Himachal Pradesh High Court
State Of Himachal Pradesh vs Nikka Ram And Another on 3 October, 2016
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.237 of 2008 Reserved on : 20.09.2016 .
Decided on : 03.10.2016 State of Himachal Pradesh .......Appellant.
Versus Nikka Ram and another ......Respondents. Coram of The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
Whether approved for reporting?1
For the appellant : Mr. Pushpinder Singh Jaswal, Dy. Advocate
rt General.
For the respondent : Mr. Neel Kamal Sharma, Advocate.
Chander Bhusan Barowalia, Judge.
The present appeal is maintained by the appellant-
State of Himachal Pradesh against the judgment of acquittal of the accused in a case under Sections 451, 323 read with section 34 of the Indian Penal Code, passed by the learned Judicial Magistrate 1st Class, Court No.I, Ghumarwin, District Bilaspur, H.P, dated 19.11.2007, in Case No.213/1 of 2004/2002.
2. Briefly stating facts giving rise to the present appeal are that the complainant (PW-1) lodged a report on 8.5.2002 in order to protect his labourers, he has installed a tarpaulin at the place, where he constructed a house. At about 8:00 AM, both accused (hereinafter referred to as 'accused') without any reason 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 21:20:30 :::HCHP 2started abusing the complainant and asked why they have tied their tent with the tree and accused has cut the rope of the tent .
with the 'darat' and started assaulting the complainant party.
Later on, both the sons of the complainant, namely, Karam Chand and Gian Chand (PW-2) come back to their house and accused persons again started abusing, despite request made by the son of the complainant not to abuse. It is further alleged that both of accused came in the courtyard of the complainant and accused Parmila Devi had assaulted the complainant with 'darat' in her rt hand and also with the stones. The son of the complainant Gian Chand and Karam Chand started saving the complainant, but accused caused injury to Gian Chand and Karam Chand with the stones. During the course of investigation, medical examination of the injured was conducted and the site plan was prepared. The 'darat' was also taken into possession by the Police.
3. The prosecution, in order to prove its case, examined as many as 08 witnesses. Statement of accused persons was recorded under Section 313 Cr.P.C, wherein they have denied the prosecution case and claimed innocence.
4. Learned Deputy Advocate General appearing on behalf of the appellant has argued that the appeal is required to be allowed and the accused is liable to be convicted, as the ::: Downloaded on - 15/04/2017 21:20:30 :::HCHP 3 prosecution has proved the guilt of the accused beyond the shadow of reasonable doubt.
.
5. On the other hand, learned counsel appearing on behalf of the accused has argued that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt and so, the accused was rightly acquitted.
6. To appreciate the arguments of learned Deputy of Advocate General and learned counsel for the accused, this Court has gone through the record in detail and minutely rt scrutinized the statements of the witnesses.
7. Complainant PW-1 has stated that accused Nikka Ram came and cut the 'Mulberry tree'. Thereafter, accused Nikka Ram came and cut the rope tieing the tarpaulin and the tree with the 'darat. Both accused have beaten the complainant alongwith his sons, when they came to save the complainant.
Medical examination was also conducted. Police visited the spot and prepared the spot map. In his cross-examination, complainant has admitted that the witnesses are from his family. It is also admitted that accused Nikka Ram has also filed a cross case against the complainant. PW-5 Karam Chand has stated that the scuffle has taken place because of the tree and his father has tied the tent with the tree. Accused came there and cut the rope, when the complainant has tried to stop, both accused have hit the ::: Downloaded on - 15/04/2017 21:20:30 :::HCHP 4 complainant. In his cross-examination, he has admitted that complainant Sunka Ram is his father. He has reached the spot .
after five minutes of the incident. He has also admitted that accused Nikka Ram is his uncle and has also filed a case regarding the incident. PW-2 Gian Chand is son of the complainant has also tried to reiterate the same story that accused Nikka Ram has beaten his father. He has stated that when the scuffle has taken of place, he was of a little distance. He has admitted that accused Nikka Ram has also filed a cross case against them. In his cross-
rt examination, he has admitted that there were 4-5 houses in their village.
8. In the present case, all the witnesses are from the same family and there is an enmity between the parties and cross case has also been admittedly filed between the parties. The prosecution has failed to make out that who was the aggressor, especially when the tree regarding which the incident has taken place is situated on the boundary of land the parties, as stated by the prosecution witness PW-3. A separate case FIR No.61/02, dated 8.5.2002 of the same date of incident, has also been filed by the accused persons against the complainant, as admitted by the complainant. The prosecution story is totally silent about the same.
There is no clear, cogent, convincing and incriminating evidence against the accused persons. The false implication, exaggeration ::: Downloaded on - 15/04/2017 21:20:30 :::HCHP 5 and improvement due to enmity cannot be ruled out. Moreover in criminal cases the golden thread running through the web of the .
administration of justice is that if two views are possible on the evidence adduced in the case, one favouring the accused persons and other to the prosecution, the view favourable to the accused should be adopted.
9. It has been held in K. Prakashan vs. P.K. Surenderan (2008) of 1 SCC 258, that when two views are possible, appellate Court should not reverse the judgment of acquittal merely because the rt other view was possible. When judgment of trial Court was neither perverse, nor suffered from any legal infirmity or non consideration/misappreciation of evidence on record, reversal thereof by High Court was not justified.
10. 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.
11. So, in my considered view the prosecution has failed to prove the guilt of the accused persons conclusively and beyond reasonable doubt. There is no illegality and infirmity in the findings, so recorded by the learned trial Court.
::: Downloaded on - 15/04/2017 21:20:30 :::HCHP 612. In view of the aforesaid decisions of the Hon'ble Supreme Court and discussion made above, I find no merit in this .
appeal and the same is accordingly dismissed. Record of the learned trial Court be sent back forthwith.
(Chander Bhusan Barowalia)
03rd October, 2016 Judge
(CS)
of
rt
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