or not. He stated that Prem Lata came to the spot when he reached there. He admitted that he has not recorded the statements of other persons present on the spot. He also admitted that he did not get the ENT examination of the complainant conducted between the period i.e. 18.5.2011 to 23.5.2011. He stated that complainant (PW-1) had produced her shirt Ex.P2 on the spot. He feigned his ignorance that houses of Naresh and Sagar Singh exist near the house of the parties. 10. Dr. He also admitted that he did not get the ENT examination of the complainant conducted between the period i.e. 18.5.2011 to 23.5.2011. He stated that complainant (PW-1) had produced her shirt Ex.P2 on the spot. He feigned his ignorance that houses of Naresh and Sagar Singh exist near the house of the parties. 10. Dr. Mahesh Kapoor(PW-6) deposed before the Court below that on 20.5.2011, he examined the complainant and referred her for ENT opinion and also advised X-Ray of nasal bone of her. On receipt of X-Ray report, he issued MLC Ex.PW6/A and opined injuries suffered by her to be grievous in nature. However, in his crossexamination, he admitted that the injuries suffered by the complainant could be caused by fall. 11. Si Kamal Kant(PW-7), who partly investigated the case deposed that complainant(PW-1) produced her blood stained shirt Ex.P1 to the police vide fard Ex.PW1/B. He also deposed to have arrested the accused. In his cross-examination, he claimed ignorance as to whether the complainant visited the police station on 18.5.2011or not. He could not say as to whether residential houses of the parties exist near the place of occurrence or not . He admitted that no local witness was associated with the investigation when he visited the spot. 12. If the statements having been made by the prosecution witnesses, especially PW-1, PW-2 and PW-3 are read in conjunction, it clearly suggest that accused after having given beatings to complainant(PW-1) fled away from the spot and at that time 8-10 people had assembled on the spot. But interestingly, prosecution only examined complainant (PW-1), her husband (PW-2) and Prem Lata (PW-3), who in one hand or other are interested witnesses. It is not understood when interested witnesses in abundance were available why prosecution failed to site independent witnesses to lend support to the story put forth by the prosecution. Interestingly, if statement of PW-2 is read in its entirety, it nowhere indicates the presence of PW3 on the spot because she nowhere states that after having heard the cries PW-3 reached the spot, whereas PW-3 in her crossexamination stated that she after having heard cries of the complainant reached the spot. Interestingly, if statement of PW-2 is read in its entirety, it nowhere indicates the presence of PW3 on the spot because she nowhere states that after having heard the cries PW-3 reached the spot, whereas PW-3 in her crossexamination stated that she after having heard cries of the complainant reached the spot. There is evidence available on record suggestive of the fact that PW-3 resides at the distance of 2-3 km away from the spot of occurrence and as such, very association of PW-3 as prosecution witness creates doubt with regard to the story put forth by the prosecution. PW-3 in her statement stated that she resides 2-3 km away from her house and does not have land, it being so her presence on the spot is doubtful. Moreover, PW-2 has not stated even a word with regard to her presence on the spot. Interestingly, complainant deposed that accused only thrashed her and did not state anything else, but as per story of the prosecution accused while hurling abuses restrained her and even threatened to kill her. 13. Though, this witness was declared hostile but even bare perusal of cross-examination conducted upon this witness, nowhere suggests that prosecution was able to extract something contrary what she stated in her examination-in-chief. Similarly, if statements of PW-2 and PW-3 are read juxtaposing each other, it certainly compels this Court to agree with the contention of learned counsel for the petitioner that there are material contradictions and inconsistencies in the statements of the prosecution witnesses and as such, no reliance can be placed on their statements, while ascertaining the guilt, if any, of accused. 14. On the top of everything, if the statements of two investigating officers, who remained associated with the investigation are perused conjointly, it demolishes the case of prosecution in toto because as per their versions they both failed to investigate the matter on the spot. They also stated that despite there being availability of independent witnesses, they failed to associate them. Most importantly, it has come in the statement of PW-5 that complainant PW-1 was not taken by him for medical examination (ENT) during 18.5.2011 to 23.5.2011, meaning thereby, story put forth by the prosecution that complainant was got medically examined from the Medical Officer, who subsequently vide MLC Ex.PW4/A and Ex.PW6/A rendered opinion, is not trustworthy, rather same appears to be doubtful. No doubt PW-4, Dr. No doubt PW-4, Dr. Rituvesh Negi and PW-6, Dr. Mahesh Kapoor while deposing before the Court below have proved MLCs Ex.PW4/A and EX.PW6/A, perusal whereof suggest that complainant suffered injuries in the alleged incident, but same may be of no consequence because there is no evidence available on record to connect the accused with alleged incident. 15. By now it is well settled that in a criminal trial evidence of the eye witness requires a careful assessment and needs to be evaluated for its creditability. 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, 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. In this regard, reliance is placed upon the judgment passed by Hon''ble Apex Court in C. Magesh and others versus 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 emphasis, 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 Surja Singh v. State of U.P. , (2008) 16 SCC 686 : 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. 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 situation 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 consistence in evidence amongst all the witnesses. 16. Consequently, in view of the detailed discussion made hereinabove as well as law referred hereinabove, this Court sees no illegality and infirmity in the impugned judgment of acquittal passed by the learned trial Court, which otherwise appears to be based upon the proper appreciation of the evidence adduced on record and as such, same is upheld. Accordingly, the appeal is dismissed, alongwith pending application(s), if any.