Himachal Pradesh High Court
State Of Himachal Pradesh vs Gauri Ram on 30 July, 2019
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
Cr. Appeal No: 414 of 2010
Date of Decision: 30.07.2019
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State of Himachal Pradesh ........ Appellant
Versus
Gauri Ram .....Respondent
Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1 Yes.
For the Appellant : Mr. Sudhir Bhatnagar, Additional
Advocate General, with Mr. Kunal
Thakur, Deputy Advocate General.
For the Respondent: Mr. Ajay Sharma, Senior Advocate
with Mr. Ajay Thakur, Advocate.
__________________________________________________________
Sandeep Sharma, Judge (oral):
Instant Criminal Appeal having been filed by the appellantState, is directed against the judgment of acquittal dated 9.4.2010, passed by learned Judicial Magistrate, 1st Class (II), Kangra, District Kangra, Himachal Pradesh, in Criminal case No. 4II/2004, whereby learned trial Court held respondent (hereinafter referred to as the 'accused') not 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 29/09/2019 01:31:08 :::HCHP 2guilty of having committed of offence punishable under Section 325 of IPC and accordingly acquitted him.
2. Briefly stated facts, as emerged from the record are .
that on 31.12.2002, complainant Sher Singh (PW1) lodged a complaint at police Station, Kangra, District Kangra,H.P., alleging therein that on 31.12.2002, at about 8:15 PM, accused came to the courtyard (jointly owned by the victim and the accused) and started hurling abuses. Complainant Sher Singh and his son Vijay Kumar (PW11) came to the courtyard and Vijay Kumar asked the accused to refrain from using abusive language. Accused after listening aforesaid request of Vijay Kumar, got infuriated and took a stick in his hand and tried to assault Vijay Kumar. Complainant Sher Singh intervened with a view to save his son, but the blow of the stick injured his right arm. Thereafter, accused inflicted another blow on the head of the complainant, as a consequence of which, blood started oozing out from his head. Subsequently, Onkar Singh (PW2) came to the spot, but accused also inflicted 23 blows of stick on his person. Vikram Singh (PW6) and Sher Singh (PW4), who happened to be neighbours of the accused as well ::: Downloaded on - 29/09/2019 01:31:08 :::HCHP 3 as the complainant, reached the spot and got the dispute settled down. On the basis of aforesaid complaint, formal FIR Ex.PW10/A came to be lodged at police Station, Kangra, .
District Kangra,H.P. Thereafter, police got the complainant medically examined and procured MLC Ex.PW7/A. As per MLC, injury No.1 was found to be grievous in nature caused by blunt weapon. After completion of the investigation, police presented the challan in the Court of learned Judicial Magistrate, 1st Class (II) Kangra, District Kangra, Himachal Pradesh, who being satisfied that a primafacie case exists against the accused, framed charge against him for the commission of offence punishable under Section 325 IPC, to which he pleaded not guilty and claimed trial.
3. Prosecution with a view to prove its case examined as many as 12 witnesses, whereas accused in his statement recorded under Section 313 Cr.P.C. denied the case of the prosecution in toto. However, he did not lead any evidence in his defence. He stated that complaint came to be lodged against him because of prior enmity between the parties. He also alleged that there was a case against the complainant, ::: Downloaded on - 29/09/2019 01:31:08 :::HCHP 4 wherein he had deposed as a witness and as such, present case has been filed to take revenge.
4. Learned trial Court on the basis of the evidence .
collected on record by the prosecution, held accused not guilty and accordingly acquitted him vide judgment dated 9.4.2010.
In the aforesaid backdrop, appellantState has approached this Court in the instant proceedings, seeking conviction of the accused after setting aside the impugned judgment acquittal recorded by the learned trial Court.
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5. Having heard learned counsel representing the parties and perused the material available on record, this Court finds no illegality and infirmity in the impugned judgment of acquittal recorded by the learned trial Court and as such, same does not call for any interference.
6. Close scrutiny of the evidence led on record by the prosecution, nowhere compel this Court to agree with the contention raised by learned Deputy Advocate General that learned Court below has failed to appreciate the evidence in its right perspective, rather this Court finds that prosecution miserably failed to prove beyond reasonable doubt that on the ::: Downloaded on - 29/09/2019 01:31:08 :::HCHP 5 date of alleged incident accused gave beatings with the aid of the stick to the complainant and other person namely, Onkar Singh (PW2) and as such, judgment of acquittal recorded by .
learned trial Court appears to be based upon the proper appreciation of the evidence.
7. Leaving everything aside, version put forth by the material prosecution witnesses, clearly reveals that they are closely related to the complainant and had prior animosity with the accused, who is otherwise related to the complainant as well as other material prosecution witnesses.
8. PW1, Sher Singh (complainant) deposed that on 31.12.2002, at about 7:30 8:00 PM, accused, who was drunk, started hurling abuses in his courtyard. Complainant's son Vijay Kumar, Vikram and Onkar came to the spot and asked the accused to stop using such language. He deposed that accused got infuriated and inflicted a blow of stick on his head and arm, as a result of which, he has suffered fractured. He also stated that he also suffered injuries on the head. He stated that he had signed as an identifier on the seizure memo vide which the stick was taken into possession, however, he ::: Downloaded on - 29/09/2019 01:31:08 :::HCHP 6 failed to identify the stick in the Court. During cross examination, this witness stated that accused is his sister's husband and couple is staying in the sister's maternal house.
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He admitted that the accused takes care of the family. He also admitted that there is a case pending against him in the Court. He denied the suggestion put to him that he wants to inherit the property of his Uncle Punnu Ram, giving rise to enmity between the parties. He also denied the suggestion that he was drunk on the fateful day and all his associates gathered and went to the house of the accused with a view to assault him and his family members. He also admitted that police came to the spot on 1.1.2003, but stated that he is unaware about the investigation conducted by the police. He feigned his ignorance in respect of the date on which he signed the seizure memo and nor he remember the place where the seizure memo was signed and neither he remember the names of other persons gathered there. Most importantly, this witness stated that stick (weapon of offence) was not produced in his presence.
::: Downloaded on - 29/09/2019 01:31:08 :::HCHP 79. PW2, Sh. Onkar Singh supported the aforesaid version put forth by PW1, but contradicted the version put forth by PW1 with regard to arrival of the police at the .
alleged spot of incident. He stated that police came to the spot within a span of 12 hours on the same day and recorded their statements. He also failed to identify the weapon of offence.
During his crossexamination, he stated that complainant is his brother and his house is situated at a distance of 100150 meters from the house of the complainant and the accused. He also stated that there are 1520 houses in between the house of the accused and the house of PW1. He stated that when he reached on the spot many people ( around 1015 in number) had gathered there including Vikram Singh (PW6), Sher Singh (PW4), Bihari Lal and Ranjeet Singh. He admitted that accused is his Uncle's soninlaw and his Uncle is having no son. He admitted that the accused takes care of the family of his Uncle as well as his property. He also admitted that the family of the complainant is not in good terms with the accused, but he denied the specific suggestion put to him that dispute keeps on cropping up between them because of the ::: Downloaded on - 29/09/2019 01:31:08 :::HCHP 8 property. In his crossexamination, he reiterated that police came to the spot and prepared the site map on the same day.
He also admitted that a case is pending against them in the .
present Court. He denied the suggestion that the complainant was drunk on that day and they all gathered and went to the house of the accused to beat him.
10. Sh. Sher Singh (PW4), who is an independent witness deposed that the accused and PW2 were quarreling among themselves in the courtyard of the accused in the year, 2002 at about 8:158:30 PM, whereafter he went to the spot and saw the accused holding a stick in his hand. Though, this witness identified the stick, but in his crossexamination stated that when he reached the spot only abuses were being exchanged and he did not witness the assault. He admitted that PW1 & PW2 were drunk. He also stated that he had left the spot after the dispute was resolved. He also admitted that there is a dispute between the complainant and the accused in respect of the fact that accused stays in the house of his father inlaw, who is the complaint's Uncle. He also admitted that accused takes care of the property of his fatherinlaw and the ::: Downloaded on - 29/09/2019 01:31:08 :::HCHP 9 complainant wants that they should get the property of their uncle. This witness admitted in his crossexamination that on the fateful day, a dispute arose between the parties because of .
the aforesaid reason. He admitted that there is a case pending against PW1 and PW2.
11. PW6, Vikram Singh i.e. another independent witness though declared hostile, but during his cross examination by learned APP, admitted that on 31.12.2002, the accused was hurling abuses in the courtyard. He admitted that the complainant alongwith his son Vijay Kumar came to the spot and Vijay Kumar told him to refrain from doing so. He also stated that complainant intervened and suffered injuries on his hand while protecting his son. This witness deposed that complainant also suffered injuries on his head and the blood started oozing out from his head, but no injuries were sustained by PW2. He stated that he did not intervene in the dispute and came back from the spot. During his cross examination by learned defence counsel, he stated that there were 1015 people gathered on the spot before his arrival. He also admitted that complainant and PW2 told him about the ::: Downloaded on - 29/09/2019 01:31:08 :::HCHP 10 injuries suffered by them. This witness like another witness admitted that the accused is staying in his fatherinlaw's house and there is a dispute between the complainant, PW2 .
and the accused in respect of the property. He also admitted that complainant and PW2 want that the accused should leave the house of his fatherinlaw and this is the basic reason behind the institution of the case by the complainant. Most in his presence.
r to importantly, this witness admitted that no assault took place
12. PW11, Vijay Kumar, who was allegedly attacked by the accused deposed that due to the assault given by the accused, his father got his right arm fractured. During his crossexamination, this witness stated that police came to the spot on 2.1.2003. He also stated that stick was presented by his father to the police at the police station. This witness admitted that accused has filed a case against his father under Section 326 of IPC.
13. PW5, Hari Singh, who is witness of seizure memo was declared hostile because he nowhere supported the case of the prosecution. During his crossexamination by learned APP, ::: Downloaded on - 29/09/2019 01:31:08 :::HCHP 11 he stated that he had signed the memo on the direction of the Investigating Officer in the police station and the stick was also lying in the police station. He categorically stated that he .
was not present on the spot on the fateful day, rather he was in Kangra. During his crossexamination by learned defence counsel, he stated that he is known to PW1 and PW2. He stated that accused is staying in the house of his fatherinlaw
14. to and he is taking care of his estate.
Careful perusal of the statements having been made by the aforesaid prosecution witnesses, clearly suggest that there are material contradictions and inconsistencies in their version put forth before the court below with regard to arrival of the police on the date of alleged incident.
Complainant, Sher Singh (PW1) though in his cross examination categorically admitted that the police came to the spot on 1.1.2003, but PW2 not only in his examinationinchief but in crossexamination reiterated that police came to the spot on 31.12.2002 and recorded their statements.
15. So called independent witnesses Sher Singh (PW
4) and Vikram Singh (PW6) associated by the prosecution ::: Downloaded on - 29/09/2019 01:31:08 :::HCHP 12 though corroborated the version put forth by PW1 and PW2 with regard to hurling of abuses by the accused on the date of alleged incident, but these witnesses specifically denied or .
feigned ignorance with regard to assault, if any, made by the accused to PW1 and PW2 in their presence. Most importantly, these independent witnesses categorically stated/ admitted that there is prior animosity inter se complainant and the accused on account of the property. These witnesses have categorically admitted that complainant and PW2 want that the accused should leave the house of his fatherinlaw.
These witnesses in so many words have also stated that complainant, who otherwise happened to be nephew of the fatherinlaw of the accused want to inherit the property of their Uncle namely Sh. Punnu Ram, who has no son. This witness as well as PW2 in their statements categorically stated that many people had gathered on the spot of alleged incident, but it is not understood that why investigating agency failed to associate independent witness from the locality, especially when they were available in abundance. No doubt, version put forth by closely related witnesses cannot be ::: Downloaded on - 29/09/2019 01:31:08 :::HCHP 13 brushed aside solely on account of nonassociation of independent witnesses, but definitely their version is required to be relied upon with utmost caution, especially when there is .
evidence available to the fact that there is prior animosity inter se parties. In the case at hand, as has been observed, there is overwhelming evidence available on record that there is previous litigation pending between the accused and the complainant and PW1 and PW2 do not want accused, who happened to be soninlaw of their Uncle, to live in the house of their Uncle, so that property is grabbed by them.
16. No doubt, version put forth by Dr. Gurdarshan Gupta(PW7), who proved the copy of MLC Ex.PW7/A, suggests that though injury No.1 was found to be simple in nature, but injury No.2 was found to be grievous in nature.
But that may not be sufficient to prove the guilt of the accused, especially when there is no evidence to connect the accused with the alleged injuries suffered by the complainant.
During his crossexamination, this witness stated that no weapon was shown to him at the time of medical examination and such injuries can be caused by fall on a hard surface.
::: Downloaded on - 29/09/2019 01:31:08 :::HCHP 1417. PW12, SI Suresta Thakur, who happened to be Investigating Officer, during her crossexamination feigned ignorance in respect of the pending case against the .
complainant under section 326 IPC. She also pleaded her ignorance in respect of the property dispute between the complainant and the accused. She denied the suggestion put to her that the stick was given by the complainant at the police Station. She also pleaded ignorance to the suggestion that the complainant has filed this case in order to defend himself.
18. Having carefully scanned the evidence led on record by the prosecution, this Court has no hesitation to conclude that prosecution has miserably failed to prove its case against the accused and as such, learned Court below has rightly held the accused not guilty of having committed of offence punishable under Section 325 of IPC.
19. By now it is well settled that in a criminal trial evidence of the eye witness requires a careful assessment and needs to be evaluated for its creditability. Hon'ble Apex Court has repeatedly held that since the fundamental aspect of criminal jurisprudence rests upon the well established principle ::: Downloaded on - 29/09/2019 01:31:08 :::HCHP 15 that "no man is guilty until proved so", utmost caution is required to be exercised in dealing with the situation where there are multiple testimonies and equally large number of witnesses .
testifying before the Court. Most importantly, Hon'ble Apex Court has held that there must be a string that should join the evidence of all the witnesses and thereby satisfying the test of consistency in evidence amongst all the witnesses. In nutshell, it can be said that evidence in criminal cases needs to be evaluated on touchstone of consistency. In this regard, reliance is placed upon the judgment passed by Hon'ble Apex Court in C. Magesh and others versus State of Karnataka (2010) 5 Supreme Court Cases 645, wherein it has been held as under: "45. It may be mentioned herein that in criminal jurisprudence, evidence has to be evaluated on the touchstone of consistency. Needless to emphasis, consistency is the keyword for upholding the conviction of an accused. In this regard it is to be noted that this Court in the case titled Surja Singh v. State of U.P. (2008)16 SCC 686: 2008(11) SCR 286 has held:( SCC p.704, para 14) " 14. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witness is held to be creditworthy;..the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation."
46. In a criminal trial, evidence of the eye witness requires a careful assessment and must be evaluated for its creditability. Since the fundamental aspect of criminal jurisprudence rests upon the stated principle that " no man is guilty until proven so," hence utmost ::: Downloaded on - 29/09/2019 01:31:08 :::HCHP 16 caution is required to be exercised in dealing with situation where there are multiple testimonies and equally large number of witnesses testifying before the Court. There must be a string that should join the evidence of all the witnesses and thereby satisfying the test of consistence in evidence amongst all the witnesses.
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20. In the case at hand, there are material contradictions and inconsistencies in the statements of the prosecution witnesses and as such, no conviction can be based upon the same.
21. Consequently, in view of the detailed discussion made hereinabove as well as law referred hereinabove, this Court sees no illegality and infirmity in the impugned judgment of acquittal passed by the learned court below, which otherwise appears to be based upon the proper appreciation of the evidence adduced on record and as such, same is upheld.
Accordingly, the present appeal is dismissed being devoid of any merit alongwith pending applications, if any.
(Sandeep Sharma), Judge 30th July, 2019 (shankar) ::: Downloaded on - 29/09/2019 01:31:08 :::HCHP