Himachal Pradesh High Court
Cr. A. No. 210/2013 vs Kunal Kapoor @ Tinku on 3 September, 2024
Bench: Tarlok Singh Chauhan, Sushil Kukreja
2024:HHC:7822-DB IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. A. No. 210/2013 Reserved on: 29.8.2024 .
Decided on : 3.9.2024
State of Himachal Pradesh .....Appellant
Versus
Kunal Kapoor @ Tinku ....Respondent
Coram:
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Sushil Kukreja, Judge.
Whether approved for reporting?1No For the appellant:
r Ms. Sharmila Patial, Mr. Navlesh
Verma, Addl. A.Gs. and Mr. Raj
Negi, Dy.A.G.
For the respondent: Mr. Sanjeev Bhushan, Sr. Advocate
with Mr. Rajesh Kumar, Advocate.
For the complainant: Mr. Anirudh Sharma, Advocate.
____________________________________________________________________ Justice Tarlok Singh Chauhan, Judge Aggrieved by the acquittal of the respondent under Sections 452, 307 and 506 of the Indian Penal Code (for short 'IPC'), the appellant-State has filed the instant appeal.
2 Before we advert to the merits of the case, it needs to be noticed that the complainant in this case had filed Cr.MP 1 Whether reporters of the local papers may be allowed to see the judgment? Yes.
::: Downloaded on - 03/09/2024 20:32:30 :::CIS2 2024:HHC:7822-DB No. 2979/2024 seeking therein direction to the appellant-State to withdraw the instant appeal on the ground that the matter .
has been compromised between the complainant and the respondent. However, we find no provision of law whereby a private party, be it complainant or the accused, can seek direction to the State to withdraw its appeal. Consequently, Cr.MP No. 2979/2024 sans merit and is accordingly dismissed.
3 The case of the prosecution is that on 20.11.2007 at about 8.45 P.M,r PW1 Sagar Chand (injured), after taking dinner was resting in his room along with PW2 Joginder Singh.
The respondent equipped with two knives came there and asked PW1 to vacate the dera i.e. room at that very moment, whereupon PW1 told that the room would be vacated, but by the time PW1 could respond his statement, the respondent with buttoned knife in his right hand gave a blow on stomach of PW1. Other two occupants namely Kamaljeet alias Kaku and Vijay Kumar, who were also staying in dera alongwith Joginder Singh, rescued PW1. However, while leaving the room, the respondent threatened the injured to do away with his life. The injured was thereafter brought to Government Hospital, Solan, from where he was referred to P.G.I Chandigarh where he was operated upon. His statement was recorded on 24.11.2007 ::: Downloaded on - 03/09/2024 20:32:30 :::CIS 3 2024:HHC:7822-DB followed by handing over of blood stained clothes worn by the injured at the time of incident to the police, which were put in .
the cloth parcel and sealed with seal 'K' in presence of witnesses Darwara Singh and Narender.
4 Further case of the prosecution is that on 20.11.2007 a telephonic information was received on telephone number 100 of police station Solan from PW1 that on Shilli road, Solan, there was quarrel taking place and that respondent had given a blow with knife. On the basis of this information, daily station diary no. 40(A) was recorded at P.S. Sadar Solan.
Rapat no. 14 dated 20.11.2007 was recorded and accordingly, ASI Hari Singh alongwith HC Amar Singh No. 77 and constable Narinder Parkası No. 378, was deputed, who proceeded to the spot and recorded the statement of PW4 Kamaljeet alias Kaku under Section 154 Cr.P.C on the basis of which FIR No. 332/07 came to be registered at Police Station Sadar, Solan.
5 During the course of investigation, Investigating Officer recorded statement of injured, obtained MLC of the injured and thereafter a case was registered against the respondent under sections 307 452, 506 I.P.C. Two knives which the respondent was allegedly carrying at the time of alleged incident were recovered and seized pursuant to ::: Downloaded on - 03/09/2024 20:32:30 :::CIS 4 2024:HHC:7822-DB disclosure statement made by the respondent and photographs of the knife were also got clicked.
.
6 After completion of investigation, final report was filed in the court and on finding prima facie case, charges were framed against the respondent under Sections 307, 452 and 506 IPC, to which he pleaded not guilty and claimed trial.
7 In order to prove its case, the prosecution examined as many as 13 witnesses. Thereafter, the statement of the respondent under Section 313, Cr.P.C. was recorded in which he denied all incriminating evidence led by prosecution against him and pleaded to be innocent and falsely implicated at the instance of influential persons. He specifically stated that a scuffle had taken place and the injury was accidently caused by Vijay Kumar to the injured. The respondent thereafter led evidence and examined four witnesses in his defence.
8 The learned trial court, after evaluating the oral as well as documentary evidence, acquitted the respondent, as aforesaid, constraining the appellant-State to file the instant appeal.
9 It is vehemently argued by the learned Additional Advocate General that the findings recorded by the learned trial ::: Downloaded on - 03/09/2024 20:32:30 :::CIS 5 2024:HHC:7822-DB court are perverse as material evidence on record has been totally misconstrued and misinterpreted.
.
10 On the other hand, Mr. Sanjeev Bhushan, learned Senior Advocate, assisted by Mr. Rajesh Kumar, Advocate, would argue that the findings recorded by the learned trial court are based on correct appreciation of law as well as fact and the evidence appearing on record and therefore warrant no interference.
11 We have given a thoughtful consideration to the submissions made at the Bar and have also gone through the record of the learned trial court, more particularly, the evidence on record.
12 First of all, we would reiterate the principles laid down by the Hon'ble Supreme Court, governing the scope of interference by the High Court in an appeal filed by the State for assailing the acquittal of the accused upon the findings recorded by the learned trial Court.
13 In Rajesh Prasad vs. State of Bihar and another (2022) 2 SCC 471, the three Judge Bench of the Hon'ble Supreme Court encapsulated the legal position governing the field and after considering various earlier judgments held as under:-
::: Downloaded on - 03/09/2024 20:32:30 :::CIS6 2024:HHC:7822-DB "28. After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal .
against an order of acquittal in the following words:
"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.
r(2) The Code of Criminal Procedure, 1973 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 ::: Downloaded on - 03/09/2024 20:32:30 :::CIS 7 2024:HHC:7822-DB 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."
14 Further, in case titled as H.D. Sundara and others vs. State of Karnataka (2023) 9 SCC 581, the Hon'ble Apex Court summarized the principle governing the exercise of Appellate jurisdiction, while dealing with an appeal against acquittal under Section 378 Cr.P.C. The relevant paragraphs No. 8 to 10 of the judgment are reproduced as under:-
"8. In this appeal, we are called upon to consider the legality and validity of the impugned judgment rendered by the High Court while deciding an appeal against acquittal under Section 378 of the Code of Criminal Procedure, 1973 (for short, 'Cr.P.C.'). The principles which govern the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 of Cr.P.C. can be summarised as follows: -
8.1. The acquittal of the accused further strengthens the presumption of innocence;
8.2. The Appellate Court, while hearing an appeal against acquittal, is entitled to re-appreciate the oral and documentary evidence;
8.3. The Appellate Court, while deciding an appeal against acquittal, after re-appreciating the evidence, is required to ::: Downloaded on - 03/09/2024 20:32:30 :::CIS 8 2024:HHC:7822-DB consider whether the view taken by the Trial Court is a possible view which could have been taken on the basis of the evidence on record;
8.4. If the view taken is a possible view, the Appellate Court .
cannot overturn the order of acquittal on the ground that another view was also possible; and 8.5. The Appellate Court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible.
9. Normally, when an Appellate Court exercises appellate jurisdiction, the duty of the Appellate Court is to find out whether the verdict which is under challenge is correct or incorrect in law and on facts. The Appellate Court normally ascertains whether the decision under challenge is legal or illegal. But while dealing with an appeal against acquittal, the Appellate Court cannot examine the impugned judgment only to find out whether the view taken was correct or incorrect. After re-appreciating the oral and documentary evidence, the Appellate Court must first decide whether the Trial Court's view was a possible view. The Appellate Court cannot overturn acquittal only on the ground that after re-appreciating evidence, it is of the view that the guilt of the accused was established beyond a reasonable doubt. Only by recording such a conclusion an order of acquittal cannot be reversed unless the Appellate Court also concludes that it was the only possible conclusion. Thus, the Appellate Court must see whether the view taken by the Trial Court while acquitting an accused can be reasonably taken on the basis of the evidence on record. If the view taken by the Trial Court is ::: Downloaded on - 03/09/2024 20:32:30 :::CIS 9 2024:HHC:7822-DB a possible view, the Appellate Court cannot interfere with the order of acquittal on the ground that another view could have been taken.
.
10. There is one more aspect of the matter. In many cases, the learned Trial Judge who eventually passes the order of acquittal has an occasion to record the oral testimony of all material witnesses. Thus, in such cases, the Trial Court has the additional advantage of closely observing the prosecution witnesses and their demeanour. While deciding about the reliability of the version of prosecution witnesses, their demeanour remains in the back of the mind of the learned Trial Judge. As observed in the commentary by Sarkar on the Law of Evidence, the demeanour of a witness frequently furnishes a clue to the weight of his testimony. This aspect has to be borne in mind while dealing with an appeal against acquittal."
15 Thus, it is beyond the pale of doubt that the scope of interference by an Appellate Court for reversing the judgment of acquittal rendered by the learned trial Court has to be exercised within the four corners of the following principles:-
a) That the judgment of acquittal suffers from patent perversity;
b) That the same is based on misreading/omission to consider material evidence on record;
c) That no two views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.::: Downloaded on - 03/09/2024 20:32:30 :::CIS
10 2024:HHC:7822-DB
d) The Appellate Court in order to interference with the judgment of acquittal would have to record pertinent findings on the above factors, if it is inclined to reverse .
the judgment of acquittal rendered by the trial Court."
16 Equally settled is the proposition that it is not the duty of the Appellate Court when it agrees with the view of the trial Court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial Court, expression of general agreement with reasons given by the Court, the decision of which is under appeal, would ordinarily suffice (Refer: Girijanandini Devi vs. Rabindernandini Choudhary AIR 1967 SC 124).
17 Bearing in mind the aforesaid exposition of law, we shall now proceed to consider the facts on record.
18 It would be noticed that the specific case of the prosecution as well as of the injured is that the respondent armed with one buttoned knife Ex. R-1 had given a blow on the abdomen/stomach of injured PW1 in presence of PW2 Joginder Singh, PW4 Kamaljeet and one Vijay, who has not been examined by the prosecution.
19 Further case of the prosecution is that PW1 injured was occupant of 'dera', a room as shown in the site plan Ex.
PW10/B, which was in his possession and was adjacent to the ::: Downloaded on - 03/09/2024 20:32:30 :::CIS 11 2024:HHC:7822-DB road. There were other houses in the vicinity. PW1 injured was the tenant of the respondent and used to trade in buffalos and .
cows. However, no reason whatsoever has been assigned by any of the prosecution witnesses or the injured as to why the respondent had gone armed with knives in both the hands and asked the injured PW1 to vacate the dera particularly.
20 This assumes importance because it has come on record that the injured invariably resided in said dera in connection with trade of buffalos. There has to be actual foundation as to what led to the incident. After all, no sane person would on one fine day carry two knives for no rhyme or reason and then stab his tenant.
21 Adverting to the testimony of injured, who appeared as PW1, he stated that he used to deal in sale and purchase of buffalos and had a rented accommodation at Shilli road. In the year 2007, two boys namely Kamaljeet alias Kaku and Vijay Kumar used to stay with him in the rented accommodation. On 20.11.2007 at about 8.45 p.m, when he, after taking dinner, was lying in his room where PW2 Joginder Singh was also present, the respondent entered the dera equipped with two knives and asked PW1 to vacate the dera without assigning any reason whatsoever and in the meanwhile on saying so, the ::: Downloaded on - 03/09/2024 20:32:30 :::CIS 12 2024:HHC:7822-DB respondent gave blow with buttoned knife Ex. R-1 having been carried by him in his right hand resulting into a deep cut .
wound in his (injured) stomach who, in turn, was rescued by PW2 and PW4 and while leaving, the respondent threatened that he would eliminate the injured.
22 In his cross-examination, PW1 stated that when he sustained deep wound injury in his stomach, blood profusely came out and he became unconscious.
23 The prosecution story further is that an intimation was given on telephone number 100 vide Ex. DW3/A by PW1 on 20.11.2007 at about 10.45 P.M, informing them about the scuffle, which stands falsified because as per PW1 himself, he was unconscious at that time.
24 This precisely is the reason why it was PW4 Kamaljeet whose statement under Section 154 cr. P.C. was recorded, which led to registration of FIR as PW1 was not in a position to make statement to the police as he himself has admitted to have become unconscious after the alleged occurrence.
25 PW4 Kamaljeet, at whose instance FIR has been registered, has tried to support the prosecution story and would claim that the respondent came at night on 20.11.2007 at ::: Downloaded on - 03/09/2024 20:32:30 :::CIS 13 2024:HHC:7822-DB about 8.45 P.M and asked PW1 injured to vacate the room and attacked the injured with a knife, which was in his right hand .
and due to the injuries, PW1 became unconscious. He further stated to have reported the matter to police and his statement under Section 154 Cr.P.C Ex. PW4/A was recorded. He thereafter stated that the injured was referred to PGI, however he had come back at dera i.e. the room where injured resided and the alleged incident took place. The police inspected the spot and the respondent disclosed in presence of these witnesses that knife with which he had stabbed the injured could be got recovered by him. This was followed by preparation of memo Ex. PW4/B bearing signatures of PW4 as well as Vijay Kumar who, as observed above, has not been examined in this case.
26 PW4 further stated that when statement Ex. PW4/B was made, the respondent was in custody and at his instance knives Ex. R-1 and Ex. R-2 had been recovered, khakha whereof was Ex. PW4/C and taken into possession by the police vide seizure memo Ex. PW4/F. He identified the knives Ex. R-1 and Ex R-2; and shirt Ex. P1, undershirt Ex. P-2, inner Ex. P-3 and sweater Ex. P-4 which the injured had worn at the time of alleged occurrence.
::: Downloaded on - 03/09/2024 20:32:30 :::CIS14 2024:HHC:7822-DB 27 PW2 Joginder Singh has also supported version of injured PW1 and PW4 complainant. He stated that it was the .
respondent, who had trespassed into the room as shown in site plan Ex.PW10/B and asked PW1 injured to vacate the room and simultaneously gave a knife blow.
28 Evidently, apart from the occupants of the room, where the alleged occurrence took place, no person from locality has been associated or examined by the prosecution. However, the presence of PW4 Kamaljeet at the spot after getting referred PW1 to PGI is highly doubtful because he has admitted in his cross-examination that when the respondent had given blow to injured, all the three i.e. PW4 Kamaljeet, Vijay and PW2 Joginder Singh had taken injured to hospital.
29 It needs to be recapitulated that as per the prosecution story, the incident had taken place at about 8.45 P.M. If all the aforesaid persons had gone together to the hospital, certainly as rightly observed by the learned trial court, PW4 could not have been present in the room where, as per the prosecution case, his statement under Section 154 Cr.P.C., Ex.
PW4/A, is stated to have been recorded at about 9.50 P.M by ASI Hari Singh in pursuance to telephonic information received at police station. Records of the case go to show that the ::: Downloaded on - 03/09/2024 20:32:30 :::CIS 15 2024:HHC:7822-DB injured was taken to hospital by PW4 alongwith two others and at about 9.50 P.M, was not available to make statement to the .
police as the injured was unconscious at that time.
30 As per PW10, SI Hari Singh, who is the Investigating Officer, in this case, he recorded statement of PW4 Kamaljeet under Section 154 Cr.P.C. Ext. PW4/A at the regional hospital, Solan, on the basis of which he wrote rukka, Ext. PW10/A and sent it to Police Station Solan through Constable Narinder Parkash, which led to registration of FIR, Ext. PW6/B. 31 Clearly, in such circumstances, an uncertainty has arisen in the prosecution case as to where exactly statement of PW4 was recorded, which is a material contradiction and goes to the root of the case making entire case of the prosecution suspicious.
32 This further assumes importance because PW6 has clearly stated in his cross-examination that two persons, who had taken injured to hospital, had not returned back, meaning thereby that neither PW4 Kamaljeet nor Vijay had returned back to the room, thus, falsifies version putforth by PW4 that he had returned back to the 'dera' and made statement to the police under Section 154 Cr.P.C.
::: Downloaded on - 03/09/2024 20:32:30 :::CIS16 2024:HHC:7822-DB 33 Now adverting to the disclosure statement, Ext.
PW4/B, which is alleged to have been made by the respondent, .
the same has not been signed by the respondent, but it goes to indicate that two knives, Ext. R-1 and Ext.R-2 had been identified. These knives can be seen in photographs, Ex.
PW10/F to Ex. PW10/G with its negatives Ex. PW10/K-1 to Ex.
PWID/K4. As per site plan Ex. PW10/B prepared by Investigating Officer, knives had been recovered at point 'C' which was certainly at a short distance between the house of respondent and the place where injured PW1 was residing.
Photographs in question show that knives were found in an open space, whereas the site plan shows that knives were shown to have been thrown at the place where there was a heap of cow dung as reflected in site plan Ex. PW10/E. 34 It is here that cross-examination of Investigating Officer PW10 becomes relevant when he admits that knives Ex.
R-1 and Ex. R-2, which had been recovered, had no blood stains, which makes the prosecution case shaky and unreliable as in case knife Ext. R-1 had pierced the stomach of the injured PW1, some blood stains ought to have been found on the same.
::: Downloaded on - 03/09/2024 20:32:30 :::CIS17 2024:HHC:7822-DB 35 As already discussed above, Vijay was an important witness, who has not been examined, constraining this Court .
to draw an adverse inference given the fact that entire investigation has been carried out by PW10 Investigating Officer with the aid of PW4 Kamal Jeet and Vijay.
36 It needs to be remembered that the specific plea of the defence was that it was blow of knife Ex. R-1 that was given by Vijay Singh and not the respondent, due to which PW1 injured sustained grievous injury and that the respondent had been false implicated. Thus, recovery of weapon of offence preceded by disclosure statement Ex. PW4/B is not proved by reliable evidence.
37 Now, as regards clothes that the injured had been wearing at the time of alleged incident, the same were recovered in the presence of LHC Narinder and PW3 Darwara Singh. LHC Narinder, who, as per prosecution case remained throughout with injured, was not examined by the prosecution for the reasons best known to it and as regards PW3, he has supported prosecution case and recovery of clothes Ex. P-1 to Ex. P-4.
38 As per the case of the prosecution, all wearing apparels, Ex. P-1 to Ex. P-4 had cut marks upon them by ::: Downloaded on - 03/09/2024 20:32:30 :::CIS 18 2024:HHC:7822-DB infliction of single blow of knife, but when the same were examined in the court, they were found to be cut from different .
portions and at different places making the entire prosecution case highly doubtful.
39 Inconsistencies have rightly been noted by the learned trial court and we see no reason to take a different view of the matter.
40 Further it needs to be noticed that there is an ample
evidence on record to show
r that the respondent too had
sustained injuries when he was medically examined at the
instance of police on 20.11.2007, as is evident from MLC Ex.
DA. He had suffered two sharp edged wounds and there was blood coming from his tooth. The respondent was thereafter referred to Dental Surgeon, who vide his MLC, Ext. DW4/A opined injury No.2 to be serious in nature. Although dental surgeon had given opinion on 26.11.2007 but, in MLC Ex. DA, vide which the respondent was medically examined, he has been found to have sustained four injuries, yet none of the prosecution witnesses, be it PW1 injured, PW4 Kamaljeet or PW2 Joginder Singh, has made a whisper that the respondent had sustained any kind of injury.
::: Downloaded on - 03/09/2024 20:32:30 :::CIS19 2024:HHC:7822-DB 41 On the other hand, the respondent has examined DW1 Manjoor Bhatt, who has explained on oath the manner .
in which the injured PW1 had sustained injury. He stated that he was present at his house alongwith his family when he heard noise and noticed that the respondent was held by PW1 injured locking his both hands from back side and PW1 and his employees were beating the respondent while one of them was holding 'farwa' in his hand. Those employees were PW4 Kamaljeet @ Kaku, Vijay Kumar and two other persons, who were not known to DW1, whereas Vijay Kumar was holding knife in his hand with which he had given a blow to the respondent and on the spur of moment, the respondent tilted to left side, as a result whereof knife accidently pierced stomach of PW1 injured. DW1 further stated that the respondent was profusely bleeding and his tooth was broken and there were several injuries on his person.
42 The testimony of DW1 regarding the injuries of respondent corresponds to MLC Ex. DW4/A. On being cross-
examined, DW1 stated that there were a large number of houses, more particularly 15-20 houses from his community, adjacent to his house but none from those houses was associated in investigation although many had gathered on the ::: Downloaded on - 03/09/2024 20:32:30 :::CIS 20 2024:HHC:7822-DB spot. DW1 has even admitted to the extent that he knew 4-5 employees of PW1 injured, which means that he knew injured .
PW1 and other occupants.
43 This witness (DW1) claims to have learnt about registration of case under Section 307 I.P.C against the respondent after 2-3 days, but had not registered any case for the injuries sustained by the respondent.
44 It is more than settled that it is not only the bounden duty of prosecution to prove its case beyond reasonable doubt, but at the same time also explain every injury which is not specific or which could not be self inflicted found on the person of accused, which in turn, creates doubt on the truthfulness of prosecution case inasmuch as by not explaining such grievous injuries and multiple injuries sustained by the respondent, the original genesis of prosecution case is certainly being withheld, for which the the respondent deserves to be given benefit of doubt. In such circumstances, the learned trial court has rightly granted the benefit of doubt to the respondent.
45 In view of the aforesaid discussions and for the reasons stated hereinabove, we find no merit in the instant ::: Downloaded on - 03/09/2024 20:32:30 :::CIS 21 2024:HHC:7822-DB appeal and the same is accordingly dismissed, so also the pending application (s), if any.
.
(Tarlok Singh Chauhan) Judge (Sushil Kukreja) 3.9.2024 Judge (pankaj) r to ::: Downloaded on - 03/09/2024 20:32:30 :::CIS