Himachal Pradesh High Court
Sunil Kumar vs State Of H.P on 8 September, 2015
Author: Sanjay Karol
Bench: Sanjay Karol
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
Cr. Appeal No. 334 of 2014 alongwith
Cr. Appeal No. 322 of 2014
.
Judgment reserved on: 03.09.2015
Date of Decision: September 8, 2015
1. Cr.Appeal No. 334 of 2014
Sunil Kumar ...Appellant.
Versus
State of H.P. ...Respondent.
of
2. Cr. Appeal No. 322 of 2014
Sanjiv Kumar ....Appellant.
State of H.P.
rt Versus
....Respondent
Coram:
The Hon'ble Mr. Justice Sanjay Karol, Judge.
Whether approved for reporting?1 Yes.
For the Appellant: Mr. Anoop Chitkara, Advocate, for the
appellant in Cr. Appeal No. 334 of
2014 and Mr. N.S. Chandel, Advocate,
for the appellant in Cr. Appeal No.322
of 2014.
For the Respondent: Mr. R.S. Verma, Additional
Advocate General for the
respondent-State.
Sanjay Karol, J.
In these appeals filed under Section 374 Cr.P.C., convicts Sunil Kumar and Sanjiv Kumar have assailed the judgment dated 16.09.2014, passed by Sessions Judge, Bilaspur, H.P., in Sessions trial No.16/7 of 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 18:52:52 :::HCHP 22010, titled as State of Himachal Pradesh Versus Sunil Kumar & another, whereby they stand convicted for having committed offences punishable under the .
provisions of Section 353 of the Indian Penal Code and sentenced them to undergo simple imprisonment for a period of one year and to pay fine of `1000/- each and in default thereof, further undergo simple imprisonment for of a period of one month. Also they are convicted of having committed an offence punishable under the provisions of Section 332 IPC and sentenced to undergo simple rt imprisonment for a period of one year and pay fine of `1000/- each and in default thereof, further undergo simple imprisonment for a period of one month. Convicts are also convicted of having committed an offence punishable under the provisions of Section 333 IPC and sentenced to undergo simple imprisonment for a period of four years and pay fine of `5000/- each and in default thereof, further undergo simple imprisonment for a period of six months.
2. It is the case of prosecution that on 04.07.2006, Dayal Singh (PW.1) while posted as a driver on bus No.HP-34A-1017 owned by the HRTC (a ::: Downloaded on - 15/04/2017 18:52:52 :::HCHP 3 Government undertaking) was plying the bus on Kullu-
Anni route. Puran Chand (PW.3) was posted as a conductor. En-route at Mangrot, the road was blocked on .
account of cutting carried out by labourers. Dayal Singh requested the contractor Ravinder Kumar (not examined) and his labourers to clear the road. Without any provocation, accused who were working as labourers, of abused and gave beatings to Dayal Singh, as a result of which, he sustained injuries and his clothes torn. Bhajju Ram (PW.2) also an employee of HRTC, and Puran Chand rt intervened and saved Dayal Singh from the clutches of the accused. Information with regard to the same was furnished to the police and entry in Rojnamcha (Ex.PW.13/A) recorded. Dayal Singh got his statement (Ex.PW.1/A) under the provisions of Section 154 Cr.P.C.
recorded, on the basis of which FIR No.247/2006 dated 04.07.2006 (Ex.PW.12/A) registered against the accused under the provisions of Sections 253, 332, 504/34 IPC, at Police Station, Sadar, Bilaspur, H.P. SI Krishan Singh (PW.15) conducted the investigation. Dayal Singh was got medically examined from Dr.Rajnish Sharma (PW.4).
MLC (Ex.PW.4/A) and report of the radiologist (Ex.PW.5/C) ::: Downloaded on - 15/04/2017 18:52:52 :::HCHP 4 issued by Dr.D. Bhangal (PW.5) were taken on record.
PW.4 opined the injuries sustained by Dayal Singh (PW.1) to be grievous in nature. With the completion of .
investigation, which revealed complicity of the accused to the alleged crime, challan was presented in the Court for trial.
3. The accused were charged for having of committed offences punishable under the provisions of Sections 353, 332, 333 and 504 read with Section 34 of the Indian Penal Code, to which they did not plead guilty rt and claimed trial.
4. In order to establish its case, in all, prosecution examined as many as fifteen witnesses.
Statements of the accused under Section 313 of the Code of Criminal Procedure were also recorded, in which they took defence of innocence and also examined three witnesses in their defence to establish their plea of alibi.
5. Finding the defence taken by the accused not to have been probablized by the defence witness and relying upon the testimonies of Dayal Singh (PW.1), Bhajju Ram (PW.2) and Puran Chand (PW.3), despite witnesses Roshan Lal (PW.6), Uttam Chand (PW.8) and ::: Downloaded on - 15/04/2017 18:52:52 :::HCHP 5 Jagat Ram (PW.9) turning hostile, Trial Court convicted both the accused for having committed offences punishable under the provisions of Sections 353, 332 and .
333 IPC and sentenced as aforesaid. Hence the present appeal by the convicts.
6. Having heard M/s Anoop Chitkara and N.S. Chandel, learned counsel, on behalf of the appellants as of also Mr. R.S. Verma, learned Additional Advocate General, on behalf of the State, as also minutely examined the testimonies of the witnesses and other rt documentary evidence, so placed on record by the prosecution, Court is of the considered view that trial Court committed great illegality in convicting the accused, for the reasons discussed hereinafter.
Contradictions and improbabilities which are glaring, rendering the prosecution case to be extremely doubtful, if not true, stand ignored.
7. The apex Court in Lal Mandi v. State of W.B., (1995) 3 SCC 603, has held that in an appeal against conviction, the appellate Court is duty bound to appreciate the evidence on record and if two views are ::: Downloaded on - 15/04/2017 18:52:52 :::HCHP 6 possible on the appraisal of evidence, benefit of reasonable doubt has to be given to the accused.
8. Medical evidence through the testimonies of .
Dr.Rajnish Sharma (PW.4), Dr. D. Bhangal (PW.5) and Ram Tirath (PW.7) reveal that Dayal Singh (PW.1) received the following injuries:-
"1. There was swelling with tenderness over the nasal pyramid near the root of the of nose with abrasion on the left side of nasal pyramid about 1.5 x 0.5 mm.2.
rt Abrasion irregular about 2 mm on the left mastoid region.
3. Abrasion left side chest linear in shape 2.5 cm x 0.5 mm with pain and tenderness left side of chest.
4. Abrasion irregular in shape on the back of left forearm."
9. There is fracture of the nasal bone, which is evident from MLC (Ex.PW.4/A). However, doctors have opined that such injuries could have been caused even by way of a fall.
10. Through the testimonies of Magani Ram (DW.2) and Pawan Kumar (DW.3) accused made an attempt to prima facie establish not being present on the spot at the time of the incident. In fact, Pawan Kumar ::: Downloaded on - 15/04/2017 18:52:52 :::HCHP 7 (DW.3) states that the driver of the bus had indulged in some scuffle with the labourers, who were from Bihar.
The accused are not from Bihar or Biharis. They are .
natives and permanent residents, falling within the territorial jurisdiction of Police Station, Barmana.
11. Be that as it may, prosecution has to stand on its own legs and establish, beyond reasonable doubt, the of charged offences. Having considered the case in entirety genesis of the prosecution case, reflecting involvement of the accused, cannot be said to have been established rt on record even through the testimony of prosecution witnesses.
12. From the testimony of Hem Singh (PW.14), who has proved extract of duty roster (Ex.PW.14/A), it is evident that the bus belonging to Kullu Depot was to ply on Kullu-Anni route. It was to leave Kullu at 5.15 AM.
Record reveals that Gurdas Ram was the driver, who was to drive the bus from Kullu. Hem Singh states that Dayal Singh was to replace Gurdas Ram at Ghagas. Now no record of Bus Depot falling within the jurisdiction of Ghagas has been placed or proved on record. It is not the case of prosecution that Dayal Singh travelled in the ::: Downloaded on - 15/04/2017 18:52:52 :::HCHP 8 very same bus from Kullu to replace Gurdas Ram at Ghagas. Gurdas Ram has also not been examined in Court to establish that the bus was handed over to Dayal .
Singh at Ghagas. Duty roster (Ex.PW.14/A) is not signed by this witness. Log book is not on record. Further reference of Dayal Singh in the register is not in the hand of this witness. It is in different ink. Witness states that of entry pertaining to Dayal Singh was made by Tulsi Ram, Assistant Adda Incharge, who remains unexamined why this person rt was not examined in Court remains unexplained. It acquires significance in view of the fact that there is overwriting at the place where name of Dayal Singh is mentioned. First Dayal Chand was written. Later on 'Chand' is scored off and replaced with word 'Singh'. There are no signatures on the cutting.
Also Dayal Singh has not produced the log book in Court.
This renders the prosecution version of the bus being plied by Dayal Singh to be doubtful. That Dayal Singh examined as PW.1 was the driver who would have replaced Gurdas Ram also remains unproven on record, for there can be more than one person by the name of Dayal Singh who could have been employed by HRTC.
::: Downloaded on - 15/04/2017 18:52:52 :::HCHP 913. Prosecution heavily relies upon the testimonies of Dayal Singh (PW.1), Bhajju Ram (PW.2) and Puran Chand (PW.3) to establish occurrence of the .
incident. In addition to the statement of driver, prosecution heavily relies upon the statement of Bhajju Ram an employee of the HRTC and Puran Chand conductor posted on the bus. All these witnesses are of employees of the HRTC and as such are interested witnesses. At this juncture, it be only observed that prosecution examined three more witnesses Roshan lal rt (PW.6), Uttam Chand (PW.8) and Jagat Ram (PW.9) to testify occurrence of the incident. Significantly all these witnesses have not supported the prosecution case at all and despite extensive cross-examination, nothing fruitful could be elicited from their testimonies, establishing presence of the accused or any scuffle having taken place between them and Dayal Singh. Jagat Ram is known to Dayal Singh from before and there is no reason for all these witnesses to have deposed falsely or helped the accused. From their testimonies no involvement of the accused, in the alleged incident, can be inferred much less proved.
::: Downloaded on - 15/04/2017 18:52:52 :::HCHP 1014. Be that as it may, even otherwise, testimonies of relevant witnesses to the occurrence of the incident cannot be said to be inspiring in confidence. There are .
glaring contradictions and improbabilities, which remain unexplained on record.
15. Dayal Singh (PW.1) states that after taking over charge of the bus at Ghagas he proceeded to the of destination. There is no proof of the same. He further states that when he reached at a place known as Mangrot, he saw cutting work of the road in progress. He rt stopped the bus as the road was partly blocked and requested the workers of the contractor Ravinder Kumar to remove the boulders lying on the road. "2/4 persons"
came and started abusing and directed him to take the bus back. "These two persons" pulled him down the bus and tore his shirt. He was also given beatings with fist blows on face and chest. He was saved by Bhajju Ram (PW.2), Puran Chand (PW.3), Uttam Chand (PW.8) and Jagat Ram (PW.9). The matter was reported to the police and subsequently he got his statement (Ex.PW.1/A) recorded. In Court, he identified the two persons to be "Sunil Kumar" and "Sanjeev". Significantly he did not ::: Downloaded on - 15/04/2017 18:52:52 :::HCHP 11 know the accused from before but could only recognize them by face. This cannot be true. It is not the case of the prosecution that accused were immediately taken .
into custody or their particulars made known either to him by the contractor or independent persons present on the spot. Significantly no test identification parade was carried out by the police at any point in time. The of incident took place on 04.07.2006 and accused were identified for the first time in the Court on 16.09.2013.
How is that police reached out to the accused. Identity of rt the accused itself being in doubt, stands amplified from the fact that in the FIR he disclosed names of four persons i.e. Sunil, Sanju, Devi Ram and Ram Pal. In the FIR, it is no where recorded that accused Sanjeev Kumar is also known as Sanju. Also record does not reveal it to be so. He also does not reveal, who is this Sunil. Also why is it that no action was taken against the remaining persons so named in the FIR. Also in Court he does not state as to which of these persons pulled him from the collar and which of them gave him a blow as a result of which he sustained injuries on his face. He further admits that "it is correct that in such type of condition we have ::: Downloaded on - 15/04/2017 18:52:52 :::HCHP 12 to talk with road supervisor or the contractor. It is correct that where such type of repair and construction work is going on, there is road inspector and supervisor .
from the P.W.D. department. It is correct that I did not approach either road inspector or supervisor". Why so he does not explain.
16. Incidentally contractor Ravinder Kumar has of not been examined in Court. Why so? has not been explained by the prosecution. Whether accused were employed as labourers by Ravinder Kumar and were rt deployed to carry out the work on the site at the relevant time or not remains unestablished on record. He was the best person to have proven such fact.
17. Testimony of Dayal Singh (PW.1) also cannot be said to be inspiring in confidence for the reason so disclosed by Krishan Chand (PW.15), according to whom, initially accused disclosed names of four persons and later on by way of supplementary statement named only two persons i.e. the present accused.
18. I find that name of one of the accused is recorded as Rajeev and not Sanjiv. Bhajju Ram (PW.2) admits that Rajiv is not the name of the accused present ::: Downloaded on - 15/04/2017 18:52:52 :::HCHP 13 in Court and name of Sunil was disclosed to him by certain persons, whose names also he does not remember. Presence of this witness itself is in doubt.
.
There is nothing on record to establish his purpose of travelling in the bus at the relevant time. Thus, even this witness does not establish identity of the assailants or occurrence of the incident.
of
19. Puran Chand (PW.3) states that accused Sunil Kumar and Sanjeev gave beatings to Dayal Singh (PW.1).
This witness was posted as a conductor on the bus.
rt However, even he admits that names of the accused were given by people, who had gathered on the spot, whose names also he does not remember. He has identified the accused for the first time in the Court. In the given circumstances it is difficult to fathom that he would even remember the faces much less names of the assailants after a period of more than seven years. In this view of the matter, I do not find the prosecution to have established, beyond reasonable doubt, identity of the accused or them to be present on the spot.
Contradictions in the testimonies of Dayal Singh (PW.1), Bhajju Ram (PW.2) and Puran Chand (PW.3) with regard ::: Downloaded on - 15/04/2017 18:52:52 :::HCHP 14 to identity of the accused is glaring, material and cannot be ignored.
20. Investigating Officer Krishan Chand (PW.15) .
admits that he did not record statement of the contractor Ravinder Kumar for establishing identity or their employment with him. Initial version given to him was that four labourers of contractor Ravinder Kumar had of given him beatings. Who were those four persons was not disclosed and why is it that initial version was changed has also not been explained.
rt This acquires significance in view of the uncontroverted version of Puran Chand (PW.3), according to whom, labourers present on the spot, who gave beatings were Biharis.
21. As already discussed, there is no evidence that Sanju is also known as Sanjeev. Also none has come forward to disclose the parentage or address of Sunil Kumar. Then how is it that Investigating Officer was able to reach out to accused Sunil Kumar and array him as an accused remains unexplained. Also no statement of either the contractor, Junior Engineer or Supervisor was recorded by the police or such persons examined in ::: Downloaded on - 15/04/2017 18:52:52 :::HCHP 15 Court. They were the best persons to have established presence of the accused on the spot.
22. Version of Dayal Singh of having recognized .
the accused that too after a period of seven years and first time in Court, does not inspire confidence, for the accused were not known to him from before and in any event stands contradicted by independent witnesses. All of these aspects remain unexamined by the Court below.
23. It be also observed that at about 10.30 AM information about the occurrence of the incident was rt brought to the notice of the police, which fact is evident from Rojnamcha (Ex.PW.13/A). Significantly there is no reference or name of any of the accused persons in the said document. The FIR was registered at 01.35 PM even by that time Dayal Singh (PW.1) had not ascertained exact particulars of the assailants, for FIR is conspicuously silent on this aspect. It is not the case of prosecution that accused were immediately apprehended, detained or arrested on the spot. This acquires significance in view of admissions made by Investigating Officer Krishan Chand (PW.15) of not having made any enquiries from the contractor with regard to ::: Downloaded on - 15/04/2017 18:52:52 :::HCHP 16 identity or deployment of the accused on the spot at the time of occurrence of the alleged incident.
24. From the material placed on record, .
prosecution has failed to establish that accused are guilty of having committed the offence, they have been charged with. The circumstances cannot be said to have been proved by unbroken chain of unimpeachable of testimony of the prosecution witnesses. The guilt of the accused does not stand proved beyond reasonable doubt to the hilt. rt 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.
25. Findings returned by the trial Court, convicting the accused, cannot be said to be based on correct and complete appreciation of testimonies of prosecution witnesses. Such findings cannot be said to be on the basis of any clear, cogent, convincing, legal and material piece of evidence, leading to an irresistible conclusion of guilt of the accused. Incorrect and incomplete ::: Downloaded on - 15/04/2017 18:52:52 :::HCHP 17 appreciation thereof, has resulted into grave miscarriage of justice, inasmuch as accused stand wrongly convicted for the charged offence.
.
26. Hence, for all the aforesaid reasons, appeals are allowed and the judgment of conviction and sentence, dated 16.09.2014, passed by Sessions Judge, Bilaspur, H.P., in Sessions trial No.16/7 of 2010, titled as of State of Himachal Pradesh Versus Sunil Kumar & another, is set aside and convicts Sunil Kumar and Sanjiv Kumar are acquitted of the charged offences. Convict Sunil rt Kumar, who is in jail be released forthwith, if not required under any other process of law. Release warrants be prepared accordingly. Amount of fine, if deposited by the convicts, be refunded to them. Bail bonds furnished by convict Sanjiv Kumar who se sentence stands suspended are discharged.
Appeals stand disposed of, so also pending application(s), if any.
(Sanjay Karol), Judge.
September 8, 2015.
(Purohit) ::: Downloaded on - 15/04/2017 18:52:52 :::HCHP