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Himachal Pradesh High Court · body

2019 DIGILAW 1170 (HP)

STATE OF HIMACHAL PRADESH v. MANSHA RAM

2019-08-13

SANDEEP SHARMA

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JUDGMENT : Sandeep Sharma, J. 1. Instant Criminal Appeal filed under Section 378 of the Code of Criminal Procedure, lays challenge to judgment of acquittal dated 18.1.2008, passed by learned Judicial Magistrate 1st Class, Court No.1, Ghumarwin, District Bilaspur, Himachal Pradesh, in Case No.244/I of 2001 whereby learned trial Court held respondents (hereinafter referred to as the 'accused') not guilty of having committed offences punishable under Sections 427, 452, 323, 506 read with Section 34 of IPC and accordingly acquitted them. 2. Precisely, the facts of the case as emerged from the record are that on 23.5.2001, complainant Bansi Ram (PW-1) got his statement recorded at police Station, Bharari, alleging therein that at about 9:30 AM when he came back from his shop, he found that accused Mansha Ram(A-1) and Sonu son of Mansha Ram (A-2), Jasodha Devi, daughter of Mansha Ram (A-3), Kamla Devi wife of Mansha Ram (A-4) and Saraswati Devi sister-in-law of Mansha Ram(A-5) were arguing with his son, Sanjeev Kumar (PW-3) with regard to cutting of the trees. Complainant Bansi Ram (PW-1) requested accused persons not to do any altercation, however wife of accused Mansha Ram i.e. Kamla Devi (A-4) started pelting stones in the house of the complainant. Complainant as well as his son went inside their house, but accused Sonu and his father Mansha Ram allegedly entered in the house of the complainant having a Darat and Axe in their hands. Accused Sonu hit the complainant on his head with the Darat, whereas accused Mansha Ram hit the hands and wrist of the complainant with Axe. Having heard the hue and cry raised by the complainant and his son Sanjeev Kumar (PW-3), Surjit Singh and Kashmir Singh (PW-4) visited the spot, but accused Mansha Ram and his son Sonu fled away from the spot, whereas wife of the accused as well as sister-in-law kept on pelting stones towards the complainant party. Accused Mansha Ram and Sonu also started pelting stones after going outside, as a result of which, glasses of the window were broken. On the basis of aforesaid complaint lodged by the complainant Bansi Ram (PW-1), formal FIR Ex.PW1/A came to be lodged against the accused persons. Accused Mansha Ram and Sonu also started pelting stones after going outside, as a result of which, glasses of the window were broken. On the basis of aforesaid complaint lodged by the complainant Bansi Ram (PW-1), formal FIR Ex.PW1/A came to be lodged against the accused persons. After completion of the investigation, police presented the challan in the competent Court of law, who being satisfied that a prima-facie case exist against the accused persons, framed charges against them for the commission of offences punishable under Sections 427, 452, 323, 506 read with Section 34 of IPC, to which they pleaded not guilty and claimed trial. 3. Prosecution with a view to prove its case examined as many as 11 witnesses, whereas accused in their statements recorded under Section 313 Cr.P.C. denied the case of the prosecution in toto and claimed themselves to be innocent. Accused in support of their defence also tendered in evidence Ex.D-1, copy of order dated 26.6.1998 passed by Hon'ble High Court of H.P., in RSA No.235 of 1998, titled as Kamla Devi versus Kaushalya Devi, Ex.D-2 i.e. compromise dated 2.8.1995 entered between the parties and mark-X i.e. a copy of compromise. 4. Learned trial Court on the basis of the evidence collected on record by the prosecution, held accused not guilty and accordingly acquitted them vide judgment dated 18.1.2008. In the aforesaid backdrop, appellant-State has approached this Court in the instant proceedings, seeking therein conviction of the accused persons 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. 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. 6. 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. 6. Close scrutiny of the evidence, be it ocular or documentary led on record by the respective parties, compels this Court to agree with the findings returned by the learned Court below that there are material contradictions and inconsistencies in the statements having been made by the prosecution witnesses and as such, no reliance, if any, could be placed upon the same for holding the accused guilty. Though, in the case at hand, prosecution has examined 11 witnesses, but statements of PW-1, PW-3, PW-4 and PW-8 may be relevant. 7. Complainant Bansi Ram (PW-1) while deposing before the learned Court below though reiterated the same story as put forth by him at the time of lodging the complaint, but he categorically admitted that Kashmir Singh (PW4) had given evidence in support of his case in a civil case. Kashmir Singh is owner of adjoining land. He stated that accused Mansha Ram attacked him first and his son did not receive any injury in the alleged incident. 8. Pw-3, Sanjeev Kumar, who happened to be the son of complainant Bansi Ram, though made an attempt to support the version put forth by PW-1, but careful perusal of cross-examination conducted on this witness, nowhere supports the case of the prosecution. In his cross-examination, this witness admitted that accused persons were working in the field, which was situated below their house. He admitted that both the parties have shares in that field. This witness contradicted the version put forth by PW-1, Bansi Ram that house of the complainant is at the elevation of five feet from the field. It has specifically come in his cross-examination that house is at the elevation of two feet. This witness also admitted that they are litigating with the accused for the last 18 to 20 years. He also admitted that there are about 200 houses and Abadi of 5000-6000. This witness deposed that police reached the spot on the same day of incident at about 1:00 PM. This witness also admitted that they are litigating with the accused for the last 18 to 20 years. He also admitted that there are about 200 houses and Abadi of 5000-6000. This witness deposed that police reached the spot on the same day of incident at about 1:00 PM. Most importantly, this witness admitted that he was not present at the time of recovery of Darat and Axe. Though, this witness admitted that in the alleged incident he received injuries, but such version put forth by him is in total contradiction of the statement given by his father Bansi Ram (PW-1), who stated that his son did not receive any injury in the alleged incident. 9. Pw-4, Kashmir Singh, so called independent witness stated that he was present on the spot at the time of incident. He stated that he saw accused persons pelting stones, but he did not see accused persons carrying Darat and Axe. This witness was declared hostile, but careful perusal of cross-examination conducted on this witness nowhere suggests that prosecution was able to extract something advantageous to its case. This witness totally denied that the accused were having any Darat and Axe. He also denied that the accused persons did not extend threat to the complainant. This witness also denied the suggestion put to him that he is deposing falsely as he has taken money from the accused persons. 10. Pw-2, Sohan Singh, who happened to be the witness of memo Ex.PW1/B and Ex.PW1/C alongwith other witness Rajesh Kumar (PW-9) turned hostile and not supported the case of the prosecution. He specifically denied that in his presence as well as in the presence of Sohan Singh, complainant Bansi Ram has handed over his shirt. This witness further denied that no stones were taken into possession by the police in his presence. PW-3, Sanjeev Kumar while deposing before the learned Court below stated that police came on the spot on the same day of incident, whereas PW-2 stated that police has taken into custody the stones on the next day of incident. 11. Pw-5, Sanjay Kumar, photographer, though allegedly took photographs Ex.PA to Ex.PH, but at no point of time negatives of the aforesaid photographs came to be placed on record. 11. Pw-5, Sanjay Kumar, photographer, though allegedly took photographs Ex.PA to Ex.PH, but at no point of time negatives of the aforesaid photographs came to be placed on record. This witness categorically stated that negatives were handed over by him to the police, but such negatives neither came to be seen in the Court, nor the same were placed in the police file. Aforesaid omission on the part of the prosecution gains significance in view of the admission made by PW-5 that photograph Ex.PA to Ex.PH were taken at the instance of the complainant, Bansi Ram. 12. Pw-7, Nirmla Devi i.e. independent witness was also declared hostile. Cross-examination of this witness nowhere suggests that the prosecution was able to extract something advantageous to its case. 13. Pw-6, Prithi Pal, Investigation Officer, though reiterated the story as put forth by the prosecution, but version put forth by this witness is not worth lending any credence because he specifically denied that the houses of Rup Singh, Brahmi Devi, Dharam Singh, Gian Chand and Gian Singh are situated near the place of occurrence because on the other hand all the prosecution witnesses have categorically stated that houses of above named persons are adjacent to the house of the complainant. Moreover, it has specifically come in the statement of the Investigating Officer that he did not take any demarcation of the place of occurrence in order to know, who is the owner of the property in question. Admission made by this witness in his cross-examination that no glasses of window were broken completely demolishes the case of the prosecution. This witness stated that no glasses of the window were broken as no glasses were on the spot, however, such version put forth by him is in total contradiction to the case of the prosecution because as per the prosecution witnesses, accused persons broke the window panes of the complainant . It is also admitted by the Investigating Officer that there is no identity mark over the stones Ex.PA to Ex.PE. He also admitted that no weapon is used in this case except stones and as such, he completely demolished the case of the prosecution because admittedly as per the case of the prosecution, accused persons gave beatings to the complainant party using Darat and Axe. He also admitted that no weapon is used in this case except stones and as such, he completely demolished the case of the prosecution because admittedly as per the case of the prosecution, accused persons gave beatings to the complainant party using Darat and Axe. However, this witness admitted that accused persons also filed a complaint with the SHO, Bharari, but such complaint never came to be placed in the file and there is no reference of the same in the prosecution case. 14. Pw-8, Dr. Vivek Modgil though proved the MLC Ex.PW7/A, but in his cross-examination this witness admitted that all the injuries can be caused by fall. Moreover, mere proving of MLC, as referred hereinabove, may not be sufficient to hold accused guilty, especially when there is no evidence to connect the accused persons with the offences alleged to have been committed by them. 15. Having carefully perused the statements made by aforesaid material prosecution witnesses juxtaposing each other, this Court is in complete agreement with the findings returned by the learned Court below that there are material contradictions and inconsistencies in the statements made by the prosecution witnesses, prosecution story appears to be doubtful and untrustworthy. Though, as has been taken note hereinabove, all the prosecution witnesses have given all together different version with regard to infliction of injuries on the person of complainant and his son. Moreover, factum with regard to infliction of injury, if any, on the person of PW3, who happened to be son of the complainant is seriously doubtful on account of the admission made by PW-3 himself that he did not receive any injury. Moreover, it is quite apparent from the evidence led on record by the respective parties that dispute, if any, inter se parties arose on account of civil litigation pending inter se them. Recovery, if any, of Darat and Axe allegedly used by the accused persons for inflicting injuries on the person of complainant and his son also never came to be proved, in accordance with law. 16. 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. 16. 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 , 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 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." 17. 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." 17. In the case at hand, there are material contradictions and inconsistencies in the statements of the prosecution witnesses and as such, no conviction could be based upon the same. 18. 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 427, 452, 323, 506 read with Section 34 of IPC. 19. After perusing the statements of the prosecution witnesses as well exhibits placed on record, two views are possible in the present case and as such, the petitioners-accused are entitled to the benefit of doubt. The learned counsel for the petitioners-accused has placed reliance on the judgment passed by Hon'ble Apex Court reported in State of UP versus Ghambhir Singh and others, 2005 92 AIR SC 2439, wherein the Hon'ble Apex Court has held that if on the same evidence, two views are reasonably possible, the one in favour of the accused must be preferred. The relevant paragraph is reproduced as under:- "6. So far as Hori Lal, PW-1 is concerned, he had been sent to fetch a basket from the village and it was only a matter of coincidence that while he was returning he witnessed the entire incident. The High Court did not consider it safe to rely on his testimony because he evidence clearly shows that he had an animus against the appellants. Moreover, his evidence was not corroborated by objective circumstances. Though it was his categorical case that all of them fired, no injury caused by rifle was found, and, only two wounds were found on the person of the deceased. Apart from this PW-3 did not mention the presence of either PW-1 or PW-2 at the time of occurrence. All these circumstances do create doubt about the truthfulness of the prosecution case. The presence of these three witnesses becomes doubtful if their evidence is critically scrutinized. Apart from this PW-3 did not mention the presence of either PW-1 or PW-2 at the time of occurrence. All these circumstances do create doubt about the truthfulness of the prosecution case. The presence of these three witnesses becomes doubtful if their evidence is critically scrutinized. May be it is also possible to take a view in favour of the prosecution, but since the High Court, on an appreciation of the evidence on record, has recorded a finding in favour of the accused, we do not feel persuaded to interfere with the order of the High Court in an appeal against acquittal. It is well settled that if on the same evidence two views are reasonably possible, the one in favour of the accused must be preferred." 20. 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. 21. Accordingly, the present appeal is dismissed being devoid of any merit alongwith pending applications, if any.