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2019 DIGILAW 708 (HP)

State Of Himachal Pradesh v. Surjan Singh

2019-06-14

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. The present appeal is maintained by the appellant/State laying challenge to judgment dated 05.02.2009, passed by learned Additional Chief Judicial Magistrate, Court No. 1, Mandi, H.P., in Criminal Case No. 163-11 of 2005, whereby the respondent/accused (hereinafter referred to as "the accused") was acquitted for the offences punishable under Sections 323, 325 and 504 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 succinctly be encapsulated as under: On 20.11.2004, at about 10:00 p.m., at place known as Ropru the accused gave beatings to Bhajani Devi and when Chaman Lal and Krishana Devi intervened, he also thrashed them with kick and fist blows. The accused voluntarily caused simple injuries to Bhajani Devi and Chaman Lal and caused simple as well as grievous injuries to Krishana Devi. As per the prosecution case, the accused criminally intimidated Bhajani Devi, Chaman Lal and Krishana Devi. Injured Chaman Lal (complainant) reported the matter to the police, whereupon a case was registered against the accused and investigation ensued. Police prepared the site plan and procured medico legal certificates of injured. Police also recorded the statements of the witnesses. After completion of investigation, police presented challan in the learned Trial Court. 3. The prosecution, in order to prove its case, examined as many as nine witnesses. Statement of the accused was recorded under Section 313 Cr.P.C, wherein he pleaded not guilty. In defence, he did not examine any witness. 4. The learned Trial Court, vide impugned judgment dated 05.02.2009, acquitted the accused for the commission of the offences punishable under Sections 323, 325 and 504 IPC, hence the present appeal preferred by the appellant/State. 5. The learned Additional Advocate General has argued that the learned Trial Court has wrongly appreciated the facts and law and the judgment is based on surmises and conjectures, thus the same is liable to be set aside. He has further argued that the learned Trial Court did not appreciate the evidence in its right and true perspective and the accused was wrongly acquitted. He has argued that the statement of PW-4, complainant Shri Chaman Lal, has not been properly appreciated by the learned Trial Court. He has further argued that the MLC clearly corroborates the injuries and the testimonies of the prosecution witnesses. He has argued that the statement of PW-4, complainant Shri Chaman Lal, has not been properly appreciated by the learned Trial Court. He has further argued that the MLC clearly corroborates the injuries and the testimonies of the prosecution witnesses. Thus, the only inference is that the accused had committed the offence and he is liable to be convicted. Conversely, the learned counsel for the accused had argued that testimonies of PW-4 and PW-5 are totally contradictory to each other and PW-9 had given a different version. So, there is nothing against the accused, which could even remotely establish that he had committed the offences, as alleged by the prosecution. It has been argued that the learned Trial Court has correctly appreciated the material, which has come on record, and the judgment, as rendered by the learned Trail Court, is after appreciating the facts and law to their right and true perspective. The judgment of acquittal needs no interference and the appeal be dismissed. 6. In rebuttal, the learned Additional Advocate General has argued that after re-appreciating the evidence, the accused be convicted by setting aside the judgment of the learned Trial Court, as the prosecution has proved the guilt of the accused. 7. In order to appreciate the rival contentions of the parties, Ihave gone through the record carefully. 8. As per the prosecution case on 20.11.2004, at about 10:00 p.m., at place Ropru, accused gave beatings to complainant, Bhajani Devi and Krishana Devi with kick and fist blows and he voluntarily caused simple injuries to Bhajani Devi and Chaman Lal and also caused simple as well as grievous injuries to Krishana Devi. In the case in hand medical evidence is to be seen in juxtaposition with the testimonies of key prosecution witnesses. 9. PW-1, Dr. P.K. Soni, medically examined the injured persons. He issued medico legal certificates of the injured persons. As per this witness, Smt. Bhajani Devi and Shri Chaman Lal (complainant) sustained simple injuries. This witness, in his cross-examination, has deposed that such injuries could be possible by way of fall and striking. 10. In the case in hand the statements of injured persons, including the complainant are very important. Admittedly, the accused is close relatives of the injured persons. The complainant is uncle of the accused and Smt. Bhajani Devi is mother of the accused. Smt. Krishana Devi is wife of the complainant. 10. In the case in hand the statements of injured persons, including the complainant are very important. Admittedly, the accused is close relatives of the injured persons. The complainant is uncle of the accused and Smt. Bhajani Devi is mother of the accused. Smt. Krishana Devi is wife of the complainant. These three witnesses and one Smt. Koyala Devi (PW-9) are the eye witnesses of the occurrence and the edifice of the prosecution story stands on the testimonies of these witnesses. 11. PW-7, Smt. Bhajni Devi, has not supported the prosecution case and she narrated altogether different story. As per this witness, Shri Chaman Lal, complainant (PW-4), gave beatings to her and to Smt. Krishana Devi (PW-5). This witness was declared hostile and subject to exhaustive cross-examination, however, nothing relevant could be elicited from her. Despite lengthy cross-examination, this witness nowhere deposed that the accused caused injuries to her with fist blows and he also caused injuries to the complainant and Smt. Krishana Devi. Thus, the testimony of PW-7, Smt. Bhajani Devi, who is key prosecution witness, is of no help to the prosecution, rather her deposition makes the prosecution story doubtful. 12. Another important witness is PW-5, Smt. Krishna Devi, in her cross-examination, specifically admitted that no incident took place in her presence. She has further deposed that only accused was on the spot and blood was oozing from the mouth of her husband (complainant). Now, if her statement is analyzed as a whole, there is variance in her testimony. She deposed in her examination-in-chief that the accused thrashed her husband (complainant), but she, in her cross-examination, deposed that the accused gave beatings to the complainant and Smt. Bhajani Devi (PW-7). Noticeably, PW-7, denied that accused gave any beatings to anyone. She has further deposed that she was not present on the spot when the accused was talking to his mother (Smt. Bhajani Devi). Thus, the testimony of this key prosecution witness is also marred with major contradictions and discrepancies, which render the same unbelievable. 13. PW-4, Shri Chaman Lal (complainant) tried to support the prosecution case. As per the complainant, on the day of occurrence at about 10:00 p.m., when Smt. Bhajani Devi (PW-7) was in his house, the accused came and asked PW-7 why she is here. 13. PW-4, Shri Chaman Lal (complainant) tried to support the prosecution case. As per the complainant, on the day of occurrence at about 10:00 p.m., when Smt. Bhajani Devi (PW-7) was in his house, the accused came and asked PW-7 why she is here. Thereafter, the accused started beating PW-7 and when the complainant tried to rescue her, the accused gave beatings to him with leg and fist blows. As per the complainant, when Smt. Krishna Devi (wife of the complainant) tried to rescue him, the accused thrashed him and thereafter he went away from the spot. As per this witness, he sustained injuries on his left eye, left arm and shoulder and his wife also sustained injuries due to the beatings of the accused. In a nut-shell, it can be said that the complainant tried to support the prosecution story, however, his deposition stands alone and rest of the evidence is so slippery that even the version of complainant is not sufficient to convict the accused. 14. Smt. Koyala Devi (PW-9) is also one of the important witnesses. However, this witness did not support the prosecution case. She feigned ignorance about the whole incident and deposed that no beatings were given in her presence. This witness was also declared hostile and subjected to exhaustive cross-examination, but the prosecution could not extract anything from her which could remotely establish the involvement of the accused in the alleged offence. 15. In addition to above key witness, the prosecution also examined official prosecution witnesses, who conducted the investigation in the case. So, it would not be apt to discuss the testimonies of official prosecution witnesses, as the prosecution case fails on first count, i.e., after examination of alleged eye witnesses of the occurrence. 16. Though PW-1, Dr. P.K. Soni, who medically examined the injured, deposed that Smt. Bhajani Devi and Shri Chaman Lal (complainant) sustained simple injuries. As per this witness, injured Smt. Krishana Devi (PW-5) sustained grievous injuries. Admittedly, the injured persons sustained injuries, but those injuries cannot be attributable to the accused, as the testimonies of injured, i.e., Smt. Bhajani Devi and Smt. Krishana Devi fail to inspire confidence. Their statements create a doubt about the veracity of the prosecution case. The medical evidence lacks lateral evidentiary support from the key prosecution witnesses, so the same is of no help to the prosecution. 17. Their statements create a doubt about the veracity of the prosecution case. The medical evidence lacks lateral evidentiary support from the key prosecution witnesses, so the same is of no help to the prosecution. 17. After exhaustively and carefully examining the testimonies of key prosecution witnesses, this Court finds that there are glaring contradictions and discrepancies in the testimonies of key prosecution witnesses. The eye witnesses of the occurrence have portrayed variable picture qua the occurrence, so it would be apt to conclude that the conclusion of acquittal of the accused, as arrived at by the learned Trial Court is not wrong. 18. 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. 19. 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, reappreciate 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. 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." 20. 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 beyond reasonable doubts and the findings of acquittal, as recorded by the learned Trial Court, needs no interference, as the same are the result of appreciating the facts and law correctly and to their true perspective. Accordingly, the appeal, which sans merits, deserves dismissal and is dismissed. 21. In view of the above, the appeal, so also pending application(s), if any, stand(s) disposed of.