Himachal Pradesh High Court
State Of Himachal Pradesh vs Amit Chauhan on 26 July, 2019
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 303 of 2009 .
Date of decision: 26.7.2019
State of Himachal Pradesh. ...Appellant
Versus
Amit Chauhan. ...Respondent
Coram
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge. Whether approved for reporting?1 For the Appellant: Mr.S.C. Sharma & Mr.Desh Raj Thakur, Additional Advocate Generals.
For the Respondent: Mr.Vishal Bindra, Advocate.
Vivek Singh Thakur J. (Oral).
This appeal has been preferred by State against acquittal of respondent vide judgment dated 30.10.2008 passed by learned Chief Judicial Magistrate, Sirmaur at Nahan in Criminal Case No. 53/2 of 2007 in case FIR No. 12/2007 Registered in Police Station, Sadar Nahan, under Sections 341, 323 and 506 IPC.
2. Prosecution case in brief is that on 13.1.2007 at about 2:40 P.M. in Naya Bazar, Nahan near AVN School, respondent Amit Chauhan had restrained the path of complainant PW-2 Gagan Logani and had beaten him with stick (danda) and bricks for accompanying his (complainant's) sister in the Sessions Court and to appear as a witness against respondent/accused. It is further case of prosecution that after receiving the injuries, complainant himself went to the Police Station, Sadar Nahan in injured condition and had requested the Police for lodging complaint and also for his treatment, whereupon after recording Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 29/09/2019 01:20:18 :::HCHP 2 Cr. Appeal No. 303 of 2009 rapat No. 15 (EX. PW-7/A) in daily diary, complainant was taken to hospital for medical examination and on the application of Police, he was medically examined by PW-6 Dr. A. Chaturvedi and thereafter MLC .
Ex. PW-6/A, issued by him, was obtained and FIR Ex. PW-4/A was registered.
3. During investigation, statements of witnesses were recorded and site map Ex. PW-9/B was prepared. X-Ray films of complainant Ex. PW-6/C were also obtained and recovery of weapon of offence was also effected vide seizure memo Ex. PW-2/C. r On completion of investigation, challan was presented in the Court.
4. On finding prima facie complicity of respondent for commission of offence, notice of accusation was put to him under Sections 341, 323 and 506 (1) IPC. On conclusion of trial, respondent has been acquitted.
5. Prosecution has examined nine witnesses to prove its case, whereas, after recording statement of respondent under Section 313 Cr.P.C., he has not chosen to lead any evidence in defence. Defence of the accused, in the trend of cross-examination as well as in answers to the questions put to him under Section 313 Cr.P.C., is denial of his involvement in the incident and false implication on account of a dispute related to love marriage performed by accused with sister of complainant.
6. PW-6 Dr. A. Chaturvedi has proved on record medical evidence, i.e. MLC Ex. PW-6/A, X-Ray form Ex. PW-6/B and X-Ray film Ex. PW-6/C, establishing the injuries found on the person of complainant on the date of incident at the time of examination. In his examination- in-chief he has stated that injuries are possible with the blow of stick and ::: Downloaded on - 29/09/2019 01:20:18 :::HCHP 3 Cr. Appeal No. 303 of 2009 bricks. Whereas in his cross-examination he has admitted that these injuries can also be possible by way of fall. In any case, medical evidence is a corroborative piece. In case the statement of complainant .
as well as eye witnesses is found to be trustworthy, medical evidence can be considered for further corroboration of their veracity.
7. In present case, PW-2 Gagan Logani is complainant and PW-1 Shankar Verma and PW-3 Mohd. Mehraj have been examined as eye witnesses to the incident. PW-4 Constable Nasib Singh had taken the complainant to hospital along with Investigating Officer.
r He has proved on record the procedural aspect of the investigation. Similarly,
PW-5 Pritam Chauhan is a witness to the memo of seizure of weapon of offence, i.e. stick vide memo Ex. PW-2/C, in the Police Station. He in his examination-in-chief has stated that respondent Amit Chauhan has produced weapon of offence to the Police in his presence. In his cross- examination he has stated that he had made no statement to the Police and Police had recorded his statement on its own. He has also admitted that complainant and respondent were having old enmity. PW-7 Constable Ravinder Singh has proved registration of rapat No. 15 dated 13.1.2007. PW-8 S.I. Chain Ram had registered FIR Ex. PW-4/A on the basis of statement of complainant Ex. PW-2/A. Statements of PW-4 Constable Nasib Singh, PW-5 Pritam Chauhan, PW-7 Constable Ravinder Singh and PW-8 S.I. Chain Ram would be relevant to prove the procedural aspect of the case, in case, at least, statement of PW-2 complainant Gagan Logani, is found to be credible. PW-9 ASI Om Krishan is the Investigating Officer.
8. Before assessing the veracity of deposition of PW-2 complainant Gagan Logani, it would be relevant to notice that PW-1 ::: Downloaded on - 29/09/2019 01:20:18 :::HCHP 4 Cr. Appeal No. 303 of 2009 Shankar Verma, who has been examined as eye witness, has not supported the prosecution case in his examination-in-chief and was declared hostile for resiling from his earlier statement recorded under .
Section 161 Cr.P.C. In his cross-examination by learned Public Prosecutor, nothing material could be extracted in favour of the prosecution or against the accused, rather he has categorically stated that complainant Gagan Logani is known to him since last 10-12 years, whereas he has no friendship with the accused.
9. So far as PW-3 Mohd. Mehraj is concerned, he tried to support the prosecution case in his examination-in-chief. PW-2 complainant Gagan Logani in his cross-examination has admitted that this witness Mohd. Mehraj is his friend. No doubt his statement cannot be discarded only on the ground that he is a friend of complainant. A friend may be a most natural witness for accompanying injured at the time of incident. But in present case, it is not the case of prosecution that PW-3 Mohd. Mehraj was accompanying PW-1 Shankar Verma at the time of incident and further it was also not the case of PW-2 complainant Gagan Logani that PW-3 Mohd Mehraj had witnessed the incident, rather it is case of PW-2 Complainant that incident was witnessed by one Rajesh Kumar, but the said person has not been cited as a witness in the list of witnesses filed by prosecution. It would have been a different case, if the said person would have been cited as a witness but had resiled from his earlier statement. But it is a case where the material witness mentioned in FIR has been withheld. In his examination-in-chief, PW-3 Mohd. Mehraj has deposed contrary to the statement of PW-2 Gagan Logani, by stating that after hitting with stick, ::: Downloaded on - 29/09/2019 01:20:18 :::HCHP 5 Cr. Appeal No. 303 of 2009 accused had pushed the injured towards the stairs and caused injuries to him there with bricks also.
10. Conviction can be based on the sole testimony of .
complainant, in case his version is found to be cogent, reliable and credible. PW-2 Gagan Logani is injured. In his examination-in-chief, he has re-iterated the incident, as stated in the complaint made to the Police. He has also referred that Rajesh shopkeeper had witnessed the incident with further clarification that he had not come to rescue him. He is completely silent about witnessing of incident by PW-3 Mohd. Mehraj, rather it is his case that no one came to rescue him and he himself had stood up with great difficulty and reached in the Police Station. It is again very strange that PW-3 Mohd. Mehraj present on the spot, who has been admitted by Complainant PW-2 Gagan Logani as his friend, did not accompany him to the Police Station, nor come forward, not only for rescue, but even to help him after the incident, for helping to stand as it is case of PW-2 Gagan Logani that after beating him, accused had run towards AVN school. It is not a case that on account of fear, no one could have come to PW-2 Gagan Logani for helping him after the incident. The version of complainant becomes doubtful when he refuses to admit the facts about the old enmity, solemnization of love marriage by the accused with his sister, pendency of criminal case and facts regarding quarrels being taking place between both the families i.e. of the complainant as well as accused. Though, he has admitted that for solemnizing the love marriage, a case was pending in the Court of learned JMIC and another case under Section 376 IPC and for kidnapping was pending in the Sessions Court. He has tried to explain that at the time of incident, he was not able to see ::: Downloaded on - 29/09/2019 01:20:18 :::HCHP 6 Cr. Appeal No. 303 of 2009 anything, as accused was beating him with sticks and bricks. It is not a case that PW-3 Mohd. Mehraj was not known to him and PW-3 Mohd. Mehraj was not his friend rather complainant has admitted that this .
witness was known being friend. In case injured was not able to see him, then it is noticeable that it is case of the prosecution that PW-3 Mohd. Mehraj had witnessed the incident, then for friendly relations, it was natural behavior on the part of PW-3 Mohd. Mehraj to come forward to help complainant. But neither complainant nor prosecution has explained the reasons for which PW-3 Mohd. Mehraj had not come forward to help the complainant and to accompany him to the Police Station and hospital.
11. In FIR Ex. PW-4/A distance of place of incident from Police Station has been mentioned as ½ Kilometer. In the report Ex. PW-7/A, time of arrival of complainant in the Police Station has been mentioned as 3:20 P.M. Whereas, it is claimed by complainant that incident has taken place at about 2:40 P.M. and also that he approached the Police Station first of all with request to provide him medical help, as he was alone.
12. In view of other contradictions and discrepancies in the evidence of prosecution, this gap of time also becomes relevant, as the complainant took 40 minutes to travel a distance of ½ kilometer from the place of incident to the Police Station. The injuries found on his body were not such to disable him from walking and in case he was not capable to walk, then in such eventuality, definitely his friend PW-3 Mohd Mehraj would have come forward to help him, if present on the spot. In these circumstances, presence of PW-3 Mohd. Mehraj on the spot is doubtful.
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13. In view of above discussion, I am of the considered view that complete truth has not been disclosed either by complainant to the prosecution agency or by complainant and prosecution agency to the .
Court and real cause for injuries received by PW-2 complainant Gagan Logani has been withheld either by the complainant or by the Police. Therefore, veracity of statement of PW-2 complainant Gagan Logani is under cloud and suspicion however strong, cannot take place of the proof so as to rely to convict an accused. Therefore, respondent/accused is entitled for benefit of doubt.
14. Respondent is also having advantage of being acquitted by the trial Court, fortifying the presumption in his favour with respect to his innocence and there is nothing on record to rebut the same. Trial Court has appreciated the evidence on record completely and correctly. There is nothing on record to point out that acquittal of the respondent has caused miscarriage of justice or resulted into travesty of justice. Therefore, no ground for interference is made out. Accordingly, the present appeal being devoid of any merits is dismissed and order of acquittal passed by learned Judicial Magistrate, Sirmaur is upheld. Bail bonds, if any, furnished by or on behalf of respondent are discharged. Records of the Court below be immediately sent back.
(Vivek Singh Thakur), th 26 July, 2019 Judge.
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