Himachal Pradesh High Court
State Of Himachal Pradesh vs Gopal Singh And Others on 20 July, 2015
Author: Sanjay Karol
Bench: Sanjay Karol, P. S. Rana
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
Criminal Appeal No. 110 of 2008
Judgment Reserved on : 20.5.2015
Date of Decision : July 20 , 2015
State of Himachal Pradesh ...Appellant
of
Versus
Gopal Singh and others
rt ...Respondents
Coram:
The Hon'ble Mr. Justice Sanjay Karol, Judge.
The Hon'ble Mr. Justice P. S. Rana, Judge.
Whether approved for reporting? 1
No.
For the appellant : Mr. Ashok Chaudhary, Addl. Advocate General
and Mr. V. S. Chauhan, Addl. Advocate General
for the appellant-State.
For the respondent : Mr. Anuj Gupta, Advocate, for respondent No.
1.
Mr. Ravinder Thakur, Advocate, for
respondents No. 2 and 4.
Ms. Nishi Goel, Advocate, for respondent No. 3.
Sanjay Karol, J.
Assailing the judgment dated 26.9.2007, passed by the learned Addl. Sessions Judge, Fast Track Court, Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 18:36:17 :::HCHP 2Solan, Himachal Pradesh, in Sessions Trial No. 8-FTC/7 of 2007, titled as State of Himachal Pradesh vs. Gopal Singh & .
others, whereby respondents-accused stand acquitted, State has filed the present appeal under the provisions of Section 378 of the Code of Criminal Procedure, 1973.
2. In connection with F.I.R. No. 92/2003, dated of 9.8.2003 (Ext. PW-13/A), accused Gopal Singh, Madan Lal Manjeet Singh and Ranjeet Singh were charged for having rt committed offences punishable under the provisions of Sections 452, 333, 332, 506 and 120-B all read with Section 34 of the Indian Penal Code and under Section 3 of the Prevention of Damage of Public Property Act, 1984. The charges are sought to be proved and established though the ocular evidence of fifteen witnesses so examined by the prosecution. Prosecution wants the court to believe that on 8.8.2003, all the accused persons, in the thick of night, trespassed into the tents and assaulted HHG Santosh Kumar, HHG Ramesh and HHG Hari Ram. Also they went to the adjoining room where Hawaldar Parma Nand was sleeping and assaulted him. Attempts made by HHG Kishan Singh and HHG Rajinder Kumar to save Parma Nand were not only rendered futile, but in return, even they were beaten up. The incident was witnessed by independent ::: Downloaded on - 15/04/2017 18:36:17 :::HCHP 3 witness Geeta Ram (PW-3), who also claims to have been beaten. The Home Guards who were posted to protect the .
water tank sustained injuries. The assailants not only destroyed public property and obstructed public servants from discharging their duty but also threatened and criminally intimidated them.
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3. With the incident having been brought to the notice of the police, HC-Vishesh Kumar (PW-14), being rt posted at Police Post Dagshai, proceeded to the spot, where he recorded statement of HHG-Santosh Kumar under the provisions of Section 154 Cr.P.C. (Ext. PW-1/A). Injured were got medically examined from Dr. Ashok Tangra (PW-9).
Accused were arrested. With the completion of investigation, which prima facie revealed, complicity of the accused in the alleged crime, challan was presented in the Court for trial.
4. In order to prove its case, in all, prosecution examined fifteen 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.
5. Court below acquitted the accused on the grounds that: (i) Presence of Kishan Singh and Rajinder ::: Downloaded on - 15/04/2017 18:36:17 :::HCHP 4 Kumar on the spot, as the prosecution wants the court to believe, is doubtful; and (ii) There are material .
contradictions in the version so narrated by Santosh Kumar (PW-1), Parma Nand (PW-2), Ramesh Kumar (PW-4) and Ram Kishan (PW-5), which have rendered their testimonies to be shaky, unreliable and witnesses not worthy of of credence. Hence the present appeal.
6. We have heard Mr. Ashok Chaudhary, learned rt Addl. Advocate General ably assisted by Mr. V. S. Chauhan, learned Asstt. A.G., on behalf of the State as also Mr. Anuj Gupta, Mr. Ravinder Thakur and Ms. Nishi Goel, learned counsel for the respective respondents. 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 judgment rendered by the trial Court is based on complete, correct and proper appreciation of evidence (documentary and ocular) so placed on record. There is neither any illegality/infirmity nor any perversity with the same, resulting into miscarriage of justice.
7. It is a settled principle of law that acquittal leads to presumption of innocence in favour of an accused. To ::: Downloaded on - 15/04/2017 18:36:17 :::HCHP 5 dislodge the same, onus heavily lies upon the prosecution.
Having considered the material on record, we are of the .
considered view that prosecution has failed to establish essential ingredients so required to constitute the charged offences.
8. In Prandas v. The State, AIR 1954 SC 36, of Constitution Bench of the apex Court, has held as under:
"(6) It must be observed at the very outset that rt 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 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 ::: Downloaded on - 15/04/2017 18:36:17 :::HCHP 6 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 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 administration of of justice." ".
9. Record reveals that only Parma Nand and rt Santosh Kumar were got medically examined from Dr. Ashok Tagra (PW-9) who issued MLCs (Ext. PW-9/A-3 and PW-9/B). The injuries are both simple as well as grievous.
The Doctor has opined that such injuries could have been caused with dandas (Ext.P-8, P-9, P-10 and P-11). But then he also states that they could have been caused as a result of fall. Thus, the Doctor conclusively does not rule out the possibility of the injuries being sustained by fall or to have been caused only with the dandas.
10. Prosecution case primarily rests upon the testimonies of seven witnesses namely Santosh Kumar (PW-
1), Parma Nand (PW-2), Geeta Ram (PW-3), Ramesh Kumar (PW-4), Ram Kishan (PW-5), Kishan Chand (PW-6) and Rajinder (PW-7).::: Downloaded on - 15/04/2017 18:36:17 :::HCHP 7
11. Undisputedly no motive stands ascribed or proven for the accused to have assaulted the complainant .
party.
12. Now the first issue which arises for consideration in the present case is as to how the accused were identified by the complainant party. Significantly Santosh Kumar got of his statement under Section 154 Cr. P.C. (Ext. PW-1/A) recorded on 9.8.2003 at 12.30 a.m. Now all the aforesaid rt witnesses, in court, have categorically deposed that the place where they had pitched their tents and in which they were sleeping, there was no light either inside or outside. It was pitch dark. Allegedly accused attacked the complainant party on 8.8.2003 at 11.30 p.m. It is a common case of these witnesses that immediately after assaulting, all the accused left the spot in a vehicle. Undisputedly police reached the spot, as is also evident from the version of the Investigating Officer (PW-14) only at 12.20 a.m. (in the early hours of 9.8.2003). Santosh Kumar in his unrebutted testimony states that "I identified two accused on 9.8.2003 and remaining two accused on 14.8.2003 on being shown to me at the police station. On 9.8.2003 accused Gopal Singh and Madhu were shown to me by the police for identification while accused Manjeet and Ranjeet were shown to me by ::: Downloaded on - 15/04/2017 18:36:17 :::HCHP 8 the police for identification on 14.8.2003". There is no evidence on record to establish that any test identification .
parade was conducted by the police, at the police station, prior to lodging of the complainant (Ext. PW-1/A). So if this were so, then how is it that names of accused Gopal Singh and Madhu are recorded therein. Obviously genesis of the of prosecution story appears to be doubtful in the present case. Perhaps the documents stand fabricated. This we say rt so also for the reason that version of Ramesh Kumar of having gone to the nearby village and telephonically informed the police about the incident, is not believable. He does not know the name of the owner of the house from where call was made. In fact, he is categorical that "I did not make call to the police personally", thus contradicting the prosecution case.
13. Santosh Kumar is categorical that there was no light on the spot and it was pitch dark. Version of Parma Nand is also to similar effect who also states that he had no talk with any of the accused prior to the incident. In fact, the manner in which the accused were got identified by the complainant speaks volumes, which fact has emerged in the testimony of Parma Nand who states that "There was no ::: Downloaded on - 15/04/2017 18:36:17 :::HCHP 9 other person except Gopal and Madhu when they were shown to me by the police in the police station.".
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14. Gita Ram (PW-3) also admits that there was no light inside the tents. He tries to establish the identity of accused Madhu and Gopal by deposing that he had seen them cross the road. But then he admits not to be in visiting of terms with them. How did he know their names?
15. Ramesh Kumar (PW-4) states that the following rt day police got identified accused Madhu who also disclosed names of other assailants as Gopal, Anu and Ranjeet. Now this totally contradicts the version of the Investigating Officer of having recorded statement (Ext. PW1/A) on the spot at 12.30 a.m. Further, who is this Anu? has not been explained by the prosecution. We may also observe that version of Ram Krishan (PW-5) is also to similar effect.
16. That the members of the complainant party did not know the accused is also evident from the testimony of Kishan Chand (PW-6) who states that "there was no light in the room. We could not catch anyone and we had to run away, rather we were beaten up." Version of Rajinder (PW-7) is also to the effect that there was no light in the tents.
::: Downloaded on - 15/04/2017 18:36:17 :::HCHP 1017. Thus, in our considered view, prosecution has not been able to establish the identity of the accused by .
leading clear, cogent and convincing piece of evidence.
18. With regard to the exact number of assailants, we find the testimonies of the relevant prosecution witnesses, who were posted as Home Guards to protect the of water tank, to be at variance. According to Santosh Kumar assailants were 5 - 6 in number; Parma Nand mentions only rt 4 and Ramesh Kumar records them to be 3 - 4 in number.
19. Santosh Kumar wants the court to believe that he was sleeping in Tent No. 1 along with Ramesh and Hari Ram. The assailants attacked them and thereafter they went to attack Parma Nand who was sleeping in a close by room. He is absolutely silent with regard to the assailants attacking the occupants of Tent No. 2. In fact he does not even mention about such tent. Whereas Ramesh Kumar wants the court to believe that the assailants first attacked the persons sleeping in Tent No. 1, thereafter they attacked the persons sleeping in Tent No. 2 and then they assaulted Parma Nand inside the room. The contradiction with regard to the happening of the incident is glaring for we do not find any such version to be recorded in the complaint lodged with the police.
::: Downloaded on - 15/04/2017 18:36:17 :::HCHP 1120. Testimonies of Kishan Chand (PW-6) and Rajinder (PW-7) that they tried to save Parma Nand in which process .
they were also beaten up does not appear to be convincing for they were not got medically examined despite sustaining serious injuries. There presence on the spot is extremely doubtful. Be that as it may, Santosh Kumar and of Parma Nand admit that both Kishan and Rajinder were on duty and thus they could not have been inside their tents rt or close by, for it has come on record, through the testimony of Parma Nand that the area which was required to be guarded was quite large and none of the other witnesses have deposed that Rajinder and Kishan Chand were patrolling at the same place where the tents were pitched. In fact, Ramesh Kumar categorically states that "Rajinder and Kishan were on duty on that time. Rakesh and PC Ram Kishan were on patrolling duty. Rajinder and Kishan were not present near the tents at the time of alleged incident". Sanosh Kumar states that "The officials, who were on duty on the night of incident, were patrolling at a distance of 100-150 mts. away from the water source".
21. There is yet another emerging fact on record, rendering the prosecution version to be doubtful. Parma Nand admits that the tents were pitched just adjoining to ::: Downloaded on - 15/04/2017 18:36:17 :::HCHP 12 the road and approximately, on daily basis, 500 vehicles pass by, both during the day and night. Also about 1000 .
people stay in the adjoining village of Koro Kainthri. Now surprisingly the incident was not heard by any such villager or noticed by any passer by. Nor were they associated as witnesses.
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22. Uniformally all the spot witnesses have deposed that they immediately fled away from the spot and hid rt themselves in the bushes from where they could not see what was happening on the spot. In fact, Santosh Kumar admits it to be correct that at the time of incident he could not see as to which of the accused had inflicted blow on his head. Thus who gave the blow remains unexplained by the prosecution.
23. Geeta Ram (PW-3) claims himself to be a spot witness but we do not find his version to be true or correct.
He wants the court to believe that after hearing cries "Mar Diya Mar Diya" he proceeded to the spot and saw the accused assault the witnesses. But then we do not find this version of his to be correct, in view of his admission that after hearing the cries he ran out of the tent and concealed himself in the bushes. Also none else has supported his presence on the spot.
::: Downloaded on - 15/04/2017 18:36:17 :::HCHP 1324. With regard to the identity of accused Manjeet and Ranjeet, the Investigating Officer admits that at that .
time, none other than the said accused were present in the police station. Hence there is no identification in law.
25. Having perused the testimonies of the prosecution witnesses on record, it cannot be said that of prosecution has been able to prove its case, beyond reasonable doubt, by leading clear, cogent, convincing and rt reliable material on record to the effect that in furtherance of their common intention accused trespassed into the tents of the complainant party or that after making preparation to cause hurt, voluntarily caused injuries to Parma Nand and Santosh Kumar, Home Guards/Public Servants with an intent to deter them from discharging their official duties;
criminally intimidated all the members of the complainant party; caused damage to the tents which is a government property and/or also entered into criminal conspiracy for causing attack.
26. The Court 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 judgment of trial Court is perverse, illegal, erroneous or based on incorrect and incomplete appreciation of material ::: Downloaded on - 15/04/2017 18:36:17 :::HCHP 14 on record resulting into miscarriage of justice. There are improvements, which are major, embellishments and .
contradictions, rendering the testimonies of these witnesses to be shaky and unbelievable.
27. The accused have had the advantage of having been acquitted by the Court below. Keeping in view the of ratio of law laid down by the Apex Court in Mohammed Ankoos and others versus Public Prosecutor, High Court of rt Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, since it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice, no interference is warranted in the instant case.
For all the aforesaid reasons, present appeal, devoid of merit, is dismissed, so also pending applications, if any. Bail bonds, if any, furnished by the accused are discharged. Records of the Court below be immediately sent back.
(Sanjay Karol), Judge.
(P. S. Rana), Judge.
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