Himachal Pradesh High Court
State Of Himachal Pradesh vs Mehboob Khan Son Of Shri Quim Khan on 11 March, 2015
Author: P.S.Rana
Bench: Sanjay Karol, P.S.Rana
IN THE HIGH COURT OF HIMACHAL PRADESH, AT SHIMLA
Cr. Appeal No. 227 of 2008
Judgment reserved on: 3.3.2015
.
Date of Decision: March 11, 2015
_______________________________________________________________
State of Himachal Pradesh ....Appellant.
Vs.
Mehboob Khan son of Shri Quim Khan ...Respondent.
Coram:
Hon'ble Mr. Justice Sanjay Karol, Judge.
Hon'ble Mr.Justice P.S.Rana, Judge.
Whether approved for reporting1?. Yes.
For the Appellant: Mr.Ashok Chaudhary and Mr. V.S.
Chauhan, Additional Advocates
General and Mr.Vikram Thakur,
Deputy Advocate General.
For the respondent: Mr.Bimal Gupta Amicus Curiae and
Mr. Prashant Chaudhary Legal Aid
Counsel.
P.S.Rana, J.
JUDGMENT: Present appeal is filed against the judgment passed by the learned Sessions Judge, Chamba HP in case No.21 of 2007/06 titled State of HP Vs. Mehboob under Sections 307, 326 and 324 IPC.
Whether reporters of the Local papers are allowed to see the judgment?. Yes.
::: Downloaded on - 15/04/2017 17:44:43 :::HCHP 2BRIEF FACTS OF THE PROSECUTION CASE:
2. It is alleged by prosecution that on dated .
14.5.2005 at about 7 PM Shri Pawan Mahajan complainant was present with his son Master Himanshu Mahajan in main market Chamba and was getting the cycle of Master Himanshu repaired. It is alleged by prosecution that when Pawan Mahajan was getting his cycle repaired accused hit him with a sharp edged weapon i.e. Khukhari on his head with the intention and knowledge to cause death of Pawan Mahajan. It is alleged by prosecution that accused also caused grievous and simple injuries on the person of Pawan Mahajan through sharp edged weapon i.e. Khukhari. It is further alleged by prosecution that accused also pushed Master Himanshu Mahajan and he fell down. It is also alleged by prosecution that thereafter accused fled away from the spot and also took mobile phone and cash worth Rs. 9300/- (Rupees nine thousand three hundred only) belonging to Pawan Mahajan. It is alleged by prosecution that thereafter statement of Pawan Mahanjan Ext.PA was recorded under Section 154 Cr.P.C. and FIR Ext.PW10/A was registered in P.S. Sadar Chamba. It is also alleged by prosecution that Khukhari Ext.P1 was recovered as per disclosure statement Ext.PD given by accused. It is alleged by prosecution that Khukhari Ext.P1 took into possession vide seizure memo Ext.PB and sealed. It is alleged by prosecution ::: Downloaded on - 15/04/2017 17:44:43 :::HCHP 3 that weapon of attack was identified by injured and Pawan Mahajan injured also produced his blood stained shirt Ext.P2 .
and pant Ext.P3 and same took into possession vide seizure memo Ext.PC. It is alleged by prosecution that FSL report is Ext.PX and as per request of police Ext.PW7/A tatima Ext.PW7/B showing the place of incident was prepared. It is also alleged by prosecution that copy of jamabandi is Ext.PW7/C and request for medical examination of injured is Ext.PW10/C. It is alleged by prosecution that site plan Ext.PW10/D was prepared and map showing the place from where Khukhari sharp edged weapon Ext.P1 was recovered is Ext.PW10/F. It is alleged by prosecution that Ext.PW10/D is piece of cloth on which sample of seal 'T' was obtained and sketch of Khukhri sharp edged weapon is Ext.PW10/J. It is alleged by prosecution that police request for obtaining final opinion of medical officer is Ext.PW10/F and Ext.PW11/A is the X-ray form of Shri Pawan Mahajan and Ext.PW11/B to Ext.PW11/D are X-ray films and Ext.PW11/E is X-ray report and Ext.PW12/A is MLC. It is alleged by prosecution that Ext.PW13/A is OPD slip issued by Dr. Avneesh Kumar.
3. Charge was framed by learned Additional Sessions Judge Fast Track Court Chamba against the accused on dated ::: Downloaded on - 15/04/2017 17:44:43 :::HCHP 4 23.8.2006 under Sections 307, 326 and 324 IPC. Accused did not plead guilty and claimed trial.
.
4. Prosecution examined as many as thirteen witnesses in support of its case:-
Sr.No. Name of Witness PW1 Pawan Kumar PW2 Dev Dutt PW3 Himanshu Mahajan PW4 Ashmeel Mohd.
PW5 Satish Kumar
PW6 Ramesh Chand
PW7 Patwari Bhupinder
PW8 C. Latiff Mohd.
PW9 SHO Jatinder
PW10 ASI Kaur Chand
PW11 Dr. V.K. Pathak
PW12 Dr. Vishal Mahajan
PW13 Dr. Avnish Kumar
5. Prosecution also produced following documentary evidence in support of its case:-
Sr.No. Description.
Ext.PA Statement under Section 154
Cr.P.C.
::: Downloaded on - 15/04/2017 17:44:43 :::HCHP
5
Ext PB Memo of recovery of Khukhari
Ext.P1
Ext PC Seizure memo of clothes
Ext.P2 and Ext.P3
.
Ext.PD Disclosure statement under
Section 27 of Indian Evidence
Act
Ext.PX FSL report
Ext.PW7/A. Application to Tehsildar
Chamba (H.P.)
Ext.PW7/B. Tatima
Ext.PW7/C. Jamabandi
Ext.PW10/A. Copy of FIR
Ext.PW10/C Application to M.O. Zonal
Hospital Chamba (H.P.)
Ext.PW10/D Site plan
Ext.PW10/E Statement
Ext.PW10/F Application to M.O. Zonal
Hospital Chamba (H.P.)
Ext.PW10/G Sample of seal impression
Ext.PW10/H Site plan
Ext.PW10/J Sketch of sharp edged
weapon i.e. Khukhari.
Ext.PW11/A. Report of Radiologist
Ext.PW11/B X-ray films
Ext.PW11/D.
Ext.PW12/A. MLC of Pawan Mahajan
Ext.PW13/A MLC issued by Dr. Avinash
Kumar
Ext.P1 Khukhari i.e. sharp edged
weapon
Ext.P2 Shirt of injured
Ext.P3 Pant of injured
6. Statement of the accused was also recorded under Section 313 Cr.P.C. on dated 06.01.2007. Accused did not lead ::: Downloaded on - 15/04/2017 17:44:43 :::HCHP 6 any defence evidence. Learned trial Court acquitted the accused on dated 29.9.2007 by way of giving him benefit of .
doubt.
7. Feeling aggrieved against the judgment passed by the learned trial Court appellant-State filed present appeal under Section 378 of Code of Criminal Procedure.
8. We have heard learned Additional Advocate General appearing on behalf of the State and learned
9.
r to Advocate appearing on behalf of the respondent and also perused entire record carefully.
Point for determination before us is whether learned trial Court did not properly appreciate oral as well as documentary evidence adduced by the parties and whether learned trial Court caused miscarriage of justice.
10. ORAL EVIDENCE ADDUCED BY PROSECUTION:-
10.1. PW1 Pawan Kumar has stated that on dated 14.05.2005 marriage took place in the house of Desh Raj and he had gone to house of Desh Raj to attend the marriage ceremony. He has stated that thereafter he came to Chamba market with his wife Anita Mahajan and son Master Himanshu at about 7 PM. He has stated that he left his wife in the shop of Pardeep Kumar and went with his son to the shop of Inder to get the cycle repaired. He has stated that when he was ::: Downloaded on - 15/04/2017 17:44:43 :::HCHP 7 getting the cycle repaired and was looking towards the mechanic he was hit from back on his head. He has stated .
that he thought that a cricket ball had hit him and he placed his hand on his head at place where he sustained injury. He has stated that again he was hit on his head and thereafter he looked back and found that accused Mehboob Khan was hitting him. He has stated that accused even tried to hit him on his stomach. He has stated that he suffered injuries on his back and has further stated that accused had also pushed his son. He has stated that accused wanted to kill him. He has stated that his Samsung mobile phone and Rs. 9300/- (Rupees Nine thousand three hundred only) fell down from his pocket and accused picked them and took them with him. He has stated that mobile number was 94180-91333. He has stated that incident was witnessed by Inder mechanic and Mohinder Singh. He has stated that thereafter he was took to hospital for his medical treatment and his wife also accompanied him to the hospital. He has stated that accused ran towards street which leads towards Laxmi Narayan temple. He has stated that his statement Ext.PA was also recorded before police officials and he was medically examined at Chamba hospital and thereafter he was referred to IGMC Shimla. He has stated that lot of blood was coming out from his body and thereafter ::: Downloaded on - 15/04/2017 17:44:43 :::HCHP 8 his wife took him to Pathankot Sukhsadan hospital. He has stated that clothes which were worn by him at the time of .
incident also took into possession by police officials. He has stated that Khukhari Ext.P1 is the same and shirt Ext.P2 and pant Ext.P3 are the same. He has stated that same were blood stained and they were handed over by him to police officials.
He has stated that fight took place for 4/5 minutes and Mohinder Singh and Inder mechanic were present at the spot.
He has stated that Inder is owner of the shop. He has stated that mechanic was present at the shop and he was repairing the cycle. He has denied suggestion that accused did not inflict injuries on his person. He has denied suggestion that his mobile phone and cash were not taken by accused. He has denied suggestion that Khukhari sharp edged weapon was not recovered at the instance of accused.
10.2 PW2 Dev Dutt has stated that he used to live in Chamba town and used to work as cycle mechanic in the shop of Inder. He has stated that Pawan Kumar is known to him and further stated that Pawan Kumar came to his shop to get the cycle repaired. He has stated that he does not remember whether son of Pawan Kumar was with him or not. He has stated that nothing took place in his presence. He has stated that he was sitting and repairing the cycle. He has stated that ::: Downloaded on - 15/04/2017 17:44:43 :::HCHP 9 he had seen the accused for the first time in Court. He has denied suggestion that he is deposing falsely to save the .
accused. He has denied suggestion that accused inflicted injuries with Khukhari sharp edged weapon on the person of Pawan Kumar. He has stated that he did not see Ext.P1 in hands of accused. He has stated that he did not see the blood coming out from the body of Pawan Kumar.
10.3 PW3 Himanshu Mahajan has stated that he had gone along with his parent to the house of Desh Raj and after marriage ceremony he went to Chamba market to get the cycle repaired. He has stated that his mother was sitting in the shop of Pardeep Kumar and he and his father have gone to get the cycle repaired. He has stated that when they were getting the cycle repaired his father was beaten by accused present in Court. He has stated that his father was hit with Khukhari sharp edged weapon Ext.P1 shown to him in the Court. He has stated that blood came out from the head and hand of his father. He has stated that he had seen Khukhari Ext.P1 for the first time. He has stated that he did not see anyone beating his father. He has stated that he only saw that blood was coming out from the body of his father. He has stated that many cases are pending against his father in the Court. He has stated that dispute also took place between his ::: Downloaded on - 15/04/2017 17:44:43 :::HCHP 10 father and accused on earlier occasion. He has denied suggestion that he has deposed falsely being son of .
complainant.
10.4 PW4 Ashmeel Mohammed has stated that clothes of Pawan Kumar were took into possession and sealed by police in his presence and memo Ext.PC was prepared. He has stated that shirt Ext.P2 and pant Ext.P3 are the same which were took into possession by police. He has stated that parcels of clothes were prepared and same were signed by him as a witness. He has stated that he could not state with certainty whether clothes Ext.P2 and pant Ext.P3 are the same which were took into possession by police. He has stated that he does not remember as to who produced the clothes before the police officials. He has stated that seal was not handed over to him by police officials.
10.5 PW5 Satish Kumar has stated that he joined the police during investigation and accused was in the custody.
He has stated that police officials had inquired about Khukhari sharp edged weapon from accused and accused told that he had concealed Khukhari sharp edged weapon near the stairs of Sui Mata temple. He has stated that statement of accused Ext.PD was recorded in his presence and Ext.PD bears his signatures as a witness. He has stated that thereafter accused ::: Downloaded on - 15/04/2017 17:44:43 :::HCHP 11 led the police party to the place where he had concealed Khukhari sharp edged weapon and got it recovered at the .
instance of accused and same was took into possession by police vide memo Ext.PB which bears his signatures. He has stated that Khukhari sharp edged weapon was sealed by police and his signatures were obtained on the parcel. He has stated that another witness Ravinder Singh was also present.
He has denied suggestion that he has deposed falsely because his brother-in-law Desh Raj has inimical relations towards the accused. He has denied suggestion that accused did not get Ext.P1 recovered.
10.6 PW6 HC Ramesh Chand has stated that case property relating to the case was deposited with him and entry was recorded in Malkhana register. He has stated that parcels were sent through C. Latif Mohammad to FSL Junga for chemical test vide RC No. 68/05 dated 24.5.2005. He has stated that case property remained intact in his possession.
He has stated that he did not bring the Malkhana register and RC register in the Court and he has denied suggestion that he has deposed falsely in Court.
10.7 PW7 Bhupinder Singh Patwari has stated that application Ext.PW7/A was marked to him by Naib Tehsildar Chamba for preparation of tatima and thereafter he prepared ::: Downloaded on - 15/04/2017 17:44:43 :::HCHP 12 tatima Ext.PW7/B and jamabandi Ext.PW7/C and thereafter handed over the same to police officials.
.
10.8 PW8 C. Latif Mohammad has stated that in the month of May 2005 he was posted in P.S. Sadar Chamba and on dated 24.05.2005 MHC Ramesh Chand handed over two parcels duly sealed with seal impression 'T' to him vide RC No. 68/05. He has stated that he deposited both parcels in FSL Junga and thereafter handed over the RC to MHC and further stated that property remained intact in his possession. He has stated that he has not seen the road certificate in Court and receipt of parcels issued by Laboratory was given on road certificate itself.
10.9 PW9 SHO Jatinder Kumar has stated that chemical analyst report Ext.PX was received in police station and after completion of investigation he prepared challan.
10.10 PW10 ASI Kaur Chand has stated that in the year 2005 he was posted as Incharge P.P. City Chamba and after registration of FIR Ext.PW10/A the case was investigated by him. He has stated that injured Pawan Mahajan had made statement Ext.PA before him and he made endorsement on said statement and thereafter sent the statement to police station for registration of FIR. He has stated that endorsement is Ext.PW10/B and injured was got medically examined vide ::: Downloaded on - 15/04/2017 17:44:43 :::HCHP 13 police docket Ext.PW10/C and further stated that injured was admitted in hospital and was got X-rayed in hospital. He has .
stated that thereafter injured was referred to IGMC Shimla and on dated 15.5.2005 he inspected the spot and prepared spot map Ext.PW10/D showing the place of incident. He has stated that on the same day he recorded statements of other witnesses under Section 161 Cr.P.C. as per their versions and nothing was added or deleted by him. He has stated that thereafter on dated 17.5.2005 he moved Ext.PW10/F before medical officer to give his opinion about nature of injuries suffered by injured Pawan Kumar. He has application stated that one of the injuries was grievous and Section 326 IPC was added. He has stated that clothes of injured were blood stained and same were took into possession vide seizure memo Ext.PC and sealed. He has stated that disclosure statement Ext.PD was recorded in his presence and further stated that accused disclosed that he had concealed Khukhari sharp edged weapon near the stairs of Sui Mata temple and could get it recovered. He has further stated that thereafter accused led the police to the place and got Khukhari Ext.P1 recovered from bushes and same was took into possession vide seizure memo Ext.PB in presence of witnesses and sealed. He has further stated that Ext.P1 ::: Downloaded on - 15/04/2017 17:44:43 :::HCHP 14 Khukhari sharp edged weapon was identified by accused and specimen of seal was retained on a piece of cloth which is .
Ext.PW10/G and seal after use was handed over to Pawan Mahajan and site plan Ext.PW10/H showing the place of recovery was prepared by him and sketch Ext.PW10/J of Khukhari sharp edged weapon was drawn and prepared and took copy of jamabandi from Patwari. He has stated that after completion of investigation he handed over the file to Inspector SHO Jatinder Kumar for preparation of challan. He has stated that Khukhari Ext.P1 is the same which was recovered at the instance of accused. He has stated that Rs.
9300/- (Rupees Nine thousand Three hundred only) and mobile phone could not be recovered from accused because accused told that he had not lift the same. He has denied suggestion that accused was beaten during investigation. He has denied suggestion that accused did not give any disclosure statement before him. He has denied suggestion that accused did not inflict any injury on the person of Pawan Kumar and also denied suggestion that accused was involved in false case in collusion with complainant. He has denied suggestion that Khukhari Ext.P1 was not recovered at the instance of accused.
::: Downloaded on - 15/04/2017 17:44:43 :::HCHP 1510.11 PW11 Dr. V.K. Pathak Radiologist Regional Hospital Una has stated that he remained posted as .
Radiologist in Zonal Hospital Chamba and further stated that Pawan Mahajan was referred by Dr. Vishal Mahajan for X-ray examination. He has stated that X-ray form is Ext.PW11/A and further stated that X-ray of Pawan Kumar was conducted under his supervision and X-ray films are Ext.PW11/B to Ext.PW11/D. He has stated that after going through X-ray films he has given report Ext.PW11/E. He has stated that fracture of third metacarpal of left hand was seen. He has stated that X-
ray was conducted by Radiographer and further stated that he does not know the injured personally.
10.12 PW12 Dr. Vishan Mahajan has stated that on dated 14.5.2005 he examined Pawan Mahajan who was brought to hospital with alleged history of beating. He has stated that patient was conscious cooperative and well oriented. He has stated that on examination he found following injures on person of injured. He has further stated that incised wound was found on right side of head with beveling edge 2 cms above right ear 4 Cms in length and 0.5 Cm wide active bleeding. He has stated that incised wound was found on left hand at the base of fingers of left hand 6 Cms. multiply by 1 cm. He has stated that gaping was present ::: Downloaded on - 15/04/2017 17:44:43 :::HCHP 16 and spindle shape 6 Cm x 1.2 Cm bleeding was also present and stated that movement of third and fourth fingers was .
restricted. He has further stated that linear abrasion on left side of thorax in the middle along the curve of thorax redish in colour was found and similar was on right chest 6 cms in length. He has stated that shirt collar and pant were covered with blood. He has stated that patient was admitted in male ortho ward for further treatment and for surgical and ortho opinion. He has stated that final opinion was reserved by him till the report of X-ray and after receiving the X-ray report as well as reports of surgeon and orthopaedic surgeons he opined that injuries Nos. 1 and 3 were simple in nature and injury No. 2 was found to be grievous and weapon used was sharp. He has stated that probable duration of injuries was less than one hour and has further stated that he issued MLC Ext.PW12/A which is in hand and bears his signatures. He has stated that injuries mentioned in MLC could be caused with Khukhari sharp edged weapon Ext.P1. He has stated that continuous and active bleeding could cause death if same was not controlled. He has admitted that date has been changed from 15.05.2005 to 14.5.2005 in MLC. Self stated that date 15.5.2005 was wrongly written by him which was corrected.
::: Downloaded on - 15/04/2017 17:44:43 :::HCHP 17He has stated that in MLC register which he has brought in Court probable duration of injuries has not been mentioned.
.
10.13 PW13 Dr. Avnish Kumar has stated that on dated 15.5.2005 Pawan Kumar Mahajan came to hospital for his medical treatment of injured hand. He has stated that he noted the following injuries. He has stated that extensor expansion of middle and ring finger were cut and there was a fracture of head of fourth metacarpal. He has stated that he repaired his injuries on that very day and he was sent back to his house. He has stated that after that Pawan Kumar kept on attending the hospital as an OPD patient and injuries were found grievous caused with sharp edged weapon. He has stated that probable duration of injuries might be 6 to 8 hours and these injuries could be caused with sharp edged weapon like Khukhari Ext.P1. He has stated that such injury could not cause death but constant bleeding could cause death. He has stated that he did not issue any medico legal certificate. He has stated that injury could be caused if a person falls on sharp edged object like iron sheet.
11. Statement of the accused under Section 313 Cr.PC was recorded. Accused did not lead any defence evidence.
12. Submission of learned Additional Advocate General appearing on behalf of State that learned trial Court ::: Downloaded on - 15/04/2017 17:44:43 :::HCHP 18 did not properly appreciate oral as well as documentary evidence produced by prosecution in present case is rejected .
being devoid of any force for the reasons hereinafter mentioned. As per challan filed by prosecution and as per list of witnesses furnished by prosecution Dev Dutt, Ravinder Singh, Mohinder Singh, Baldev Singh, Shiv Chopra, Babar, Himanshu and Anita Mahajan were eye witnesses of incident.
Shri Dev Dutt PW2 who was alleged eye witness of incident has specifically stated when appeared in witness box that nothing happened in his presence and he had seen the accused for the first time in Court. PW2 Dev Dutt has specifically stated in positive manner that he did not see Khukhari sharp edged weapon in the hands of accused and PW2 Dev Dutt has also stated that he did not see the blood coming from the body of injured Pawan Kumar. We are of the opinion that above stated testimony of PW2 Dev Dutt is hostile to prosecution case. There is no reason to disbelieve the testimony of PW2. There is no evidence on record in order to prove that PW2 has hostile animus against injured at any point of time.
13. We have also carefully perused the testimony of PW3 Himanshu Mahajan. He has specifically stated when appeared in witness box that he had seen the sharp edged ::: Downloaded on - 15/04/2017 17:44:43 :::HCHP 19 weapon i.e. Khukhari in the Court for the first time and has also specifically stated that he did not see anyone inflicting .
injuries upon his father and further stated that many cases are pending against his father in the Court. We are of the opinion that above stated testimony of PW3 Himanshu is also hostile to prosecution case.
14. Learned Public Prosecutor on dated 26.10.2006 had given up Ravinder Singh, Baldev Singh and Shiv Chopra who were present in Court on the ground that they were won over by accused. On dated 27.10.2006 learned Public Prosecutor had also given up Mohinder Singh, Babar and Ravinder Singh on the ground that above sated prosecution witnesses were won over by accused and learned P.P. also given up Kamal Kishor and Anita Mahajan on dated 27.10.2006 who were present in Court. In present case PW1 injured when appeared in witness box has stated in positive manner that incident was witnessed by Inder mechanic and Mohinder Singh. Prosecution did not examine Inder mechanic and Mohinder Singh eye witnesses in Court. In present case it is proved on record that eye witness Mohinder Singh was present in Court on dated 27.10.2006 but he was not examined by prosecution on the ground that Mohinder Singh was won over by accused. We draw adverse inference against ::: Downloaded on - 15/04/2017 17:44:43 :::HCHP 20 prosecution under Section 114 (g) of Indian Evidence Act for non-examination of material and independent eye witness in .
Court despite his presence in Court room.
15. Another submission of learned Additional Advocate General appearing on behalf of State that there was no hostile relations of accused with official witnesses and learned trial Court had illegally discarded their evidence and on this ground appeal be accepted is also rejected being devoid of any force for the reasons hereinafter mentioned. We are of the opinion that official witnesses are not eye witnesses of incident. Official witnesses came after the incident and they are only corroborative witnesses in present case. It is well settled law that conviction in criminal cases should be given on testimony of positive cogent and reliable eye witnesses.
16. Another submission of learned Additional Advocate General appearing on behalf of State that learned trial Court has not properly appreciated testimony of PW1 Pawan Kumar which is corroborated by PW12 Dr. Vishal Mahajan who conducted MLC of injured and on this ground appeal be accepted is rejected being devoid of any force for the reasons hereinafter mentioned. It is not the case of prosecution that no other independent eye witnesses were present at the time of incident. On the contrary injured has ::: Downloaded on - 15/04/2017 17:44:43 :::HCHP 21 himself stated when appeared in witness box that incident was witnessed by Inder mechanic and Mohinder Singh. But .
prosecution did not examine independent witnesses namely Inder mechanic and Mohinder Singh in the present case in order to elucidate the truth of prosecution story. We are of the opinion that in view of the fact that independent eye witnesses were present at the spot at the time of incident but they were not examined in Court it is not expedient in the ends of justice to convict the accused solely on testimony of PW1 because it is not case of prosecution that no independent witness was present at the time of alleged incident.
17. Another submission of learned Addl. Advocate General appearing on behalf of the State that learned trial Court has not appreciated the testimony of PW3 Himanshu Mahajan who was son of PW1 in proper manner is also rejected being devoid of any force for the reasons hereinafter mentioned. We have carefully perused the testimony of PW3 Himanshu Mahajan. It is well settled law that statements of witnesses should be read as a whole and should not be read in isolation. It is well settled law that Courts are under legal obligation to take out grain from chaff. PW3 has specifically stated in cross examination that he did not see anyone inflicting injuries on the person of his father. He has further ::: Downloaded on - 15/04/2017 17:44:43 :::HCHP 22 stated that he had seen Khukhari sharp edged weapon Ext.P1 for the first time in Court. Above stated testimony of PW3 eye .
witness is fatal to prosecution.
18. Another submission of learned Additional Advocate General that as per medical evidence placed on record injured had sustained three injuries out of which injury No. 1 and 2 were incised and injury No. 3 was abrasion and injury No. 2 was grievous and on this ground accused be convicted in present case is rejected being devoid of any force for the reasons hereinafter mentioned. We are of the opinion that opinion of medical officer is only advisory in nature and medical officer is not eye witness of incident. It is not proved on record beyond reasonable doubt that injuries mentioned in MLC Ext.PW12/A were caused by accused upon the injured with sharp edged weapon. We are of the opinion that sole testimony of PW1 injured is not sufficient to convict the accused in present case because as per testimony of injured independent eye witnesses have witnessed the incident and prosecution has examined only PW2 Dev Dutt cycle mechanic and PW3 Himanshu and both of them have not stated in positive manner that injuries were inflicted upon the person of injured by accused with sharp edged weapon in their presence. It was held in case reported in AIR 1964 Kerala 222 ::: Downloaded on - 15/04/2017 17:44:43 :::HCHP 23 titled Chacko Mathai vs. State of Kerala medical evidence is not an evidence of fact of incident and it is only opinion evidence .
about injuries. (Also see AIR 1962 Calcutta 504 titled Arun Kumar Banerjee and another vs. The State) It is well settled law that value of medical evidence is only corroborative in nature qua injuries sustained by injured person. (See AIR 1954 Calcutta 305 titled Sunil Chandra Roy and another vs. the State)
19. Another submission of learned Additional Advocate General that accused be convicted on the basis of recovery of sharp edged weapon i.e. Khukhari and recovery of blood stained shirt and pant as per Section 27 of Indian Evidence Act is rejected being devoid of any force for the reasons hereinafter mentioned. We are of the opinion that evidence under Section 27 of Indian Evidence Act is not substantive evidence and same is only corroborative evidence. It is well settled law that conviction in criminal cases is given on the basis of substantive evidence. It was held in case reported in AIR 1977 SC 472 titled Dalbir Kaur and others vs. State of Punjab and AIR 1970 Bombay 438 titled Dinkar Bandhu Deshmuch and another vs. State that discovery under Section 27 of Indian Evidence Act is not substantive evidence and it is only corroborative evidence. Even PW4 Ashmeel Mohammad recovery witness has stated that he could not state with certainty that clothes Ext.P2 and Ext.P3 are same which were ::: Downloaded on - 15/04/2017 17:44:43 :::HCHP 24 took into possession and has stated in positive manner that he does not remember who produced the clothes. He has further .
stated that seal was not handed over to him.
20. Another submission of learned Additional Advocate General appearing on behalf of the appellant that as per Chemical analyst report Ext.PX placed on record on pant and shirt human blood was found and on this ground appeal be accepted is rejected being devoid of any force for the reasons hereinafter mentioned. We have carefully perused the chemical analyst report Ext.PX placed on record and as per chemical analyst report human blood was found upon pant and shirt but blood group of human being has not been mentioned in chemical analyst report in order to connect blood group of injured upon shirt and pant.
21. Another submission of learned Additional Advocate General appearing on behalf of the State that as per chemical analyst report blood was found upon Khukhari sharp edged weapon used for inflicting injuries upon injured by accused and on this ground appeal be accepted is rejected being devoid of any force for the reasons hereinafter mentioned. We have carefully perused the chemical analyst report Ext.PX placed on record. There is recital in chemical report that although blood was found upon Khukhari sharp ::: Downloaded on - 15/04/2017 17:44:43 :::HCHP 25 edged weapon but same was insufficient for analysis. It was held in case reported (2005) 9 SCC 765 titled Anjlus Dungdung Vs. .
State of Jharkhand that suspicion however strong cannot take place of proof. See: AIR 1979 SC 1382 State (Delhi Administration) Vs. Gulzarilal Tandon. Also See: AIR 1983 SC 906 titled Bhugdomal Gangaram and others Vs. The State of Gujarat See: AIR 1985 SC 1224 titled State of UP Vs. Sukhbasi and others.Also See: (1984) 4 SCC 116 Sharad Birdhichand Sarda Vs. State of Maharashtra. It is well settled law that conjecture or suspicion cannot take place of legal proof. See: AIR 1967 SC 520 Charan Singh Vs. The State of Uttar Pradesh. Also See: AIR 1971 SC 1898 Gian Mahtani Vs. State of Maharashtra. It is well settled principle of law that vested right accrued in favour of the accused with the judgment of acquittal by learned trial Court. (See (2013) 2 SCC 89 titled Mookkiah and another Vs. State. See 2011 (11) SCC 666 titled State of Rajashthan Vs. Talevar and another. See AIR 2012 SC (Supp) 78 titled Surendra Vs. State of Rajasthan. See 2012 (1) SCC 602 titled State of Rajasthan Vs. Shera Ram @ Vishnu Dutt). It is well settled principle of law (i) That appellate Court should not ordinarily set aside a judgment of acquittal in a case where two views are possible though the view of the appellate Court may be more probable. (ii) That while dealing with a judgment of acquittal the appellate Court must consider entire evidence on record so as to arrive at a finding as to whether views of ::: Downloaded on - 15/04/2017 17:44:43 :::HCHP 26 learned trial Court are perverse or otherwise unsustainable
(iii) That appellate Court is entitled to consider whether in .
arriving at a finding of fact, learned trial Court failed to take into consideration any admissible fact (iv) That learned trial court took into consideration evidence brought on record contrary to law. (See AIR 1974 SC 2165 titled Balak Ram and another Vs. State of UP, See (2002) 3 SCC 57 titled Allarakha K. Mansuri Vs. State of Gujarat, See (2003) 1 SCC 398 titled Raghunath Vs. State of Haryana, See AIR 2007 SC 3075 State of U.P Vs. Ram Veer Singh and others, See AIR 2008 SC 2066, (2008) 11 SCC 186 S.Rama Krishna Vs. S. Rami Raddy (D) by his LRs. & others. Sambhaji Hindurao Deshmukh and others Vs. State of Maharashtra, See (2009) 10 SCC 206 titled Arulvelu and another Vs. State, See (2009) 16 SCC 98 titled Perla Somasekhara Reddy and others Vs. State of A.P,See:(2010) 2 SCC 445 titled Ram Singh @ Chhaju Vs. State of Himachal Pradesh). It was held in case reported in (2015)1 SCC 737 titled Dilawar Singh and others vs. State of Haryana that appellate Court would not ordinarily interfere with the order of acquittal unless approach of learned trial Court is vitiated by manifest illegality. It was held that appellate Court would not interfere with order of acquittal merely because on evaluation of evidence different plausible view would arise. It was held that appellate Court would interfere only under substantial and compelling reasons in criminal case when findings of ::: Downloaded on - 15/04/2017 17:44:43 :::HCHP 27 learned criminal Court are based upon inadmissible evidence or when findings of learned Criminal Court are based upon .
material irregularity or when findings of learned Criminal Court are based upon misreading of evidence or when findings of learned Criminal Court are based upon conjecture and surmises.
22. In view of the above stated facts and case law cited supra it is held that learned trial Court has properly appreciated oral as well as documentary evidence placed on record and it is further held that learned trial Court did not commit any miscarriage of justice to the appellant. We affirmed judgment passed by learned trial Court and dismiss the appeal filed by the State of Himachal Pradesh. Bail bonds if any furnished by accused are discharged. Appeal stands disposed of. Pending application(s) if any are also disposed of.
Record of learned trial Court along with certified copy of judgment be sent back forthwith.
(Sanjay Karol), Judge.
(P.S.Rana)
March 11,2015(ms) Judge.
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