Himachal Pradesh High Court
State Of Himachal Pradesh vs Balwinder Singh Alias Kaka on 10 October, 2018
Bench: Sanjay Karol, Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
.
Criminal Appeal No.507/2011
Date of decision: 10.10.2018
State of Himachal Pradesh .... Appellant.
Versus
Balwinder Singh alias Kaka .... Respondent.
Coram:
The Hon'ble Mr. Justice Sanjay Karol, Judge.
The Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?1 No.
For the Appellant :
Ms. Rita Goswami, Mr. Vikas
Rathore, Addl. A.Gs. and Mr. J.S.
Guleria, Dy. A.G.
For the Respondent : Mr. Arush Matlotia, Advocate, as
Legal Aid Counsel.
Sanjay Karol, J. (Oral)
Accused Balwinder Singh produced in the custody of HHC Ashok No.1132 and HHC Govind No.821, Police Line, Kaithu, District Shimla. None could furnish bonds on his behalf as such we take the appeal on board for hearing.
Whether reporters of Local Papers may be allowed to see the judgment? ::: Downloaded on - 12/10/2018 22:57:11 :::HCHP
...2...
2. In terms of the present appeal, filed under the provisions of Section 378 of the Code of Criminal .
Procedure, 1973 , State lays challenge to the judgment dated 23.9.2011 , passed by Additional Sessions Judge (II), Kangra at Dharamshala, District Kangra, H.P., in RBT S.C. No.84-N/VII/2010 (S.T No. 28/2011), titled as State vs. Balwinder Singh alias Kaka, whereby accused stands acquitted for having committed an offence punishable under Section 302 of the Indian Penal Code, registered at Police Station, Nurpur, District Kangra, Himachal Pradesh.
3. As per the case of the prosecution, on 19th June, 2010, FIR No.221/2010 dated 19.6.2010 (Ex.PW9/A), was registered at Police Station, Nurpur, District Kangra, H.P., with the allegation that the accused after pouring kerosene oil on the body of his mother namely Smt. Rano Devi, set her on fire. Information thereof, was given by one Santokh Singh to Harbans Singh, Vice President of the Panchayat (PW-5), who after visiting the spot and noticing the ::: Downloaded on - 12/10/2018 22:57:11 :::HCHP ...3...
victim, informed the police. Deceased was taken to the hospital where statement of Keshav Singh (PW-1) .
was recorded which led to the registration of the aforesaid FIR. Rano Devi who was administered medic al treatment, could not regain consciousness and as such her statement could not be recorded. Unfortunately, during the course of treatment, she succumbed to her injuries. ASI Shri Rakesh Kumar (PW-11) took charge of the investigation and with the comple tion thereof, filed the present Challan for trial.
4. The accused was charged for having committed an offence punishable under the provisions of Section 302 of the Indian Penal Code to which, he did not plead guilty and claimed trial.
5. In order to establish its case, in all, prosecution examined as many as eleven witnesses. Statement of the accused under Section 313 of the Code of Criminal Procedure was also recorded, in which he chose not to lead any evidence. The defence taken was that of innocence and denial. ::: Downloaded on - 12/10/2018 22:57:11 :::HCHP
...4...
6. Court below acquitted the accused for the reason that prosecution could not prove its case, .
beyond reasonable doubt. Hence the present appeal.
7. Having heard learned counsel for the parties and also perused the record, this Court is of the considered view that in the instant case, no ground for interference is made out at all. Judgment correct rand to rendered by the trial Court is based on complete, proper appreciation (documentary and ocular) so placed on record.
of evidence
Also
law stands correctly applied. There is neither any
illegality/infirmity nor any perversity with the same, resulting into miscarriage of justice.
8. 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 required to constitute the charged offence. ::: Downloaded on - 12/10/2018 22:57:11 :::HCHP
...5...
9. 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 rto 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 ::: Downloaded on - 12/10/2018 22:57:11 :::HCHP ...6...
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 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." "
10. Before this Court, it could not be disputed that during trial, accused was of sound state of mind. It is only during the pendency of the appeal, it has come on record that he is undergoing medical treatment from the Department of Psychiatry, Government Hospital, Indira Gandhi Medical College, for he is suffering from " Major Mental Disorder (Type:
? Unspecified Non Organic Psychosis)". He is being represented by a Legal Aid Counsel.::: Downloaded on - 12/10/2018 22:57:11 :::HCHP
...7...
11. We have ourselves examined the record and find no reason to interfere with the findings .
returned by the Court below.
12. Shri Keshav Singh (PW-1) appears to be the star witness of the prosecution. Perusal of h is testimony reveals that on the date of occurrence of the incident, he saw the accused quarrel with the He r took to deceased and after pouring kerosene oil, set her on fire. the victim to the hospital telephonically informed the police. Well, this is in his and examination-in-chief part, but when we peruse the cross -examination part of his testimony, we find the same not to be believable and the witnesses worthy of credence. His testimony cannot be said to be reliable in any aspect of the matter. He states that relation between the deceased and the accused are not cordial but admits that Rano Devi never informed him that accused refused to listen to her. Most importantly, he admits that relation between his family and that of the family of the deceased are not cordial. Thus, he has ::: Downloaded on - 12/10/2018 22:57:11 :::HCHP ...8...
reason to depose falsely. But that apart, he contradicts himself by admitting that he had not seen .
the occurrence of the incident with his own eyes and that in fact, at the time of occurrence he was in his house. Also, he had not seen Balwinder (accused) to have set his mother (deceased) on fire. He materially contradicts himself by stating that he learnt of such r to fact only in the morning and was not aware as to what had transpired during the night. He tries to qualify that his children had seen the deceased in a burnt condition and was informed by them. But, who are these children? remains unexplained by the prosecution. We notice that his house is just at a distance of two meters away from the house of the deceased yet this person did not hear the cries of the deceased who allegedly was s et on fire by the accused. In fact, he is not sure as to whether Rano Devi had herself set on fire or not.
13. Apart from his testimony, none has deposed about the circumstance of the accused ::: Downloaded on - 12/10/2018 22:57:11 :::HCHP ...9...
present in the house at the time of occurrence of the incident.
.
14. Another independent witness, Smt. Suman Kumari (PW-2), in no manner helps the prosecution. She only states that she had heard that the accused had set the deceased on fire , but then who disclosed such fact is not stated by her. As such, her testimony r to being hearsay in nature is of no consequence.
15. In fact, there is evidence on record to establish that it was Rano Devi who had purchased three litres of kerosene oil from the Civil Supp ly Depot, as is so deposed by Shri Parveen Kumar (PW-4) who was posted as the Salesman at the relevant point in time.
16. Vice President of the Panchayat, Shri Harbans Singh (PW-5) also does not state anything new. He reached the spot after he received information with regard to the deceased having suffered burnt injuries. He specifically does not name the accused to have committed the crime. ::: Downloaded on - 12/10/2018 22:57:11 :::HCHP
...10...
17. Even from the postmortem report (Ex.PW6/A), as proven by Dr. Raman Sharma (PW-6), .
we notice that save and except for burn injuries, no other injuries were found on the body of the deceased.
18. ASI Rakesh Kumar (PW-11), is the Investigating Officer. His testimony, in no manner, implicates the accused. Nothing incriminating was r to recovered by him on the statement of the accused during the course of investigation. matchbox was recovered from the spot, but not on the Even though statement of the accused. Also, he admits not to have sent the matchbox for scientific analysis for ascertaining the finger prints of the accused. Why so? remains unexplained.
19. The Court below, in our 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 - 12/10/2018 22:57:11 :::HCHP ...11...
appreciation of material on record resulting into miscarriage of justice.
.
20. The accused person 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 the accused has resulted into travesty of justice, no interference is warranted in the instant case.
21. For all the aforesaid reasons, present appeal, being devoid of merit, is dismissed, so also the pending application(s), if any.
22. The accused, who was taken to judicial custody for non compliance of orders dated 11.9.2018 and 18.9.2018, is directed to be released forthwith unless so required in any other case. Release warrants be prepared accordingly. ::: Downloaded on - 12/10/2018 22:57:11 :::HCHP
...12...
23. Mr. J.S. Guleria, learned Additional Advocate Gener al, states that the accused shall be .
apprised of the passing of the order.
24. Before parting, we wish to place on record our appreciation qua the efforts put in by Mr. Arush Matlotia, learned Advocate, who assisted the Court on behalf of the accused as Legal Aid Counsel.
r to (Sanjay Karol),
Judge
(Sandeep Sharma ),
October 10, 2018 (KS) Judge
::: Downloaded on - 12/10/2018 22:57:11 :::HCHP