Himachal Pradesh High Court
State Of Himachal Pradesh vs Rt on 12 April, 2016
Bench: Sanjay Karol, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
Criminal Appeal No. 737 of 2008 alongwith
Criminal Appeal No. 318 of 2014.
Date of Decision : April 12 , 2016
of
1. Cr. Appeal No. 737 of 2008
State of Himachal Pradesh ...Appellant
Versus
rt
Dhyan Singh & others ...Respondents
2. Cr. Appeal No. 318 of 2014
State of Himachal Pradesh ...Appellant
Versus
Parkash Chand @ Bhimu ...Respondent
Coram:
The Hon'ble Mr. Justice Sanjay Karol, Judge.
The Hon'ble Mr. Justice Chander Bhusan, Judge.
Whether approved for reporting? No. 1
For the appellant : Mr. V. S. Chauhan, Addl. Advocate General with
Mr. J. S. Guleria, Asstt. A.G. for the
appellant(s)-State.
For the respondent : Mr. Vinay Thakur, Advocate for the
respondents-accused in Cr. A. No. 737 of 2008.
Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 20:07:10 :::HCHP
2
Mr. Raj Kumar Negi, Advocate, for the
respondent-accused in Cr. A. No. 318 of 2014.
.
Sanjay Karol, J. (oral)
In both these appeals filed under the provisions of Section 378 of the Code of Criminal Procedure, 1973, State assails the judgments of acquittal of the accused of Dhyan Singh, Saravdayal, Gulab Singh (respondents in Cr.
A. No. 737 of 2008) and Parkash Chand @ Bhimu rt (respondent in Cr. A. No. 318 of 2014) who were charged in connection with F.I.R. No. 47 of 2006, dated 7.7.2006, registered at Police Station Nirmand, Distt. Kullu, H.P. under the provisions of Sections 302, 201 read with Section 34 of the Indian Penal Code.
2. Accused Dhyan Singh, Saravdayal and Gulab Singh were tried and acquitted vide judgment dated 18.8.2008, passed by learned Sessions Judge Kinnaur Sessions Division at Rampur Bushahr, H.P., in Sessions Trial No. 30 of 2006, titled as State of Himachal Pradesh vs. Dhyan Singh & others and accused Parkash Chand @ Bhimu who was tried separately stands acquitted vide judgment dated 9.4.2014, passed by learned Sessions Judge, Kinnnaur ::: Downloaded on - 15/04/2017 20:07:10 :::HCHP 3 Sessions Division at Rampur Bushahr, H.P., in Sessions Trial No. 0100012/2012, titled as State of Himachal Pradesh vs. .
Parkash Chand @ Bhimu.
3. It be only observed that Courts below have not culled out the circumstances as they are required to do so.
Be that as it may, from the record, Mr. V. S. Chauhan, of learned Addl. Advocate General points out the following circumstances against the accused:
rt
(i) Recovery of the dead body of deceased Lal Chand so effected on 7.7.2006 vide recovery memo (Ext. PW-1/B).
(ii) Deceased being lastly seen in the company of the accused, which was on 4.7.2006.
(iii) Dying declaration made by deceased Lal Chand with Deep Ram (PW-1) in the presence of Shobha Ram (PW-2) and Anup Ram (PW-3).
(iv) Medical evidence corroborating the factum of the accused having given beatings to the deceased who died as a result thereof.
4. In short, it is the case of the prosecution that on 4.7.2006 deceased had gone to attend the wedding in the house of Punne Ram. An altercation took place with the deceased and the accused gave fist blows. Thereafter they ::: Downloaded on - 15/04/2017 20:07:10 :::HCHP 4 threw him below the dhank at a place known as Dwari. One Chain Ram noticed the deceased and informed Deep Ram .
(PW-1) of the incident. Villagers assembled on the spot and police was informed. SI Roop Lal (PW-8) reached the spot and conducted the investigation. Inquest reports (Ext. PW-
1/B and 1/C) were prepared. Statement (Ext. PW-1/A) of of Deep Ram was recorded under the provisions of Section 154 Cr. P.C. which led to the registration of F.I.R. No. rt 47/2006, dated 7.7.2006 (Ext. PW-6/A) at Police Station Nirmand, Distt. Kullu, H.P. against the accused persons.
Accused were arrested. Incriminating articles i.e. sweater (Ext.P-1) of accused Parkash Chand was recovered from the spot vide memo (Ext. PW-1/D). With the completion of investigation, which prima facie revealed complicity of the accused persons in the alleged crime, challan was presented in the Court for trial.
5. Accused were charged for having committed offences punishable under the provisions of Sections 120-B, 302 and 201 read with Section 34 of the Indian Penal Code, to which they did not plead guilty and claimed trial.
::: Downloaded on - 15/04/2017 20:07:10 :::HCHP 56. In order to prove its case, in all, prosecution examined eleven witnesses and statements of the accused .
under Section 313 Cr. P.C. were also recorded, in which they took plea of innocence and false implication. No evidence in defence was led by the accused.
7. Based on the testimonies of witnesses and the of material on record, Courts below acquitted the accused persons of the charged offences.
rt Hence, the present
appeals by the State.
8. We have heard Mr. V. S. Chauhan, learned Addl.
A.G. and Mr. J. S. Guleria, learned Asstt. A.G., on behalf of the State as also Mr. Vinay Thakur and Mr. Raj Kumar Negi, learned counsel for the respondents - accused. We have also minutely examined the testimonies of the witnesses and other documentary evidence so placed on record by the prosecution. Having done so, we are of the considered view that no case for interference is made out at all. We find that the judgments rendered by the trial Courts are based on complete, correct and proper appreciation of evidence (documentary and ocular) so placed on record. There is ::: Downloaded on - 15/04/2017 20:07:10 :::HCHP 6 neither any illegality/infirmity nor any perversity with the same, resulting into miscarriage of justice.
.
9. 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 of considered view that prosecution has failed to establish essential ingredients so required to constitute the charged rt offences.
10. 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 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. 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 ::: Downloaded on - 15/04/2017 20:07:10 :::HCHP 7 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 of the advantage of seeing the witnesses. To state this, however, is 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 rt administration of justice." "
11. We shall now deal with each of the circumstance as pointed out by Mr. V. S. Chauhan, learned Addl. Advocate General.
12. From the perusal of the testimonies of all the witness it is apparent that the accused did not harbour any animosity with the deceased. It is also a matter of record that the deceased did not leave his house or the house of Punne Ram in the company of the accused.
13. According to Bhimu Ram (PW-4), the deceased and the accused were present at the time of marriage celebrations of his son. Both had taken meals. This was on 4.7.2006. But then this witness clarifies that there were ::: Downloaded on - 15/04/2017 20:07:10 :::HCHP 8 about 400 persons who had attended the marriage function.
This witness does not state anything further.
.
14. According to Deep Ram (PW-1) on 7.7.2006 the deceased made a dying declaration to the effect that the accused, after giving beatings threw him below the dhank.
We shall deal with this aspect of dying declaration later on of but however none of the witnesses have come forward to depose as to where was the deceased and in whose rt company he was from the 4th up to 7th of July, 2006. As such the circumstance of last seen cannot be said to have been proven on record by the prosecution. What transpired between 4th and 7th July, 2006 has not been explained by anyone save and except Deep Ram (PW-1) who clarified that the deceased was also present in the wedding on 5th and 6th July, 2006. But thereafter the accused were present or not he does not state.
15. Insofar as the recovery of dead body of the deceased is concerned, SI Roop Lal (PW-8) clarifies that he visited the spot where the dead body was lying and recorded the statement of Deep Ram (PW-1). Inquest reports (Ext. PW-1/B and Ext. PW-1/C) were prepared and ::: Downloaded on - 15/04/2017 20:07:10 :::HCHP 9 the dead body was sent for post mortem. Factum of recovery of dead body was not seriously disputed by the .
accused persons but then this circumstance alone would not be sufficient to link the accused with the alleged crime.
Allegedly no weapon of offence was recovered by the prosecution. No tell tale signs from where the accused of threw the deceased have been proven on record. Also the accused did not make any disclosure statement, leading to rt the recovery of any incriminating articles against them.
16. Through the testimony of Deep Ram (PW-1) prosecution wants the Court to believe that one red sweater (pullover) allegedly belonging to accused Parkash Chand was found lying near the spot of crime. But then that is all and there is nothing more than the statement of this witness to link such article to the said accused. We do not find the ocular version of Deep Ram to be inspiring in confidence for several reasons which we shall enumerate while dealing with the circumstance of dying declaration.
Significantly Shobha Ram (PW-2) who allegedly accompanied Deep Ram to the place where the dead body was lying did not support the prosecution and despite ::: Downloaded on - 15/04/2017 20:07:10 :::HCHP 10 extensive cross examination by the learned Public Prosecutor nothing fruitful could be elicited from his .
testimony.
17. Further, Deep Ram states that on 4.7.2006, Lal Chand (deceased) had gone to attend the marriage ceremony in the house of Punne Ram which was in village of Badari. According to this witness, Lal Chand was also present in the said village on 5th and 6th of July, 2006. From rt his statement it is also clear that even he was present in the wedding and it was only on 6th that he returned home. This witness does not narrate any untoward incident having taken place between the deceased and the accused. Be that as it may, this witness further states that in the night of 7.7.2006, accused persons came to his house inquiring about the whereabouts of deceased Lal Chand. He responded by stating that Lal Chand was attending the wedding at Village Badari. Thereafter he went to sleep. In the morning of 7.7.2006, one Chain Ram came to his house and informed that "Lal Chand has fell down or has been thrown from the Dhank and is lying there". Thereafter he alongwith his father Balku Ram, Anup Ram (PW-3) and ::: Downloaded on - 15/04/2017 20:07:10 :::HCHP 11 Shobha Ram (PW-2) went to the spot where Lal Chand disclosed that he had been beaten by the accused and .
thereafter thrown down the dhank. Significantly here he only names accused Dhyan Singh and Parkash Chand.
Names of other two persons i.e. Saravdayal and Gulab Singh are not referred to in his statement. Witness further of states that soon after Lal Chand died and police was informed. We find the version of this witness to be an rt exaggeration for it does not find mention in his statement (Ext. PW-1/A) so recorded by the police under the provisions of Section 154 Cr. P.C. Why would this witness not disclose such fact is not emerging from the record. In fact, careful perusal of statement (Ext.PW-1/A) reveals that he was suspecting none, much less the present accused. All that he states is that his brother Lal Chand had fallen down the dhank and was found lying dead.
18. Now, if Chain Ram had seen the deceased lying below the dhank he could have gone to give him medical aid. No such attempt was made by him. Had the deceased been alive at the time when he was noticed by Chain Ram, medical aid would have been given to him. Significantly ::: Downloaded on - 15/04/2017 20:07:10 :::HCHP 12 Chain Ram has not been examined in Court and the fact that Chain Ram saw the dead body is evident from the .
statement (Ext. PW-1/A) so made by Deep Ram (PW-1) to the police.
19. Painstakingly Mr. V. S. Chauhan, learned Addl.
Advocate General has taken us to the statement of Anup of Ram (PW-3) on this issue. But however, we are not in agreement with the learned Addl. Advocate General rt that Anup Ram has disclosed the truth in the Court. His version with regard to the confessional statement cannot be said to be inspiring in confidence for the witness admits such fact not to have been disclosed to the police at the first instance. Not only that, statement of this witness was recorded by the police and even therein such fact was not disclosed. The fact that accused had given beatings and thrown the deceased down the dhank appears to have been recorded for the first time on 21.7.2006 when SI-
Purshottam Dutt (PW-9) took over the investigation and arrested the accused.
::: Downloaded on - 15/04/2017 20:07:10 :::HCHP 1320. Other than the ocular version of the witnesses (PW-1, PW-2 and PW-3) there is nothing on record to link .
the accused with the alleged crime.
21. Insofar as medical evidence is concerned we find Dr. H. S. Sekhon (PW-10) who conducted the post mortem on the deceased and issued report (Ext. PW-10/A) of has deposed that injuries No. 1 and 2 sustained by the deceased were possible as a result of beatings and injury rt No. 3 was possible by fall. The Doctor had found that there was fracture on the head and fatal injury on the chest and thighs and that the deceased had died due to shock as a result of fracture femur. But then there is nothing on record to establish such injuries to have been inflicted by the accused.
22. From the material placed on record, prosecution has failed to establish that the accused are guilty of having committed the offence, they stand charged for. The circumstances cannot be said to have been proved by unbroken chain of unimpeachable testimony of the prosecution witnesses. The guilt of the accused does not stand proved beyond reasonable doubt to the hilt. The chain of events does not stand conclusively established, leading only ::: Downloaded on - 15/04/2017 20:07:10 :::HCHP 14 to one conclusion, i.e. guilt of the accused. Circumstances when cumulatively considered do not fully establish .
completion of chain of events, indicating to the guilt of the accused and no other hypothesis other than the same.
23. Having perused the testimony of the prosecution witnesses on record it cannot be said that prosecution has of been able to prove its case, beyond reasonable doubt, by leading clear, cogent, convincing and reliable material on rt record to the effect that accused in furtherance of their common intention entered into a criminal conspiracy to do an illegal act and committed murder of Lal Chand in pursuance of that conspiracy and also caused certain evidence of the said offence to disappear after committing murder of said Lal Chand.
24. The Courts 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 judgments of trial Courts are perverse, illegal, erroneous or based on incorrect and incomplete appreciation of material on record resulting into miscarriage of justice.
25. The accused have had the advantage of having been acquitted by the Courts below. Keeping in view the ::: Downloaded on - 15/04/2017 20:07:10 :::HCHP 15 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 be said that the Courts below have not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice, no of interference is warranted in the instant case.
For all the aforesaid reasons, present appeals, rt devoid of merit, are dismissed, so also pending applications, if any. Bail bonds, if any, furnished by the accused are discharged. Records of the Courts below be immediately sent back.
(Sanjay Karol), Judge.
(Chander Bhusan), Judge.
April 12 , 2016 (PK) ::: Downloaded on - 15/04/2017 20:07:10 :::HCHP