Himachal Pradesh High Court
State Of Himachal Pradesh vs Man Singh & Others on 24 May, 2016
Author: Sanjay Karol
Bench: Sanjay Karol, P.S. Rana
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Criminal Appeal No. 114 of 2009
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Judgment reserved on : 12.05.2016
Date of Decision : May 24 , 2016
State of Himachal Pradesh ...Appellant
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Versus
Man Singh & others ...Respondents
Coram:
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The Hon'ble Mr. Justice Sanjay Karol, Judge
The Hon'ble Mr. Justice, P. S. Rana, Judge.
Whether approved for reporting? No.
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For the appellant : Mr. Vikram Thakur and Mr. Puneet Rajta,
Deputy Advocate General for the
appellant/State.
For the respondent : Mr. N. K. Thakur, Senior Advocate with Ms.
Jamuna Devi, Advocate, for the respondents.
Sanjay Karol, J.
Assailing the judgment dated 30.8.2008, passed by the learned Sessions Judge, Chamba Division, Chamba, Himachal Pradesh, in Sessions Trial No. 19 of 2008, titled as State of Himachal Pradesh vs. Man Singh & others, whereby respondents-accused stand acquitted, State has Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 20:25:53 :::HCHP 2filed the present appeal under the provisions of Section 378 of the Code of Criminal Procedure, 1973.
2. It is the case of the prosecution that deceased .
Dev Raj used to reside with his grand father Man Singh (accused No.1) and paternal uncles Diwan Chand (accused No. 2) and Sohan Lal (accused No. 3). His parents were dead and his sister Sunita Kumari (PW-2) was married.
of Whenever Dev Raj demanded his share in the property, he would be beaten up by the accused and last of such rt beatings came to be inflicted on 14.1.2008, which turned out to be fatal. All the accused beat up the accused with a stick as a result of which he sustained injuries. Thereafter they took him to the Community Health Centre, Killar where Dev Raj expired. Resultantly police was informed. A.S.I. Harnarayan Singh (PW-12) reached the hospital where he recorded statement (Ext. PW-1/A) of Sanjay Kumar (PW-1), son-in-law of accused Man Singh, which led to the registration of F.I.R. No. 1/2008, dated 14.1.2008 (Ext. PW-
7/A) at police station Pangi, Distt. Chamba, H.P., against the accused persons under the provisions of Section 302 read with Section 34 of the Indian Penal Code. Inquest reports (Ext. PW-12/B & 12/C) were prepared and post mortem of the dead body was conducted by Dr. Ram Singh (PW-11) who issued post mortem report (Ext. PW-11/B). The Doctor ::: Downloaded on - 15/04/2017 20:25:53 :::HCHP 3 opined the deceased to have died as a result of intracranial hemorrhage leading to compression of brain and death.
The accused were arrested on 1.2.2008 and on the basis of .
disclosure statement dated 1.2.2008 so made by accused Man Singh, wooden stick (Ext. P-1) and rope (Ext. P-2) were recovered vide memo (Ext. PW-12/L) in the presence of Prem Chand and Desh Raj (PW-10). Report of the State of Forensic Science Laboratory, Junga (Ext.PW-11/C) was obtained. With the completion of investigation, which prima rt facie revealed complicity of the accused in the alleged crime, challan was presented in the Court for trial.
3. Accused were charged for having committed an offence punishable under the provisions of Sections 302 read with Section 34 of the Indian Penal Code, to which they did not plead guilty and claimed trial.
4. In order to prove its case, in all, prosecution examined twelve witnesses and statements of the accused under Section 313 Cr. P.C. were also recorded, in which they took plea of innocence and false implication. No evidence, in defence, was led by the accused.
5. Based on the testimonies of witnesses and the material on record, Court below acquitted the accused persons of the charged offence. Hence, the present appeal by the State.
::: Downloaded on - 15/04/2017 20:25:53 :::HCHP 46. Having heard learned counsel for the parties and also perused the record, we are of the considered view that in the instant case no ground for interference is made out at .
all. We find that the judgment rendered by the trial Court is well reasoned and is based on complete, correct and proper appreciation of evidence (documentary and ocular) so placed on record. There is neither any illegality/infirmity nor of any perversity with the same, resulting into miscarriage of justice.
7. rt 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 essential ingredients so required to constitute the charged offence.
8. 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:::: Downloaded on - 15/04/2017 20:25:53 :::HCHP 5
"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 of 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 rt 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." "
9. From the careful perusal of the testimonies of the prosecution witnesses it stands proven on record that the deceased used to stay with his grand father. His parents had died long ago and his sister, Sunita Kumari (PW-2) had solemnized marriage of her own. It also stands proven on record that the accused had brought the deceased to the Community Health Centre, Killar for treatment. Dr. Ram Singh (PW-11) has testified such fact. Also from his testimony it is evidently clear that when the deceased was brought to hospital, he was alive. He never made any ::: Downloaded on - 15/04/2017 20:25:54 :::HCHP 6 grievance against the accused. The patient died only after half of hour of his examination and the police was informed.
Now in the instant case, there is no record of such .
information having been passed on to the police. Also MLC when the patient was first examined is not on record, for according to A.S.I. Harnarayan Singh (PW-12) information received was only pertaining to death.
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10. Be that as it may, the Doctor (PW-11) found the following injuries on the dead body:
rt "... Bruise over head extending from left eye brown to parietal region left 12 cm in length and 4 cms in breadth. Multiple abrasions over right shoulder, loin right side, hip (right), linear marks over wrist bilateral and elbow bilateral with blister formation, bruise and swelling of right forearm with blister formation. Multiple linear marks over leg directed downwards and horizontally, abrasion over inner aspect of upper part of leg bilateral. No marks of ligature detected over neck.
II. Cranium and spinal cord:
Scalp: Depressed bruise over scalp extending from medial end of left brow to mastoid left 12 cm X 4 cms, blue in colour, on dissection there was haematoma between skin and fascia covering frontal vertex, parietal and nostoid surface of left side of scalp. No depression of bone detected. There was a small haematoma over mastoid region right side. Skull and Vertebrae: Nothing abnormal detected. Membranes and Brain: There was a big haematoma extra dural covering right hemisphere of ::: Downloaded on - 15/04/2017 20:25:54 :::HCHP 7 brain and also subdural haematoma over right hemisphere brain substance of right hemisphere compressed towards left. Membranes were intact. Left side of brain normal, no haematoma or bruise .
detected on left side. Spinal Cord: Nothing abnormal detected."
According to the Doctor, the cause of death was "intracranial haemorrhage leading to compression of brain and death". The Doctor has also opined that such injuries of could have been caused as a result of fall or beatings given with a wooden stick (Ext. P-1). Now this wooden stick so rt identified by him and produced in Court was not kept in a sealed parcel. This raises great doubt with regard to the weapon of offence being the one with which the accused allegedly assaulted the deceased. That part, from the following statement of the Doctor, prosecution case of the accused having tied the deceased with a rope and thereafter assaulted him with a stick stands falsified:
"It is correct that someone is tied with a rope, then no injury on the ventral aspect of the wrist is possible".
11. Law with regard to circumstantial evidence is now well settled. It is a settled proposition of law that when there is no direct evidence of crime, the guilt of the accused can be proved by circumstantial evidence, but then the circumstances from which the conclusion of guilt is to be drawn, should be fully proved and such circumstances must ::: Downloaded on - 15/04/2017 20:25:54 :::HCHP 8 be conclusive in nature, to fully connect the accused with the crime. All the links in the chain of circumstances must be established beyond reasonable doubt, and the proved .
circumstances should be consistent, only with the hypothesis of guilt of the accused, being totally inconsistent with his innocence. While appreciating the circumstantial evidence, the Court must adopt a very cautious approach of and great caution must be taken to evaluate the circumstantial evidence. [Pudhu Raja and another Versus rt State Represented by Inspector of Police, (2012) 11 SCC 196; Madhu Versus State of Kerala, (2012) 2 SCC 399; Dilip Singh Moti Singh versus State of Gujarat, (2010) 15 SCC 622, Mulakh Raj and others Versus Satish Kumar and others, (1992) 3 SCC 43; and Sharad Birdhichand Sarda Versus State of Maharashtra, (1984) 4 SCC 116.].
12. Also, apex Court in Padala Veera Reddy v. State of Andhra Pradesh and others, 1989 Supp (2) SCC 706, held that when a case rests upon circumstantial evidence, following tests must be satisfied:
"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human ::: Downloaded on - 15/04/2017 20:25:54 :::HCHP 9 probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence .
should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
(Also see: Ramreddy Rajesh Khanna Reddy v.
State of A.P., (2006) 10 SCC 172; Balwinder Singh v. State of Punjab, 1995 Supp (4) SCC 259; and Harishchandra Ladaku Thange v. State of Maharashtra, (2007) 11 SCC 436).
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13. Each case has to be considered on its own merit.
Court cannot presume suspicion to be a legal proof. In the rt absence of an important link in the chain, or the chain of circumstances getting snapped, guilt of the accused cannot be assumed, based on mere conjectures.
14. The apex Court in State of U.P. v. Ashok Kumar Srivastava, (1992) 2 SCC 286, while cautioning the Courts in evaluating circumstantial evidence, held that if the evidence adduced by the prosecution is reasonable, capable of two inferences, the one in favour of the accused must be accepted. This of course must precede the factum of prosecution having proved its case, leading to the guilt of the accused.
15. Prosecution evidence has to be appreciated in the backdrop of the aforesaid legal position.
16. Now incidentally there is no eye witness to the incident. Prosecution invites attention to the testimony of ::: Downloaded on - 15/04/2017 20:25:54 :::HCHP 10 neighbour Anoop Dharmani (PW-4). According to this witness, on 13.1.2008 at about 8.45 p.m., Om Prakash came to him and disclosed that accused were giving beatings to .
the deceased and as such the matter be reported to the police. Attempt was made, but no response was given by the police and as such Om Prakash left for his house. His version of Om Prakash having visited his house to inform of the police is a mere exaggeration, for not to be recorded in his earlier statement (Mark-DC) recorded by the police, rt with which he was confronted. Now significantly witness admits that Dev Raj never made any complaint about the conduct of the accused. The witness is an immediate neighbour. He could have come to know about the beatings given by the accused but he does not state it to be so. His testimony is only hearsay in nature. Having come to know about the incident through Om Prakash, why is it that he did not intervene, for it is not his case that he feared the accused persons. Why is it that he did not bring the matter to the notice of other neighbours, representatives of the panchayat or the police, either same day or the following day. Hence, we do not find the version of this witness to be inspiring in confidence.
17. Still further, when we examine the testimony of Om Prakash (PW-5), we find him not to have supported the ::: Downloaded on - 15/04/2017 20:25:54 :::HCHP 11 prosecution case at all. Through this witness, prosecution wanted the Court to believe that on 13.1.2008, after tying the deceased with a rope, accused had mercilessly beat him .
up and after witnessing the incident he went to the house of Anoop Dharmani (PW-4). But we do not find such fact to have been deposed by him or proven on record. The telephone record of the alleged calls is not on record.
of Significantly in his unrebutted testimony Om Prakash states that the deceased, who was of quarrelsome nature, used to rt consume liquor.
18. Now significantly there is yet another mitigating circumstance. The Doctor (PW-11) has opined that the accused was brought to the hospital on 14.1.2008 at 4 p.m. and from the testimony of the Investigating Officer (PW-12) it is apparent that the house of the accused is just at a distance of 100 yards from the Community Health Centre, Killar. Village Chowki and the market of Killar is just nearby.
Significantly the investigating officer did not associate the Pradhan of village Chowki. Being a local resident, he was the best person who could have disclosed as to what would have happened on the spot. Also from the night of 13th when allegedly beatings were given, till the afternoon of 14th January, 2008, what all did the accused do and where all did the deceased remain, is not brought up on the ::: Downloaded on - 15/04/2017 20:25:54 :::HCHP 12 record. Why is that both Om Prakash or Anoop Dharmani not inquire about the deceased or inform the villagers. After all voice of the accused could have been heard by other .
neighbours.
19. Tikka Ram (PW-3) who is the maternal uncle of the deceased simply states that the deceased used to demand share of his father in the property which was of denied by accused Man Singh, which in fact was the cause of beatings given by the accused. But then this version of rt his is a mere exaggeration for it is not so recorded in his earlier statement (Mark-DB) recorded by the police, with which he was confronted. To similar effect is the testimony of Sunita Kumari (PW-2) whose version is also mere exaggeration for it is not so recorded in her earlier statement (Mark-DA) recorded by the police, with which she was confronted.
20. In law, their statements cannot be relied upon as the witnesses are unbelievable and unreliable. [Ram Narayan Popli vs. Central Bureau of Investigation, (2003) 3 SCC 641 and L. L. Kale vs. State of Maharashtra & others, (2000) 1 SCC 295].
21. Version of Sanjay Kumar (PW-1) is also to similar effect. Significantly this witness is the son-in-law of Man Singh but then he is also the real maternal uncle of the ::: Downloaded on - 15/04/2017 20:25:54 :::HCHP 13 deceased. Witness admits not to have disclosed to the police that the deceased was being beaten up by the accused who never wanted the property to be partitioned.
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He is not an eye witness. He does not deny whether the deceased had consumed liquor or not.
22. Significantly none of these witnesses have of established the right of Dev Raj in the property of Man Singh. That the property was ancestral or that Man Singh had given share to his other two sons (accused Diwan rt Chand and Sohan Lal) is not the case of the prosecution.
Thus what was the occasion for accused Man Singh to have deprived the deceased of his right in the property? Also one cannot forget that after the death of his parents, deceased who was unemployed was living with the accused. His parents had died five - six years prior to the incident and at no point in time was any complaint of any nature, oral or written, ever lodged abut the alleged beatings.
23. From the statements of the independent witnesses, we find that there are improvements and exaggerations. This raises doubt with regard to the fair investigation conducted by the Investigating Officer.
Statements of the witnesses were not recorded promptly.
Also the possibility of the deceased dying of some other ::: Downloaded on - 15/04/2017 20:25:54 :::HCHP 14 reason was not ruled out. The recovered articles were not sealed and kept in safe custody.
24. The stick (Ext.P-1) and the rope (Ext. P-2), so .
recovered by the police are not linked to the accused. No blood was found on them. It is not the prosecution case that evidence stood destroyed by the accused. Further, of witnesses to the disclosure statement and recovery of the articles have not supported the prosecution. Testimony of Desh Raj (PW-10) is to such effect.
rt However such fact cannot be said to have been proven. [Jagdish & another vs. State of M.P., (2000) 9 SCC 155].
25. From the material placed on record, prosecution has failed to establish that the accused are guilty of having committed the offence, they stand charged for. The circumstances cannot be said to have been 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. The chain of events does not stand conclusively established, leading only to one conclusion, i.e. guilt of the accused. Circumstances when cumulatively considered do not fully establish completion of chain of events, indicating to the guilt of the accused and no other hypothesis other than the same.
::: Downloaded on - 15/04/2017 20:25:54 :::HCHP 1526. Having perused the testimony of the prosecution witnesses on record it cannot be said that prosecution has been able to prove its case, beyond reasonable doubt, to .
the effect that the accused persons in furtherance of their common intention committed murder of Dev Raj, by leading clear, cogent, convincing and reliable material on record.
The Court below, in our considered view, has correctly and of completely appreciated the evidence so placed on record by the prosecution. It cannot be said that the judgment of trial rt Court is perverse, illegal, erroneous or based on incorrect and incomplete appreciation of material on record resulting into miscarriage of justice. There are improvements, which are major, embellishments and contradictions, rendering the testimonies of these witnesses to be shaky and unbelievable.
27. 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 Mohammed Ankoos and others versus Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, since it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the ::: Downloaded on - 15/04/2017 20:25:54 :::HCHP 16 accused has resulted into travesty of justice, no interference is warranted in the instant case.
For all the aforesaid reasons, present appeal, .
devoid of merit, is dismissed, so also pending applications, if any. Bail bonds, if any, furnished by the accused are discharged. Records of the Courts below be sent back.
of (Sanjay Karol), Judge.
rt (P. S. Rana),
Judge.
May 24 , 2016 (PK)
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