Himachal Pradesh High Court
State Of H.P vs Vir Vikram Singh And Another on 31 August, 2016
Bench: Sanjay Karol, Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No.363 of 2011 Date of Decision : August 31, 2016 .
State of H.P. ...Appellant.
Versus
Vir Vikram Singh and another ...Respondents.
Coram:
The Hon'ble Mr. Justice Sanjay Karol, Judge.
of The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting? 1
For the Appellant : Mr. V.S. Chauhan, Additional
rt Advocate General, Mr. Vikram
Thakur & Mr. Puneet Rajta, Deputy
Advocates General.
Mr. T.S. Chauhan, Legal Aid
For the Respondents :
Counsel, for respondent No.1.
Mr. Ajay Dhiman, Advocate, for
respondent No.2.
Sanjay Karol, Judge
State has appealed against the judgment dated 3.6.2011, passed by learned Sessions Judge, Sirmaur District at Nahan, Himachal Pradesh, in Sessions Trial No.26-ST/7 of 2009, titled as State of Himahcal Pradesh v.
Vir Vikram Singh & another, whereby accused-respondents Vir Vikram Singh and Robin Dhiman (hereinafter referred to as the accused), stand acquitted, in relation to charges Whether reporters of the local papers may be allowed to see the judgment?
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framed for the commission of offences, punishable under the provisions of Sections 341, 333 & 506(I), all read with Section 34 of the Indian Penal Code.
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2. Reasoning adopted by the trial Court, in our considered view, is borne out from the record and cannot be said to be perverse or illegal.
3. It is a settled principle of law that acquittal of leads to presumption of innocence in favour of an accused.
To dislodge the same, onus heavily lies upon the
4. rt prosecution. (Prandas v. The State, AIR 1954 SC 36).
It is equally settled that if two views are possible, the one taken by the trial Court should normally prevail, unless of course the reasoning adopted and the decision making process is faulty, irregular or illegal.
5. 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 offences.
6. It is the prosecution case that accused Vir Vikram Singh, at the time when he was in judicial custody at Model Central Jail, Nahan, had picked up a quarrel with Kamlesh Goyal (PW-1) for non-compliance of statutory ::: Downloaded on - 15/04/2017 21:06:49 :::HCHP ...3...
rules. As a result thereof, the said accused harboured animosity against the said witness. And to take revenge, after his release, accused assaulted the victim.
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7. On 4.6.2008, when Kamlesh Goyal (PW-1) and Rishu Sharma (PW-2) were on their way to Gunughat (Nahan), near the Masjid, accused Vir Vikram Singh stopped the motorcycle and started giving beatings to of them. Also, accused Robin Dhiman joined in perpetuating the said act. Soon Rakesh Kumar (PW-3), who was also rt posted as a Warder of the said Jail, reached the spot and tried to save the victims. The incident also came to be witnesses by independent witness Sandeep Kumar (PW-4).
8. It is a matter of record that during investigation, Kamlesh Goyal was never got medically examined. However, medical examination of Rishu Sharma was got conducted from Dr. D.D. Sharma (PW-9) and Dr. Sanjeev Sehgal (PW-10), whose testimonies reveal that the said victim suffered two injuries, one of which could have been caused with a blow of stone. However, the doctor was also of the view that the said injury could have been caused as a result of fall.
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9. Sandeep Kumar, an independent witness, evidently has not supported the prosecution and despite his extensive cross-examination, nothing fruitful could be .
elicited from his testimony. He has denied having witnessed the occurrence of the incident.
10. To us, the genesis of the prosecution story of accused Vir Vikram Singh having harboured animosity of against Kamlesh Goyal, which prompted the former to assault the latter, appears to be not true.
11. rtNo doubt, Ramesh Kumar (PW-7) and Vikas Bhatnagar (PW-8) have fortified the initial version of Kamlesh Goyal, that on 3.5.2008 when accused Vir Vikaram Singh was lodged in the Jail, at about 1 a.m., he (the witness) asked the said accused to switch off the radio, as it was against the Jail Manual. But then, careful perusal of their testimonies only reveals that no report ever came to be lodged in writing, in relation to the said incident. Why would an inmate harbour animosity against a Warder, has not come on record. Plea of prior animosity is also rendered doubtful from the fact that Kamlesh Goyal admits in the cross-examination part of his testimony that it never came to be disclosed by him to anyone, much less ::: Downloaded on - 15/04/2017 21:06:49 :::HCHP ...5...
the Investigating Officer, about "any previous animosity or threatening by Vir Vikaram Singh". Crucially, statement of this witness was recorded on the date of the incident itself.
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Hence, if the assailants had harboured any animosity against the victim, such fact ought to have been got recorded, at the first instance, being the motive of assault.
12. Kamlesh Goyal and Rishu Sharma want the of Court to believe that on 4.6.2008, they were stopped by both the accused near the Masjid, and assaulted them.
rt They further want the Court to believe that they were rescued by Rakesh Kumar (PW-3). From the statement of these witnesses, we find material contradiction, with regard to time of the incident to have emerged on record.
Firstly, what was Rakesh Kumar doing in Gunughat bazaar has not come on record. His presence on the spot is further rendered doubtful from the fact that he narrates the time of the incident to be 5.15 p.m., which fact stands belied, in fact, materially contradicted not only by the ocular version of Kamlesh Goyal and Rishu Sharma, but also the documents prepared on the spot, which reveal it to be 5.40 p.m. ::: Downloaded on - 15/04/2017 21:06:49 :::HCHP ...6...
13. Further why were the witnesses travelling to Gunughat has also not come on record. After all they were Jail Warders and were supposed to have discharged their .
duties during official time. What is the distance of the spot of occurrence from the Jail has also not come on record.
Hence, presence of all concerned on the spot, at the time of incident, itself is rendered doubtful.
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14. There is yet another factor, which renders the prosecution case to be doubtful. And that being, as is so rt admitted by the witnesses, that the spot of crime is thickly populated and there are shops on both sides of the street.
Significantly, no local resident came forward to the rescue of the victim and/or report the incident to the police. After all responsible members from the Bazaar could have been associated only to corroborate the version of the victims.
On this point, we find the testimony of ASI Subhash Chander of not associating any local person to have been contradicted by Rakesh Kumar, according to whom 7/8 residents of the area were associated during investigation, as they had witnessed the occurrence of the incident.
However, none of them was examined.
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15. There is yet another reason for disbelieving the statement of Rakesh Kumar, for he admits that papers were got signed by the Investigating Officer from him in .
the Police Station, but strangely does not know contents thereof.
16. From the material placed on record, prosecution has failed to establish that the accused are of guilty of having committed the offence, they have been charged with. The circumstances cannot be said to have been rt proved by unbroken chain of unimpeachable testimony of the prosecution witnesses. The guilt of the accused does not stand proved beyond reasonable doubt to the hilt.
17. 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 persons in furtherance of their common intention, wrongfully restrained Kamlesh Goyal and Rishu Sharma, caused grievous injuries to Rishu Sharma with an intention to prevent him from discharging his duties as a public servant and also threatened Kamlesh Goyal with dire consequences.
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18. 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.
19. The accused 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 of Mohammed Ankoos and others versus Public Prosecutor, High Court of Andhra Pradesh, Hyderabad (2010) 1 SCC rt 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.
20. Assistance rendered by Mr. Tara Singh Chauhan, learned Legal Aid Counsel, is highly appreciable.
Appeal stands disposed of, so also pending application(s), if any.
( Sanjay Karol ), Judge.
( Vivek Singh Thakur ),
August 31, 2016(sd) Judge.
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