Himachal Pradesh High Court
State Of Himachal Pradesh vs Rakesh Kumar on 29 September, 2023
Author: Virender Singh
Bench: Virender Singh
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Revision No. 463 of 2019 Reserved on: 26.07.2023 Decided on: 29th September, 2023 .
State of Himachal Pradesh .......Petitioner
Versus
Rakesh Kumar ...Respondent
Coram
The Hon'ble Mr. Justice Virender Singh, Judge.
of Whether approved for reporting?1 Yes. For the petitioner: Ms. Leena Guleria, Dy. A.G. For the respondent:
rt Mr. Rohit, Advocate vice Mr.
Sumit Sood, Advocate.
Virender Singh, Judge.
The State of Himachal Pradesh has filed the present revision petition, under Section 401 read with Section 482 of the Code of Criminal Procedure (hereinafter referred to as the 'Cr.P.C') against the judgment dated 27.03.2019 passed by learned Sessions Judge, Bilaspur, District Bilaspur, H.P. (hereinafter referred to as the 'learned First Appellate Court'), in Criminal Appeal No. 10/10 of 2018, titled as State of Himachal Pradesh vs. Rakesh Kumar.
2. Vide judgment dated 27.03.2019, the learned First Appellate Court has dismissed the appeal filed by the State, against the judgment of acquittal, dated 17.04.2018, passed by the learned Judicial Magistrate First Class, Court No.2, 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 05/10/2023 20:33:39 :::CIS 2Ghumarwin, District Bilapsur, H.P. (hereinafter referred to as the 'learned trial Court'), in Criminal Case No. 125/2 of 2016/08, titled as State of Himachal Pradesh vs. Rakesh .
Kumar.
3. For the sake of convenience, the parties to the present lis, are hereinafter referred to, in the same manner, as were, referred to, by the learned trial Court.
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4. Brief facts leadings to the filing of the present petition, before this Court, may be summed up, as under:-
rt 4.1. The Police of Police Station, Ghumarwin has filed a report, under Section 173(2) Cr.P.C., disclosing therein, that on 29.03.2008, a complaint was received in the Police Station, which was forwarded to the Superintendent of Police, Bilaspur. Complainant Subash Thakur has moved the said complaint before the Superintendent of Police, Bilaspur, disclosing therein, that he is resident of village Delag.
According to him, he is having a car bearing No. HP-24-0007.
On 29.03.2008, at about 6.00 p.m., he was away to his sister's house towards Panel along-with his wife and five year's old daughter. When, he reached at Bagehar, his daughter requested him to purchase bananas. On the request of his daughter, he had stopped his car on Bagehar chowk on Panoul road, near fruit shop. As soon as, he ::: Downloaded on - 05/10/2023 20:33:39 :::CIS 3 stopped the car, traffic Constable Rakesh Kumar came to him and directed him to move his vehicle.
4.2. The engine of the vehicle was ignited. The .
complainant, according to the contents of the complaint, requested him to give him one minute, so that, he could purchase the bananas, upon which, the said traffic Constable has uttered the words "Tu gaddi aage nhi karta to tujhe of bataoon. Thereafter, he opened the door of the vehicle and kicked him. Thereafter, he has given the fist blows on his rt mouth. Consequently, he suffered injuries. He has also given fist blows due to which, the complainant suffered fracture of his finger. The accused has caught the complainant from his neck and threatened him to kill.
4.3. According to the complainant, he remained as District President Youth Wing and also State Executive Member of the BJP.
4.4. He has further mentioned that he was along-with his family members and due to the act of the accused, he has suffered humiliation in the presence of the public. Thereafter, the local people gathered and due to his conduct, the accused had threatened them to kill. Consequently, the complainant took the said accused, in his car, to the office of Superintendent of Police, Bilaspur.
::: Downloaded on - 05/10/2023 20:33:39 :::CIS 45. On the basis of above facts, the police registered a case and police machinery swung into motion. The spot was visited and the spot map was prepared. In the MLC, the .
doctor has opined the injury on the finger as grievous with blunt weapon, as such, provisions under Section 325 IPC were added. Accused was arrested on 30.08.2008. After completion of investigation, the police filed challan for the of commission of offences punishable under Sections 323, 325, 506 and 355 IPC. rt
6. On the basis of report under Section 173(2) Cr.P.C., the learned trial Court found a prima-facie case against the accused for the commission of offences, punishable under Sections 323, 325, 355 and 506 IPC.
7. When, the charge, so framed, was put to the accused, he pleaded not guilty and claimed to be tried.
8. Since, the accused has not pleaded guilty, as such, prosecution has been directed to adduce evidence, to substantiate the charges framed against him.
9. Consequently, the prosecution has examined as many as 12 witnesses. After closure of the evidence, the entire incriminating evidence, appearing against the accused, was put to him, in his statement, recorded under Section 313 Cr.P.C. The accused has denied the entire prosecution case ::: Downloaded on - 05/10/2023 20:33:39 :::CIS 5 and took the defence that he is an innocent person. In his defence, he has examined 5 witnesses.
10. The learned trial Court, after hearing the learned .
APP and learned counsel appearing for the accused, has acquitted accused Rakesh Kumar, vide judgment dated 17.04.2008.
11. The said judgment has been assailed by the State of before the learned First Appellate Court, however, the appeal preferred by the State has been dismissed, vide judgment rt dated 27.03.2019.
12. Feeling aggrieved from the said judgment, the present revision petition has been filed before this Court, on the ground, that the judgment passed by the learned Appellate Court is not sustainable in the eyes of law, as, the learned trial Court, as well as, Appellate Court has not appreciated the evidence of the prosecution and the evidence of the witnesses has wrongly been discarded, without any rhyme or reason. Heavily relying upon the statements of PW-
1, PW-2, PW-5, PW-6, PW-7 and PW-8, it has been submitted that the same have not properly been appreciated by the learned trial Court, as well as, the First Appellate Court.
13. On the basis of grounds, as mentioned in the revision petition, the State has prayed that the revision ::: Downloaded on - 05/10/2023 20:33:39 :::CIS 6 petition may kindly be accepted, by setting aside the judgment passed by the learned trial Court and upheld by the learned First Appellate Court, by convicting the accused for .
the commission of offences, for which, he has been charge-
sheeted by the learned trial Court.
14. In order to decide the controversy involved in the present petition, it would be just and appropriate for this of Court, to discuss the evidence, so adduced by the prosecution before the learned trial Court, upon which, the learned trial rt Court has acquitted the accused, as referred to above.
15. PW-1 is the Ram Prakash. According to him, on 29.03.2008 at about 6.00 p.m., when he reached at Bagher Chowk, in the meanwhile, vehicle No. HP-24-0008 has been stopped by its driver in front of the shop of Satish.
Complainant Subhash enlightened from the vehicle in order to purchase bananas. Accused Rakesh was on duty. He has directed the complainant to move his vehicle. Thereafter, Subhash enlightened from the vehicle to give money to the shopkeeper, in the meanwhile, Rakesh came there and started beating Subhash. Consequently, Subhash fell down and number of persons gathered there. Family members of Subhash were also there. Subhash has suffered injuries on his finger. Thereafter, accused has been cornered by the ::: Downloaded on - 05/10/2023 20:33:39 :::CIS 7 persons present there. He was caught and was taken to S.P. office, Bilaspur. This witness is having affiliation with the BJP. According to him, he has started from Chandigarh at .
11.00 a.m., but, could not disclose, when, they had reached at Bilaspur. He has admitted that accused was on duty and he has directed Subhash to move his vehicle ahead. There was commotion on the spot, but, no obstruction had been of caused in the traffic. About 200-300 persons were gathered there. He has denied that Subhash, Satish, Sunder, Ram rt Prakash, Gaurav and Sukhdev had beaten the accused and thereafter, this witness has gone to S.P. office.
16. PW-2 Sukh Dev has deposed that in the month of March, 2008, at about 6.00 p.m., he was present in his shop and after hearing noise of commotion, he came out of his shop and noticed that Subhash Thakur, leader of BJP, was on the wheel and the door of the car was opened. A police official was beating him with fist blows. His wife was also sitting in the car and she was weeping. The said policeman was taken to S.P. office. He has feigned his ignorance about the fact that the vehicle of Subhash was parked in front of the fruit shop. He has also feigned his ignorance that accused had requested Subhash to move his vehicle ahead. He has admitted that no-one had informed the police.
::: Downloaded on - 05/10/2023 20:33:39 :::CIS 817. PW-3 Dr. S.K. Patial has medico legally examined Subhash Thakur and noticed six injuries on the person of Subhash. He has declared injury Nos. 1, 2, 3 and 5 as .
simple, whereas, injury No.4 as grievous in nature. This opinion has been given on the basis of X-ray. This witness has not mentioned the alleged history in the MLC.
18. PW-4 Ram Tirath has deposed that he has of conducted the X-ray of Subhash on the direction of Dr. S.K. Patial and affirmed the report as Ext. PW-4/A. rt
19. PW-5 Subhash Thakur has deposed that on 29.03.2008, at about 6.00 p.m., he along-with his wife and daughter had left Bilaspur, after visiting the Dentist. On the way, his daughter had requested him to purchase bananas.
Consequently, he had parked his vehicle, No. HP-24-0007, on the link road and had gone to the shop of fruit vendor. Two buses were parked in front of his vehicle. The fruit vendor brought the bananas and his wife had paid the money. In the meanwhile, accused Rakesh came there and directed him to move his vehicle ahead. The engine of the vehicle was ignited and he has requested the police official that he has to purchase bananas and thereafter he will leave, but the accused said that "App chalte hai ke main batayoon'.
Thereafter, he has opened the window of the car and kicked ::: Downloaded on - 05/10/2023 20:33:39 :::CIS 9 him on his eye and other parts of the body. He has dragged him out from the vehicle, upon which, shopkeeper Rakesh Kumar, Advocate Randeep Parmar and other persons saved .
him. He has also caught him from the neck. This witness has suffered fracture of his finger. He was feeling difficulty in breathing. For a moment, he became unconscious and felt giddiness. The accused had threatened him to kill. When this of witness was on his way to get himself medically examined, he noticed that the accused was nabbed by the people present rt there, who had advised him to take the accused to the S.P. Consequently, he was made to sit in the vehicle. Wife and daughter of this witness were with him. They took him to the S.P. office Bilaspur.
20. In cross-examination, this witness has firstly deposed that he had parked the vehicle on the link road.
Thereafter, the same was parked on the side of the road.
When, accused came, he had already purchased the bananas and only balance is to be taken from him. Bananas were with his wife. He has further deposed that he came unconscious for 4-5 minutes. Shri R.S Parmar, Advocate had advised him for taking legal action. He had telephonically talked with S.P., who has advised him to come to Bilaspur. Ashok Kumar, at that time, was driving the vehicle.
::: Downloaded on - 05/10/2023 20:33:39 :::CIS 1021. PW-6 Kamlesh Kumari is the wife of complainant.
She has supported the case of her husband on all material aspects of the case. However, she could not disclose about .
the duration, when, the accused had beaten her husband and who was present at that time. According to her, persons present there were beating the accused.
22. PW-7 Rakesh Kumar has deposed, in his of examination-in-chief, that on 29.03.2008 at about 6.00 p.m., Subhash Thakur came to his shop. Subhash Thakur had rt stopped his vehicle in front of his shop. When, he stopped the car, one Constable had opened the window of the car and started beating him. He had saved Subhash from him.
Thereafter, the Constable had left the spot. He has named the said Constable as Rakesh Kumar. The police post was situated at a distance of 30-35 feet from the spot. In the presence of this witness, Subhash, his wife and daughter had left the spot in their vehicle. Except above three persons, no other person was found in the said vehicle.
23. PW-8 is the Satish Kumar. According to him on 29.03.2008 at about 5.30-6.00 p.m., complainant Subhash reached there in his vehicle and stopped the same in front of the shop. He has purchased bananas and paid a sum of Rs.500/-. In the meanwhile, traffic Constable came there and ::: Downloaded on - 05/10/2023 20:33:39 :::CIS 11 requested him to move his vehicle ahead. His direction has duly been complied with by parking the vehicle after crossing 2-3 shops. In the meanwhile, traffic Constable again came .
there. Till the time, this witness has returned the balance to Subhash, a quarrel had taken place between them.
Thereafter, Subhash along-with his wife and daughter sat in the vehicle. The Constable had beaten him by opening the of window.
24. In the rt cross-examination, this witness has deposed that vehicle of Subhash was parked near his shop.
Two buses were parked in front of his vehicle. Width of the road was 25 feet. This witness has admitted that when, the complainant had parked his car, then, accused came there.
He has also admitted that accused had directed him to move the vehicle. Thereafter, he had took the vehicle 20 feet away from there. He has also admitted that accused had directed him to park the vehicle outside the road. Rest, he has denied all the suggestions, which were put to him, by learned counsel for the accused.
25. PW-9 Rajesh Kumar, Dy. S.P. was posted as SHO, PS, Sadar. On 29.03.2008, Subash Thakur was sent for medico legal examination, through SI Narain Singh to RH, Bilaspur, by moving application Ext. PW-5/A. SI Narain Singh ::: Downloaded on - 05/10/2023 20:33:39 :::CIS 12 has submitted the MLC of Subash as Ext. PW-3/A. This witness has admitted that he has moved the application for the MLC of complainant Subhash Thakur, whereas, in the .
said application, there is no reference with regard to accused Rakesh. He has admitted that no request has been made in Ext. PW-9/A with regard to preservation of blood and urine samples of complainant Subash.
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26. PW-10, Laxman Dass, SI, was posted as ASI in Police Station, Ghumarwin. On 29.03.2008, a complaint Ext.
rt PW-5/A was received in Police Station from the S.P. office, upon which, FIR No. 62 under Sections 323, 506 and 355 IPC was registered. The endorsement regarding registration of FIR is Ext. PW-10/B. Thereafter, investigation was conducted by SI/Additional SHO Pritam Singh. Complaint Ext. PW-5/A was received in Police Station at about 8.30 p.m. The same was brought by Constable Bharat Bhushan and was received by the MHC. He has admitted that in the complaint, there is no endorsement from the office of S.P. with regard to sections involved in the present case.
27. PW-11 Pritam Singh is the I.O. According to him, on 29.03.2008, he was posted as SHO Police Station, Ghumarwin. From the S.P office complaint Ext. PW-5/A was received, upon which, FIR Ext. PW-10/A was registered and ::: Downloaded on - 05/10/2023 20:33:39 :::CIS 13 investigation was conducted by him. He has visited the spot and prepared the spot map Ext. PW-11/A and recorded the statements as per their version. The supplementary statement .
of Subhash was Ext. PW-11/B, statement of Kamlesh Kumari Ext. PW-11/C, statement of Satish Kumar Ext. PW-11/D, statement of Rakesh Kumar Ext. PW-11/E, statement of Ram Prakash Ext. PW-11/F and statement of Ext. PW-11/G were of recorded as per their version. Report of FSL is Ext. PW-11/H. Accused was arrested and after completion of investigation, rt challan under Sections 323, 325, 506 and 355 IPC has been prepared. The case file was received on 29.03.2008 at about 8.30 p.m. The medical was conducted at Bilaspur and the application was moved by the police of Police Station, Sadar.
Complaint was moved before the S.P. Bilaspur. He could not disclose the fact as to who took the complaint to the police and injured to the hospital for medico legal examination. He has admitted that the place of occurrence falls within the territorial jurisdiction of Police Station, Ghumarwin. He has admitted that in the investigation from the accused, it was found that his uniform was torn. He could not disclose the name of person, who had conducted the investigation at Bilaspur. When, the complaint was received in the Police Station, Sections had already been added in it. He could not ::: Downloaded on - 05/10/2023 20:33:39 :::CIS 14 explain the cutting encircled 'A' and 'B' in Ext. PW-10/B by saying that he cannot say as to whether the same was prior to the complaint received by him. It has not been found during .
the investigation that accused Rakesh has moved the complaint against Subhash Thakur, Satish Kumar, Sunder Singh, Ram Prakash, Ashok Kumar, Gaurav and Sukhdev on the ground that they had beaten the accused, while he was of on duty. They had also torn his uniform. He has further admitted that Rakesh Kmar has moved the complaint against rt the said persons in Court No.1, Ghumarwin by filing a private complaint, which has been sent to Police Station for inquiry under Section 202 Cr.P.C. From the spot, the vehicle was driven by Subhash. He has feigned his ignorance as to whether complainant Subhash had become unconscious on the spot. However, this fact was found mentioned in the statement of complainant.
28. PW-12 Dr. D. Bhangal has examined the x-ray report of complainant Subhash. After examining the x-ray, Ext. PW-4/A and Ext. PW-4/B, he found fracture on the person of complainant.
29. To rebut this evidence, accused has examined DW-1 Ajay Kumar. According to him, on 29.03.2008 at about 6.00 p.m., Rakesh was on traffic duty at Bhager Chowk. At ::: Downloaded on - 05/10/2023 20:33:39 :::CIS 15 that time, Rakesh came to the shop of this witness from Panoul and his uniform was torn. Accused Rakesh was chased by 15-20 people, who had dragged him towards the .
chowk. Thereafter, they forcibly put him in the vehicle and the said vehicle was moved towards Bilaspur. According to this witness, he could not identify those 15-20 persons, who had dragged him. However, complainant Subash was known of to him. He has feigned his ignorance that in those 15-20 people, complainant was there or not.
rt Rakesh was caught from neck and was dragged. He could not disclose about the number of the car and traffic jam at the spot. He has denied that in his presence, accused had beaten Subash after opening the door of his window. He has denied that on the spot, people had tried to save complainant from accused and in that process, his uniform has been torn. Rest, he has denied all the suggestions.
30. DW-2 Pawan Kumar deposed that on 29.03.2008, at about 6.00 p.m., he was present in a shop at Bhager Chowk towards Panoul. He was going to the house of his sister at village Samoh. In the meanwhile, vehicle No. HP-24- 0007 make matiz came there. Driver had parked the vehicle on the road, due to which, obstruction was in the flow of traffic. Duty Constable requested the driver to move the said ::: Downloaded on - 05/10/2023 20:33:39 :::CIS 16 vehicle to the side of the road so that the traffic could move freely. The person, who was in the vehicle, came out and started beating the Constable. He was also saying that he is .
a political leader and threatened the accused to teach him a lesson as to how to do the job. He has torn his dress and thereafter the Constable in order to save his life had ran towards the chowk and at that time 15-20 people gathered of there, who had beaten the Constable and dragged him and made him to sit in the vehicle and took him to Bilaspur. The rt vehicle, as mentioned in his examination-in-chief, is stated to be of Subash Thakur. He has duly identified him. This witness has admitted that when, he was taking juice, complainant Subhash was in his vehicle. According to him, the sequence of events has not been disclosed by him to the police by stating that the police has not inquired from him.
There was a news item in the newspaper regarding the incident. He has admitted that despite publication of the news item, he has not disclosed anything to the police.
31. DW-3 Virender Dutt Sharma was posted as A.E.T.O. On 29.03.2008, at about 6.00 p.m., there was a traffic jam at Bhager Chowk and a quarrel took place with the policeman and people were forcibly putting him in the vehicle and took him towards Bilaspur. His uniform was found to be ::: Downloaded on - 05/10/2023 20:33:39 :::CIS 17 torn and he suffered injuries on his neck. He was trying to save himself from the clutches of those persons. He was screaming. This witness has followed the vehicle in which .
accused was taken to Bilaspur. He noticed that Rakesh was being beaten by the occupants of the vehicle. Near Kandror bridge, the said vehicle was stopped and Rakesh was beaten.
Thereafter, the vehicle had crossed the Ali khud, where they of had again beaten Rakesh. Thereafter, they took him to S.P. office and abused him in presence of S.P. and the accused rt was taken inside the S.P. office. Thereafter, they took him to the hospital. In the year 2008, he was posted at barrier at Nalagarh. On that day, he was on leave and he was going to Bilaspur in connection with his personal work. He has not seen the start of scuffle, as such, he could not disclose as to who has torn the uniform of accused Rakesh, but, again stated that he had witnessed the entire incident by parking the vehicle on the side of the road. The bone of contention between the parties is with regard to the parking of the vehicle. Rakesh is known to him, as they were from the same area.
32. DW-4 HC Baldev Raj has deposed that the case property, which was taken into possession, under Section 202 ::: Downloaded on - 05/10/2023 20:33:39 :::CIS 18 Cr.P.C, by the police, in the complaint filed by accused, bearing No. 324 of 2009 is identified by him in the Court.
33. DW-5 SI Basant Singh has deposed that vide .
document Ext. DX-1, an inquiry under Section 202 Cr.P.C., was endorsed to him, wherein, the complainant had made complaint against the seven accused. He has prepared the fact finding report of the same and submitted in the Court.
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34. This is the entire evidence on record.
35. Learned trial Court, in the present case, has acquitted the accused by discarding the statements of the witnesses, after considering the defence of the accused.
36. It is the golden principle that the prosecution has to stand upon its own legs and no benefit could be derived from the weaknesses of the defence of the accused. However, the defence taken by the accused, if proved or probalilized from the cross-examination of the witnesses of the prosecution or by examining the defence witnesses, can be considered, if the same is proved or probaliized on the touchstone of the preponderance of probabilities.
::: Downloaded on - 05/10/2023 20:33:39 :::CIS 1937. The learned trial Court has acquitted the accused by holding that when, two views are possible, then, the view which is favouring the accused, is required to be considered.
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38. These findings have been assailed by the State before the learned First Appellate Court, which has also dismissed the appeal filed by the State under Section 378(a) Cr.P.C of
39. The accused is presumed to be innocent and with the judgment of acquittal, the presumption of innocence rt become double. In this case, the State is before this Court in a revision petition against the judgment of acquittal, which has been upheld even by the learned First Appellate Court.
When, the evidence has been adduced by both the parties, then, it has rightly been considered by the learned trial Court that the prosecution could not explain the circumstances and the injuries suffered by the accused, in this case.
40. The Higher Court can interfere with the judgment of acquittal, only in the cases, where, the Higher Court comes to the conclusion that the findings, so recorded by the learned trial Court, in acquitting the accused are perverse. The Appellate Court should be slow in interfering with the judgment of acquittal unless the same falls within the purview of perversity.
::: Downloaded on - 05/10/2023 20:33:39 :::CIS 2041. In this case, the learned trial Court has rightly considered the fact that the injuries on the person of accused have not been explained and the person, who is the injured .
and complainant PW-5 could not explain about the fact as to how the things were happened on the spot.
42. From the evidence adduced by the prosecution, one thing can be said that the genesis of the occurrence has of been withheld from the scrutiny of the Court by the complainant, as well as, other witnesses.
rt
43. By examining the defence witnesses, the accused has put forward the case that he was beaten by the complainant, when he was on traffic duty. PW-1 has shown his ignorance by stating that the uniform of the accused was torn and deposed that the accused was required to be beaten, but, again stated that he was not beaten. In such situation, the stand, which has been taken by the accused stood probabilised, in this case and the improvements which have been made by PW-5 with regard to becoming unconscious remained unexplained, in this case.
44. Considering all these facts, this Court is of the view that learned trial Court has rightly appreciated the evidence adduced by the prosecution, as well as, by the defence and the judgment passed by the learned trial Court, ::: Downloaded on - 05/10/2023 20:33:39 :::CIS 21 which has also been upheld by the learned First Appellate Court does not require any interference by this Court.
45. As such, this Court finds no merit in the revision .
petition and the same is accordingly dismissed.
46. The bail bond and surety bond furnished by the accused are discharged. He is directed to furnish the bail bond in the sum of Rs.20,000/- with one surety of the like of amount under the provisions of Section 437-A Cr.P.C to the satisfaction of learned Registrar (Judicial) of this Court within rt a period of seven days, by giving an undertaking to appear before the Hon'ble Apex Court, in case, this judgment is being assailed before the Apex Court.
47. Record be sent back.
September 29, 2023 ( Virender Singh )
(naveen) Judge
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