Himachal Pradesh High Court
State Of Himachal Pradesh vs Kuldeep Chand on 25 July, 2017
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Criminal Appeal No. 201 of 2008 Reserved on: 19.7.2017__ __ Date of judgment: July 25,2017_ .
_______________________________________________ State of Himachal Pradesh .....Appellant Versus Kuldeep Chand .....Respondent _______________________________________________ Coram:
The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.1
Whether approved for reporting? Yes. _______________________________________________ For the appellant: Mr. Pushpinder Jaswal, Deputy Advocate General with Mr. Rajat Chauhan, Law Officer.
For the respondent: Mr. Anoop Chitkara & Ms. Sheetal Vyas, Advocates.
Chander Bhusan Barowalia, Judge The present appeal is maintained by the State of Himachal Pradesh against the judgment of acquittal dated 17.11.2007, passed by learned Special Court, Kangra Division at Dharamshala, H.P. in Sessions Case No.40-B/VII-2006.1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 27/07/2017 23:57:53 :::HCHP 22. Briefly stating the facts giving rise to the present appeal are that on 21.12.2005, Satya Devi (PW7) made a statement under Section 154 Cr.P.C. (Ex.PW5/A) alleging that on 19.12.2005, at about 8.00 a.m., when she was proceeding .
to throw cow dung carried in a "Tasala", the accused stopped his car, alighted from the car, wrongly restrained her and hurled her the words "calling her with caste and live properly" and pushed her and dragged on the heap of cow dung and again gave pushes and fist blows and "addressed by caste and also said that Achha Khane Ko Mil Raha Hai To Dhang Se Raho, Tumhara Deemag Kharab Ho Gaya Hai, Main Tumhen Andar Hi Jala Doonga." It has been alleged by her that since the death of her son, the accused is nourishing enmity and whenever he happens to meet the complainant, he used to call her by caste. When the accused committed the aforesaid illegal acts, she was rescued by PW9 (Des Raj) and Bhamri Ram, who were present there. It has been alleged that S.I. Sureshta, SHO, Police Station, Baijnath (PW6) sent the said statement after making her endorsement on it to the Police Station, Baijnath for registration of F.I.R., through HHC Gulzar Chand and thereafter, HC Rakesh Kumar (PW5), recorded the ::: Downloaded on - 27/07/2017 23:57:53 :::HCHP 3 FIR, Ext.PW6/A and ensued the investigation. PW6 prepared the spot map, Ex.PW6/A and case file was handed over to Sh.
Saju Ram Rana, Dy. Superintendent of Police. It has been .
alleged that PW6 arrested the accused on 29.12.2005. PW10, Ravinder Thakur, the then Dy. Superintendent of Police took over the investigation of the case on 01.08.2006 and he moved an application, Ex.PW1/A to the Tehsildar, Baijnath for obtaining caste certificate of Satya Devi (PW7) and of the accused. He obtained Shajra Nasab of Satya Devi, Ex.PW4/A and caste certificate of accused, Ex.PW2/B and found that PW7 is a member of Scheduled Caste and her sub-caste is in the Schedule enumerated as Scheduled Caste and the accused is a member of non-scheduled caste, being Rajput by caste. It has been alleged that on 21.8.2006, he recorded the statement of witnesses. On completion of codal formalities, he prepared police report under Section 173 Cr.P.C. and presented the same in the Court of Addl. Chief Judicial Magistrate, Baijnath.
3. The learned Trial Court after recording the statements of the accused under Section 313 Cr.P.C., acquitted ::: Downloaded on - 27/07/2017 23:57:53 :::HCHP 4 the accused, hence, the present appeal.
4. Heard. Mr. Pushpinder Jaswal, learned Deputy Advocate General for the appellant-State has argued that the learned Trial Court has failed to take into consideration the fact .
that the prosecution has proved the guilt of the accused beyond reasonable doubt. He has argued that the findings recorded by the learned Trial Court on the basis that, since the accused informed the police after the unnatural death of the daughter-in-law of the complainant, he is falsely implicated, which is against the record. He further argued that the accused is required to be convicted after re-appreciating the evidence, which has come on record.
5. On the other hand, Mr. Anup Chitkara, learned counsel appearing for the accused, has argued that witness Smt. Satya Devi (PW7), who was a material witness in this case, was not examined and as initially the F.I.R. was not registered under the SC/ST Act shows that the accused is falsely implicated by the complainant. Further argued that by making improvements, every effort is made to involve the accused in a false case. He has further argued that the contradictions and improvements and non-examination of the ::: Downloaded on - 27/07/2017 23:57:53 :::HCHP 5 material witnesses as also the main witness Des Raj, who was examined, not supporting the prosecution case and other material on record shows that the prosecution has failed to prove the guilt of the accused beyond the shadow of .
reasonable doubt and so, the appeal be dismissed. He has specifically referred to the explanation given by the accused while recording his statement under Section 313 Cr.P.C.
6. In rebuttal, the learned Deputy Advocate General has argued that the accused be convicted, as the prosecution has proved the guilt of the accused beyond reasonable doubt.
7. To appreciate the arguments adduced by the learned Deputy Advocate General and learned counsel for the respondent, I have gone through the record in detail.
8. The prosecution examined as many as ten witnesses to prove its case.
9. Prithvi Raj was examined as PW1 and he has produced the caste certificate, Ex.PW1/C of the accused according which, he is a Rajput by Caste. PW2, Balam Ram Rana, Progress Assistant B.D.O. Office, Theog (Shimla) deposed that when he was posted as Panchayat Secretary of Gram Panchayat Kothi, he issued certificate of caste, ::: Downloaded on - 27/07/2017 23:57:53 :::HCHP 6 Ex.PW2/B, which discloses that the accused is Rajput by caste. PW1 and PW2 also testified that the accused is a Rajput and by virtue of the certificate, he is a member of non-
scheduled caste. So, it is proved that the accused is a Rajput .
by caste.
10. PW3, Jaswant Singh is the son of PW7 (Complainant). He also testified that on 30.12.2005, his mother produced Shirt P1, Salwar P2 and Sweater P3 to the Police, which were taken into possession by PW6, SI Sareshta Thakur, vide seizure memo Ex.PW3/A. Satya Devi (PW7) has testified that when she made her statement under Section 154 Cr.P.C.
and the police conducted spot inspection, she was asked not to wash the clothes, Ex.P1 to P3, which she was wearing at the time of occurrence. After 3/4 days, the police again came to her house and took into possession the clothes, Ex.P1 to P3, vide memo Ex.PW3/A.
11. In order to prove the charges framed against the accused, the prosecution has relied upon the testimonies of Satya Devi (PW7), Jeewan Ram (PW8) and Des Raj (PW9).
The alleged occurrence took place on 19.12.2005, at about 8 a.m. at a place mark 'A' shown in the spot map Ex.PW6/A, in ::: Downloaded on - 27/07/2017 23:57:53 :::HCHP 7 village Samletar. It has also been alleged that the matter was not reported to the police by PW7 (Satya Devi) on the same day or on the following day, but reported the said occurrence on 21.12.2005, at about 4.30 p.m. to PW6, S.I. Sareshta Devi, .
in the village, where PW6 happened to visit in connection with investigation of some criminal case. It has been alleged that the distance of the Police Station was 18 kms from the alleged spot of occurrence. In her statement under Section 154 Cr.P.C., PW7 has explained the delay by stating that she had suffered internal injuries and also that none was present at home and her husband was ill, hence, she could not report the matter earlier. On the basis of report Ex.PW5/A, PW6, SI Sareshta Devi, the then SHO, Police Station, Baijnath, sent the same in the form of Rukka and ordered the registration of a case for the commission of alleged offence under Sections 506 and 341 IPC on the basis of which, F.I.R. Ex.PW5/B, came to be recorded only for the commission of offences under Sections 341 and 506 IPC and investigation of the case ensued. PW6, SI Sareshta Thakur, visited the spot on 21.12.2005 and prepared the spot map (Ex.PW6/A). On 21.12.2005 itself, she recorded the statement of Jeewan Ram, ::: Downloaded on - 27/07/2017 23:57:53 :::HCHP 8 PW8 under Section 161 Cr.P.C. (Ex.DA). She also recorded the statement of PW9 Des Raj on that day. PW6 already recorded the statement of PW7, complainant Satya Devi, Ex.PW5/A, on 21.12.2005, but the accused was not arrested by the police.
.
PW6 has testified that on 27.12.2005, the case file was handed over by her to the then Deputy Superintendent, Saju Ram, SDPO, Palampur, because the SDPO, Baijnath was on leave and on the directions of said Saju Ram, she arrested the accused on 29.12.2005. In her cross-examination, she has admitted that when statement Ex.PW5/A of PW7 was recorded, there was no evidence of the commission of any offence under Section 3 of the Scheduled Caste/Scheduled Tribe Act, but refuted that after due deliberations and consultations, false case was made out against the accused. PW6 also testified that after 30.12.2005, the case was investigated by the then Deputy Superintendent of Police, Narinder Jamwal, however, he neither prepared any record nor he had been examined as a prosecution witness. To the contrary prosecution has examined Ravinder Thakur, Dy S.P., who also testified that he remained posted as Dy. S.P./SDPO, Baijnath, during the year 2006. It has been alleged that on 01.8.2006, the investigation ::: Downloaded on - 27/07/2017 23:57:53 :::HCHP 9 of the present case was conducted. What investigation was conducted by the police in between 30.12.2005 to 01.8.2006, is not known and neither the record of such investigation has been produced in evidence nor any witness, including Narinder .
Jamwal (Dy.SP) has been examined as a witness. It has also not been explained as to what prompted the Superintendent of Police, Kangra to order the investigation from the last step, which was taken by the police in the investigation of the case.
PW-10 recorded the supplementary statement of PW8, husband of PW7, Ex.DB on 01.8.2006, as well as that of supplementary statement of PW9, Des Raj, on 01.8.2006 and it was not explained by the prosecution as to what necessitated the recording of supplementary statements of PW8 and PW9 on 01.8.2006 i.e. after about a period of seven months of occurrence. The said facts have also created doubt regarding origin and genesis of the prosecution case. Had the investigation of the case was not conducted in a fair manner by any of the police officer, the prosecution could have explained the same and on the basis of such explanation, the Court could have come to the conclusion that some particular Police Officer did not conduct the investigation in a fair manner and as per ::: Downloaded on - 27/07/2017 23:57:53 :::HCHP 10 the settled law, but non-explanation of the said aspect of the case, has rendered the prosecution case doubtful and in such a situation, the fabrication and concoction cannot be ruled out.
12. From the record, it is clear that in the month of .
December, 2005, the election of the Panchayat were likely to be held immediately after the alleged occurrence. The wife of Des Raj (PW9), was contesting the election and as per the prosecution, complainant PW7, Satya Devi and her husband were supporting the wife of PW9 and the accused was supporting the other candidate. As per the statement under Section 154 Cr.P.C., the occurrence was witnessed by Bhambri Ram and Des Raj (PW9) and they rescued PW7. In the said report, it is not disclosed that Jeewan Ram (PW8), husband of Satya Devi (PW7), also came on the spot or the occurrence took place in his presence or he rescued her from the accused, as a result of which, presence of PW8 at the time of occurrence, has become doubtful. Otherwise also, in the statement, Ex.PW5/A itself, it has been mentioned by PW7 that none was present in her house, which also makes presence of PW8 on the spot doubtful. In the said statement, Ex.PW5/A, it has also been mentioned that her husband was ill, which also ::: Downloaded on - 27/07/2017 23:57:53 :::HCHP 11 rules out the possibility of his presence on the spot at the time of occurrence and in view of the fact that he is an interested witness, he might have deposed against the accused as such in the Court below. The said fact also makes the prosecution .
case doubtful.
13. The complainant, PW7, Satya Devi further testifies that when she was throwing the cow-dung, the accused stopped his car and the occurrence took place in the presence of Des Raj (PW9) besides her husband, but when the FIR was lodged and she got her statement recorded, she has stated that there was no one in the house at that time, this is a major improvement. At the same point of time, PW9 and his father were there when the accused alighted from the car and kicked her, as a result of which, she fell down, but this statement of Satya Devi (PW7), is not supported by Des Raj (PW9). PW9 only stated that when he reached at the spot, the accused had left and Satya Devi was present near the heap of cow dung, which is near the Gate of the house of Satya Devi. When the statement of Satya Devi (PW7), was recorded under Section 154 Cr.PC, she has not mentioned with regard to the presence of her husband on the spot and she specifically stated that ::: Downloaded on - 27/07/2017 23:57:53 :::HCHP 12 there was no one in the house at that time. The evidence, which has come on record, is to be considered with the fact that the accused has fined the complainant, as Pradhan of the Gram Panchayat and he has also informed the police with .
regard to un-natural death of the daughter-in-law of the complainant. The explanation about Satya Devi (PW7) in the statement of accused Kuldeep Chand recorded under Section 313 Cr.P.C., on 13.8.2007, is as under:
"I am innocent. I have been remained Pardhan of Gram Panchayat Kothi for about 17/18 years. During my tenure as Pardhan, daughter-in-law of PW Satya Devi committed suicide and I had reported the matter to the Police. PW Satya Devi had disputed with her neighbourers and was fined by the Panchayat during my tenure as Pardhan and I had advised her several times to remain and reside peacefully due to which she nourished enmity with me. This false case has been planted against me by PW Satya Devi and her husband in connivance with other witnesses and the police deliberately and after consultations, in order to falsely implicate me and made false statements after 4/5 months."
14. In these circumstances, when the explanation of the accused is taken into consideration, the statement of Satya ::: Downloaded on - 27/07/2017 23:57:53 :::HCHP 13 Devi (PW7), if perused alongwith her statement under Section 154 Cr.P.C., the same goes to show that her statement cannot be believed in view of the improvements and non-supporting statement of Des Raj (PW9). So, it is clear that the prosecution .
has failed to prove the guilt of the accused beyond shadow of doubt. Therefore, from the entire prosecution evidence, it is quite clear that prosecution, in fact, has failed to establish its case.
15. It has been held in K. Prakashan vs. P.K. Surenderan (2008) 1 SCC 258, that when two views are possible, appellate Court should not reverse the judgment of acquittal merely because the other view was possible. When judgment of trial Court was neither perverse, nor suffered from any legal infirmity or non consideration/mis-appreciation of evidence on record, reversal thereof by High Court was not justified.
16. 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.
::: Downloaded on - 27/07/2017 23:57:53 :::HCHP 1417. The findings of the learned Trial Court cannot be said to be perverse and against the law, as the prosecution has failed to prove the guilt of the accused conclusively and beyond reasonable doubt.
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18. In these circumstances, I find that the learned Trial Court had rightly dealt with the evidence on record. Thus, this Court find no merit and substance to interfere with the well reasoned judgment, passed by learned Trial Court and the appeal filed by the appellant-State is accordingly dismissed.
19. All pending application(s) if any, shall also stands disposed of accordingly.
(Chander Bhusan Barowalia) Judge July 25, 2017 (M.gandhi)) ::: Downloaded on - 27/07/2017 23:57:53 :::HCHP