Himachal Pradesh High Court
State Of H.P vs Rahul Kumar Sharma on 15 September, 2016
Author: Sanjay Karol
Bench: Sanjay Karol, Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
Cr. Appeal No. 191 of 2012
Judgment reserved on: 26.07.2016
.
Date of Decision: September 15 , 2016
State of H.P. ...Appellant.
Versus
Rahul Kumar Sharma ...Respondent.
of
Coram:
The Hon'ble Mr. Justice Sanjay Karol, Judge.
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
rt
Whether approved for reporting? 1Yes.
For the Appellant : Mr. V.S. Chauhan, Additional
Advocate General with Mr.Vikram
Thakur, Deputy Advocate General,
for the appellant-State.
For the Respondent: Mr. Ashwani K. Sharma, Sr.
Advocate with Mr.Nishant Thakur,
Advocate, for the respondent.
Mr. Arjun K. Lall, Amicus Curiae.
Sanjay Karol, J.
Assailing the judgment dated 03.01.2012, pas sed by the Additional Sessions Judge (II), Kangra at Dharamshala, H.P., in RBT S.C. No.69-K/VII/10/2009 / S.T. No.34/11, titled as State Versus Rahul Kumar , whereby 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 21:13:55 :::HCHP 2accused stands acquitted, State has filed the present appeal under the provisions of Sectio n 378 of the Code of Criminal Procedure, 1973.
.
2. In connection with FIR No.59/08, dated 23.12.2008 (Ex.PW.25/A) registered at Police Station, Nagrota Bagwan, District Kangra, H.P., accused was charged to face trial for having committed offences of punishable under the provisions of Sections 341, 353, 332, 333 and 302 of the Indian Penal Code. Finding the prosecution case not to have established rt its case, through the testimonies of 26 prosecution witnesses, trial Court has acquitted the accused on all counts.
3. We have heard learned counsel for the parties, as also perused the record. 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 same, resulting into miscarriage of justice.
::: Downloaded on - 15/04/2017 21:13:55 :::HCHP 34. 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 record, we are of the considered view that prosecution has failed to establish the essential ingredients so as to constitute the charged offence.
of
5. 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 rt 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 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, ::: Downloaded on - 15/04/2017 21:13:55 :::HCHP 4 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." "
6. In the instant case, identity of the deceased is not in dispute. His name is Ram Krishan and was employed as an Assistant Line Man with H.P. State Electricity Board, Nagrota Bagwan , having duty hours of from 2.00 PM to 10.00 PM. Through the testimonies of Satinder Pal (PW.9), Prakash Chand (PW.10), Desh Raj rt (PW.11) and Jyoti Prakash (PW.13), it stands proven on record that on 22.12.2008, at about 9.30 PM deceased was asked to attend a complaint pertaining to a transformer at a place known as Gohrav. From the testimonies of these witnesses, it is evidently clear that thereafter deceased did not report to the office.
7. Further, it is the case of prosecution that on the said date accused Rahul Kumar and the deceased consumed liquor in the shop of Kishan Kumar (PW.12), where quarrel took place between the two. Accused telephonically called up Police Station, Nagrota Bagwan, informing Constable Sudershan Kumar (PW.21) about such fact. Accused had requested the police for help, ::: Downloaded on - 15/04/2017 21:13:55 :::HCHP 5 which fact was so disclosed by Constable Sudershan to ASI Manohar Lal (PW.23). After some time, accused again called up Sudershan, but the phone came to be .
disconnected. Immediately Sudershan brought the matter to the notice of SHO SI Balbir (PW.25). Soon thereafter, accused walked into the Police Station and in person, informed the police about the quarrel. At that of time, deceased Ram Krishan, who was bleeding from the cheek was also with him. Police wanted to get the deceased medically examined, but since he was drunk, rt on his request, no action was taken and the accused left with the deceased, assuring that he would be dropped home. On 23.12.2008, at 3.30 AM, deceased came to be admitted at hospital, Nagrota Bagwan, which fact was brought to the notice of Balbir (PW.25), who immediately deputed Manohar Lal (PW.23) and Ram Swaroop (not examined) to visit the hospital. In the hospital, deceased got recorded his statement (Ex.PW.17/A), which led to the registration of the case against the accused.
Investigation further revealed that on 22.12.2008, at about 8.30 PM, deceased informed Pawan Kumar (PW.5) that he had been beaten up by the accused, which fact ::: Downloaded on - 15/04/2017 21:13:55 :::HCHP 6 latter brought to the notice of Hari Krishan (PW.6), brother of the deceased. Thereafter both Pawan Kumar and Hari Krishan went to search the deceased. In the .
meanwhile, Banwari Lal (PW.18), son of the deceased and an acquaintance Ashwani Kumar (PW.19) also reached the spot. Hari Krishan and Banwari Lal brought the deceased home and Hari Krishan went to drop Pawan of Kumar . After some time, Banwari Lal telephonically informed Hari Krishan that deceased wanted to disclose some information.
rt Hari Krishan immediately met the deceased, who informed that he had been beaten up by the accused. Also finding his condition to be precarious, Hari Krishan took the deceased to the CHC Nagrota.
Since deceased was not improving he was referred to the State Hospital, Tanda, wherefrom, he was taken to PGI Hospital, Chandigarh, where he expired on 26.12.2008.
8. It is a matter of record that deceased came to be admitted in the Community Health Centre, Nagrota Bagwan in the morning of 23.12.2008. Testimonies of Dr. Reshmi Shekhar (PW.1), Dr.A.R. Raghu (PW.2) and Dr.Maneesh Verma (PW.3), reveal that the deceased was having the following injuries on his body :-
::: Downloaded on - 15/04/2017 21:13:55 :::HCHP 7"1) Swelling on head left side 2 cm x 1 cm.
2) Lacerated wound on lower lip ½ long and ¼ cm in breadth reddish in colour.
3) Injury teeth.
4) Abrasion on right leg 1 cm x 1 cm. Reddish coloured.
.
5) Abrasion of dorsum of right hand 3 cm x 1/8 cm.
Reddish in colour."
9. From the testimony of Dr.Ravinder Jeet Singh (PW.4), who conducted the postmortem of the deceased and also issued postmortem report (Ex.PW.4/B), it is of evidently clear that deceased died as a result of shock on account of head injury.
10.
rt It is a matter of record that at the time when deceased was brought to the hospital, he was in a state of semi-consciousness. Such fact is evident from the testimony of Dr.A.R. Raghu (PW.2). It is also the case of prosecution that condition of the deceased continued to deteriorate thereafter.
11. In the instant case, prosecution heavily relies upon the dying declaration so made by th e deceased (Ex.PW.17/A), recorded by ASI Sawaran Roop Singh (PW.17) in the presence of Hari Krishan (PW.6), Vijay Kumar (PW.7) and Banwari Lal (PW.18). Now when we peruse the said statement, we find the deceased to have disclosed that "on 22.12.2008, at about 10.15 PM, I ::: Downloaded on - 15/04/2017 21:13:55 :::HCHP 8 alongwith one Pappu, who owns a tea shop near Gandhi ground, was going to home . When I alongwith Pappu reached at Nagrota Bazar, outside the Dulhoo .
Restaurant, Rahul, who owns a Readymade garments shop near new bus-stand, restrained my path and by giving fist and kick blows took me upto the Subzi Mandi.
On seeing such assaults, Pappu ran away. As a result of of beatings given by Rahul, I sustained injuries on my face, head, leg and on other parts of body I sustained hidden injuries . Also he gave kick blows on my face, as a result rt of which my tooth was broken."
12. We express serious doubt about the genuineness of the said statement and/or truthfulness of its contents . And this we say so for the reason that according to Hari Krishan (PW.6), altercatio n between the deceased and the accused had already taken place somewhere at about 8.30 PM. There may be discrepancy with regard to timing, for it has come on record that at about 9.30 PM, deceased was asked by his superior to attend to a complaint, but the fact of the matter is that the deceased who was found in a wounded condition was brought home from the spot and not taken to the ::: Downloaded on - 15/04/2017 21:13:55 :::HCHP 9 hospital. Considering his injuries he should have been straightaway taken to the hospital. As is so admitted by his son and the wife condition of the deceased had .
deteriorated and he was unconscious and semi-conscious state at home. He was taken to the hospital at about 3.30 AM when he was examined by Dr.A.R. Raghu (PW.2), who himself states that accused was in a state of semi-
of consciousness . Now significantly this doctor did not certify the deceased to be fit enough to make any statement. Sawaran Roop Singh (PW.17) wants the Court rt to believe that the said statement, so recorded by him , contains exact version narrated by the deceased, but then he himself admits that "At that time Ram Krishan was in semiconscious and he was not able to speak". The witness does state that he had obtained the medical opinion about the fitness of the deceased, but no such document is on record.
13. On this count, what further renders the statement of the close relatives to be doubtful is the fact that Police Station is just at a close distance of 10 minutes from the house of the deceased. None directly reported the matter to the police. Also after knowing ::: Downloaded on - 15/04/2017 21:13:55 :::HCHP 10 about the altercation they did not take the deceased to the hospital, but instead took him home and allowed his condition to deteriorate. Why is it that deceased did not .
straightaway disclose the incident to all or any one of the witnesses who had reached the spot. After all he was conscious at that time.
14. Dying declaration is also rendered doubtful, in of view of the testimony of police officer/officials Uma Pati Jamwal (PW.20), Sudershan (PW.21), Manohar Lal (PW.23) and Balbir (PW.25), accordin g to whom accused had rt himself walked into the Police Station and made a grievance of having been beaten up by the deceased.
Significantly police officials, admit that prior thereto, accused himself had called the police twice on the telephone, yet they d id not respond. Even when he walked into the Police Station, they found the deceased to be present in an injured condition. Blood was oozing out from his cheek, yet they did not take any action, much less register a report. It is not the case of prosecutio n that matter between the parties got patched up. In fact, they allowed him to leave in the company of the accused . Why so? remains unexplained, for it is not ::: Downloaded on - 15/04/2017 21:13:55 :::HCHP 11 the case of these police officials that either of the party were friends or known to each other from before. In fact, Sudershan (PW.21) refers to the presence of third person, .
who also was injured. Strangely, Investigating Agencies are conspicuously silent about him. In the Police Station, no grievance, as is made out in the dying declaration (Ex.PW.17/A), was ever made by the deceased to the of police officials. To the contrary, he requested the police not to get him medically examined as he was drunk.
15. Prosecution relies upon yet another dying rt declaration through the testimonies of close relatives of the deceased, according to whom, deceased had also disclosed to them about the accused having beaten him up. Though this dying declaration is ocular in nature, but close scrutiny of testimonies of Pawan Kumar (PW.5) Hari Krishan (PW.6), Vijay Kumar (PW.7), Satya Devi (PW.8), Banwari Lal (PW.18) and Ashwani Kumar (PW.19), would only reveal such fact not to be inspiring in confidence and the reason is not far to seek. These witnesses admit that Ashwani, Banwari and Hari Krishan had gone to search for the deceased. They had learnt about the alleged quarrel.
These witnesses admit that Police Station was closeby, ::: Downloaded on - 15/04/2017 21:13:55 :::HCHP 12 yet none of them reported the matter to the police either in person or on telephone. Why so? remains undisclosed by them. The incident took place sometime at 10.00 PM .
and yet they did not inform the police the reason of assault. Also deceased allegedly disclosed such fact only when he was brought home. Why the delay? remains unexplained.
of
16. Hence, there is serious doubt with regard to genuineness of the document and correctness of the contents of statement (Ex.PW.17/A) as also the ocular rt dying declaration. We take this view in view of the law laid down by the Apex Court in Sham Shankar Kankaria Versus State of Maharashtra, (2006) 13 SCC 165.
17. The genesis of the prosecutio n story of the deceased and the accused having consumed liquor in the shop of Kishan Kumar (PW.12), cannot be said to have been established on record, in view of categorical denial of such fact by this witness and the Investigating Agency not having recovered any incriminating substance connecting the accused or the deceased in the establishment of such fact.
::: Downloaded on - 15/04/2017 21:13:55 :::HCHP 1318. Also Pawan Kumar (PW.5), who allegedly witnessed the incident and initially informed Ram Krishan about such fact, has categorically denied the same. He .
has not supported the prosecution and nothing fruitful could be elicited from his testimony. He is not even friendly to the accused.
19. Prosecution further wants the Court to believe of that in the presence of Sanjiv Kumar (PW.14) and Bhagwan Dass (PW.15), accused made a disclosure statement (Ex.PW.14/A), which led to recovery of blood rt stained apparels vide memo (Ex.PW.14/B). Disclosure statement and recovery is also rendered doubtful for the reason that independent witnesses PW.14 and PW.15 have not supported the prosecution. Even otherwise, and significantly, scientific evidence (Ex.PX-1 & Ex.PX-2), does not link the accused to the offence. Though human blood was found on some of these articles, but there is nothing on record to establish as to whether it matched the group of the accused or the deceased.
20. There is one disturbing feature, which has come on record and that being involvement of the police in the crime cannot be ruled out, for it is admitted by ::: Downloaded on - 15/04/2017 21:13:55 :::HCHP 14 Banwari Lal (PW.18) "that it is correct that after this occurrence all the villagers had blocked the road. Then the villagers also sat on Dharna out side the Police .
Station for 3/4 days". Uma Pati Jamwal (PW.20) states that "I cannot say that the investigation was handed over to me due to political pressure. It is correct that local MLA has carried out the agitation out side the police of station". Constable Sudershan (PW.21) states that "It is correct that after the registration of case the brother of aforesaid injured person and local MLA alongwith other rt persons had sat on hunger strike out side the Police Station. It is correct that said persons were disclosing the reason for hunger strike that above said person was beaten in the police custody and no action was taken.
This hunger strike had continued for 6/7 days". ASI Manohar Lal (PW.23) states that "It is correct that no Rapat was lodged in the police station regarding the coming of Rahul and Ram Krishan. It is incorrect that Rapat was not lodged because Ram Krishan and Rahul had not come to the police station. It is correct that during this period the MLA of Nagrota had staged agitation against police". SI Ranjit Singh (PW.24) states ::: Downloaded on - 15/04/2017 21:13:55 :::HCHP 15 that "It is correct that there was a agitation regarding this case in Nagrota Bagwan".
21. In the aforesaid background, we find the .
Investigating Agency to have prepared the document (Ex.PW.6/A) perhaps only to create evidence.
Significantly, statements of the family members of the deceased also came to be recorded not promptly, but of with certain amount of delay.
22. Unmerited and undeserved prosecution is an infringement of a legal right under Article 21 of the rt Constitution of India. [See: Sanjaysingh Ramrao Chavan Versus Dattatray Gulabrao Phalke and others, (2015) 3 SCC 123].
23. Police appears to have suppressed the genesis of the crime, for the version of police officials does not in any manner concur with the contents of the alleged dying declaration.
24. Under these circumstances, we direct the Principal Secretary (Home) to the Government of Himachal Pradesh and Director General of Police, Himachal Pradesh, to have the matter examined and take appropriate action in compliance of the direction issued ::: Downloaded on - 15/04/2017 21:13:55 :::HCHP 16 by the Apex Court in State of Gujarat Versus Kishanbhai and others, (2014) 5 SCC 108. Affidavit of compliance be positively filed within eight weeks for which purpose .
matter be listed before Court.
25. Suggestion of the learned Amicus Curiae in awarding compensation to the accused is left open to be adjudged in an appropriate proceedings. This would be in of the light of the ratio laid down by the Apex Court in Shakila Abdul Gafar Khan (Smt) versus Vasant Raghunath Dhoble and another, (2003) 7 SCC 749; State of W.B. and rt others Versus Babu Chakraborthy , (2004) 12 SCC 201; Mano Versus State of Tamil Nadu, (2007) 13 SCC 795 ; Suresh Versus State of Haryana, (2009) 13 SCC 538; and Gulzar Ahmed Azmi and another Versus Union of India and others, (2012) 10 SCC 731.
26. Thus, to our mind, prosecution has not been able to establish by leading clear, cogent, convincing and reliable piece of evidence so as to prove that accused restrained the deceased Ram Krishan to proceed further;
gave beatings to him and prevented him from discharging his duties as such public servant; caused grievous hurt as a result of which he died and thereby committed his murder.
::: Downloaded on - 15/04/2017 21:13:55 :::HCHP 1727. 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 .
Ankoos and others versus Public Prosecutor, High Court of Andhra Pradesh, Hyderabad (2010) 1 SCC 94, since it cannot be said that trial Court has not correctly appreciated the evidence on record or that acquittal of of the accused has resulted into travesty of justice, no interference is warranted in the instant case.
28. rt 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.
29. Efforts put in by Mr. Arjun Lall, learned Amicus Curiae in rendering valuable assistance to the Court is highly appreciable.
(Sanjay Karol), Judge.
(Ajay Mohan Goel), September 15 , 201 6. Judge.
(Purohit) ::: Downloaded on - 15/04/2017 21:13:55 :::HCHP