Himachal Pradesh High Court
State Of H.P vs Narender Kumar on 13 December, 2016
Bench: Sanjay Karol, Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No.4186 of 2013 Date of Decision : December 13, 2016 .
State of H.P. ...Appellant.
Versus
Narender Kumar ...Respondent.
Coram:
of
The Hon'ble Mr. Justice Sanjay Karol, Judge. The Hon'ble Mr. Justice Ajay Mohan Goel, Judge. Whether approved for reporting? Yes. 1 rt For the Appellant : Mr. Vikram Thakur, Advocate General.
Deputy For the Respondents : Mr. Manoj Pathak, Advocate. Sanjay Karol, Judge On 13.1.2012, Yashwant Singh (PW-5) noticed dead body of a male, lying below a Car bearing No.DL-2C- 5286, somewhere between Newti and Kalara, information whereof, was telephonically given to Police Station, Nerwa. Police Party, headed by SI Hari Ram (PW-23), reached the spot and conducted necessary investigation. Statement of Dinesh Chauhan (PW-1), under the provisions of Section 154 of the Code of Criminal Procedure (Ex.PW-1/A) was Whether reporters of the local papers may be allowed to see the judgment? ::: Downloaded on - 15/04/2017 21:44:03 :::HCHP
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recorded, which led to registration of FIR No.4/2012, dated 14.1.2012 (Ex.PW-17/A), under Section 302 of the Indian Penal Code at Police Station, Nerwa. On the request the of .
Investigating Officer, a team of Experts from the State Forensic Science Laboratory, Junga, District Shimla, Himachal Pradesh, inspected the spot on 14.1.2012. They took samples of fingerprint, paint/blood from the vehicle of and the blood stained soil. Inquest Report (Ex.PW-10/B) was prepared and dead body sent for postmortem, so conducted rt by Dr. A.K. Sharma (PW-10), who issued report (Ex.PW- 10/C). Investigation revealed the accused to be involved in the crime. Hence, the accused, who was arrested on 28.1.2012, made a disclosure statement on 4.2.2012 (Ex.PW-11/A), to the effect that he could get identified the place where he had consumed liquor with the deceased as also the spot of crime, and pursuant thereto, he got such fact discovered. Investigation further revealed that the accused intentionally and voluntarily caused disappearance of evidence of murder. Police took on record several incriminating articles and with the completion of investigation, which prima revealed complicity of the ::: Downloaded on - 15/04/2017 21:44:03 :::HCHP ...3...
accused in the alleged crime, challan was presented in the Court for trial.
2. Accused was charged for having committed .
offences, punishable under the provisions of Sections 302 and 201 of the Indian Penal Code, to which he did not plead guilty and claimed trial.
3. In order to establish its case, prosecution of examined as many as 26 witnesses and statement of the accused, under the provisions of Section 313 of the Code of rt Criminal Procedure, was also recorded, in which he took plea of innocence and false implication. However, he did not lead any evidence in defence.
4. Finding the testimonies of prosecution witnesses not to be inspiring in confidence, accused stands acquitted on all counts, in terms of impugned judgment dated 29.6.2013, passed by learned Sessions Judge, Shimla, Himachal Pradesh, in Sessions Trial No.16-S/7 of 2012, titled as State of Himachal Pradesh v. Narender Kumar.
5. We have heard Mr. Vikram Thakur, learned Deputy Advocate General, on behalf of the State as also Mr. Manoj Pathak, Advocate, on behalf of the accused. We have also minutely examined the testimonies of the witnesses ::: Downloaded on - 15/04/2017 21:44:03 :::HCHP ...4...
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 of same, resulting into miscarriage of justice.
6. It is a settled principle of law that acquittal To rt leads to presumption of innocence in favour of an accused.
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 the essential ingredients so required to constitute the charged offence.
7. 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, ::: Downloaded on - 15/04/2017 21:44:03 :::HCHP ...5...
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:
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"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 of exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will rt 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 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 justice." "
8. Undisputedly, there is no eye-witness to the occurrence of the incident.
9. Prosecution wants the Court to believe that in the night of 13.1.2012, accused Narender Kumar, deceased ::: Downloaded on - 15/04/2017 21:44:03 :::HCHP ...6...
Suresh Chauhan and Kahan Chand (PW-2), together consumed alcohol, and thereafter accused murdered the deceased and by concealing his blood stained clothes, .
destroyed the evidence.
10. From the testimony of Dinesh Chauhan (PW-1), brother of the deceased, it is evidently clear that after identifying the dead body, he lodged the report with the of police. He suspected that his brother was crushed under the vehicle by someone. Further, only suspicion led him rt believe it to be an act of murder and not accident. Significantly, save and except for the incriminating material, which allegedly came to be recovered in his presence, he does not disclose complicity of the accused in the crime. Neither he nor has anyone else deposed about the motive of crime. Also, it is not the case of prosecution that accused harboured any animosity or had reason to murder the deceased.
11. Kahan Chand himself was a suspect, as has also come in the testimony of Investigating Officer. He himself admits to have been in the company of the deceased and the accused. And this was prior to the occurrence of the alleged incident. Deposition of this witness is a lengthy ::: Downloaded on - 15/04/2017 21:44:03 :::HCHP ...7...
one, but then he does not disclose any circumstance with regard to involvement of the accused in the alleged crime. The theory of 'last seen' holds good qua this witness, as .
much as it would against the accused. In fact, involvement of this witness in the alleged crime has not been ruled out at all. But none else has deposed against the accused and the deceased lastly seen together.
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12. At this juncture, we may observe that even the conduct of the accused cannot be taken as a circumstance, rt suspecting his involvement in the crime. It is not that he had disappeared or was not available for interrogation. In fact, as and when called for by the police, he made himself available and visited the Police Station, immediately after the occurrence of the incident, and more specifically on 16th, 17th & 18th January, 2012. Accused came to be arrested only on 28.1.2012. But then, there is nothing on record to establish, more specifically from the testimony of the Investigating Officer, as to what prompted arrest of the accused. Other than Kahan Chand, none came forward to disclose that the accused was lastly seen in the company of the deceased. Prosecution wants the Court to believe that accused surrendered on 28.1.2012, but then why would he ::: Downloaded on - 15/04/2017 21:44:03 :::HCHP ...8...
do that, for there was nothing incriminating against him. It is not the case of prosecution that very same day police recorded his confessional statement. It came to be .
recorded only on 4.2.2012.
13. Significantly, police wants the Court to believe that involvement of the accused surfaced with the conduct of Test Identification Parade, so held on 31.1.2012, in the of presence of Shri Nikhil Aggarwal (PW-21). Surprisingly, it was Kahan Chand, who identified the accused. What was rt the purpose of conducting such an exercise is not evident from the record, particularly when identity of the accused or Kahan Chand was never in dispute or doubt, which fact is evident from the admission made by the police officials, of both of them having visited the Police Station on previous occasions, i.e. 16th, 17th & 18th January, 2012. In this backdrop, the circumstance of Test Identification Parade loses significance.
14. Identity of the deceased is not in doubt. As per medical opinion (Ex.PW-10/D), he died as a result of ante- mortem traumatic asphyxia. Significantly, the doctor found the deceased to have consumed alcohol, contents whereof, as per opinion of the expert, were found to the extent of ::: Downloaded on - 15/04/2017 21:44:03 :::HCHP ...9...
297.02 mg%. This as per medical science is very high, rendering the person be in a state of drunkenness. Possibility of the deceased having died, after sustaining .
injuries under the influence of alcohol, has not been ruled out by the Investigating Officer.
15. Next circumstance, which is brought to our notice, is the disclosure statement (Ex. PW-11/A), allegedly of made by the accused in the presence of police officials. Why no independent witness was associated? remains unexplained.
Constable rt In any event, we do not find version of Naresh Kumar (PW-11) to be inspiring in confidence, more so for the reason that his testimony in Court, is bordering falsehood. He states that prior to 4.2.2012, he never visited Kalara, which fact is contradicted, in fact belied by Constable Kuldeep Singh (PW-12), according to whom, he took photographs of the spot on 14.1.2012 and from the photograph (Ex.PW-12/A-
28) so taken by him, we notice that in fact, Constable Naresh Kumar was present on the spot. There is yet another reason for discarding the disclosure statement. Police was already aware of the spot of crime and no new ::: Downloaded on - 15/04/2017 21:44:03 :::HCHP ...10...
fact came to be discovered, pursuant to the alleged disclosure statement made by the accused.
16. In support of his case, Mr. Vikram Thakur, .
learned Deputy Advocate General, presses reports (Ex.PW- 22/A & 22/B) of the Experts of the State Forensic Science Laboratory, Junga. In our considered view, even these reports do not advance the case of the prosecution any of further. These reports are inconclusive with regard to the fingerprints and samples of blood, allegedly taken from the rt vehicle. Also, they do not, in any manner, link the accused to the crime. In fact, we find the Investigating Officer to be extremely impartial towards the accused. Why is it that he did not have the fingerprints so taken from the vehicle, matched with that of Kahan Chand (PW-2).
17. Police has established the record of Mobile phone allegedly used by the accused, but then, it does not advance the case of prosecution any further, for it is not disputed that accused is a local resident.
18. From the material placed on record, prosecution has failed to establish that the accused is guilty of having committed the offences, he was charged for. The circumstances cannot be said to have been proved by ::: Downloaded on - 15/04/2017 21:44:03 :::HCHP ...11...
unbroken chain of unimpeachable testimony of the prosecution witnesses. The guilt of the accused does not stand proved beyond reasonable doubt to the hilt.
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19. 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 of to the guilt of the accused and no other hypothesis other than the same.
20. rt Hence, it cannot be said that prosecution has been able to prove its case, by leading clear, cogent, convincing and reliable piece of evidence so as to prove that the accused committed murder of Suresh Chauhan and also intentionally and voluntarily caused disappearance of evidence.
21. For all the aforesaid reasons, we find no reason to interfere with the judgment passed by the trial Court. The Court has fully appreciated the evidence so placed on record by the parties.
22. The accused has had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down by the Apex Court in Mohammed ::: Downloaded on - 15/04/2017 21:44:03 :::HCHP ...12...
Ankoos and others versus Public Prosecutor, High Court of Andhra Pradesh, Hyderabad (2010) 1 SCC 94, 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 ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged.
of Appeal stands disposed of, so also pending application(s), if any.
rt ( Sanjay Karol ),
Judge.
( Ajay Mohan Goel ),
December 13, 2016(sd) Judge.
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