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2019 DIGILAW 1087 (HP)

State of Himachal Pradesh v. Ashish Sangrai

2019-08-02

SANDEEP SHARMA

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JUDGMENT : Sandeep Sharma, J. 1. Instant Criminal Appeal filed under Section 378 of the Code of Criminal Procedure, is directed against the judgment of acquittal dated 1.8.2009, passed by learned Judicial Magistrate, 1st Class (I), Palampur, District Kangra, Himachal Pradesh, in Criminal case No. 191-II/2007, whereby learned trial Court held respondent (hereinafter referred to as the ‘accused’) not guilty of having committed of offence punishable under Sections 325 and 323 of IPC and accordingly acquitted him. 2. Precisely, the facts of the case as emerged from the record are that on 3.9.2007, complainant Rachna Devi (PW-5) got her statement recorded under Section 154 Cr.P.C. at police Station, Palampur, alleging therein that on 3.9.2007, at about 5:00 PM, at place called Main Chowk, Palampur, when she asked the accused why he had been abusing her then accused attacked her and caused grievous hurt by giving her fist and kick blows. On the basis of aforesaid complaint lodged by the complainant, FIR Ex.PW4/A came to be lodged against the accused under Sections 323 and 325 IPC. After completion of the investigation, police presented the challan in the competent Court of law, who being satisfied that a prima-facie case exists against the accused, framed charge against him for the commission of offence punishable under Section 323 and 325 IPC, to which he pleaded not guilty and claimed trial. 3. Prosecution with a view to prove its case examined as many as 7 witnesses, whereas accused in his statement recorded under Section 313 Cr.P.C. denied all incriminating evidence led against him by claiming himself to be innocent. However, he did not lead evidence in his defence. 4. Learned trial Court on the basis of the evidence collected on record by the prosecution, held accused not guilty and accordingly acquitted him vide judgment dated 1.8.2009. In the aforesaid backdrop, appellant-State has approached this Court in the instant proceedings, seeking conviction of the accused after setting aside the impugned judgment of acquittal recorded by the learned trial Court. 5. Having heard learned counsel representing the parties and perused the material available on record, this Court sees no reason to differ with the well reasoned judgment of acquittal passed by the learned court below. Bare perusal of the evidence, be it ocular or documentary, led on record vis-a-vis impugned judgment of acquittal, nowhere compel this Court to agree with the contention raised by Mr. Bare perusal of the evidence, be it ocular or documentary, led on record vis-a-vis impugned judgment of acquittal, nowhere compel this Court to agree with the contention raised by Mr. Kunal Thakur, learned Deputy Advocate General that learned Court below while ascertaining the guilt, if any, of the accused has failed to appreciate the evidence in its right perspective, rather this Court finds from the record that both the material prosecution witnesses PW-5, Rachna and PW-6, Abhaya, who are closely related to each other, nowhere corroborated the version put forth by each other and as such, learned Court below rightly arrived at a conclusion that no much reliance can be placed upon the statements made by these witnesses on account of mere contradictions and inconsistencies. 6. PW-5, Rachna deposed that accused started abusing her and when she asked why he is abusing her and she will make complaint to his father, accused came outside and started beating her, as a consequence of which, she sustained injuries on her person. She further stated that she reported the matter to the police and at that time Abhaya Devi (PW-6) was also accompanying her. In her cross-examination, this witness admitted that shop of the complainant is situated in the main Bazar, Palampur. She also admitted that she had not purchased any article from the shop of the accused and at that time accused was inside his shop. She also admitted that on the date of alleged incident, she had gone inside the shop of accused. She categorically denied the suggestion put to her that she asked the accused to marry with her otherwise she will make complaint against him. 7. PW-6, Abhaya Devi, who happened to be niece of the complainant, corroborated the version put forth by PW-5 that she was given beating by the accused on her objecting to the abuses hurled at her. However, in her cross-examination, she admitted that her Bua (PW-5) had told the accused that she will make complaint against him. She admitted that accused was inside his shop and her Bua had also gone inside the shop. This witness denied the suggestion put to her by defence that complainant was asking the accused for marriage with her and when the accused refused to marry her she had lodged the false complaint. 8. She admitted that accused was inside his shop and her Bua had also gone inside the shop. This witness denied the suggestion put to her by defence that complainant was asking the accused for marriage with her and when the accused refused to marry her she had lodged the false complaint. 8. Statements of remaining prosecution witnesses PW-2, HHC Dharam Chand, who proved the copy of rapat Ex.PW2/A, PW-4, SI Ashok Kumar, who proved the copy of FIR Ex.PW4/A and PW-7, Dr. Sunil Sood, who examined the injured Rachna Devi (PW-5) on the date of alleged incident, may not be very relevant for the determination of the guilt, if any, of the accused, as such same are not required to be taken notice of. 9. Careful perusal of the statements having been made by PW-5 and PW-6, certainly compels this Court to agree with the findings returned by the learned Court below that there are material contradictions in their statements and as such, no much reliance could be placed upon the same while ascertaining the guilt, if any, of the accused. Perusal of FIR Ex.PW4/A reveals that at first instance PW-5 had disclosed to the police that when near the main Chowk, Palampur she asked accused why he is abusing her, the accused voluntarily caused hurt to her by giving fist blows, however, such version of her never came to be corroborated by her in her deposition made before the Court, wherein she stated that she had gone inside the shop, where accused gave her beatings, as a result of which, she suffered injuries. Apart from above, perusal of site plan Ex.PW3/A reveals that investigator had shown the place of occurrence inside the shop of accused near the counter lying in the shop. PW-6 categorically stated that complainant went inside the shop of the accused and asked accused why he is abusing her and only then accused attacked the complainant. If the contradictions, as have been pointed out hereinabove, are taken into consideration, it certainly create serious doubt about the place of alleged occurrence. 10. PW-5, Rachna and her niece PW-6, Abaya Devi though denied that complainant was black mailing the accused by saying that she will make complaint against accused, if he did not marry her, but PW-3, ASI Narottam Chand has categorically stated that during investigation the accused had disclosed him that complainant is black mailing him. 11. 10. PW-5, Rachna and her niece PW-6, Abaya Devi though denied that complainant was black mailing the accused by saying that she will make complaint against accused, if he did not marry her, but PW-3, ASI Narottam Chand has categorically stated that during investigation the accused had disclosed him that complainant is black mailing him. 11. On the top of everything, there is dispute with regard to place of occurrence because as per prosecution story, occurrence allegedly took place at Palampur Bazar, but interestingly, no person from the Bazar ever came to be associated by the investigator during the investigation, rather he for the reason best know to him opted to associate only the niece of the complainant during the investigation and there is no plausible explanation rendered on record by the Investigating Officer (PW-3) that why he failed to associate independent witness from the locality, when they were available in abundance. 12. True, it is version put forth by closely related witnesses cannot be brushed aside solely on account of non-association of independent witnesses, but certainly version put forth by such witnesses are required to be taken into consideration while determining the guilt, if any, of the accused with utmost caution. In the case at hand, as has been pointed out that there are material contradictions and inconsistencies in the statements of aforesaid witnesses, who are otherwise related to each other and as such, version put forth by them rightly came to be discarded by the learned Court below in the absence of corroboration, if any, by independent witnesses. 13. Having carefully scanned the evidence led on record by the prosecution, this Court has no hesitation to conclude that prosecution has miserably failed to prove its case against the accused and as such, learned Court below has rightly held the accused not guilty of having committed of offence punishable under Sections 323 and 325 of IPC. 14. 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. 14. 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 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 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 vs. State of U.P. (2008) 16 SCC 686 : 2008 (11) SCR 286 has held:- "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 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." 15. 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." 15. In the case at hand, there are material contradictions and inconsistencies in the statements of the prosecution witnesses and as such, no conviction can be based upon the same. 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 court below, which otherwise appears to be based upon the proper appreciation of the evidence adduced on record and as such, same is upheld. 17. Accordingly, the present appeal is dismissed being devoid of any merit alongwith pending applications, if any.