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2018 DIGILAW 519 (HP)

State Of Himachal Pradesh v. Gopal Singh

2018-04-02

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 07.01.2008, passed by learned Chief Judicial Magistrate, Mandi, District Mandi, H.P., in Police challan No. 23-1/2007 (18-II/02) , under Sections 341, 323, 325 and 34 of the Indian Penal Code. 2. The key facts, giving rise to the present appeal as per the prosecution story are that on 29.01.2002, at 8:00 p.m., when Dev Raj/complainant (hereinafter to be called as "the complainant") was returning from Gharat to his house, the accused persons restrained him near the rain shelter and gave kicks and fist blows to him, as a result of which, he sustained multiple injuries. On 01.02.2002, at about 1:30 p.m., the complainant reported the matter to the Police and thereafter, statement of the complainant, under Section 154 Cr. P.C. was recorded and F.I.R. was registered against the accused persons. The spot map was prepared and blood stained sweater, which the complainant was wearing at the time of said occurrence, was taken into possession and was sealed with seal "T". The complainant was medically examined and report of medical expert, whereby it was opined that injuries are grievous in nature, was obtained. After completion of investigation, challan was presented in the Court. 3. Prosecution, in order to prove its case, has examined as many as eleven witnesses. Statement 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 its judgment, dated 07.01.2008, acquitted the accused persons for the commission of offences punishable under Sections 341, 323, 325 & 34 of the IPC. Hence the present appeal. 4. I have heard the learned counsel for the parties and gone through the record carefully. 5. Learned Additional Advocate General has argued that the learned trial Court without appreciating the fact that the prosecution has proved the guilt of the accused persons beyond the shadow of reasonable doubt, acquitted the accused persons and has not taken into consideration the material, which has come on record to its true perspective, hence the present appeal may be allowed and after setting aside the judgment of acquittal passed by the learned trial Court, the accused persons be convicted. On the other hand, learned counsel for the respondents has argued that the prosecution has failed to prove the guilt of the accused persons beyond the shadow of reasonable doubt and the judgment of acquittal, passed by the learned trial Court, which is after appreciating all the facts which have come on record to their perspective, needs no interference. 6. In order to appreciate the rival contentions of the parties, I have gone through the record carefully. 7. Complainant Dev Raj, while appearing in the witness box as PW-1, has deposed that on 29.01.2002, at about 8:00 p.m., he was returning from Gharat and when he reached near rain shelter, the accused persons confined him and gave fist and kick blows to him, due to which he sustained injuries on his face and eyes and his two teeth were also broken. He has named PW-9, Pushap Raj to have witnesses of the occurrence followed by arrival of PW-5, Amar Singh. 8. Before proceedings further, it is necessary to refer the statement of the complainant made before the Police, whereby he stated that when he cried for help, PW9, Pushap Raj came and rescued him from the clutches of the accused persons and when accused persons fled away from the spot, PW-5, Amar Singh had seen them running away. 9. Taking the statement of the complainant into consideration, it is obvious that PW-9, Pushap Raj, is the most material witness of this case. However, when PW-9 was examined before the learned trial Court, he turned hostile and resiled from his statement, made before the Police. In his cross-examination, this witness has deposed that he did not see that accused persons gave beatings to the complainant. Even he has disclosed that the complainant told him that he had sustained injuries due to fall on stony passage. 10. As far as the statement of PW-5, Amar Singh, is concerned, he has deposed that complainant is his maternal uncle. He has further deposed that on 29.01.2002, he was closing shutter of his shop and when he heard some noise coming from the side of rain shelter, he reached there and found the complainant injured and when he asked him as to how he sustained injures, the complainant told him that the accused persons had beaten him. He has further deposed that on 29.01.2002, he was closing shutter of his shop and when he heard some noise coming from the side of rain shelter, he reached there and found the complainant injured and when he asked him as to how he sustained injures, the complainant told him that the accused persons had beaten him. This witness, in his cross-examination has deposed that prior to him PW-2, Raghubir and PW-9 Pushap Raj were present on the spot. The statement of PW-5, that when he reached on the spot, PW-2 Raghubir was present there, but PW-2 has not stated anything about the occurrence, neither prosecution has projected him as an eye witness and he was only made witness of seizure memo of blood stained sweater of the complainant. 11. As per the cross-examination of the complainant, he admitted that Badanu is situated at National Highway and there are 4-5 shops in vicinity and the place is thickly populated. He has deposed that he did not shout for help, however as per his statement, under Section 154 Cr.PC, wherein he stated that when he shouted for help, PW-9 came to the spot. The complainant has also admitted that it was dark at the spot of occurrence, but later on he improved his version by saying that there was light. The complainant has admitted that he did not produce teeth to the Police, as they were not taken in possession by the Police. Further the occurrence took place on 29.01.2002, whereas the complainant reported the matter to Police on 01.02.2002, after about 55 hours and in this regard, the only reason assigned by him that due to injuries sustained by him, he was having severe body ache, so he could not report the matter to the Police. 12. From the statement of the complainant and other witnesses, who were stated to be present on the spot, nothing material has come out. The statement of the complainant is itself contrary. As far as PW-9 is concerned, he turned hostile and resiled from his statement given to the Police. The other witness, i.e. PW-5 is close relative of the complainant, so it cannot be said that he is not an interesting witness. Further no teeth were recovered or produced by the complainant, thus it cannot be said whether the teeth of the complainant were broken or not. The other witness, i.e. PW-5 is close relative of the complainant, so it cannot be said that he is not an interesting witness. Further no teeth were recovered or produced by the complainant, thus it cannot be said whether the teeth of the complainant were broken or not. As per the opinion of the Doctor, possibility of injuries having been sustained by fall on hard surface cannot be ruled out and even if it would be presumed that accused persons had given beatings to the complainant, no independent witness has supported the case of the prosecution in this regard. Further there is delay in lodging the FIR, which makes this case doubtful. 13. Taking into consideration the material contradictions in the statements of the prosecution witnesses and the fact that there is unexplained delay in lodging the FIR, this Court finds that the prosecution has failed to prove the guilt of the accused persons beyond the shadow of reasonable doubt and no case under Sections 341, 323, 235 and 34 IPC is made out against the accused persons, therefore, well reasoned judgment of acquittal, passed by the learned trial Court, needs no interference. 14. 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. 15. 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. 16. 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, reappreciate and reconsider the evidence upon which the order of acquittal is founded. 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, reappreciate 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." 17. In view of the aforesaid decisions of the Hon''ble Supreme Court and the discussion made hereinabove, the present appeal, sans merit, deserves dismissal and is accordingly dismissed. Pending application(s) , if any, shall also stands disposed of.