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2019 DIGILAW 549 (HP)

Anwar Hussain v. Sarvar Hussain

2019-05-02

CHANDER BHUSAN BAROWALIA, DHARAM CHAND CHAUDHARY

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JUDGMENT Bhusan Barowalia, J. - The present criminal appeal has been maintained by the appellant against impugned judgment dated 31.12.2011, passed by learned Additional Sessions Judge, Mandi, H.P., in Sessions Trial No. 7 of 2006, whereby the respondents/accused persons (hereinafter referred to as "the accused persons") were acquitted for the commission of the 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. offences punishable under Sections 147, 148, 149, 326, 324, 323, 504 and 506 of Indian Penal Code, 1860 (hereinafter referred to as "IPC"). 2. The facts giving rise to the present case, as per the prosecution story, can tersely be capsulated as under: Anwar Hussain (complainant) was running a shop in village Dhaban and on the upper story of the shop there was flour mill. Shamshad alias Guddi along with her children used to reside over the first floor of the shop. As per the prosecution, on 01.11.2004, at about 06:00 a.m., the complainant and his father, Ashraf Mohammd, were returning after performing Namaaz and they reached the shop at 06:15 a.m. At about 07:45 a.m., when the complainant and his father were opening the flour mill and shop, the complainant heard noise and when he came outside, Talib Hussain, Sarvar Hussain, Nazir Hussain, Sadiq Mohamad, Mansab Ali and Gulsad Mohamad (the accused persons) armed with stick, gandasa and sword were present there. The accused persons came inside the shop of the complainant and told that they do not accept the boundary pillars affixed by the Panchayat. They also threatened the father of the complainant to bury him where the boundary pillars exist. When the complainant came out, he saw that the accused persons were beating his father and they also dragged the complainant towards the fields. The complainant raised alarm and Rozina, Parvej Mohammad, Shamshad Begum and Ashraf Mohammad came on the spot, but accused persons gave beatings to them. Accused Sarvar Hussain inflicted injury on the head of the complainant with axe and accused Nazir Hussain inflicted blow with sword. Accused Sarvar Hussain and Talib Hussain inflicted injuries on the father of the complainant with axe. The complainant and his father, who suffered injuries, were shifted to hospital and the police were informed. SI/SHO Uttam Singh visited the spot and got recorded the statement of Anwar Hussain, which was sent to Police Station, whereupon FIR was registered. Accused Sarvar Hussain and Talib Hussain inflicted injuries on the father of the complainant with axe. The complainant and his father, who suffered injuries, were shifted to hospital and the police were informed. SI/SHO Uttam Singh visited the spot and got recorded the statement of Anwar Hussain, which was sent to Police Station, whereupon FIR was registered. Police took into possession clothes of Parvej, Anwar and Ashraf and the same were put in a parcel, which was sealed and sample impression was taken on a separate piece of cloth. Dr. Devinder medically examined the injured persons and issued their medico legal certificates. Police recorded the statements of the witnesses and after completion of investigation, challan was presented in the Court. 3. The prosecution, in order to prove its case, examined as many as eleven witnesses. Statements of the accused persons were recorded under Section 313 Cr.P.C., 1973 wherein they pleaded not guilty. The accused persons did not examine any defence witness. 4. The learned Trial Court, vide impugned judgment dated 31.12.2011, acquitted the accused persons for the commission of the offence punishable under Sections 147, 148, 149, 326, 324, 323, 504 and 506 IPC. 5. The learned Senior Advocate for the appellant has argued that the learned Trial Court has wrongly appreciated the facts and law and the impugned judgment is based on surmises and conjectures, thus the same is liable to be set aside. He has further argued that there is ample material on record which clearly shows that the accused persons were aggressors and they committed the crime. He has argued that the learned Trial Court did not appreciate the evidence in its right and true perspective and the accused persons were wrongly acquitted. The evidence, which has come on record, is sufficient to convict the accused persons. He has argued that the accused persons be convicted by setting aside the judgment of the learned Trial Court. Conversely, the learned Senior Counsel for the accused persons has argued that nothing has come on record, which could establish the guilt of the accused persons beyond the shadow of reasonable doubt. He has further argued that the learned Trial Court has correctly appreciated the material, which has come on record, and the judgment of acquittal, rendered by the learned Trail Court, is the result of appreciating the facts and law to their right and true perspective. He has further argued that the learned Trial Court has correctly appreciated the material, which has come on record, and the judgment of acquittal, rendered by the learned Trail Court, is the result of appreciating the facts and law to their right and true perspective. He has argued that the judgment of acquittal needs no interference, so the appeal be dismissed. 6. In rebuttal, the learned Senior Counsel, for the appellant has argued that after reappreciating the evidence, which has come on record, the accused persons be convicted by setting aside the impugned judgment passed by the learned Trial Court. 7. In order to appreciate the rival contentions of the parties, we have gone through the record carefully. 8. PW-1, Dr. Devinder Sharma, the then Medical Officer, CHC Ratti, medically examined the injured persons, including the complainant. This witness, after medically examining the injured persons, issued medico legal certificates, which are Ex. PW-1/A, Ex. PW- 1/B and Ex. PW-1/E to Ex. PW-1/H. He noticed injuries on the complainant and other injured persons. It is apposite to examine what PW-1 has opined after medically examining Anwar Hussain (complainant), on whose statement (Ex. PW-3/A) recorded under Section 154 Cr.P.C., 1973 the FIR was registered against the accused persons. PW-1, Dr. Devinder Sharma, observed the following injuries on the person of the complainant: "1. 1" long lacerated wound on left parietal region of the scalp. Bleeding was present. 2. 2" long lacerated wound on the left occipital parietal region of the scalp. Bleeding was present. 3. 1" long lacerated wound on the right occipital parietal region of the scalp. Bleeding was present. 4. 2" long lacerated wound on the right parietal region of the scalp. Bleeding was there." PW-1 has further opined that both the injuries were simple in nature and caused with blunt weapon. He issued Medico Legal Certificate, Ex. PW- 1/H, qua the complainant. 9. PW-9, is Dr. P.K. Soni, the then Radiologist, Regional Hospital, Hamirpur. He did not notice any fracture after examining the skiagrams of injured Shabana and Rozina Bibi. This witness also examined the skiagram of injured Ashraf Mohammad and noticed fractures of both bones upper one third of left leg. 10. PW-2, ASI Arjun Dass, is a formal witness. He has arrested the accused persons. The deposition of PW-3, Anwar Hussain (complainant) is very important. This witness also examined the skiagram of injured Ashraf Mohammad and noticed fractures of both bones upper one third of left leg. 10. PW-2, ASI Arjun Dass, is a formal witness. He has arrested the accused persons. The deposition of PW-3, Anwar Hussain (complainant) is very important. As per this witness, on 01.11.2004, at about 07:30 a.m., Talib Hussain, Sarvar Hussain, Nazir Hussain, Sadiq Ali, Mansab Ali and Gulshad Mohammad came to their land and started uprooting the boundary marks. He has further deposed that Nazir Hussain was armed with a sword, Sarwar Hussain was having an axe, Talib Hussain was armed with gandasa and others were armed with sticks. He has further deposed that Nazir Hussain was killed by above mentioned persons. On 28.10.2004, the boundary marks were affixed by the Panchayat and the demarcation was carried out by Panchayat and police personnel and also by Kanungo and Tehsildar. He has further deposed that accused Sarvar Hussain inflicted blows of axe on his head and neck. As per this witness, when he and his father raised alarm, his sister Shamshad alias Guddi informed other family members of his family. Thereafter, Parvej (brother of the complainant), sister-in-law Shabana and Rozina, wife of the complainant came on the spot, but lady members of the family of the accused persons blocked their path towards the spot. He has further deposed that he became unconscious and regained consciousness in the hospital. His statement, Ex. PW-3/A, was recorded by the police and his shirt, pants and vests, which were stained with blood, were handed over by him to the police. This witness, in his cross-examination, has deposed that he did not state before the police that Nazir Hussain was given beatings and killed by the accused persons. He has further deposed that he disclosed to the police that boundary marks were affixed by the Panchayat, but in his statement, Ex. PW-3/A, it is not so recorded. This witness has specifically deposed that accused Sarwar Hussain inflicted three axe blows on his head and back. He has further deposed that accused gave blows with full force from sharp side of the axe on his head and from the blunt side of the axe on his back. This witness, no doubt, exaggerated the facts, as PW-1, Dr. Devender Sharma, who has medically examined him, did not notice single incised wound on his person. He has further deposed that accused gave blows with full force from sharp side of the axe on his head and from the blunt side of the axe on his back. This witness, no doubt, exaggerated the facts, as PW-1, Dr. Devender Sharma, who has medically examined him, did not notice single incised wound on his person. Now, if PW-3 had been given axe blows with full force on his head, he must have sustained severe cut injuries, but the medical evidence does not support what has been stated by him. The thread bare scrutiny of the testimony of the complainant, who is also key prosecution witnesses, creates a dent in the truthfulness of the prosecution story, as the complainant has tried to exaggerate the facts and in that process he narrated highly improbable story. 11. PW-4, Asraf Mohammad (injured), in his examination-inchief, tried to support the prosecution story. He also deposed about the occurrence, but his testimony also suffers from contradictions and discrepancies. This witness also tried to exaggerate the facts qua the occurrence. He tried to implicate the lady accused by making improvements in his statement given to the police. He specifically deposed that he was given axe blow on his leg, whereas, PW-1, Dr. Devender Sharma, did not notice any incised wound on his leg. He could not explain the injuries sustained by the accused persons. Therefore, the version of this witness also is of no help to the prosecution case, as his testimony is marred by major contradictions and discrepancies. 12. Likewise, PW-5, Rozina, in her examination-in-chief, tried to support the prosecution story and the occurrence. She deposed that Shamshad Begum came to her house and informed that a quarrel has taken place, so she went to the shop, but she was stopped by the lady accused. As per this witness, her husband and father were raising hue and cry. This witness further deposed that when she went on the spot, Sadiq Mohammad, Gulshad and Mansab Ali were attacking the complainant party with sword and stick. Accused Sadiq Mohammad inflicted sword blow on Shabana and accused Gulshad inflicted stick blow on her back. This witness, in her cross-examination, tried to portray that she, Shabana and Parvej were given blows with sharp edged weapon, but the medical evidence is totally in contrast to what has been deposed by this witness. PW-1, Dr. Accused Sadiq Mohammad inflicted sword blow on Shabana and accused Gulshad inflicted stick blow on her back. This witness, in her cross-examination, tried to portray that she, Shabana and Parvej were given blows with sharp edged weapon, but the medical evidence is totally in contrast to what has been deposed by this witness. PW-1, Dr. Devender Sharma, only noticed lacerated wound on the persons of Shabana and Parvej Mohammad. This witness did not state in her statement given to the police that lady accused prevented her from going towards the spot, but she made improvement while deposing in the Court. She deposed that lady accused blocked her passage while she was going towards the scene of occurrence. 13. PW-6, Shabana, is also one of the key prosecution witnesses. This witness tried to support the prosecution case in her examination-inchief. She has deposed that Shamshad told her that accused persons are giving beatings to her father-in-law and brother-in-law, so she Rozina and Shamshad were going to the spot, but they were prevented from proceeding further by the ladies. As per the version of this witness, she heard hue and cry, so she rushed to the spot and accused Sadiq attacked her with sword, but she caught the handle of the sword. She has further deposed that PW-7 (Shamshad) received a blow of sword on her hand and accused Mansab Ali inflicted injuries on the head of Shamshad. Again, if the version of PW-6 is tallied viz-a-viz the medical evidence, there is clear variance. The medical evidence does not establish that PW-7 sustained incised wound on her person. As per the medical evidence PW-7 only sustained lacerated wounds. Thus, it is safe to hold that PW-6 also tried to exaggerate the things by making improvements in her statement. 14. PW-7, Shamshad Begum (injured) stated in her examination-in-chief that she saw accused persons uprooting the boundary marks. She has further deposed that she saw the accused persons inflicting injuries on her father and brother. As per the version of this witness, accused Sarvar Hussain attacked his father and brother with sword. Accused Sarvar Hussain inflicted sword blow on the head of Ashraf. She went to the house of her father and narrated the incident, so her brother, Parvej, Sabana and Rozina went towards the place of occurrence, but their path was blocked by lady accused. Accused Sarvar Hussain inflicted sword blow on the head of Ashraf. She went to the house of her father and narrated the incident, so her brother, Parvej, Sabana and Rozina went towards the place of occurrence, but their path was blocked by lady accused. When they reached the spot, they saw Ashraf Mohammad and Anwar Hussain lying injured and Shabana was also given beatings. Again, the version of this witness is belittled by the medical evidence. As per the medical evidence, injured Ashraf only sustained incised wound, so if the version of PW-7 is to be believed then injured Ashraf must have sustained incised wound, as PW- 7 clearly stated that he was given a blow of sword on his head by accused Sarvar Hussain. This witness also fails to give any plausible and acceptable explanation, how the accused persons sustained injuries on their person. Again, this witness also made improvements in her statement, which renders the prosecution case doubtful. 15. PW-8, HC Nand Lal, is a formal witness, as he only received the statement (Ex. PW-3/A) of Anwar Hussain (complainant) on 01.11.2004, whereupon FIR, Ex. PW-8/A, was registered. He has further deposed that on 05.11.2004 SI/SHO Utam Chand deposited the case property with him. 16. PW-10, Mohammad Pravej, also deposed akin to that of other alleged witnesses of the occurrence. As per this witness his sister, Shamshad Begum, came to him and told about the incident, so he went towards the shop, but he was intercepted by Hasan Bibi and other accused persons. He has further deposed that accused persons were armed with sticks. Thereafter he went towards the shop and saw accused Nazir Husain giving blows to his father. Accused Sarvar Hussain gave a blow of axe on the leg of his father. He has deposed that accused Nazir Hussain gave a sword blow on the head of his father and when he tried to rescue him, accused Gulshad gave a blow with stick. This witness, in his cross-examination, specifically deposed that he alone went to the spot. The statement of this witness is contradicted by other prosecution witnesses, as other witnesses have stated that when Shamshad told about the incident, Rozina, Shamshad and Parvej (PW- 10) went to the spot, but as per this witness he alone went to the spot. His version is further contradicted by the medical evidence. The statement of this witness is contradicted by other prosecution witnesses, as other witnesses have stated that when Shamshad told about the incident, Rozina, Shamshad and Parvej (PW- 10) went to the spot, but as per this witness he alone went to the spot. His version is further contradicted by the medical evidence. PW-10 deposed that accused Sarvar Hussain inflicted axe blow on the leg of his father, but as per the medical evidence injured Ashraf Mohammad had contusion and abrasion over left leg on the dorsal with underlying fracture of tibia on its upper /rd. Thus, it is not safe to rely upon the statement of this witness, as his version lack corroborative support from medical evidence. 17. After exhaustively discussing the material, which has come on record, the testimonies of all the non-official prosecution witnesses seem to be exaggerated. All the non-official prosecution witnesses tried to depict a narrative which is not so recorded in the FIR. Certainly, FIR is primary and first portrayal of crime and if the same lacks corroboration from its maker or other prosecution witnesses, then the case of the prosecution cannot be believed. In the instant case, what has been purportedly stated in the FIR does not find corroborative support from the prosecution witnesses in the Court. The prosecution witnesses seem to have overwhelmed while deposing in the Court and in an attempt to narrate altogether highly exaggerated portrayal of the incident, they improved materially. The version of the non-official prosecution witnesses are marred with contradictions and discrepancies, which go to the root of the case and makes it feeble and full of doubts. After comprehensive scrutiny of the available material, the case of the prosecution has developed two possible limbs of probabilities and none of these conclusively establish that the accused persons committed the crime. In fact both these limbs create a doubt in the mind of this Court and compel this Court to disbelieve the versions of the key prosecution witnesses. It is settled law that veracity and credibility of a witness has to be tested on the touchstone of its own weaknesses and strengths. If the prosecution witnesses try to deviate from the prosecution story by deposing an exaggerated and improved version, may be one or all of them, then there occurs a incorrigible doubt in the mind of the Court. If the prosecution witnesses try to deviate from the prosecution story by deposing an exaggerated and improved version, may be one or all of them, then there occurs a incorrigible doubt in the mind of the Court. The instant case is one of those cases where the non-official prosecution witnesses exaggerated the occurrence, but their attempt proves fatal to the prosecution case. Therefore, it is more than safe to hold that the key prosecution witnesses have tried to implicate the accused persons. 18. The Hon''ble Supreme Court in Dhanna vs. State of M.P., (1996) 10 SCC 79 , has held that in an appeal against acquittal, the appellate court has to proceed more cautiously and unless there is absolute assurance of the guilt of the accused on the basis of the evidence on record, the order of acquittal is not liable to be interfered with. The apposite para of the judgment (supra) is extracted hereunder for ready reference: "11.. Though the Code does not make any distinction between an appeal from acquittal and an appeal from conviction so far as powers of the appellate Court are concerned, certain unwritten rules of adjudication have consistently been followed by Judges while dealing with appeals against acquittal. No doubt, the High Court has full power to review the evidence and to arrive at its own independent conclusion whether the appeal is against conviction or acquittal. But while dealing with an appeal against acquittal the appellate Court has to bear in mind : first, that there is a general presumption in favour of the innocence of the person accused in criminal cases and that presumption is only strengthened by the acquittal. The second is, every accused is entitled to the benefit of reasonable doubt regarding his guilt and when the trial Court acquitted him, he would retain that benefit in the appellate Court also. Thus, appellate Court in appeals against acquittals has to proceed more cautiously and only if there is absolute assurance of the guilt of the accused, upon the evidence on record, that the order of acquittal is liable to be interfered with or disturbed." The judgment (supra) is fully applicable to the facts of the present case. Thus, appellate Court in appeals against acquittals has to proceed more cautiously and only if there is absolute assurance of the guilt of the accused, upon the evidence on record, that the order of acquittal is liable to be interfered with or disturbed." The judgment (supra) is fully applicable to the facts of the present case. Indeed, in cases of acquittal the appellate court has to examine the material cautiously and the reversal findings are to be recorded only if the material on record unerringly and conclusively proves the guilt of the accused. However, in the case in hand, the learned Trial Court acquitted the accused persons after examining the material on record and we, after reappreciating the evidence, find that the prosecution case is full of contradictions and discrepancies. Thus, after exhaustively scrutinising the evidence and applying the law it is more than safe to hold that the learned Trial Court has rightly acquitted the accused persons. 19. After exhaustively discussing the testimonies of key prosecution witnesses, it is safe to hold that prosecution witnesses have not given true version about the occurrence and, in fact, they tried to exaggerate the things and in their attempt to do so, they portrayed a highly improbable story. The Hon''ble Supreme Court in Arun vs. State, (2008) 15 SCC 501 , has held that if there are two reasonable views, then the view favouring the accused be adhered to. In the present case also there are two views and the available material on record compels us to tilt towards the view favouring the accused. 20. 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. 21. 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, re appreciate and reconsider the evidence upon which the order of acquittal is founded. 2. 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, re appreciate 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." 22. In view of the settled legal position, as aforesaid, and on the basis of material, which has come on record, it is more than safe to hold that the prosecution has failed to prove the guilt of the accused persons beyond reasonable doubts and the findings of acquittal, as recorded by the learned Trial Court, need no interference, as the same are the result of appreciating the facts and law correctly and to their true perspective. Accordingly, the appeals, which lack merits, deserve dismissal and are dismissed. 23. In view of the above, the appeal, so also pending application(s), if any, stand(s) disposed of.