Himachal Pradesh High Court
Pushap Raj Alias Sanju And Another vs State Of H.P on 6 May, 2016
Author: Sanjay Karol
Bench: Sanjay Karol
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No.102 of 2014 Reserved on : 4.5.2016 .
Date of Decision : May 6, 2016 Pushap Raj alias Sanju and another ...Appellants.
Versus
State of H.P. ...Respondents.
of
Coram:
The Hon'ble Mr. Justice Sanjay Karol, Judge.
Whether approved for reporting? 1rt For the Appellants : Mr. Satyan Vaidya, Senior Advocate with Mr. Vivek Sharma, Advocate.
For the Respondents : Mr. R.S. Verma & Mr. R.M. Bisht, Additional Advocates General.
Sanjay Karol, Judge Appellants-convicts Pushap Raj alias Sanju and Raj Kiran, hereinafter referred to as the accused, have assailed the judgment dated 20.1.2014/23.1.2014, passed by Additional Sessions Judge (I), Mandi, District Mandi, Himachal Pradesh, in Sessions Trial No.36/12 (RBT No.24 of 2012), titled as State of Himachal Pradesh v.
Pushap Raj and another, whereby they stand convicted and sentenced as under:
Whether reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 15/04/2017 20:17:03 :::HCHP
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Section Sentence
307 read Each of the accused to undergo rigorous
with Section imprisonment for a period of seven years 34 IPC and pay fine of `10,000/- each, and in default of payment of fine to further .
undergo simple imprisonment for a period of one year.
323, 341 & Each of the accused to undergo rigorous 506 read imprisonment for a period of six months with Section and pay fine of `1,000/- each, and in 34 IPC default of payment of fine to further undergo simple imprisonment for a period of one month, in relation to each of the of offences.
2. It is the case of prosecution that on 25.4.2012, accused persons had gone to attend the rt marriage of Shashi Kumar, son of Krishan Lal in village Maloh. There accused Pushap Raj gave a blow on the head of Karam Singh with a wooden log, as a result of which he sustained injuries. Accused Raj Kiran, an accomplice and a co-conspirator, also actively participated. The incident was witnessed by Puran Chand (PW-2), Devki Nandan (PW-3), Roshan Lal (PW-5) and Dhani Ram (PW-1). The injured was immediately rushed to the Civil Hospital, Sunder Nagar, wherefrom he was referred for further treatment to the Regional Hospital, Mandi and finally to PGI, Chandigarh. Injured was examined by various doctors. Dr. Babita Chaurasia (PW-
8) has proved MLC (Ex. PW-8/B to 8/F). The matter was ::: Downloaded on - 15/04/2017 20:17:03 :::HCHP ...3...
reported to the police by Dhani Ram (PW-1) and as such FIR No.60/2012, dated 26.4.2012 (Ex.PW-1/A) was recorded at Police Station, Sunder Nagar, District Mandi.
.
Accused, who were arrested, on 12.5.2012 made disclosure statements (Ex.PW-6/D & 6/E), which led to the recovery of wooden log (rough sketch is Ex.PW-13/D).
With the completion of investigation, which prima facie of revealed complicity of the accused in the alleged crime, challan was presented in the Court for trial.
3. rt Both the accused were charged for having committed offences, punishable under the provisions of Sections 307, 323, 341 & 506 read with Section 34 of the Indian Penal Code, to which they did not plead guilty and claimed trial.
4. In order to establish its case, prosecution examined as many as 15 witnesses and statements of the accused, under the provisions of Section 313 of the Code of Criminal Procedure, were also recorded, in which they took defence of innocence and false implication.
They examined one witness in their defence.
5. Based on the testimonies of the witnesses and the material on record and finding the prosecution ::: Downloaded on - 15/04/2017 20:17:03 :::HCHP ...4...
case to have been established, beyond reasonable doubt, trial Court convicted the accused of the charged offences and sentenced them as aforesaid. Correctness of the .
findings, with regard to conviction and sentence and the reasons assigned therein, are subject matter of present appeal, which stands filed by the accused, under the provisions of Section 374 of the Code of Criminal of Procedure.
6. Trial Court, while convicting the accused, has rt referred to and relied upon the testimonies of real brothers of the injured, which were found to be inspiring in confidence. Also, the Court found the investigation conducted by the police officials to be flawless and the prosecution case to have been proven beyond reasonable doubt.
7. Having heard learned counsel for the parties, as also perused the record, Court is of the considered view that the following aspects stand completely ignored by the trial Court, while arriving at the conclusion, in terms of the impugned judgment. Perhaps what prevailed upon the Court below was the alleged medical condition of the injured whom the court found to be ::: Downloaded on - 15/04/2017 20:17:03 :::HCHP ...5...
"worse than dead person" "neither dead nor alive", as a result of the alleged acts of the accused.
8. In Shivaji Sahabrao Bobade and another .
Versus State of Maharashtra, (1973) 2 SCC 793, the apex Court, has held as under:
"...Lord Russel delivering the judgment of the Board pointed out that there was "no indication in the Code of any limitation or restriction on the High Court in the exercise of its powers as of an appellate Tribunal", that no distinction was drawn "between an appeal from an order of acquittal and an appeal from a conviction", and that "no limitation should be placed upon that rt power unless it be found expressly stated in the Code". ...
9. The apex Court in Lal Mandi v. State of W.B., (1995) 3 SCC 603, has held that in an appeal against conviction, the appellate Court is duty bound to appreciate the evidence on record and if two views are possible on the appraisal of evidence, benefit of reasonable doubt has to be given to the accused.
10. It is a matter of record that Dr. Babita Chaurasia, who has proved on record MLC (Ex.PW-8/B to 8/F), examined injured Karam Singh only on 25.4.2012. It is also a matter of record, as is so proved by this witness, that the injured remained admitted in the hospital at PGI, Chandigarh and according to the doctor injuries found on ::: Downloaded on - 15/04/2017 20:17:03 :::HCHP ...6...
the body of the injured were grievous in nature and dangerous to life. The doctor found a lacerated wound on the left side of the head and the occipital region of the .
scalp. Also, three injuries were found on the frontal portion of the scalp.
11. Now, no official witness has deposed anything about the medical condition and state of mind of the of injured during trial. When was he relieved from PGI, if at all? Where was he during trial? Investigating Officer has rt chosen, for the reasons best known to him, not to investigate this aspect of the matter. Last medical opinion of the victim, so placed on record, is dated 27.6.2012, when he was found not fit to make any statement. Record reveals that challan was presented in the Court after 3.8.2012 and charges framed on 20.10.2012. Witnesses of the prosecution were examined from 21.12.2012 upto 20.4.2013.
12. However, from the testimonies of the brothers, one finds that the victim was bed ridden. This aspect of the matter could have been brought on record by the Investigating Officer. Be that as it may, at this ::: Downloaded on - 15/04/2017 20:17:03 :::HCHP ...7...
stage, it stands clarified that this fact has not weighed with the Court while forming its opinion.
13. Allegedly, the incident took place in the .
house of Krishan Lal, whose son was getting married.
This was on 25.4.2012 at about 9.30 p.m. It is also a matter of record that immediately after the incident, the victim was straightway taken to Civil Hospital, Sunder of Nagar and examined same day. The doctor has unrebuttedly deposed that information of the incident rt was immediately furnished to the police and the police officials also reached the hospital same day. In fact HC Tek Chand (PW-15) admits to have recorded the statement of Sher Singh (PW-4) same day, but then where is this statement? Why was FIR not straightway registered on the basis of such statement? Why is it that Dhani Ram did not get his statement recorded same day?
are all questions which remain unanswered.
14. Such fact acquires significance, in view of the testimony of Dhani Ram (PW-1) and ASI Joginder Singh (PW-10), who categorically state that FIR (Ex. PW-1/A) stood registered on the statement of Dhani Ram. Now, this document reveals the information received at the ::: Downloaded on - 15/04/2017 20:17:03 :::HCHP ...8...
Police Station was "on 26.4.2012" "at 13.15 hours". Now, who is telling the truth or the lies is not evidently clear from record. What is the truth? Is it that the police was .
aware of the incident and chose not to act against the accused? Or is it that there was something else, which refrained the police from taking action and only the following day, FIR came to be registered. Were they of helping the victim, who allegedly was drunk? One of the brothers, i.e. Dhani Ram (PW-1), was serving in the Home rt Guard. Any which way, why is it that police has come forward to depose falsely is not clear. Version of ASI Jogidner Singh and Constable Pawan Kumar is mutually contradictory. It is not the case of the complainant party that the accused exercised influence, which led to delay in registration of the FIR. It is also not the case of the complainant party that the accused are otherwise influential persons and in some manner prevented the complainant party or the police from getting the matter formally registered. Is it that the complainant party was at fault? are all questions which remained unanswered on record. Delay of 10 hours in registering the case does ::: Downloaded on - 15/04/2017 20:17:03 :::HCHP ...9...
acquire significance, raising serious doubt with regard to the genesis of the prosecution story.
15. Dhani Ram is the real brother of the victim.
.
Statement of this witness is self contradictory. In the examination-in-chief part of his testimony, he does not state that the accused gave beatings to his brother Karam Singh with a Danda, as a result of which his of brother fell down. Also that the accused threatened and intimidated the injured. He witnessed the incident. But rt however, on a specific question put by the Court, he has categorically deposed that "No, I was not present at the time of occurrence". Testimony of this witness is thus self contradictory and more so in the nature of hearsay evidence. Also, the witness has rendered the prosecution case of recovery of the weapon of offence, i.e. Danda, from the spot, pursuant to the disclosure statement so recorded in the presence of Khub Ram (PW-6) to be contradictory. According to this witness, the Danda, even on 26.4.2012, was lying on the spot and was recovered as such by the police.
16. Further, the witness admits that at the time of quarrel, there were 80-100 persons present on the ::: Downloaded on - 15/04/2017 20:17:03 :::HCHP ...10...
spot. Now incidentally, in the instant case, except for Puran Chand (PW-2), who has not supported the prosecution, no other independent witness, stands either .
associated by the police during investigation or examined by the prosecution during trial. Krishan Lal has also not been examined.
17. Puran Chand (PW-2) denies any occurrence of having taken place in his presence. He states that at about 9.30 p.m. he heard some noise coming from the rt place where there was kitchen (mess) was set up and jupon reaching, he found Karam Singh lying in the field, below the kitchen. This witness was cross-examined by the Public Prosecutor and despite extensive cross-
examination, nothing fruitful could be elicited from his testimony. In fact, to some extent, he has probablized the defence of the accused, of the victim having sustained injuries, as a result of fall, under the influence of liquor.
18. Devki Nandan (PW-3) and Sher Singh (PW-4) have tried to support the prosecution by stating that in their presence, accused gave a blow, with a Danda, on the vital part of the body of the victim. After the incident, ::: Downloaded on - 15/04/2017 20:17:03 :::HCHP ...11...
they took the victim to the hospital for treatment. These witnesses have also deposed that the accused threatened to kill them. On first brush, their testimonies .
appear to be inspiring in confidence, but closure scrutiny renders it not to be so. The witnesses cannot be said to be reliable or their testimonies to be inspiring in confidence. It appears that these witnesses were of introduced subsequently by the police, for they did not witness the occurrence of the incident. Devki Nandan rt wants the Court to believe that after the quarrel, the accused chased the victim and in the fields gave a blow with the Danda, which version stands materially contradicted by Roshan Lal, according to whom the blow was inflicted near the kitchen itself.
19. Also, according to the near relatives (Dhani Ram, Devki Nandan, Sher Singh and Roshan Lal), the accused had given only one blow of Danda, whereas according to the doctor four injuries, which were dangerous to life, were found on the occipital region of the victim. These unexplained injuries cast a serious doubt about the prosecution case.
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20. From the testimony of Devki Nandan, it is quite apparent that there was some animosity between the parties. Apparently, Hira Singh son of the victim had .
damaged the vehicle of the accused, in relation to which matter stood reported to the police and apology tendered. Curiously, this Hira Singh was not examined in Court. He was given up. His testimony would have of elicited true facts, which led to the quarrel, if any, inter se the parties. Sher Singh wants the Court to believe that rt there was oral exchange of words between the victim and the accused and it went on for 20-25 minutes. He further states that none intervened. Now, this renders the testimony of Dhani Ram and Devki Nandan of having intervened to be contradictory.
21. Roshan Lal, another brother of the victim, tried to corroborate the version of Devki Nandan and Sher Singh, but then even his testimony cannot be said to be inspiring in confidence. It appears that he never witnessed the occurrence of the incident. He states that heated exchange of words took place for 5-7 minutes.
Curiously, he does not even know the topic or cause of the same. He admits not to have listened to the words.
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Why so? he does not explain. After all, his real brother was being threatened and intimidated in an open place.
22. One finds Dhani Ram, Puran Chand and Devki .
Nandan to have contradicted the prosecution case as also the testimony of the Investigating Officer of having recovered the weapon of offence vide recovery memo dated 12.5.2012. According to independent witness, of such recovery was effected on 26.4.2012, whereas according to the police officials it was pursuant to the rt disclosure statement dated 12.5.2012 made by the accused in the presence of Khub Ram. The contradiction is glaring and fatal to the prosecution case. Police officials appear to have deposed falsely. Also recovery cannot be said to be pursuant to the disclosure statement, for the weapon of offence was lying in an open public place visible to all. Police had visited the spot immediately.
23. The clothes of the injured recovered by the police, so sent for scientific analysis, also do not corroborate the prosecution case.
24. There are improvements, contradictions, exaggerations and embellishments, in the statements of ::: Downloaded on - 15/04/2017 20:17:03 :::HCHP ...14...
the prosecution witnesses, impeaching their credit, rendering them not to be trustworthy witnesses.
25. Hence, from the material placed on record, .
prosecution has failed to establish that the accused are guilty of having committed the offences, they have been charged with. The circumstances cannot be said to have been proved by unbroken chain of unimpeachable of testimony of the prosecution witnesses. The guilt of the accused does not stand proved beyond reasonable doubt rt to the hilt. The chain of events does not stand conclusively established, leading only 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.
26. Thus, findings of conviction and sentence, returned by the Court below, cannot be said to be on the basis of any clear, cogent, convincing, legal and material piece of evidence, leading to an irresistible conclusion of guilt of the accused.
27. Hence, for all the aforesaid reasons, the appeal is allowed and the judgment of conviction and ::: Downloaded on - 15/04/2017 20:17:03 :::HCHP ...15...
sentence, dated 20.1.2014/23.1.2014, passed by Additional Sessions Judge (I), Mandi, District Mandi, Himachal Pradesh, in Sessions Trial No.36/12 (RBT No.24 .
of 2012), titled as State of Himachal Pradesh v. Pushap Raj and another is set aside and both the accused persons are acquitted of the charged offences. They be released from jail, if not required in any other case.
of Amount of fine, if deposited by the accused, be refunded to them accordingly. Release warrants be immediately prepared.
rt Appeal stands disposed of, so also pending application(s), if any.
( Sanjay Karol ),
May 6, 2016(sd) Judge.
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