Himachal Pradesh High Court
State Of Himachal Pradesh vs Parmod Kumar And Others on 4 August, 2016
Bench: Rajiv Sharma, Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 491 of 2009 .
Judgment reserved on: 26.05.2016
Date of decision : 04.08.2016
State of Himachal Pradesh ...Appellant
of
Versus
Parmod Kumar and others ...Respondents
rt
Coram:
The Hon'ble Mr. Justice Rajiv Sharma, Judge. The Hon'ble Mr. Justice Vivek Singh Thakur, Judge Whether approved for reporting?1____.
For the appellant : Mr. Neeraj K. Sharma, Deputy Advocate General.
For the respondents : None.
Vivek Singh Thakur, Judge.
Aggrieved by acquittal of respondents-accused vide judgment dated 29.06.2009, passed by the learned Additional Sessions Judge (Fast Track Court), Shimla, Himachal Pradesh in Sessions Case No. 8-S/7 of 2008 in Whether reporters of Local Papers may be allowed to see the judgment? ___ ::: Downloaded on - 15/04/2017 20:57:51 :::HCHP 2 case Police Challan under Sections 147, 307/149,323/149 read with Section 120-B of the Indian Penal Code in Police .
(West), Shimla H.P., State has preferred present appeal with prayer to set aside impugned judgment and to convict respondents-accused under aforesaid Sections.
2. Briefly stated, the facts of case are that PW-15 of Santosh Kumar, on 26.4.2007 at 7.25 PM, had lodged report vide GD entry No.48A (Ex. PW-10/A) stating therein rt that he and Vinod Bushehari had been beaten by some boys near Rain Shelter of Sankatmochan Temple and Vinod Bushehari has been thrown from dhank and he had also received injuries. Police had sent him to Deen Dayal Upadhyay Hospital, Shimla for treatment and PW-17 SI Chaman Lal had headed to spot alongwith Police officials.
PW-16 Vinod Bushehari was found there below main road in unconscious state. He was taken out and sent to Indira Gandhi Medical College, Shimla for treatment. PW-15 Santosh Kumar, in the meanwhile, was also referred from Deen Dayal Upadhyay Hospital to I.G.M.C., Shimla for treatment where his statement under Section 154 Cr.PC Ex.
PW-15/A was recorded.
::: Downloaded on - 15/04/2017 20:57:51 :::HCHP 33. In statement Ex. P-15/A, PW-15 has stated that he was serving as a Reporter in 'Dainik 'Bhaskar .
Newspaper' and his brother-in-law (Jija) PW-16 Vinod Bushehari was a contractor in Shimla who had sold his maruti esteem car to Prakash Chand resident of Shoghi.
Some amount of consideration was paid by Prakash Chand of and cheques were issued against some amount. On dishonoring of cheque, PW-16 Vinod Bushehari had brought rt his car No. HP-52-5600 from Prakash Chand on 26.4.2007 and had parked it near Boileauganj Barrier. It is further stated that on 27.4.2007 Prakash Chand had called him for talks near Sankatmochan Temple on the road side regarding dishonouring of cheque. He had reached near Sankatmochan rain shelter at about 5.45 PM where Prakash Chand and Lalit@ Lali were already present in white maruti car. They had asked him to sit in car and to call his brother-in-law (Jija) PW-16 for talks. On their request he had called his brother-in-law Vinod Bushehari for talks at barrier. He, Prakash Chand and Lalit @ Lali also went to Barrier. PW-16 Vinod Bushehari had also reached there after some time. Prakash Chand and Lalit @ Lali had ::: Downloaded on - 15/04/2017 20:57:51 :::HCHP 4 purposed to have talks near Sankatmochan Temple. On this, all of them went beyond Snakatmochan rain shelter .
towards Shoghi in maruti car. Prakash Chand had parked his car on the side of road and talks were started. During talks a Tata Sumo, being driven by Dilwar Singh, came from Shoghi side which was stopped on the signal of of Prakash Chand. 5-6 young persons had alighted from Tata Sumo in which besides Dilawar Singh, one was brother of rt Prakash Chand and name of others were not known to him but he was well conversant with their faces. It was about 6.30-6.45 PM. The moment, he had tried to have conversation with youths/young persons alighted from Tata Sumo, brother of Prakash Chand and other youth had pulled out his brother-in-law PW-16 Vinod Bushehari from back seat of maruti car and started beating him by saying that they will throw him from dhank. His brother-in-law PW-16 Vinod Bushehari had fired 2-3 times in air for his self protection with his pistol carried by him for self protection. The moment PW-16 Vinod Bushehari had pulled out pistol, someone had caught him and one bullet had hit him(PW-15). During this time, all accused threw PW-16 ::: Downloaded on - 15/04/2017 20:57:51 :::HCHP 5 Vinod Bushehari from dhank and ran away from the spot in Tata Sumo and maruti car. It has been further stated in .
this statement that Prakash Chand in furtherance to common intention with his brother, Lalit @ Lali, Dilawar Singh and other companions had beaten his brother-in-law PW-16 Vinod Bushehari and thrown him from the dhank of with intention to kill him.
4. In pursuance to statement FIR Ex. 13/A under rt Sections 307, 147,149,120B IPC was registered (West) Shimla. After completion of investigation challan was put in Court against respondents.
5. Prosecution has examined 17 witnesses. Some of them are official witnesses who had performed their duties as Doctors in examining PW-15 Santosh Kumar, PW-16 Vinod Bushehari and/as or Police officials in recording rapat and FIR and also receiving clothes of complainant PW-15 Santosh Kumar and PW-14 Vinod Bushehari, depositing the same in Malkhana and transporting parcels of clothes and samples of blood etc. from Hospital to Police Station and to State FSL Junga and back All these witnesses will be relevant to be considered in case statement of PW-15 and ::: Downloaded on - 15/04/2017 20:57:51 :::HCHP 6 PW-16 inspire confidence and appears to be trustworthy, reliable and convincing. Therefore, before considering other .
evidence on record statement of PW-15 and PW-16 are required to be considered to proceed further as the whole case of prosecution will depend upon veracity of PW-15 Santosh Kumar and PW-16 Vinod Bushehari.
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6. As per statement recorded under Section 154 of the Code of Criminal Procedure Ex. PW-17/A, PW-15 and PW-16 rt were only witnesses to incident. However during investigation one more witness PW-3 Amar Singh had been introduced as an eye witness purporting him to be driver of Tata Sumo whereas as per statement Ex. PW-
15/A driver of Tata Sumo was Dilawar Singh who had been named as accused in FIR, but PW-3 Amar Singh has not lent any support to prosecution case and he was declared hostile and subjected to cross-examination by learned Public Prosecutor but nothing favourable has been extracted in his cross- examination to prosecution.
7. PW-15 in his statement in court has reiterated statement Ex.PW-15/A recorded under Section 154 of the Code of Criminal Procedure but with changes in names of ::: Downloaded on - 15/04/2017 20:57:51 :::HCHP 7 persons involved. In statement Ex.PW-15/A he has specifically named Parkash Chand, his brother, Lalit @ Lali .
and Dilawar Singh alongwith others as accused whereas in statement made in the Court, he has stated that he does not know any one known as Dilawar Singh. He has explained that he was confused and name of Tata Sumo of driver was Amar. Interestingly, in FIR, driver of Tata Sumo was accused being named as Dilawar Singh rt however, in challan driver of Tara Sumo named as Amar Singh has been cited as prosecution witness and there is no person known to PW-15 whose name is Dilawar Singh.
8. In statement Ex.PW-15/A, PW-15 Santosh Kumar has specifically stated that Parkash Chand and Lalit @ Lali were two persons present on the spot in the beginning near Sankatmochan rain shelter where he was called but in statement in the Court, he has stated that Lal Chand and Chander Parkash were two person present on the spot in the beginning. It is not the case of PW-15 that Lal Chand and Lalit @ Lali are one and the same person because Lalit @ Lali is respondent No. 2 and Lal Chand is respondent No.5 in present case.
::: Downloaded on - 15/04/2017 20:57:51 :::HCHP 89. It has also been admitted by PW-15 Santosh Kumar in Court that Lal Chand is known to him since last 8 .
to 10 years and he was not knowing other accused persons prior to the date of incident. PW-15 Santosh Kumar was not knowing respondent No.2 Lalit @ Lali prior to incident but he has named himself as person who was present on of the spot with respondent Chander Parkash or Parkash Chand. PW-15 was familiar with Lal Chand respondent No. rt 5 whom is PW-15, in his statement in Court, alleging to be present in the beginning but the said Lal Chand was not named in FIR.
10. As per statement Ex.PW-15/A all persons alighted from Tata Sumo including its driver Dilawar Singh, had attacked PW-15 Vinod Bushehari whereas as per deposition made in the Court driver of Tata Sumo was Amar Singh who remained in Tata Sumo busy in attending call on his mobile phone and other 6-7 persons alighted from Tata Sumu had attacked PW-16 Vinod Bushehari.
11. In cross-examination, PW-15 Santosh Kumar has stated that accused Chander Parkash was not known to him but has claimed that Chander Parkash had called ::: Downloaded on - 15/04/2017 20:57:51 :::HCHP 9 him for talks regarding dishonouring of cheque. In case respondent Chander Parkash was not known to PW-15 .
Santosh Kumar, then there was no occasion of having talks between both of them on a disputed issue. PW-15 Santosh Kumar has not explained that how and in what circumstances a unknown person had called him to settle of issue pertaining to a different person.
12. PW-15 Santosh Kumar stated that he had not rt consumed liquor on that day whereas in his MLC Ex. PN smell of alcohol of PW-15 Santosh Kumar was noticed by concerned Doctor. As per Chemical examiner's report Ex. PY 23.0 m.g.% ethyl alcohol was found in urine of PW-15 Santosh Kumar.
13. In report Ex.PW-10/A made to police immediately after the incident, PW-15 Santosh Kumar had not named any person at the time of informing police and has stated that he was been beaten by some boys of Shoghi and Vinod Bushehari had been thrown from dhank, but he had not named any one.
14. In report Ex. PW-10/A, PW-15 had alleged that he was beaten by boys whereas in statement Ex. P-15/A ::: Downloaded on - 15/04/2017 20:57:51 :::HCHP 10 and also in court there is not even whisper about beating him by boys and beating only to PW-16 Vinod Bushehari .
has been alleged.
15. As per prosecution case after treatment in DDU Hospital PW-15 was referred to IGMC, Shimla where his statement under Section 154 Cr.P.C. was recorded of whereas PW-15 has deposed in the Court that he had gone to IGMC from DDU to see PW-16.
16. rt PW-17 Investigating Officer has admitted that PW-15 and PW-16 had told him that they knew names of only two accused persons namely Chander Parkash and Lalit @ Lali whereas in statement made in the Court, it is stated by PW-15 Santosh Kumar that he knew Lal Chand since 8-10 years.
17. As per statements of PW-15 and PW-16 car was owned by PW-16 Vinod Bushehari and was sold to respondent Chander Parkash and cheque was issued in favour of PW-16 issued by Chander Parkash was dishonoured. The said version of these witnesses is also falsified from evidence of prosecution itself. PW-17 Investigating Officer has admitted that car referred in the ::: Downloaded on - 15/04/2017 20:57:51 :::HCHP 11 case was in the name of PW-14 Manoj Bushehari, real brother of PW-16 and documents of sale were also .
executed by PW-14 Manoj Bushehari. PW-16 Vinod Bushehari had no power of attorney or any authority to act on behalf of PW-14 Manoj Bushehari and maruti car was brought from Shoghi by PW-16 Vinod Bushehari without of consent of respondent Chander Parkash.
18. PW-14 Manoj Bushehari is real brother of PW-16 rt Vinod Bushehari who has deposed in the Court that on telephonic message regarding throwing of his brother from dhank by Chander Parkash etc. he had came to Shimla during night of 27.04.2007. He has stated in examination-
in-chief that car was sold by his brother PW-16 Vinod Bushehari to Chander Parkash. However, he has stated that documents of sale of vehicle were signed by him. He has proved on record copies of affidavits Ex. PW-14/A Ex.
PW-14/B. As per these affidavits, PW-14 Manoj Bushehari had sold his car to respondent Chander Parkash. It has been mentioned in these affidavits that PW-14 Manoj Bushheri had received full and final payment of said vehicle and handed over physical possession of said vehicle to ::: Downloaded on - 15/04/2017 20:57:51 :::HCHP 12 Chander Parkash. It is admitted by PW-14 that he had not executed any power of attorney in favour of his brother .
PW-16 Vinod Bushehari either to sell the car or to receive sale price. He has further stated that PW-15 or PW-16 had never informed him that they had taken back vehicle from respondent Chander Parkash prior to he date of of alleged incident. He has further admitted that no notice regarding dishnouring of cheque was issued to respondent rt Chander Parkash but he has tried to explain that Chander Parkash was ready to pay Rs.30,000/- in cash.
19. Scrutiny of evidence of PW-14, PW-15 and PW-
16 renders version of prosecution case highly improbable.
It appears that incident has not occurred in the manner as being purported by PW-15 and PW-16. Something material which is real cause of incident and which may have drawn light on the manner in which it occurred has been withheld by prosecution witnesses. Truth has been suppressed by PW-15 and PW-16.
20. PW-17 Investigation Officer has claimed that he has conducted identification Parade but there was nothing on record to establish that identification parade was ::: Downloaded on - 15/04/2017 20:57:51 :::HCHP 13 conducted in accordance with law. PW-15 has stated that at the time of identification of accused in Police Station only .
accused persons alongwith driver of Tata Sumo were present. Identification parade was to be conducted by mixing suspected persons with other persons who were not known to PW-15 and PW-16. Identification of respondent of by producing before PW-15 and PW-16 without intermixing them with others is no identification as per law.
21. rt Statements of PW-15 and PW-16 does not inspire confidence. There is no necessity to discuses the rest of witnesses.
22. In light of above discussion, there is no sufficient evidence on record to hold that respondents-accused have committed an offence under Sections 147, 307/149, 323/149 read with Section 120-B of the Indian Penal Code as alleged. Respondents have been acquitted by trial Court. On scrutiny of evidence on record, it cannot be said that learned trial court has not appreciated evidence appropriately and completely and acquittal of respondents-
accused has resulted into travesty of justice or has caused mis-carriage of justice.
::: Downloaded on - 15/04/2017 20:57:51 :::HCHP 1423. In view of ratio laid down by Hon'ble Supreme Court in case Mohammed Ankoos and others versus Public .
Prosecutor, High Court of Andhra Pradesh, Hyderabad (2010) 1 Supreme Court Cases 94, we are of the considered view that no case for interference is made out.
24. The present appeal, devoid of any merit, is of dismissed, as also pending applications, if any. Bail bonds, if any, furnished by respondents-accused are discharged.
rt Records of the Court below be sent back immediately.
(Rajiv Sharma), Judge.
(Vivek Singh Thakur), Judge.
August 04, 2016 *brb* ::: Downloaded on - 15/04/2017 20:57:51 :::HCHP