Himachal Pradesh High Court
State Of Himachal Pradesh vs Shardu And Another on 16 May, 2016
Bench: Sanjay Karol, Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No.495 of 2009 Reserved on : 26.4.2016 .
Date of Decision : May 16, 2016.
State of Himachal Pradesh ...Appellant.
Versus Shardu and another ...Respondents.
of Coram:
The Hon'ble Mr. Justice Sanjay Karol, Judge. The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
rt Whether approved for reporting? Yes. 1 For the Appellant : Mr. R.S. Verma, Additional Advocate General, Mr. Vikram Thakur, Deputy Advocate General and Mr. J.S. Guleria, Assistant Advocate General.
For the Respondents : Mr. Lakshay Thakur, Advocate.
Sanjay Karol, Judge State has appealed against the judgment dated 29.6.2009, passed by the learned Additional Sessions Judge, Fast Track Court, Chamba, Himachal Pradesh, passed in Sessions Trial No.22/2008/07, titled as State of Himachal Pradesh v. Shardu & another, challenging the acquittal of respondents Shardu and Shiv Kumar (hereinafter referred to as the accused), who Whether reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 15/04/2017 20:21:41 :::HCHP
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stand charged for having committed an offence punishable under the provisions of Section 302 read with .
Section 34 of the Indian Penal Code.
2. It is the case of prosecution that on 20.12.2006, witness Arjun Singh (PW-4) saw the dead body of Surjan Singh lying in an open area, below the cliff, in Chanesar Nullah, village Devi Kothi. Accordingly, of he informed Smt. Chhaknu (PW-2), Pradhan of the Gram Panchayat, about the same.
rt One Karam Singh (not examined) also informed the police, which led the police party, headed by Inspector Hem Singh (PW-17), reach the spot. Inquest report (Ex.PW-17/A) was prepared in the presence of Shiv Ram (PW-1) (brother of the deceased) and Chaknu (PW-2). Police also took into possession torch (P-1), cap(P-2), boots(P-3) and one blood stained stone(P-4) in the presence of Karam Singh and Singh Ram (PW-3).
3. Investigation revealed that the deceased was married to accused Shardu, who was having illicit relationship with co-accused Shiv Ram. On 10.12.2006, deceased had caught both the accused, red handed, in the house of Karam Singh, when accused Shiv Ram extended threats of life to the deceased. Immediately, ::: Downloaded on - 15/04/2017 20:21:41 :::HCHP ...3...
after the incident, accused Shardu went to her parental house in village Dadoga. On 19.12.2006, she met her .
son Pawan Kumar (PW-6) and asked him to convey her message to his father, that he should visit her at night.
With the message having been conveyed, deceased left to meet his wife, but however, on 20.12.2006, his body was recovered. Investigation further revealed that the of incident of 10.12.2006 was brought to the notice of Superintendent of Police, Chamba, vide written complaint rt (Ex.PW-7/A), so scribed by Rohtas (PW-7). Deceased had apprehended danger to his life from the hands of accused Shiv Ram.
4. With the completion of investigation, which prima facie revealed complicity of the accused in the alleged crime, challan was presented in the Court for trial.
5. Accused were charged for having committed an offence punishable under the provisions of Section 302 read with Section 34 of the Indian Penal Code, to which he did not plead guilty and claimed trial.
6. In order to establish its case, prosecution examined as many as 18 witnesses and statements of the accused, under the provisions of Section 313 of the ::: Downloaded on - 15/04/2017 20:21:41 :::HCHP ...4...
Code of Criminal Procedure, were also recorded, in which they pleaded innocence and false implication.
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7. Based on the testimonies of witnesses and the material on record, trial Court acquitted both the accused persons of the charged offence. Hence, the present appeal by the State.
8. We have heard Mr. R.S. Verma, learned of Additional Advocate General, Mr. Vikram Thakur, learned Deputy Advocate General and Mr. J.S. Guleria, learned rt Assistant Advocate General, on behalf of the State as also Mr. Lakshay Thakur, Advocate, on behalf of the accused.
We have also minutely examined the testimonies of the witnesses and other documentary evidence so placed on record by the prosecution. Having done so, we are of the considered view that no case for interference is made out at all. We find that the judgment rendered by the trial Court is based on complete, correct and proper appreciation of evidence (documentary and ocular) so placed on record. There is neither any illegality/infirmity nor any perversity with the same, resulting into miscarriage of justice.
9. It is a settled principle of law that acquittal leads to presumption of innocence in favour of an ::: Downloaded on - 15/04/2017 20:21:41 :::HCHP ...5...
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.
10. In Prandas v. The State, AIR 1954 SC 36, Constitution Bench of the apex Court, has held as under:
of "(6) It must be observed at the very outset that we cannot support the view which has rtbeen 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:
"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 the credibility of the ::: Downloaded on - 15/04/2017 20:21:41 :::HCHP ...6...
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 of principles well known and recognized in the administration of justice." "
11. In the instant case, as is required in law, trial rt Court has not culled out the circumstances, while deciding the matter. However, in our considered view, following circumstances arise for consideration in the present appeal: (i) allegedly both the accused were having illicit relationship, (ii) complaint (Ex.PW-7/A) allegedly written by the deceased, expressing apprehension to his life through the hands of accused Shiv Kumar, and (iii) recovery of the dead body in the jungle.
12. Insofar as recovery of dead body is concerned, there is not much dispute. From the statements of Shiv Ram (PW-1), Smt. Chhaknu (PW-2), Arjun Singh (PW-4) and Inspector Hem Singh (PW-17), it stands established that dead body, which was identified ::: Downloaded on - 15/04/2017 20:21:41 :::HCHP ...7...
to be that of deceased Surjan Singh, was recovered by the police from Chanesar Nullah on 20.12.2006.
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13. As per the postmortem report, so proved on record by Dr. Dipesh (PW-11), multiple injuries were found on various part of the body of the deceased.
Injuries were both internal and external. Death is opined to have taken place on account of head injury and of internal bleeding leading to shock and death.
Postmortem was conducted on 21.12.2006 at about 9 rt a.m. and according to the doctor death could have taken place any time between 24 and 48 hours, which means that the deceased would have died sometime in the early hours of 20.12.2006.
14. Significantly, as is evident from the testimony of the Investigating Officer and the spot map (Ex.PW-
17/B) as also Smt. Chhknu, Singh Ram and Arjun Singh, the place from where the dead body was recovered, there is a deep gorge and no wider path. Possibility of the deceased having fallen down is not ruled out and the doctor has also opined the injuries found on the body of the deceased to be as a result of fall.
15. It is not the case of prosecution that after murdering the deceased his dead body was thrown down ::: Downloaded on - 15/04/2017 20:21:41 :::HCHP ...8...
the cliff. Also, there were no visible telltale signs of the body being thrown down the cliff on the spot.
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16. One finds complaints (Ex.PW-7/A & 10/A) to have been allegedly written by the deceased to the authorities. Complaint (Ex.PW-10/A) is addressed to the SDM and complaint (Ex.PW-7/A) is addressed to the Superintendent of Police, Chamba. These complaints of stand proved by Riece Begum (PW-8), scribe Rohtas (PW-
7) and Chain Singh (PW-10).
rt The complaints find reference of accused Shiv Kumar having illicit relationship with accused Shardu wife of the deceased and also there being reasonable apprehension to the life of the deceased from the hands of Shiv Kumar. These complaints, which are dated 10.12.2006, were marked for necessary action on 12.12.2006. Now significantly, what action was taken thereafter and what was the outcome of these complaints, none has come forward to disclose.
17. But then, these complaints cannot be brushed aside and is definitely a circumstance in the chain of events (evidence) pointing finger of suspicion towards the accused persons. However, when we examine the ocular version, we find the witnesses examined by the prosecution to be close relatives. In ::: Downloaded on - 15/04/2017 20:21:41 :::HCHP ...9...
fact, one of them has not even supported the prosecution. The allegation of illicit relationship was not .
recent. Both Shiv Ram (brother of the deceased) and Smt. Chhaknu (sister-in-law of the deceased) as also Pawan Kumar (PW-6), who is son of the deceased, state that the accused were having illicit relationship, for the last more than 5-6 years. But, we do not find testimony of of these witnesses, on this count, to be inspiring in confidence. On the point in issue, significantly, except for rt complaints (Ex.PW-7/A & 10/A), there is nothing on record to substantiate such fact and in the absence of any other evidence, in our considered view, conviction on these complaints also would be unwarranted.
18. Shiv Ram states that the matter of illicit relationship was raised before the Biradari in the years 2003, 2004 and 2005, but then not only there is nothing on record to substantiate such fact but such version came to be disclosed, for the first time in Court, when his statement was recorded on 29.12.2007. In fact, this witness admits that while the accused were in police custody, no evidence was available against them and, as such, were released on bail. His version of having noticed the accused persons in an objectionable position ::: Downloaded on - 15/04/2017 20:21:41 :::HCHP ...10...
is a mere exaggeration, as it is not found to have been recorded in his previous statement (Ex.PW-1/A), with .
which he was confronted. He contradicts his version by admitting it to be correct that the incident of 10.12.2006 was learned by him through "people". His previous version of having noticed both the accused in the house of Karam Chand stands contradicted not only by him but of remains uncorroborated by Karam Singh who for undisclosed reason was not examined in Court, for he rt was the first person to have noticed and narrated the incident of 10.12.2006.
19. On this count, version of Smt. Chhaknu is also not only in the nature of hearsay, but also a mere exaggeration, embellishment, for we find the incident of 10.12.2006 not to have been disclosed by her to the police, as is evident from her statement (Ex.DA), with which she was confronted. In fact, why is it that this witness kept quiet and not disclosed to the police about the contents of complaint (Ex.PW-10/A), is not clear from record. She was in full knowledge of the proceedings of the Panchayat, if any, yet she did not disclose the date, month or the year when such meetings of the Biradari took place. She did not even call the accused to the ::: Downloaded on - 15/04/2017 20:21:41 :::HCHP ...11...
Panchayat. She did not receive any complaint from the office of the Superintendent of Police, Chamba. She did .
not make any complaint to anyone, with regard to conduct of accused Shardu or Shiv Kumar. In fact, she has a reason to depose against the accused. The deceased was her brother-in-law.
20. Singh Ram (PW-3) contradicts the version of of prosecution by stating that both the accused did not have any illicit relationship. Pawan Kumar only states that on rt 10.12.l2006 his parents had quarreled and resultantly his mother had gone to her parental house in village Dadoga.
He is silent with regard to illicit relationship.
21. With regard to the circumstance of the deceased, on the asking of accused Shardu, having gone to the house of his in-laws, prosecution seeks reliance upon the testimony of Arjun Singh and Pawan Kumar.
22. We notice that Arjun Singh has not supported the prosecution and despite his extensive cross-
examination, nothing fruitful could be elicited from his testimony. The witness is not a witness to the illicit relationship, which both the accused have had with each other. His testimony as such is hearsay in nature. That apart, we find the statement of this witness to have been ::: Downloaded on - 15/04/2017 20:21:41 :::HCHP ...12...
recorded by the police only after 19 days. Why so?
remains unexplained.
.
23. Apex Court in Balakrushna Swain v. State of Orissa, (1971) 3 SCC 192, where the Court held that the inordinate and unexplained delay in recording the statements of the parties by the police officials has rendered the prosecution case to be doubtful and the of statements of the witnesses to be unbelievable.
24. rtIt raises doubt about the credit of the witness.
He could have, by his own, disclosed to the police.
Further, this witness, only for the first time disclosed the factum of the deceased having seen go towards the house of his in-laws. But then, he does not categorically state that the deceased himself had disclosed such fact.
House of the in-laws, according to this witness, is under the same roof. The witness does not disclose any untoward incident which took place in the house of in-
laws. Who all were present in the house, remains unexplained. Where all did the deceased go from the said house, also remains undisclosed. It is not the case of this witness that the deceased and the accused quarreled with each other, whereafter the deceased left for his ::: Downloaded on - 15/04/2017 20:21:41 :::HCHP ...13...
house and on the way he was murdered by the accused and thereafter his body thrown down the cliff.
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25. When we peruse the testimony of Pawan Kumar, we do not find the same to be inspiring in confidence either. It is for the first time that the witness has disclosed about the alleged cruelties meted out by his mother to the deceased. Significantly, this witness of admits that the police had come to his village, i.e. Devi Kothi on 19.12.2006. If that were so, then why is it that rt the statement of this witness was not recorded same day? In fact, he is categorical that the police had also visited the following day, i.e. 20.12.2006, when he disclosed that accused Shiv Kumar used to visit their house. The later part of his testimony is mere improvement, as it was not so recorded in his previous statement. That apart, version of the police having reached the spot on 19.12.2006 itself falsifies the prosecution version of the dead body having been recovered on 20.12.2006. It also renders the testimony of Singh Ram of having seen the dead body on 20.12.2006 to be false. What further renders the testimony of this witness to be doubtful is the factum of having made his statement to the police in local dialect.
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Investigating Officer has not placed on record such statement. Why so? remains unexplained. Further, .
version of this witness that on 19.12.2006, while he was grazing cattle, he conveyed message to his father, does not appear to be inspiring in confidence, for 19.12.2006 was not a holiday and the witness was admitted in a school. He was studying in 5th Class. The witness having of been tutored is not ruled out. Also, he never disclosed such fact to any of his relations raises doubt.
rt Further, what happened after the deceased left for the parents' house of the accused, remains undisclosed.
26. In Dattu Ramrao Sakhare v. State of Maharashtra (1997 (5) SCC 341), the apex Court held that:
'5. .....A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the Court should bear in mind while assessing the evidence of a child witness ::: Downloaded on - 15/04/2017 20:21:41 :::HCHP ...15...
is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of .
being tutored'. The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and said Judge may resort to any examination which will of tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, rt however, be disturbed by the higher Court if from what is preserved in the records, it is clear his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make beliefs. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the Court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness."
27. Law with regard to testimony of a child witness is now well established. In Golla Yelugu Govindu ::: Downloaded on - 15/04/2017 20:21:41 :::HCHP ...16...
vs. State of Andhra Pradesh (2008) 16 SCC 769, while reiterating its earlier view the Apex Court held that:-
.
"11. 6.Indian Evidence Act, 1872 (in short the 'Evidence Act') does not prescribe any particular age as a determinative factor to treat a witness to be a competent one. On the contrary, Section 118 of the Evidence Act envisages that all persons shall be competent to testify, unless of the Court considers that they are prevented from understanding the questions put to them or from giving rational answers to these rtquestions, because of tender years, extreme old age, disease whether of mind, or any other cause of the same kind. A child of tender age can be allowed to testify if he has intellectual capacity to understand questions and give rational answers thereto. This position was concisely stated by Brewer J. in Wheeler v. United States [159 U.S. 523 (1895)]. The evidence of a child witness is not required to be rejected per se, but the Court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability can record conviction, based thereon. [See Suryanarayana v. State of Karnataka (2001) 9 SCC 129].
28. In Cr. Appeal No. 246 of 1999, titled as State of H.P. Versus Krishan Chand, decided on 20.08.2010, the Court has held as under:-
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"5. The law relating to appreciation of the testimony of a child witness has been succinctly laid down by the Apex Court in Bhagwan Singh .
and others Versus State of M.P. (AIR 2003 SC 1088), wherein the Apex Court held as follows:
"19. The law recognizes the child as competent witness but a child particularly at such a tender age of six years, who is unable to form a proper opinion about the nature of the incident because of immaturity of understanding, of is not considered by the Court to be a witness whose sole testimony can be relied without other corroborative evidence. The evidence of child is rt required to be evaluated carefully because he is an easy prey to tutoring. Therefore, always the Court looks for adequate corroboration from other evidence to his testimony."
6. The law is well settled that it is the duty of the Court to satisfy itself that the child understands the questions and can answer them properly. In the case before the Apex Court the child was a witness to be occurrence. In the present case, the child is not only a witness but the victim himself. When the child witness is also the victim his testimony has greater force.
7. A child of tender age of seven years by nature will not tell lies. At that age a child has not become worldly wise, has not learnt the ways of the modern world and has not learnt to tell lies. However, on the other hand, there is no manner of doubt that a child can be tutored ::: Downloaded on - 15/04/2017 20:21:41 :::HCHP ...18...
by his parents, teachers or other people, who have influence over him and in fact over period of time a child may start believing that what is .
told to him/her by persons, who wield influence over him/her, is the truth. Therefore, the Court has to be more careful while examining the testimony of a child witness. We are also not oblivious of the fact that we are dealing with a case where the accused has been acquitted.
of The presumption of innocence which attaches to any accused is strengthened by his acquittal. In this regard, we may make reference to the rtjudgment of the Apex Court in Gowrishankara Swamigalu Versus State of Karnataka, (AIR 2008 SC 2349).""
29. From the testimony of the police official, namely Inspector Pritam Singh (PW-18), it is seen that initially the investigation was conducted by Inspector Hem Singh, who though arrested the accused, but during investigation found nothing incriminating against them.
As such, he released them. None of the witnesses has deposed the factum of both the accused having illicit relationship or any of the witnesses having expressed their apprehension of the deceased having been murdered by the accused.::: Downloaded on - 15/04/2017 20:21:41 :::HCHP
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30. Noticeably, Inspector Pritam Singh took over the investigation on 6.1.2007, only on the asking of .
Superintendent of Police, Chamba. We find the version of this witness of having recorded the statement of Pawan Kumar at Devi Kothi Rest House to have been materially contradicted by Pawan Kumar, according to whom police had called him to the police Station where only his of statement was recorded. It appears that this Investigating Officer never visited the spot, for it is rt evident from the testimony of Shiv Ram, Smt. Chhaknu, Singh Ram and Arjun Singh that no other police official visited the spot after 20.12.2006.
31. Version of Pawan Kumar of having conveyed his mother's message to his father does not appear to be true, also for the reason that Inspector Pritam Singh admits Pawan Kumar not to have disclosed such fact.
Further, Pritam Singh contradicts and belies the version of Shiv Ram, according to whom the accused were found in a compromising position in the house of Karam Singh, whereas according to this witness it was in the house of Gopali. Now, who is this Gopali? Why was he not associated during investigation? Why was he not ::: Downloaded on - 15/04/2017 20:21:41 :::HCHP ...20...
examined in Court? are the questions which the prosecution has chosen not to answer.
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32. From the material placed on record, prosecution has failed to establish that the 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 rt 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.
33. Hence, it cannot be said that prosecution has been able to prove its case, by leading clear, cogent, convincing and reliable piece of evidence so as to prove that the accused persons, in furtherance of their common intention, committed murder of Surjan Singh.
34. For all the aforesaid reasons, we find no reason to interfere with the judgment passed by the trial ::: Downloaded on - 15/04/2017 20:21:41 :::HCHP ...21...
Court. The Court has fully appreciated the evidence so placed on record by the parties.
.
35. 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 of 94, it cannot be said that the Court below has not correctly appreciated the evidence on record or that rt acquittal of the accused has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged.
Appeal stands disposed of, so also pending application(s), if any.
( Sanjay Karol ), Judge.
( Ajay Mohan Goel ),
May 16, 2016(sd) Judge.
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