Research › Search › Judgment

Himachal Pradesh High Court · body

2019 DIGILAW 418 (HP)

State Of Himachal Pradesh v. Mansha Devi

2019-04-11

TARLOK SINGH CHAUHAN

body2019
JUDGMENT Tarlok Singh Chauhan, J. - Aggrieved by the judgment of acquittal passed by the learned Sessions Judge, Hamirpur, H.P. while reversing the judgment of conviction passed by learned trial Magistrate, the State has filed the instant appeal. 2. The case of the prosecution is that on 4.12.1999, Pingla Devi, complainant went to the police station, Hamirpur at about 8.10 p.m. and lodged Rapat Ex.PW-9/A. It was reported by her that she is residing in Village Lambehra. At about 4.00 p.m. on that day, Parkash of the same village came there and started abusing her when she at that time was working in her courtyard. In the meantime, Mansha Devi, also came there and told the complainant that they had driven away the wife of Parkash from his house. Then Mansha Devi started beating the complainant. The complainant, however, did not know who pelted the stone on her. In the meantime, Ashok Kumar came back home. Mansha Devi, accused gave a tooth bite to him on his left hand and then she went to her house. Thereafter, Pushpa Devi, came there and she gave beating to the complainant with fist blows etc. Accused Jyoti Parkash and Parveena Devi also came turn by turn and gave beatings to the complainant. It was reported that she had sustained injuries due to such assaults. Her mother in law Manglu Devi, Bimla Devi and Punna Devi came to the spot and they rescued the complainant. It was reported that otherwise accused persons would have killed her. 3. On the aforesaid report, FIR Ex.PW-9/B was registered. The case was investigated by ASI Swami Ram, who went to the spot on December 24, 1999 and prepared the site plan Ex.PW-9/C. He took into possession one stone Ex.P-4 from Pingla Devi vide memo Ex. PW-1/B and sealed in a parcel. The injured Pingla Devi produced one shirt jumber of red-colour stained with blood Ex.P-1, which was also taken into possession and sealed separately. The Investigating Officer got Pingla Devi and Ashok Kumar medically examined from Dr. H.K.Attri and he issued their MLCs Ex.PW-6/A and Ex.PW-6/B, respectively. The nasal bone X-ray of Pingla Devi was conducted vide X-ray skiagrams Ex.PW-7/B, Ex.PW-7/C and Ex.PW-7/D and as per report Ex.PW-7/A, there was fracture of nasal bone both sides. 4. The Investigating Officer got Pingla Devi and Ashok Kumar medically examined from Dr. H.K.Attri and he issued their MLCs Ex.PW-6/A and Ex.PW-6/B, respectively. The nasal bone X-ray of Pingla Devi was conducted vide X-ray skiagrams Ex.PW-7/B, Ex.PW-7/C and Ex.PW-7/D and as per report Ex.PW-7/A, there was fracture of nasal bone both sides. 4. The accused persons were arrested and the challan was prepared against them for having committed offences punishable under Sections 323 and 325 IPC read with Section 34 IPC. 5. The challan was presented in the Court of learned Chief Judicial Magistrate, Hamirpur on 10.3.2000. The copies of the challan were supplied to the accused on 8.2.2002 and charges for having committed offences punishable under Sections 323, 325 read with Section 34 IPC were framed against them on 17.2.2004, to which they pleaded not guilty and claimed trial. 6. The prosecution, in order to prove its case, examined 11 witnesses. The accused were examined under Section 313 Cr.P.C. to which they denied all the allegations in toto. 7. The accused examined DW-1 Dr. Sudarshan Kumar Sharma, who had medically examined accused Pushpa Devi and issued MLC Ex.DW-1/A in her support. 8. The learned trial Magistrate after evaluating the documentary as well as oral evidence on record, convicted the accused for offences punishable under Sections 323 and 325 IPC. 9. Aggrieved by the judgment of conviction and sentence, the accused filed an appeal before the learned Sessions Judge, who after discussing the evidence on record, came to the conclusion that the findings recorded by the learned trial Magistrate were, in fact, perverse and accordingly the judgment of conviction and sentence as passed by learned trial Magistrate was ordered to be set-aside. 10. It is against the judgment of acquittal passed by learned Sessions Judge, the instant appeal has been filed by the State mainly on the ground that the first appellate Court has failed to appreciate the prosecution evidence in its perspective and adopted an unrealistic standard to evaluate the direct and cogent prosecution evidence and moreover the reasoning of the first appellate Court is manifestly unreasonable and unsustainable as there was no warrant at all for the first appellate Court to discard the well reasoned and consistent testimony of the prosecution witnesses on material points. I have heard the learned counsel for the parties and have also gone through the material placed on record. 11. I have heard the learned counsel for the parties and have also gone through the material placed on record. 11. At the out-set, it needs to be observed that the Court of appeal has wide powers of appreciation of evidence in an appeal be it an order of conviction and an order of acquittal, subject to the riders that the presumption of innocence with which the accused person starts in the trial court continues even upto the appellate stage in a case of acquittal and for this reason, the appellate court should attach due weight to the opinion of the trial court in case there has been an order of acquittal from the said Court. If the appellate court reviews the evidence, keeping those principles in mind, and comes to a contrary conclusion that the judgment arrived by the trial Magistrate, the judgment cannot be said to have been vitiated. If the trial court allows itself to be beset with fanciful doubts, rejects creditworthy evidence for slender reasons and takes a view of the evidence which is but barely possible, or where the findings recorded by the learned trial Magistrate are perverse, it is the obvious duty of the first appellate Court to interfere in the interest of justice, lest the administration of justice will be brought to ridicule. 12. It would be noticed that the first appellate Court has discussed the entire evidence threadbare and thereafter only after appreciation of the evidence it has reversed the judgment of conviction passed by the learned trial Magistrate. 13. I have gone through the entire evidence on record and found that the testimony of the complainant Pingla Devi has not even been supported by any independent evidence that she was given beatings by accused persons or by anyone of them. Even PW-3 Bimla Devi has not corroborated the version putforth by Pingla Devi and stated that she was present in her house when she witnessed the incident from her house. Even PW-3 Bimla Devi has not corroborated the version putforth by Pingla Devi and stated that she was present in her house when she witnessed the incident from her house. She stated that Mansha Devi had pelted stone on the nose of Pingla Devi, whereas Pingla Devi herself does not know who pelted the stone as is evident from FIR Ex.PW-9/B. PW-3 Bimla Devi has stated that Kapil Dev son of Jeet Singh also threatened the complainant, whereas, as per the prosecution evidence, said Kapil Dev was not even at home and was in school as is clearly stated by PW Mast Ram and otherwise duly proved by the certificate Ex. PW-11/A. Apart from Bimla Devi, there is no other independent witness to the incident, save and except, Ashok Kumar, who is none other than the son of the complainant herself, but even his statement is contradictory. 14. Admittedly, both the accused party as also the complainant party have sustained injuries. Therefore, in such circumstances, it was incumbent upon the prosecution to have proved that it was the respondents, who were the aggressor and not the complainant party, but they miserably failed to lead any evidence to this effect. Pingla Devi is stated to have received the injuries with a stone which even as per her version was collected by the police from the spot after 8-9 days. But then her son Ashok Kumar has tried to improve the story by stating that the stone was taken into possession on the same day. 15. In this background, if the statement of PW-3 Bimla Devi is adverted to, then as per this witness the stone was taken into possession by the police only from the courtyard and the police had visited the spot on December 24, 1999. As per memo Ex.PW-1/B, the stone was taken into possession from Pingla Devi exactly 24 days after the alleged date of incident. 16. This Court is not unmindful of the fact that even the order of acquittal passed by learned first Appellate Court could have been interfered with in case the reasoning and the ground on which the appellate Court had acquitted the accused were perverse and contrary to the evidence on record. This is not the fact situation obtaining in the present case. 17. This is not the fact situation obtaining in the present case. 17. On the basis of the oral and documentary evidence that has come on record, no infirmity much less illegality can be found in the order of acquittal passed by learned first appellate Court. Consequently, there is no merit in this appeal and the same is accordingly dismissed, so also the pending application(s), if any. The bail bonds, if any, furnished by the accused/respondents, are discharged.