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2018 DIGILAW 543 (HP)

State of H. P. v. Mahender Singh

2018-04-04

SANDEEP SHARMA

body2018
JUDGMENT : Sandeep Sharma, J. Being aggrieved and dissatisfied with judgment dated 12.10.2011, passed by the learned Sessions Judge, Kullu, HP, in Criminal Appeal No. 30 of 2011, whereby judgment of conviction recorded by the learned Chief Judicial Magistrate, Lahaul-Spiti at Kullu, H.P., in Criminal Case No. 218-I of 2006/43-II of 2007, came to be reversed, appellant-State has approached this Court by way of instant proceedings, seeking therein conviction of respondents-accused, after setting aside the judgment of acquittal recorded by the learned Sessions Judge. 2. In nutshell, case of the prosecution, as emerge from the record is that on 6.11.2006, at about 1:30 am, Shayam Sunder (PW2) was informed by his father over telephone that accused No.1 namely Mahender Singh was extending the projection of his lintel towards his house. PW2 Shayam Sunder after having received aforesaid call, came to village Bahu alongwith wife and nephew Chaman Lal. PW5 Mohan Lal and Hima Devi also came alongwith them to village Bahu, where allegedly projection of lintel was being extended by the accused towards the house of the complainant Shayam Sunder (PW2). Allegedly, at about 4:00am, Shayam Sunder (PW2) asked the accused Mahender Singh, as to why he was extending projection of his lintel but accused after switching off the light, came to the stair case, where Shayam Sunder was standing and assaulted him with fist and kick blows. Allegedly Shayam Sunder was also thrown down on to the road from the stair case by the accused. Complainant was got rescued from the clutches of the accused persons by PW5 Mohan Lal and PW1 Chaman Lal. Since Shayam Sunder suffered injuries on account of beatings allegedly given by the accused, he was taken to the hospital by PW5 and PW1. Allegedly, complainant Shayam Sunder sustained injuries on his right eye and both his legs. On the basis of complaint having been made by the complainant, formal FIR No. 118/06 dated 6.11.2006, came to be registered at PS Bahu, Tehsil and PS Banjar, District Kullu, H.P., against the accused under Section 325 of IPC read with Section 34 of IPC. After completion of investigation, police presented challan in the competent Court of law. 3. On the basis of complaint having been made by the complainant, formal FIR No. 118/06 dated 6.11.2006, came to be registered at PS Bahu, Tehsil and PS Banjar, District Kullu, H.P., against the accused under Section 325 of IPC read with Section 34 of IPC. After completion of investigation, police presented challan in the competent Court of law. 3. Learned Chief Judicial Magistrate, Lahaul-Spiti at Kullu, H.P., on being satisfied that prima-facie case exists against the accused, charged the accused persons under Section 325 read with Section 34 of IPC, to which they pleaded not guilty and claimed trial. 4. Learned trial Court on the basis of evidence collected on record by the prosecution held both the accused guilty of having committed offence punishable under Section 325 read with Section 34 of IPC and accordingly, convicted and sentenced them to undergo simple imprisonment for a period of one month each and to pay a fine of Rs. 3000/- each. 5. Respondents-accused being aggrieved and dissatisfied with the aforesaid judgment of conviction recorded by the learned court below filed an appeal in the Court of learned Sessions Judge, Kullu, H.P., who vide judgment dated 12.10.2011, set-aside the judgment of conviction recorded by the court below and acquitted the respondents-accused. In the aforesaid background, appellant-State has approached this Court in the instant proceedings, praying therein for conviction of the accused respondent after setting aside judgment of acquittal recorded by the learned Sessions Judge. 6. Mr. Dinesh Thakur, learned Additional Advocate General, while inviting attention of this Court to the impugned judgment of acquittal recorded by the learned Sessions Judge, vehemently contended that same is not based upon proper appreciation of evidence and as such, same deserves to be quashed and set-aside. Learned Additional Advocate General, further contended that bare perusal of the impugned judgment of acquittal recorded by the learned Sessions Judge, clearly suggests that learned first appellate Court has failed to appreciate the evidence adduced on record by the prosecution in its right perspective, as a result of which, erroneous findings have come on record and accused have been let off on very flimsy grounds. To substantiate his aforesaid argument, Mr. To substantiate his aforesaid argument, Mr. Thakur, made this Court to peruse the statements having been made by the material prosecution witnesses i.e. PW1 and PW2, to demonstrate that prosecution successfully proved beyond reasonable doubt that on the date of alleged incident, accused not only gave beatings to the complainant, rather unauthorisedly, extended the projection of the lintel towards the house of the complainant. While placing reliance upon the medical evidence adduced on record i.e. MLC Ext.PW4/A, learned Additional Advocate General, contended that in the alleged incident, complainant suffered grievous injuries and as such, there was no scope left for the learned first appellate court to upset the findings returned by the learned trial Court, which are based upon proper appreciation of evidence. 7. Per contra, Mr. Y.P.S. Dhaulta, Advocate, representing the accused-respondents supported the impugned judgment of acquittal recorded by the first appellate Court and contended that bare perusal of same suggests that same is based upon proper appreciation of evidence and there is no illegality and infirmity in the same and as such, there is no scope of interference, especially when it clearly emerges from the bare reading of the impugned judgment that court has dealt with each and every aspect of the matter very meticulously. While refuting the contention of learned Additional Advocate General that prosecution proved its case beyond reasonable doubt, Mr. Dhaulta, while referring to the statements of prosecution witnesses especially PW1, PW2 and PW5, strenuously argued that none of the prosecution witness was able to prove beyond reasonable doubt that on the date of alleged incident, complainant suffered injuries on account of beatings allegedly given by the accused. He further contended that if statements of these witnesses are read in conjunction with each other, there are material contradictions and inconsistencies and as such, learned appellate Court below rightly not placed reliance upon the same and rightly, came to conclusion that trial court below fell in grave error while holding the accused-respondents guilty of having committed offence punishable under Section 325 of the Act. Lastly, Mr. Dhaulta, contended that even medical evidence adduced on record nowhere supports the case of the prosecution that the complainant suffered grievous injuries on account of beatings allegedly given by the accused, because PW4 Dr. Satish Rana, categorically admitted in his cross examination that there is cutting in the MLC and the complainant has suffered simple injuries, not grievous injuries. Dhaulta, contended that even medical evidence adduced on record nowhere supports the case of the prosecution that the complainant suffered grievous injuries on account of beatings allegedly given by the accused, because PW4 Dr. Satish Rana, categorically admitted in his cross examination that there is cutting in the MLC and the complainant has suffered simple injuries, not grievous injuries. 8. Having heard learned counsel for the parties and gone through the record, this Court is not persuaded to agree with the contention of learned Additional Advocate General that learned first appellate Court while setting aside judgment of conviction recorded by the learned trial Court, mis-read, misinterpreted and misconstrued the evidence, rather this Court has no hesitation to conclude that none of the prosecution witness was actually able to prove on record beyond reasonable doubt that on the date of alleged incident, accused gave beatings, if any, to the complainant because if statements having made by PW1 and PW2 are read juxtaposing each other, it certainly creates serious doubt with regard to the correctness and genuineness of the story put forth by the prosecution. There are material contradictions with regard to timing and presence of the accused at the site of occurrence. Apart from above, this Court finds that spot map Ext. PW6/C, prepared at the time of alleged incident nowhere corroborates the versions put forth by the aforesaid material prosecution witnesses, because cause of quarrel as has been reflected in the charge sheet is that accused tried to extend the projection of lintel towards the house of the complainant, but unfortunately, same has not been shown in the spot map. This fact has been rather categorically admitted by the Investigating Officer HC Rajender Singh (PW6), who admitted that he has not shown the extent of the projection of the lintel towards the house of the complainant in the spot map. 9. PW1 Chaman Lal, who is the nephew of the complainant, deposed before the learned trial Court that on 5.11.2006, he received a telephonic call at around 1:30 am from his grandfather, that accused Mahender Singh was extending the projection of his lintel and thereafter, he went to the site at 1:30 am, and reached there at 4:00am. 9. PW1 Chaman Lal, who is the nephew of the complainant, deposed before the learned trial Court that on 5.11.2006, he received a telephonic call at around 1:30 am from his grandfather, that accused Mahender Singh was extending the projection of his lintel and thereafter, he went to the site at 1:30 am, and reached there at 4:00am. Interestingly version put forth by him in his examination-in-chief is contrary to the complaint because in his statement before the court below, he stated that his grandfather enquired from the complainant that why they had raised the projection of their lintel, but if complaint having been made by the complainant is read in its entirety, it suggests that it was PW2 Shayam Sunder, who enquired from the accused Mahender Singh that why he had raised/extended projection of his lintel towards their house. He further stated that accused came out of their house and gave beatings to his uncle Shayam Sunder whereafter he alongwith Mohan Lal (PW5) got his uncle freed from the clutches of the accused. He further stated that PW2 was also thrown out of the stair case, as a consequence of which, the complainant sustained injuries on his eye and both his legs. Interestingly, if version put forth by this witness is analyzed/examined in light of statement given by PW5 Mohan Lal (so called independent witness), it certainly compels this Court to conclude that story put forth by the prosecution is not only untrustworthy, rather it appears to be concocted one. 10. PW5 Mohan Lal, stated before the court below that he was sleeping in the house of PW2 Shayam Sunder when he received a telephonic call about 3:00am, whereafter they had gone to the village Bahu with the complainant. Though, this witness was declared hostile, but even in his cross examination, he nowhere supported the case of the prosecution, rather he categorically denied that the complainant was given beatings by the accused. Similarly, PW1 Chaman Lal in his cross-examination admitted that as per spot of occurrence village Bahu is at a distance of 1 km and he was residing at a distance of 7-8 km. It is not understood that if village Bahu was at a distance of only 1 km, how he could take approximately 2½ hours to reach the said village as has been stated by PW1. 11. It is not understood that if village Bahu was at a distance of only 1 km, how he could take approximately 2½ hours to reach the said village as has been stated by PW1. 11. PW2 Shayam Sunder stated that he received a telephonic call at about 1:30 am from his father that the accused is extending projection of lintel, whereafter he alongwith PW1 had gone to the spot. He stated that he enquired from the accused that why they were extending the projection, whereafter accused came out and gave him beatings. Interestingly, this witness states that he sustained injuries on his mouth and feet, which fact is totally contrary to the statement of PW1, who categorically stated that on account of beatings allegedly given by the accused, PW2 Shayam Sunder (complainant) suffered injuries on his eye and both his legs. 12. Though, prosecution with a view to prove its case examined as many as six witnesses but statements of PW1, PW2 and PW5 are relevant to determine the correctness of the judgment of conviction recorded by the court below, because other witnesses are formal in nature. 13. True, it is that in the case at hand, prosecution with a view to lend support to its story, adduced on record, medical evidence suggestive of the fact that PW2 suffered injuries on account of beatings given by the accused but that may not be sufficient to prove the guilt of the accused. In the absence of concrete evidence, if any, to connect the accused with the offence allegedly committed by them, as has been noticed herein above, there is no cogent and convincing evidence adduced on record by the prosecution, from where it can be inferred that complainant suffered injuries as depicted in MLC on account of beatings given by the accused. 14. Leaving everything aside, no conviction could be recorded by the learned trial Court below on the basis of statements having been made PW1 and PW2, who are closely related to each other. True, it is that version put forth by the interested witnesses cannot be easily brushed aside solely on the ground of their relationship, but at the same time, it is well settled by now that versions put forth by such witnesses are required to be dealt with very cautiously and carefully while ascertaining the guilt, if any, of the accused. True, it is that version put forth by the interested witnesses cannot be easily brushed aside solely on the ground of their relationship, but at the same time, it is well settled by now that versions put forth by such witnesses are required to be dealt with very cautiously and carefully while ascertaining the guilt, if any, of the accused. In the case at hand, it is quite apparent that both the parties were at loggerheads with each other on account of dispute inter-se them with regard to the projection of lintel by the accused towards the house of the complainant and as such, Court below ought to have examined the statements of PW1 and PW2 in that perspective. 15. Otherwise also, this Court finds that prosecution could always associate independent witnesses to lend support to its story, especially when they were available, as has been categorically submitted by these witnesses in their cross-examination. 16. After having carefully perused the evidence, this Court is in agreement with the finding recorded by the learned first appellate court that there are material contradictions, inconsistencies, improvements and embellishments in the statements of prosecution witnesses and as such, no much reliance could be placed upon the same. 17. In the case at hand, entire story put forth by the prosecution appears to be untrustworthy and full of contradictions and as such, learned first appellate Court rightly held that it would be unsafe to convict the person on the basis of unreliable and untrustworthy evidence, particularly when there are material contradictions and inconsistencies in their statements. 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. Reliance is also placed on Judgment passed by the Hon’ble Apex Court in C. Magesh and Ors. In nutshell, it can be said that evidence in criminal cases needs to be evaluated on touchstone of consistency. Reliance is also placed on Judgment passed by the Hon’ble Apex Court in C. Magesh and Ors. v. 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 v. 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.” 18. There is another glaring aspect of the matter that there is no evidence worth the name available on record to infer involvement, if any, of accused No.2 namely Rajesh Kumar in the case at hand, because none of the prosecution witness has stated something specific with regard to his presence on the spot as well as injury, if any, caused by him on the person of the complainant (PW2) and as such, it is not understood how court below convicted the co-accused alongwith accused No.1, against whom certainly allegations were leveled by the complainant. Needless to say that in order to convict the accused with the aid of Section 34 IPC, it is necessary for the prosecution to establish that he has done any overt act and there should be material on record suggestive of the fact that overt act was done by the co-accused in furtherance of common intention of both the accused. In the instant case, prosecution has not led any evidence to prove that both the accused had common intention to give beatings to the complainant namely Shayam Sundar. 19. Consequently, in view of the detailed discussion made herein above as well as law relied upon, this Court sees no reason to differ with the finding returned by the learned Sessions Judge, which otherwise appears to be based upon correct appreciation material available on record. Hence present appeal fails and dismissed accordingly.