Himachal Pradesh High Court
State Of Himachal Pradesh vs Vinod Kumar Alias Campus & Ors on 9 September, 2019
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.312 of 2009.
Reserved on : 23.8.2019.
Date of Decision : 9th September,2019.
State of Himachal Pradesh .....Appellant.
.
Versus Vinod Kumar alias Campus & ors. .....Respondents. Coram The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge. Whether approved for reporting?1 Yes.
For the appellant : Mr. Shiv Pal Manhans, Addl. Advocate General with Mr. Raju Ram Rahi and Mr. Gaurav Sharma, Deputy Advocate Generals.
For the respondents : Mr. Rajesh Kashyap, Advocate.
Chander Bhusan Barowalia, Judge.
The present appeal is maintained by the appellant-
State of Himachal Pradesh against the judgment of acquittal of accused in a case, under Sections 451, 147, 323 and 506 of the Indian Penal Code, passed by the then learned Sub Divisional Judicial Magistrate, Rampur Bushahr, District Shimla (H.P) dated 01.11.2008, in Case No.209-2 of 2003.
2. Briefly stating facts giving rise to the present appeal are that on 19.10.2003, Ram Pal-complainant, working as Peon-
cum-Chowkidar, in DAV Public School, Rampur, closed the main gate of the School. Around 10:00 p.m., some one knocked at his room, on this, he came outside and noticed that accused persons are standing there. Accused, Vinod Kumar, caught hold the 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 29/09/2019 03:59:25 :::HCHP 2complainant from his neck, whereas accused Pintu and Karan, were also standing outside. They asked the complainant to call PTE Jagmohan, when PTE Jagmohan came on the spot, accused .
persons started giving fist and leg blows to the complainant as well PTE Jagmohan. On hearing their noise, Jitender Kumar, came on the spot and rescued him from the clutches of the accused and threatened the complainant. The matter was reported to the police, on the basis of which, FIR was registered. During the course of investigation, statement of witnesses were recorded and site plan was prepared. Thereafter, codal formalities were completed and challan was presented in the learned Court below.
3. The prosecution, in order to prove its case, examined as many as eight witnesses. Statement of accused persons were recorded, under Section 313 of the Code of Criminal Procedure, wherein they have denied the prosecution case and claimed innocence. No defence evidence was led by the accused persons.
4. Mr. Raju Ram Rahi, learned Deputy Advocate General appearing for the appellant has argued that statement of PW-3 was duly corroborated by the statements of PWs-1 and PW-2 as well as by medical evidence on record, but the learned Court below without appreciating the evidence, which has come on record to its true perspective has acquitted the accused. He has argued that after re-appreciating the prosecution evidence, ::: Downloaded on - 29/09/2019 03:59:25 :::HCHP 3 accused is liable to be convicted, as the prosecution has proved the guilt of the accused beyond the shadow of reasonable doubt.
5. On the other hand, Mr. Rajesh Kashyap, learned .
counsel appearing for the accused has argued that the prosecution story is not believable and the improvements and contradictions in the statement of prosecution witnesses show that the prosecution has failed to prove the guilt of the accused persons beyond the shadow of reasonable doubt. He has argued that there are about three more persons involved in the said incidence, but they are not made the accused, as per the prosecution story. He has further argued that the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt and there is no occasion to interfere with the well reasoned judgment passed by the learned Court below.
6. To appreciate the arguments of learned Deputy Advocate General and learned counsel for the accused, this Court has gone through the record in detail and minutely scrutinized the statements of the witnesses.
7. In order to prove its case, the prosecution has examined PW-1, Sube Singh Yadav, deposed that on 19.10.2003, at about 10:00 p.m, when he was present in the house, he heard a noise, on which, he came outside. He further deposed that PTE Jagmohan and Chowkidar, came to him and narrated the whole incident. In his cross-examination, he has stated to be correct that ::: Downloaded on - 29/09/2019 03:59:25 :::HCHP 4 people of the school were not allowed to leave the school premises. PW-2, Jagmohan, deposed that one boy, namely, Chintu, came in his house and asked him that he was being called .
by accused Vinod. He further deposed that accused persons met him and shake hand with him, thereafter, the accused persons started given beatings to him with fist and leg blows. In his cross-
examination, he has stated that he did not report the police, who were the persons present on the spot. He stated to be incorrect that there was no beating allegedly given to him. PW-3, Ram Lal, deposed that on 19.10.2003, at about 10:00 p.m. accused persons came on the spot and asked him to call upon PTE Jagmohan. He has stated that on arrival of PTE Jagmohan, accused again gave merciless beating to the complainant and Jagmohan with fist and leg blows. PW-4, Dr. Hemant Kumar, proved the MLC of complainant and PTE Jagmohan. In his cross-examination, he stated it to be correct that injuries are possible by way of fall. The testimony of PW-2, PTE Jagmohan is also bringing on record certain new development, which clearly shows that PW-2 and PW-3 are exaggerating their version. He has also stated about there were certain things, which came for the first time and they were not so recorded by the police. The testimony of PW-2 and PW-3 does not inspire confidence. As per PW-3, accused persons gave him 2-3 slaps. He has again stated that he was giving beating with fist and leg blows. The injuries on the person of PW-3 is redness seen on the ::: Downloaded on - 29/09/2019 03:59:25 :::HCHP 5 mendebulor area and small contusion at the neck. On medical examination of PW-2, there are contusion appeared in the neck, cheek and forehead. There was also abrasion on the elbow. As .
per PW-4, injuries on the person of PW-2 and PW-3 are possible by way of fall. The testimony of PW-2 and PW-3 are full of exaggeration. Their testimonies are consisting of certain treacherous remarks, which clearly indicate that they do not fall within the ambit of scope of truthful and believable witnesses.
8. The material witness in this case is PW-1, PW-2 and PW-3. As per PW-3, who is stated to be independent witness, when he reached at the spot, after taking his meals and was going to his quarter, he found that Israr Khan was stopping the fight, meaning thereby he reached at the spot afterwards. The main witness was Israr Khan, but he was not examined by the prosecution. He would have been the best person, who tell the truth. As far as Jitender Kumar, is concerned, he himself has stated that he is a tenant of PW-3, so called injured person. The exaggeration that the clothes were smeared with blood, as stated by PW-1, could not match with the medical evidence, which only shows the conclusion whether it was the blood of accused or someone else has also not been explained by the prosecution. At the same point of time, as per the prosecution witnesses, there are three-four more persons in the FIR, but they are not made the prosecution witness. PW-3, has stated that he has closed the gate, thereafter, accused persons ::: Downloaded on - 29/09/2019 03:59:25 :::HCHP 6 came inside the gate, this is also not believable that how they came inside the gate, when the gate was closed. The witnesses are otherwise also interested witnesses. In these circumstances, this .
Court finds that the prosecution has failed to prove the guilt of the accused beyond the shadow of reasonable doubt.
9. 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 r 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. In Chandrappa vs. State of Karnataka, (2007) 4 SCC 415, the Hon'ble Supreme Court has culled out the following principles qua powers of the appellate Courts while dealing with an appeal against an order of acquittal :
"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing ::: Downloaded on - 29/09/2019 03:59:25 :::HCHP 7 with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
.
(2) The Code of Criminal Procedure, 1873 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."::: Downloaded on - 29/09/2019 03:59:25 :::HCHP 8
12. The net result of the above discussion is that the prosecution has failed to prove the guilt of the accused conclusively and beyond reasonable doubt. There is no illegality .
and infirmity in the findings, so recorded by the learned Court below.
13. Accordingly, in view of the observations and analysis, made hereinabove, there is no merit in the appeal and the same is dismissed. Record of the learned Court below be sent back forthwith.
(Chander Bhusan Barowalia)
9th September, 2019 Judge
(CS)
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