Himachal Pradesh High Court
State Of Himachal Pradesh vs Sada Nand And Others on 9 November, 2016
Bench: Sanjay Karol, Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
Criminal Appeal No.554 of 2012-B
Date of Decision: 09.11.2016
State of Himachal Pradesh ...Appellant.
Versus
Sada Nand and others ...Respondents.
of
Coram:
The Hon'ble Mr. Justice Sanjay Karol, Judge.
rt
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting? 1
For the Appellant : Mr. Vikram Thakur, Deputy
Advocate General.
For the Respondents : Mr. Dalip K. Sharma, Advocate.
Sanjay Karol, Judge (oral)
Assailing the judgment dated 31.8.2012 of learned Additional Sessions Judge, Sirmaur District at Nahan, Himachal Pradesh, passed in Sessions Trial No.2-N/7 of 2005, titled as State of Himachal Pradesh vs. Sada Nand and others, State has filed the present appeal under the provisions of Section 378 of the Code of Criminal Procedure, 1973, challenging acquittal of Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 21:31:50 :::HCHP...2...
respondents Sada Nand, Sanjeev Kumar and Vinod Kumar (hereinafter referred to as the accused).
.
2. It is the case of prosecution that Sada Nand (accused No.1) had borrowed money from Sewak Ram (PW-3). As against a debt of `5,00,000/- two cheques of `2,50,000/- each were issued by Sada Nand, which of on presentation, were dishonored. Resultantly, Sewak Ram filed a complaint under the provisions of Section 138 of the Negotiable Instruments Act, 1881, which rt was pending in the Court of competent jurisdiction, Rajgarh. When the matter matured for hearing, allegedly, Sada Nand (accused No.1), alongwith Sanjeev Kumar (accused No.2) and Vinod Kumar (accused No.3), in furtherance of their common intention, set the files, kept in the Court complex i.e. in the room of the Ahlmad, on fire. The object and purpose being, to destroy the evidence so recorded in the said complaint. Rattan Ram (PW-1), who was posted as a Chowkidar in the Court complex, in the morning of 19.1.2004, after noticing the fire, immediately raised alarm and brought the incident to the notice of the police. The fire was doused and ::: Downloaded on - 15/04/2017 21:31:50 :::HCHP ...3...
matter investigated firstly by Gurmeet Singh (PW-14) and thereafter by Inspector Chet Ram (PW-21).
.
3. With the completion of investigation, which prima facie revealed complicity of the accused in the alleged crime, Challan came to be presented in Court for trial.
of
4. All the accused were charged for having committed offences punishable under the provisions of Sections 457, 436 and 477 all read with Section 34 of rt the Indian Penal Code, to which they pleaded not guilty and claimed trial.
5. In order to establish its case, in all, prosecution examined as many as twenty one witnesses. Statements of the accused under Section 313 of the Code of Criminal Procedure were also recorded, in which they took plea of innocence and false implication. However, no evidence in defence was led by the accused.
6. Finding the testimonies of prosecution witnesses not to be inspiring in confidence, trial Court acquitted all the accused in relation to the charged offences. Hence, the present appeal by the State.
::: Downloaded on - 15/04/2017 21:31:50 :::HCHP...4...
7. We have heard Mr. Vikram Thakur, learned Deputy Advocate General, on behalf of the State as .
also Mr. Dalip K. Sharma, learned Advocate, on behalf of the accused. We have also minutely examined the testimonies of the witnesses and other documentary evidence so placed on record by the prosecution.
of Having done so, we are of the considered view that no case for interference is made out at all. We find that the judgment rendered by the trial Court to be based rt on complete, correct and proper appreciation of evidence (documentary and ocular) so placed on record. There is neither any illegality/infirmity nor any perversity with the same, resulting into miscarriage of justice.
8. It is a settled principle of law that acquittal leads to presumption of innocence in favour of an accused. To dislodge the same, onus heavily lies upon the prosecution. Having considered the material on record, we are of the considered view that prosecution has failed to establish essential ingredients so required to constitute the charged offences.
::: Downloaded on - 15/04/2017 21:31:50 :::HCHP...5...
9. In Prandas v. The State, AIR 1954 SC 36, Constitution Bench of the apex Court, has held as .
under:
"(6) It must be observed at the very outset that we cannot support the view which has been expressed in several cases that the High Court has no power under S. 417, Criminal P.c., to reverse a judgment of acquittal, unless the judgment is perverse or the subordinate Court has in some way or other misdirected itself so of as to produce a miscarriage of justice. In our opinion, the true position in regard to the jurisdiction of the High Court under S. 417, Criminal P.c. in an appeal from an order of acquittal has been stated in - 'Sheo Swarup v.
rt Emperor', AIR 1934 PC 227 (2) at pp.229, 230 (A), in these words:
"Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. To state this, however, is ::: Downloaded on - 15/04/2017 21:31:50 :::HCHP ...6...
only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognized in the .
administration of justice." "
10. At the threshold, it be only mentioned that accused Sada Nand, in his statement under Section 313 Cr.P.C., has categorically stated that the matter with Sewak Ram stood compromised. He was arrested of and detained by the police for more than 8-9 days and no recovery came to be effected from him.
rt
11. The fact that the complaint came to be filed by Sewak Ram (PW-3), which stood compromised, cannot be disputed, in fact, is clearly borne out from the testimonies of Sewak Ram himself and Yashpal Chauhan (PW-20).
12. It is a matter of record, as is evident from the testimony of Yashpal Chauhan (PW-20) itself, that record pertaining to the case, so filed by Sewak Ram (PW-3), stood reconstructed by the appropriate authorities. It is not that record maintained by the Ahlmad of the Court was the only available record, for copies of the complaint and statements of the parties ::: Downloaded on - 15/04/2017 21:31:50 :::HCHP ...7...
so recorded in the case, were already available with the parties to the lis, as also their Advocates.
.
13. Ahlmad, Bhim Singh (PW-2) also admits that record maintained by him was not totally burnt. It has not come in his evidence that file of the case, subject matter in issue, was totally burnt in the incident.
of Hence, motive in the instant case, so ascribed by the prosecution, is totally false.
14. rt Now significantly, no witness has come forward to depose that the accused persons in furtherance of their common intention committed lurking house trespass at night and after breaking open the building of the judicial Court Complex, used as a place for custody of property; committed mischief by fire, intending to cause destruction of a building belonging to the Judicial Department which was ordinarily used as a place for custody of the property;
and with an intent to cause damage to complainant Sewak Ram in a case pending against accused No.1, under the Negotiable Instruments Act, destroyed a cheque of `2,50,000/- a valuable security by setting the same on fire.
::: Downloaded on - 15/04/2017 21:31:50 :::HCHP...8...
15. It is not the case of prosecution that any one of the accused were found near the spot of crime, .
either before or immediately after the incident.
Chowkidar, Rattan Lal (PW-1) only states that in the morning of 19.1.2004, he felt some smell like burning and on further investigation, found smoke coming out of of the room of Civil and Criminal Ahlmads, Court Complex, Rajgarh. After dousing the fire, he informed the relevant authorities.
rt
16. Our attention is invited to the inculpatory evidence against the accused, in the form of disclosure statements (Ex.PW7/A and Ex.PW12/A). Significantly, independent witnesses to the said disclosure statements, have not supported the prosecution at all and despite their extensive cross-examination, nothing fruitful could be elicited from their testimonies. We may further add, and in any event, such disclosure statements are of no consequence.
17. Disclosure statement (Ex.PW7/A) so made by Vinod Kumar and Sanjeev Kumar simply records that they could have the spot of crime identified. But this did not lead to discovery of any new fact, for such ::: Downloaded on - 15/04/2017 21:31:50 :::HCHP ...9...
fact was already in the knowledge of the Investigating Agency. It was a public place. Even otherwise, on this .
issue, noticeably even Amar Singh (PW-7) has not supported the prosecution and the other independent witness remains un-examined by the prosecution.
18. Disclosure statement (Ex.PW12/A) records of the fact, that accused could get articles used by them in committing the crime, recovered from such place(s), particulars whereof were only known to them. We may rt observe that such disclosure statement came to be recorded in the presence of police officials Vidya Nand (PW-12) and Pradeep Kumar (PW-19). Now, why is it that no independent witness came to be associated by the police is not clearly borne out from the testimony of the Investigation Officer. It only renders the prosecution case to be doubtful. Be that as it may, we notice that articles so recovered by the police, pursuant to the said statement, are also not linked to the accused, by way of corroborative evidence. In fact, report of the Forensic Science Laboratory, Junga (Ex.PW21/B) falsifies the prosecution version. No traces of petrol, diesel or kerosene oil were found in the ::: Downloaded on - 15/04/2017 21:31:50 :::HCHP ...10...
ashes and burnt papers so recovered by the police.
Also, there is nothing on record to establish that any .
one of such inflammable article(s) was actually used in setting the public property on fire.
19. At this juncture, we may also observe that independent witnesses, namely, Suresh Kumar (PW-5), of Mohan Lal (PW-6), Amar Singh (PW-7), Inder Singh (PW-
10) and Amar Dutt (PW-18), have not supported the prosecution case at all and despite their extensive rt cross-examination, nothing fruitful could be elicited from their testimonies. We do not find the testimony of Jagmohan (PW-8), Process Server posted at Judicial Court Complex at Rajgarh, to have established the prosecution case. His version of accused Sanjeev Kumar having disclosed to Sada Nand, of his having entered the Court complex through the window, after breaking open the door of inner room, is only an exaggeration, for it not to have been recorded in his earlier statement, with which, he was confronted.
20. In our considered view, there is not even an iota of evidence against the present accused, in relation to the crime in question.
::: Downloaded on - 15/04/2017 21:31:50 :::HCHP...11...
21. It is not that the record maintained by the Ahlmad was only that of the case, pending against .
accused Sada Nand. Hundreds of other cases which were to be listed for hearing on 20.1.2004 were in the record room.
22. Hence, from the material placed on record, of prosecution has failed to establish that the accused are guilty of having committed the offences, they stand charged for. The guilt of the accused does not stand rt proved beyond reasonable doubt to the hilt.
23. Having perused the testimonies of the prosecution witnesses on record, it cannot be said that prosecution has been able to prove its case, beyond reasonable doubt, by leading clear, cogent, convincing and reliable material on record. The Court below, in our considered view, has correctly and completely appreciated the evidence so placed on record by the prosecution. It cannot be said that the judgment of trial Court is perverse, illegal, erroneous or based on incorrect and incomplete appreciation of material on record resulting into miscarriage of justice.
::: Downloaded on - 15/04/2017 21:31:50 :::HCHP...12...
24. The accused persons have had the advantage of having been acquitted by the Court .
below. Keeping in view the ratio of law laid down by the Apex Court in Mohammed Ankoos and others versus Public Prosecutor, High Court of Andhra Pradesh, Hyderabad (2010) 1 SCC 94, since it cannot of be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice, no rt interference is warranted in the instant case.
For all the aforesaid reasons, present appeal, being devoid of merit, is dismissed, so also pending application(s), if any. Bail bonds furnished by the accused are discharged. Records of the Courts below be immediately sent back.
( Sanjay Karol ), Judge.
( Vivek Singh Thakur ),
November 9, 2016 (KS) Judge.
::: Downloaded on - 15/04/2017 21:31:50 :::HCHP