Himachal Pradesh High Court
State Of Himachal Pradesh vs Sumesh Pathania & Others on 27 July, 2015
Author: Sanjay Karol
Bench: Sanjay Karol
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 103 of 2015 .
Date of Decision: July 27, 2015 State of Himachal Pradesh ...Appellant.
Versus Sumesh Pathania & others ...Respondents.
of Coram:
The Hon'ble Mr. Justice Sanjay Karol, Judge.
rt Whether approved for reporting?1. No. For the Appellant: Mr. Kush Sharma, Dy. AG, for the appellant-State.
For the Respondent: Mr. Ashok Kumar Thakur, Advocate, for respondents No.1 to 3 and 5.
Sanjay Karol, J (oral).
Assailing the judgment dated 11.08.2014, passed by Chief Judicial Magistrate, Nurpur, District Kangra, H.P., in Criminal Case No.14-II/2006, titled as State of H.P. Versus Sumesh Pathania & others, whereby accused stand acquitted of the charged offences, State has filed the present appeal under the provisions of Section 378 of the Code of Criminal Procedure, 1973.
1Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 18:38:36 :::HCHP 22. In connection with FIR No.285 of 2005 dated 19.09.2005 registered at Police Station, Nurpur, District Kangra, H.P., accused were called upon to face charges .
for having committed offences punishable under the provisions of Sections 147, 148, 325, 323, 506 all read with Section 149 of the Indian Penal Code.
3. In order to establish its case, in all, of prosecution examined as many as eleven witnesses.
Statements of the accused under Section 313 of the rt Code of Criminal Procedure were also recorded, in which they took the defence of false implication.
4. Trial Court, after appreciating testimonies of the prosecution witnesses acquitted all the accused of all the charges.
5. Having heard Mr. Kush Sharma, learned Deputy Advocate General, on behalf of the State as also Mr. Ashok Kumar Thakur, learned counsel, on behalf of the accused and having minutely examined the testimonies of the witnesses and other documentary evidence so placed on record by the prosecution, I am of the considered view that no case for interference is made out at all. The judgment rendered by the trial Court is based on complete, correct and proper appreciation of evidence (documentary and ocular) so ::: Downloaded on - 15/04/2017 18:38:36 :::HCHP 3 placed on record. There is neither any illegality/infirmity nor any perversity with the same, resulting into miscarriage of justice.
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6. It is a settled principle of law that acquittal leads to presumption of innocence in favour of an accused. To dislodge the same, onus heavily lies upon the prosecution. Having considered the material on of record, I am of the considered view that prosecution has failed to establish the essential ingredients so rt 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, 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 ::: Downloaded on - 15/04/2017 18:38:36 :::HCHP 4 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 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 of 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 rt in the administration of justice." "
8. Through the testimonies of Bodh Raj (PW.2), Amar Nath (PW.3) and Smt. Kamla Devi (PW.5), prosecution wants the Court to believe that the accused persons with a common object, formed an unlawful assembly and by using force, committed an act of rioting; gave blow with a danda to Bodh Raj (PW.2), Smt. Kamla Devi (PW.5) and Kamal Gopal (PW.6), as a result of which said persons sustained injuries.
9. Dr. Neerja Gupta (PW.4) and Dr. Bharti Sharma (PW.9) have proved medical evidence (Ex.PW.4/A, Ex.PW.4/B and Ex.PW.4/D) with regard to the injuries sustained by Bodh Raj, Kamal Gopal and Smt.Kamla Devi.
::: Downloaded on - 15/04/2017 18:38:36 :::HCHP 510. The question which needs to be considered is as to whether the victims, through their testimonies, have been able to establish the prosecution case.
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11. Witnesses do state that there is dispute with regard to construction raised on the spot. Victims claimed it to be their. Record also reveals that parties entered into a compromise and the victims received of money.
12. Testimony of complainant Bodh Raj (PW.2) of rt having been rescued by his Uncle Amar Nath (PW.3) stands contradicted by the said witness himself, according to whom, he did not see any person giving beatings to the victims.
13. Bodh Raj and Kamla Devi admit that at the time of occurrence of the alleged incident, it was dark.
Specifically they could not identify the assailants. As such, identity of the assailants itself is in doubt.
14. Further Kamla Devi, for the first time, named accused Pushpa Devi to be member of an aggressor party. Her version is full of exaggerations, embellishments and improvements.
15. Version of Bodh Raj and Smt. Kamla Devi also stands contradicted by Mastan Singh (PW.10), another independent witness, who allegedly saved the ::: Downloaded on - 15/04/2017 18:38:36 :::HCHP 6 victims from the clutches of the assailants. The fact of the matter being, that the complainant party was not happy with Krishan Chand (accused No.2) residing in .
the village. Version of the victims that they sustained injuries as a result of beatings given by the accused stands materially contradicted by Amar Nath (PW.3), according to whom, injuries were sustained as a result of of fall from the motorcycle. As such, it cannot be said that prosecution has been able to establish its case, rt beyond reasonable doubt.
16. Court does not find prosecution to have proved its case, beyond reasonable doubt, that accused persons with common object formed an unlawful assembly and by using force, committed an act of rioting; gave blows with danda to Bodh Raj, Kamal Gopal and Smt. Kamla Devi and thereby caused hurt to them; and also criminally intimidated them, by leading clear, cogent, convincing piece of evidence.
17. The Court below, in my considered view, has correctly and completely appreciated the evidence so placed on record by the prosecution. It cannot be said that judgment of trial Court is perverse, illegal, erroneous or based on incorrect and incomplete ::: Downloaded on - 15/04/2017 18:38:36 :::HCHP 7 appreciation of material on record resulting into miscarriage of justice.
18. The accused persons have 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 Ankoos and others versus Public Prosecutor, High Court of Andhra Pradesh, Hyderabad of (2010) 1 SCC 94, since it cannot be said that trial Court has not correctly appreciated the evidence on record or rt 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, being devoid of merit, is dismissed, so also the pending application(s), if any. Bail bonds furnished by the accused are discharged. Record of the trial Court be immediately sent back.
(Sanjay Karol),
July 27, 2015 Judge.
(Purohit)
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