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Himachal Pradesh High Court · body

2025 DIGILAW 558 (HP)

State of H. P. v. Akash Saini

2025-03-28

VIRENDER SINGH

body2025
JUDGMENT : Virender Singh, J. The State of Himachal Pradesh has filed the present appeal under Section 374 of the Code of Criminal Procedure (hereinafter referred to as the ‘Cr.P.C.’) against the judgment of acquittal, dated 02.12.2010, passed by the learned Chief Judicial Magistrate, Shimla, District Shimla, H.P. (hereinafter referred to as the ‘learned trial Court’), in Criminal Case No.91/2 of 2004/02, titled as ‘ State of H.P. versus Akash Saini and others’. 2. By way of judgment of acquittal, dated 02.12.2010, the learned trial Court has acquitted the respondents from the offences punishable, under Sections 324, read with Section 34 of the Indian Penal Code (hereinafter referred to as the ‘IPC’), and Section 27 of the Arms Act. 3. For the sake of convenience, the parties to the present lis, are hereinafter referred as, in the same manner, as were referred to the learned trial Court. 4. Brief facts, leading to the filing of the present appeal, before this Court, as per the record, may be summed up, as under:- 4.1. The police of Police Station, Shimla (West), has filed the final report, under Section 173(2) of Cr.PC, before the learned trial Court, on the ground that on 13.03.2002, police received the information regarding the quarrel, which had taken place at Chaura Maidan and the injured persons were stated to be sent for treatment to Sanitarium Hospital, upon which, the police reached at the spot, where injured Summit Sood made a statement, under Section 154 of Cr.P.C., disclosing therein, that he is final-year student of BBA, in Himachal Pradesh, University. 4.2. As per further version of injured, on 13.03.2002, at about 2:45 PM, he, along with his friends namely Ankush, Ankur Chimda, Kumari Shweta, Kumari Priyam, was going from Hotel Cecil to Kennedy Chowk and, as soon as, he reached at Sanitarium Hospital, a Maruti car, being driven by its driver, reached there and its driver stopped the same near him. A boy was sitting on the rear seat, who was wearing a yellow coloured sweater. The said boy started abusing and beating him. When, the complainant resisted his activities, his two accomplices alighted down from the car. One of them was having a Khukhari type weapon, in his hand. The said boy inflicted the blow of the same on the backside, on his head. Resultantly, he sustained injuries. The said boy started abusing and beating him. When, the complainant resisted his activities, his two accomplices alighted down from the car. One of them was having a Khukhari type weapon, in his hand. The said boy inflicted the blow of the same on the backside, on his head. Resultantly, he sustained injuries. He was saved by his friends from the clutches of the said assailants. One of them, was also having a bottle in his hand. Although, the said person had inflicted the bottle blow on him, but, the same had not inflicted on his person. Thereafter, the said persons fled away from the spot towards Kennedy Chowk in their vehicle No.HP62-0049. Subsequently, the injured was taken to Sanitarium hospital for treatment. 4.3. On the basis of the above facts, the police registered the case, under Sections 307 and 34 IPC and criminal machinery swung into motion. 4.4. The medical examination of injured Summit Sood was got conducted from IGMC, Shimla. However, first aid was given to him in Sanitarium Hospital, Chaura Maidan. Spot was visited and photography was done. The broken pieces of bottle were taken into possession along with the blood-stained clothes. Vehicle No.HP62-0049 was also taken into possession. 4.5. On 14.03.2002, accused Akash Saini and Amit Mehta, were arrested from Chandigarh. They were medico legally examined, as, they had also sustained injuries in the incident. 4.6. On 15.03.2002, the accused persons were produced before the Court of learned Judicial Magistrate, First Class, Court No.3, Shimla, from where, they were remanded to police custody till 18.03.2002. 4.7. On 18.03.2002, accused Rohit Diwan was also arrested, in this case. 5. After the completion of the investigation, police has filed the charge-sheet, under Sections 173(2) of Cr.P.C, against the accused persons for the commission of offences punishable under Section 324 read with Section 34 IPC and Section 27 of the Arms Act, before the learned trial Court. 6. After securing the presence of the accused persons and after supplying the copies of challan, the learned trial Court found a, prima facie, case for the commission of offences, punishable under Section 324 read with Section 34 of IPC and Section 27 of the Arms Act and the accused persons were accordingly charge-sheeted on 18.06.2004. 7. When, the charges, so framed against the accused persons, were put to them, they have pleaded not guilty and claimed for the trial. 7. When, the charges, so framed against the accused persons, were put to them, they have pleaded not guilty and claimed for the trial. As such, the prosecution had been directed to adduce the evidence to substantiate the charges framed against the accused persons. Consequently, the prosecution has examined, as many as, 17 witnesses. 8. After closure of the prosecution evidence, the entire incriminating evidence, appearing against the accused persons, was put to them, in their statements, recorded under Section 313 of Cr.P.C. The accused persons have denied the entire prosecution case and taken the simplicitor defence of innocence. However, in defence, they have opted not to lead any evidence. 9. Subsequently, the learned trial Court, after hearing the learned Assistant Public Prosecutor, as well as, learned defence counsel, appearing for the accused persons, has acquitted the accused persons from the offences, for which, they have been charge-sheeted, vide judgment of acquittal, which has been assailed before this Court, by way of the present appeal. 10. The judgment of acquittal has been assailed before this Court, on the ground, that the learned trial Court has failed to consider the prosecution evidence in proper perspective and the standards, which have been adopted by the learned trial Court to assess the evidence, are stated to be unrealistic. According to the State, the testimony of the prosecution witnesses has been discarded on untenable grounds, as well as, absence of any proof of enmity. The evidence of the material prosecution witness is also stated to have wrongly been discarded, by the learned trial Court. 11. It is the case of the State that the learned trial Court has given undue weightage to the minor contradictions, appearing in the statements of PW-2 Ankur Chimda and PW-3 Summit Sood. 12. According to the learned Additional Advocate General, these minor contradictions do not go to the root of the case, as, the incident had taken place on 13.03.2002, whereas, the statements of Ankur Chimda and Summit Sood, were recorded on 31.12.2004 and 03.09.2005, respectively, and with the passage of time, minor contradictions are bound to occur in their statements. 13. 12. According to the learned Additional Advocate General, these minor contradictions do not go to the root of the case, as, the incident had taken place on 13.03.2002, whereas, the statements of Ankur Chimda and Summit Sood, were recorded on 31.12.2004 and 03.09.2005, respectively, and with the passage of time, minor contradictions are bound to occur in their statements. 13. Findings of the learned trial Court have further been assailed on the ground that the learned trial Court has not considered the categoric statements of PW-2 and PW-3, qua the fact, that the accused persons came to the spot in Vehicle No.HP62-0049 near Sanitarium Hospital and gave beatings to the complainant, which caused injuries to him. 14. According to the State, the learned trial Court has also not considered the fact that the weapon of offence was recovered at the instance of the accused, as well as, on the basis of the disclosure statements, made under Section 27 of the Indian Evidence Act, made by accused Akash Saini. 15. On the basis of the above facts, a prayer has been made to allow the appeal by setting aside the judgment of acquittal and it has been prayed that the accused persons may be convicted and sentenced, in accordance with law. 16. Per contra, Shri Ajay Kumar, learned counsel, appearing for the respondents, has vehemently opposed the prayer, so made by the learned Additional Advocate General, on the ground that with the passing of the judgment of acquittal, in favour of the accused persons, the presumption of innocence, which was available to them, at the time of initiation of the trial, becomes double and by no stretch of imagination, it can be said that the findings of the learned trial Court fall within the definition of ‘perverse findings’. As such, a payer has been made to dismiss the appeal. 17. Record perused. 18. State is before this Court against the judgment of acquittal. It is no longer res integra that the learned Appellate Court may interfere in the judgment of acquittal, if, the findings of the learned trial Court falls within the definition of ‘perverse findings’ or the evidence, so adduced by the prosecution, before the learned trial Court, has not been appreciated properly. 19. It is no longer res integra that the learned Appellate Court may interfere in the judgment of acquittal, if, the findings of the learned trial Court falls within the definition of ‘perverse findings’ or the evidence, so adduced by the prosecution, before the learned trial Court, has not been appreciated properly. 19. Even otherwise, if two views are possible, in a case, then the view, which has been taken by the trial Court, in favour of the accused, should be adopted by the Appellate Court. However, the Appellate Court is free to discuss the evidence, so adduced by the prosecution, before the trial Court. 20. In this case, as stated above, prosecution has examined as many as 17 witnesses. Out of the said 17 witnesses, PW-1 is Pankaj Sood, this witness has deposed that on 18.03.2003, at about 02:00-03:00 pm, police came to the spot and apprised this witness that they were collecting the pieces of bottle from the outskirts of Sanitarium Hospital. According to him, no quarrel had taken place in his presence. Since, this witness has not supported the case of the prosecution, as such, on the request of the learned Assistant Public Prosecutor, he has been declared hostile by the Court. 21. Despite lengthy cross-examination, he has again repeated that no quarrel had taken place in his presence. 22. PW-2 is Ankur Chimda. According to him, on 13.03.2002, at about 3:00 pm, he, along with his friends Summit Sood, Shweta and Ankush, went towards Mall Road and when, he reached near Sanitarium Hospital, then from Chaura Maidan side, a Maruti Car bearing No.HP62-0049, being driven by its driver, reached there. According to him, he does not remember the complete registration number of the said vehicle. The vehicle was stopped on the left side of the road and out of the said vehicle, three boys alighted down, who were identified to him, as accused persons, present in the Court, and started abusing Summit Sood. They caught him and started beating him. Accused Akash Saini had taken out a sharp weapon, like Kukhari, and inflicted the blow on the head of Summit Sood, due to which, he sustained injuries and blood started oozing out. Accused Amit Mehta had thrown the empty bottle on Summit Sood, but the same had not caused any harm to him and said bottle fell on the road, which had broken into pieces. Accused Amit Mehta had thrown the empty bottle on Summit Sood, but the same had not caused any harm to him and said bottle fell on the road, which had broken into pieces. Thereafter, injured Summit Sood was saved by these persons. Subsequently, the accused persons fled away from the spot. 23. In the cross-examination, this witness has admitted that the accused were not previously known to him, nor he knew their names. No test identification parade was done in his presence. 24. PW-3 is the complainant. He deposed that on 13.03.2002 at about 2:45 pm, he along with his friends Ankush, Priyanka and Shweta went towards Mall road. When they reached near Sanitarium Hospital, then a white coloured Maruti Car bearing No.HP62-0049, came there and stopped on the left side of the road and from the rear seat of the said car, a boy namely Rohit Diwan, who had worn a yellow coloured sweater, came out and started misbehaving and abusing him. When this witness resisted his act, then, two other young men, namely Ankush Saini and Amit Mehta, also came there. Accused Akash Saini was having a Khukhari with him and Amit Mehta was having an empty bottle of Pepsi in his hand. Akash Saini inflicted the blow with the Khukhari, on the head of the complainant, which resulted into injuries on his head and blood started oozing out. Accused Amit Mehta had also thrown bottle upon him, however, the bottle fell down on the ground. Thereafter, the friends of the complainant saved him and accused persons fled away from the spot. He was taken to Sanitarium Hospital for treatment, where, police came and statement Ext. PW-3/A was recorded. According to him, accused Akash Saini is present in the Court, whereas, Rohit Diwan and Amit Mehta, are not present. 25. Apart from this, he has also deposed about the proceedings, which were, later on, conducted by the police. According to him, on 16.03.2002, he had gone to Lower Kaithu along with the police. According to him, Akash Saini, had got recovered the Khukhari, which was kept in the bushes, behind the water tank and the same was identified by this witness, as the same weapon, with whom, injuries were inflicted to him. 26. In the cross-examination, this witness has stated that he was not having any old enmity with the accused persons. 27. According to him, Akash Saini, had got recovered the Khukhari, which was kept in the bushes, behind the water tank and the same was identified by this witness, as the same weapon, with whom, injuries were inflicted to him. 26. In the cross-examination, this witness has stated that he was not having any old enmity with the accused persons. 27. PW-4 Naresh Sharma has not supported the case of the prosecution and despite cross-examination by the learned Assistant Public Prosecutor, nothing material could be elicited. 28. PW-9 Karamveer deposed that the memo Ext. PW9/A, is the statement of accused Akash Saini, under Section 27 of the Indian Evidence Act, by virtue of which, he had got recovered the weapon of offence. However, in the cross- examination, he has stated that he does not identify accused Akash Saini. According to him, he is unable to identify Akash Saini, out of the accused persons, present in the Court. 29. PW-11 Anant Ram has also turned hostile. 30. PW-13 Visheshar Singh has also not supported the case of the prosecution. 31. Admittedly, in this case, no test identification parade was got conducted by the IO and the star witness of the prosecution i.e. PW-1 Pankaj Sood, had turned hostile, whereas, according to PW-2 Ankur Chimda, the accused persons were not known to him, nor, he knew their names and no test identification parade was conducted in his presence. 32. The identification of the accused persons by injured PW-3 Summit Sood, (Complainant) for the first time in the Court, is no identification, in the eyes of law. Even otherwise, PW-3 has not stated that the accused persons were previously known to him. 33. In the absence of the specific averments with regard to the identity of the accused persons, no reliance can be placed upon the statement of PW-3. 34. In the statement, under Section 154 of Cr.P.C, the names of accused persons have not been mentioned. When, the accused persons were not previously known to the complainant, then, in the absence of any identification parade, how the police has named the accused persons, as assailants, in this case, is a question, which remained unanswered by the prosecution. 35. No other point has been urged or argued before this Court. 36. When, the accused persons were not previously known to the complainant, then, in the absence of any identification parade, how the police has named the accused persons, as assailants, in this case, is a question, which remained unanswered by the prosecution. 35. No other point has been urged or argued before this Court. 36. In view of the above discussion, this Court is of the view that the findings of the learned trial Court do not fall within the definition of ‘perverse findings’. Even otherwise, the learned trial Court has rightly appreciated the evidence and as such, the findings do not require any interference by this Court. 37. Consequently, the judgment of acquittal, passed by the learned trial Court, is upheld and the appeal is dismissed.Bail bonds are discharged. 38. Send down the record.