Himachal Pradesh High Court
Satnam Singh Alias Tinku vs State Of Himachal Pradesh on 24 March, 2018
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr. Appeals No. 4 and 42 of 2017
.
Decided on: March 24, 2018
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1. Cr. Appeal No. 4 of 2017
Satnam Singh alias Tinku .........Appellant
Versus
State of Himachal Pradesh ...Respondent
2. Cr. Appeal No. 42 of 2017
Dipti Singh .........Appellant
Versus
State of Himachal Pradesh ...Respondent
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Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?1 Yes.
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For the appellant(s): Ms. Anu Tuli Azta, Advocate.
For the respondent: Mr. Dinesh Thakur, Additional
Advocate General.
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Sandeep Sharma, J. (oral)
Since both the appeals arise out of one and the same judgment/order dated 30.11.2016 passed by learned Additional Sessions Judge (II) Mandi, District Mandi, Himachal Pradesh in Session Trial No. 55/2010, whereby both the appellants-accused came to be convicted for having committed offences punishable under Sections 395, 397 and 307 IPC and Section 25 of the Indian Arms Act, accordingly, with the consent of the learned counsel representing the Whether reporters of the Local papers are allowed to see the judgment? .
::: Downloaded on - 28/03/2018 23:31:52 :::HCHP 2appellants and learned Additional Advocate General, same were taken up together for hearing and are being disposed of .
vide this common judgment.
2. Appellants in these appeals have approached this Court against aforesaid judgment of the learned Court below, whereby they have been convicted and sentenced to undergo rigorous imprisonment for five years each and to pay a fine of `5,000/- each under Section 395 IPC, in default of payment of fine they have been further ordered to undergo simple imprisonment for six months each; to undergo rigorous imprisonment for seven years each and to pay a fine of `10,000/- each under Section 397 IPC, in default, to further undergo simple imprisonment for six months each; to undergo rigorous imprisonment for seven years each and to pay a fine of `10,000/- each under Section 307 IPC, in default, to further undergo simple imprisonment for six months each, and; to undergo rigorous imprisonment for three years and to pay a fine of `5,000/- each, in default, to further undergo simple imprisonment for six months, under Section 25 of the Arms Act, in default to further undergo simple imprisonment for six months.
3. Necessary facts as emerge from the record of the case are that on 17.5.2009, one Smt. Sita Devi, Pradhan, ::: Downloaded on - 28/03/2018 23:31:52 :::HCHP 3 Gram Panchayat Randhara made a telephone call to the police stating that some persons have injured two persons .
and local people have taken them to Zonal Hospital Mandi.
Police after having received aforesaid information registered a formal report and visited the hospital, where one Krishan Kumar PW-1 (complainant) got his statement recorded under Section 154 CrPC, alleging therein that on 17.5.2009, at about 1.00 am, when he was present at Bus Stand Mandi, 4- 5 persons met him and they asked him to take them to Rewalsar. Complainant disclosed that the car was his personal one and he could not ply the same as a taxi. The aforesaid persons went towards Mandi city. At about 1.30 am (night), complainant was going to his maternal aunt's house at Randhara since his maternal uncle was suffering with back pain and he had been referred from IGMC to PGI. At about 4 am, he was to go to PGI and when he reached near Jail road, Mandi, aforesaid five persons again met him and stopped the vehicle of the complainant. They asked for a lift, to which complainant agreed. On reaching Randhara, complainant requested aforesaid persons to deboard the vehicle, on which they requested to drop them at a distance, where they knew some persons. Four of them were sitting in the back seat and one in the front seat and were talking to ::: Downloaded on - 28/03/2018 23:31:52 :::HCHP 4 each other by calling their names namely, "Billa", "Balvinder", "Tinku" "Dipti" and "Panni". At about 2.30 am when .
complainant reached Gajnoha, accused namely Tinku, who was sitting behind his seat, took out some knife like sharp edged weapon and gave a blow of the same on the back of complainant. Other co-accused namely Balvinder and Dipti Singh held him from the neck and arms and other persons were standing near the door and were dragging him towards the back seat. Tinku gave 3-4 blows on his back and the complainant came out of his car and raised hue and cry. In the meantime, Ramesh Chand PW-2 and Hem Singh PW-3 came there and saved complainant from the clutches of accused. While Ramesh Chand was saving complainant, one of accused Dipti gave a blow of knife in his stomach. Having heard hue and cry raised by them, many people gathered on the spot and all the five accused fled from the spot taking advantage of darkness. Allegedly, these persons made an attempt to snatch the vehicle and in this process gave blow of knife in the stomach of Ramesh Chand. On the basis of aforesaid statement made under Section 154 CrPC exhibit PW-1/A, a formal FIR exhibit PW-17/A dated 17.5.2009 came to be registered against all the accused. Police, after having reached the spot, completed necessary codal formalities and ::: Downloaded on - 28/03/2018 23:31:52 :::HCHP 5 also took custody of car. After completion of investigation, police presented Challan in the competent Court of law, who .
being satisfied that prima facie case exists against the accused, charged them under Sections 395, 397 and 307 IPC and Section 25 of Arms Act, to which they pleaded not guilty and claimed trial. At this stage, it may be noticed that all the accused, save and except present appellants, were declared proclaimed offenders during trial. Subsequently, learned trial Court vide judgment dated 30.11.2016, on the basis of evidence adduced on record by prosecution held accused guilty of having committed offences punishable under Sections 395, 397 and 307 IPC and Section 25 of Arms Act and accordingly convicted and sentenced them as per description given above.
4. In the aforesaid background, accused have approached this Court in the instant proceedings, laying therein challenge to the judgment of conviction recorded by the court below, seeking their acquittal after setting aside judgment of conviction.
5. Ms. Anu Tuli Azta, learned counsel representing the accused, while inviting attention of this Court to the judgment recorded by the learned Court below, vehemently argued that the same is not sustainable in the eye of law as ::: Downloaded on - 28/03/2018 23:31:52 :::HCHP 6 the same is not based upon proper appreciation of evidence as such, same deserves to be quashed and set aside. Ms. .
Tuli, while making this court to travel through statements of prosecution witnesses made serious attempt to persuade this Court to agree with her contention that no case is made out against accused who have been falsely implicated in the case.
While specifically referring to the statements of PW-1, PW-2 and PW-3, who are material prosecution witnesses, learned counsel contended that none of the prosecution witnesses was able to identify the accused in the court. She further contended that there is no evidence led on record by prosecution to prove that identification parade was got done by the police before ascertaining identity of accused, as such, impugned judgment deserves to be set aside. Ms. Tuli while referring to the statement of PW-1 Krishan Kumar, complainant contended that not much reliance could be placed upon the statement of PW-1 Krishan Kumar because of material contradictions and inconsistencies. She stated that if statement of this witness is read in its entirety, it certainly suggests that the story put forth by the prosecution is not trustworthy, rather same is concocted one. Ms. Tuli further stated that statements of PW-2 Ramesh Chand and PW-3 Hem Singh, which have weighed heavily with the ::: Downloaded on - 28/03/2018 23:31:52 :::HCHP 7 learned court below, while recording conviction of accused, are shaky and could not be taken into consideration because .
of inconsistencies and contradictions in their statements. Ms. Tuli strenuously argued that even if for the sake of argument, depositions/ statements of PW-1, PW-2 and PW-3 are presumed to be correct, bare perusal of same nowhere reveals motive, if any, on the part of accused to give beatings to the complainant as well as person namely Ramesh Chand. Ms. Tuli further stated that prosecution has miserably failed to prove motive, if any, on the part of accused to inflict injury on the body of complainant and other person namely Ramesh Chand. Learned counsel, while inviting attention of this Court to the statement of PW-3, Hem Singh, contended that this witness of recovery has virtually turned hostile and denied recovery effected in his presence. She further stated that another witness of recovery namely Murlidhar PW-4 has nowhere supported the prosecution case, as such, it is not understood how court below came to the conclusion that at the time of alleged incident accused alongwith other co-
accused were having pistol and two knives with them. While referring to the cross-examination conducted on the recovery witness, Ms. Tuli contended that it has specifically come in the statement of this witness that he can not identify the ::: Downloaded on - 28/03/2018 23:31:52 :::HCHP 8 persons, who allegedly got recovered knives. While referring to the statement of PW-8 Hoshiyar Singh, learned counsel for .
the accused contended that no recovery of any article was effected in his presence, as has been categorically stated by him in his cross-examination. Lastly, Ms. Tuli contended that there is no medical evidence led on record in accordance with law, to prove grievous injuries, if any, on the person of complainant and PW-2 Ramesh Chand, because, Doctor, who opined injuries to be grievous, was not examined in support of MLC, as such, no reliance, if any, could be placed on the same by the court below, while returning findings qua the aspect of injuries allegedly caused on the bodies of complainant and PW-2. While referring to the statement of PW-19 SI Mohan Lal (Investigating Officer of the case), Ms. Tuli contended that even report of FSL nowhere connects accused with the offence allegedly committed by them because it has specifically come in RFSL report that blood allegedly recovered from the knife used by accused for inflicting injury was not sufficient for rendering any opinion.
While making prayer to set aside conviction recorded by learned Court below, Ms. Tuli contended that for the last three and a half years, accused are behind the bars and they have suffered a lot for no fault on their part, as such, they ::: Downloaded on - 28/03/2018 23:31:52 :::HCHP 9 may be acquitted of the charges framed against them after setting aside judgment of conviction recorded by learned .
Court below.
6. To the contrary, Mr. Dinesh Thakur, learned Additional Advocate General, while refuting aforesaid contentions put forth on behalf of accused, supported the judgment of conviction recorded by the learned Court below and contended that there is no scope of interference by this Court because learned Court below has dealt with each and every aspect of the matter meticulously. With a view to substantiate his aforesaid argument, learned Additional Advocate General, while referring to the statements of PW-1, PW-2, PW-3, PW-4 and PW-8, made an endeavour to persuade this Court to disagree with the contentions of learned counsel for the accused that there are material contradictions and inconsistencies in the statements of these witnesses. While referring to the depositions made by aforesaid witnesses, Mr. Thakur contended that it stands duly proved on record that on the date of alleged incident, accused first took lift in the car being driven by complainant PW-1 and thereafter with a view to snatch the car, caused grievous injuries to the complainant and other person namely Ramesh Chand, as such, they have been rightly convicted by ::: Downloaded on - 28/03/2018 23:31:52 :::HCHP 10 the court below. Mr. Thakur, learned Additional Advocate General, further contended that it has categorically come in .
the statements of prosecution witnesses that complainant was given beatings by the accused with a view to snatch his car and as such, prosecution successfully proved motive on record because, admittedly motive of accused was to snatch car and in this process, they gave beatings to the complainant and other person named herein above. Mr. Thakur, further contended that when prosecution successfully proved on record MLC tendered by the Doctor, by exhibiting the same in accordance with law, omission, if any, on the part of prosecution to cite said doctor as witness can not be a ground to ignore the report, which otherwise stands proved in accordance with law. While disputing the contention of the learned counsel for the accused that proper identification was not done, Mr. Thakur further contended that it has specifically come in their statements that accused herein gave blow of knife on the back of the complainant and thereafter in the stomach of PW-2 Ramesh Chand. While praying for upholding judgment of conviction recorded by court below, Mr. Thakur contended that taking note of gravity of offence committed by the accused, they do not deserve to be shown any leniency rather need to be dealt with severely ::: Downloaded on - 28/03/2018 23:31:52 :::HCHP 11 and as such, present appeal being devoid of merit, deserves to be dismissed.
.
7. I have heard the learned counsel for the parties and gone through the record carefully.
8. Having examined/analyzed the evidence led on record vis-à-vis impugned judgment of conviction recorded by the court below, this court is persuaded to agree with the contention of the learned counsel representing the accused that the court below has failed to appreciate evidence in its right perspective, as a consequence of which, erroneous findings have come to the fore.
9. Conjoint reading of the statements having been made by material prosecution witnesses i.e. PW-1 Krishan Kumar (complainant), PW-2 Ramesh and PW-3, Hem Singh, clearly suggests that there are material contradictions and inconsistencies in the versions put forth by these witnesses with regard to sequence of events, which allegedly took place before the alleged incident. Complainant Krishan Kumar stated before the court below that on 16.5.2009 he came from his home at about 1 am for going to Randhara. Interestingly, this witness stated that at about 1.30 am, in the night, accused met him at bus stand and they made request to him to take them to Rewalsar. PW-1 declined their request by ::: Downloaded on - 28/03/2018 23:31:52 :::HCHP 12 stating that his vehicle was not a taxi but interestingly, this witness further stated that at 1.30 am, on the intervening .
night of 16/17.5.2009, when he left for his maternal aunt's house at village Randhara, accused persons again met him on the road near Jail road. In his cross-examination, he categorically stated that distance from his house to Bazaar was 3-4 kms and his maternal aunt's house was 10 kms from Bazaar. If version of this witness is taken to be true that at first instance i.e. at 1 am he had met accused at bus stand Mandi, another version put forth by him that he again met accused at 1.30 am on Jail road can not be accepted, because Jail road and Village Randhara are in the opposite directions as has emerged in the evidence. Otherwise also, it is not understood that how complainant PW-1 could come back to Jail road at 1.30 am from his maternal aunt's house, which as per his own admission is at a distance of 10 kms from Mandi Bazaar. It has also come in his cross-
examination that he did not go to Randhara directly, rather, he came back to bus stand, Mandi, which is 3 kms from his house. In his cross-examination, he further admitted that bus stand Mandi does not fall on the way from his house to Randhara. Complainant further stated that when he reached near Jail road Twamda, accused, who were standing in the ::: Downloaded on - 28/03/2018 23:31:52 :::HCHP 13 middle of the road, stopped his vehicle and requested him to give them lift upto the place where he was going.
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Complainant gave them lift in his vehicle, whereafter four of the accused sat in the rear seat and one in front seat.
Interestingly, complainant has made an endeavour to prove that accused were not known to him but if his examination-
in-chief is seen, it certainly suggests that he had prior acquaintance with them, that is why, he agreed to give them lift in his vehicle. In his cross-examination, he categorically admitted that the accused persons had gone to Manikaran and they intended to go to Rewalsar to offer prayers in Gurudwara. Aforesaid admission having been made by the complainant certainly indicates that there was prior acquaintance of complainant with the accused, who readily agreed to give them lift in his vehicle that too at 1.30 am in the night. As per complainant, he stopped vehicle at Gajnoha and requested accused to get down but one accused sitting in the rear seat, inflicted a blow on his back with sharp edged weapon. Complainant was actually not aware of the name of the person, who allegedly inflicted blow on his back with sharp edged weapon but in his statement he stated that accused were calling each other with their names i.e. "Billa", "Balbinder", "Panni", "Dipty" and "Tinku". He further stated ::: Downloaded on - 28/03/2018 23:31:52 :::HCHP 14 that the accused after giving him beatings, tried to flee from the spot and he raised hue and cry for help. After having .
heard his noise, persons namely Ramesh Chand and Hem Singh arrived at the spot. He further stated that three accused persons sitting in the rear seat of car pulled him towards back whereas two accused remained standing at the gate of the vehicle perhaps they wanted to snatch his vehicle.
He further stated that Ramesh Chand and Hem Singh chased accused persons but he did not know what happened later on. Subsequently, his friends arrived there, who took him to the hospital, where police recorded his statement under Section 154 CrPC (Exhibit PW-1/A). In his examination-in-
chief, complainant was unable to point out the person who actually inflicted injury on his back with sharp edged weapon but in his cross-examination, he stated that accused namely Tinku inflicted injury on his back with sharp edged weapon but interestingly, this witness was unable to identify accused in the court. As has been taken note above, complainant was allegedly attacked by person sitting in the rear seat of the car and he had no idea with regard to the name of the accused because in his examination-in-chief, he categorically stated that accused were talking to each other by calling their names, as has been taken note herein above. Similarly, ::: Downloaded on - 28/03/2018 23:31:52 :::HCHP 15 complainant, in his examination-in-chief stated that accused after giving him beatings tried to flee from the spot and he .
raised hue and cry for help. In his examination-in-chief, he simply stated that after having heard his cries, Ramesh Chand and Hem Singh reached the spot. But in his cross-
examination, he admitted that two people namely Hem Singh and Ramesh Chand arrived at the spot immediately after leaving the spot by the accused, meaning thereby accused had already left the spot before Hem Singh and Ramesh Chand could reach the spot. Aforesaid admission having been made by the complainant (PW-1) is in total contradiction with the case set up by prosecution, whereby effort has been made to prove that accused after inflicting injury on the person of complainant also gave blow of knife in the stomach of PW-2 Ramesh Chand. At the cost of repetition, it may be observed that though complainant stated that Tinku inflicted blow of knife on his back, but he was unable to identify him in the court. He also stated that accused were not got identified by police. It also emerges from the record that statement of PW-
1 i.e. complainant came to be recorded twice i.e. firstly on 17.5.2009 and secondly on 20.5.2009. On 17.5.2009, he never disclosed weapon allegedly used by accused at the time of alleged incident nor he stated that accused Jagjeet was ::: Downloaded on - 28/03/2018 23:31:52 :::HCHP 16 armed with any pistol. Apart from above, there are other inconsistencies and contradictions in the statement of this .
witness. This witness stated that he reached hospital at about 3.30 am on 17.5.2009, whereafter, his statement was recorded at 8 am. To the contrary, PW-19 Investigating Officer in his statement before court below stated that at about 9.45 am, he recorded statement of complainant, after having obtained permission from the doctor concerned.
Similarly, it has come in the statement of complainant that he after having received injury had made call to his friend Chintoo and his father. He further stated that Chintoo was first to reach the spot but interestingly, evidence in this regard is totally missing and there is no attempt on the part of prosecution to associate Chintoo or father of complainant, who allegedly reached the spot after having received call from complainant.
10. PW-2 Ramesh Chand, gave altogether a different version. In his statement he stated that on 17.5.2009, at about 2.30 am, he heard sounds of "Bachao Bachao" coming from road side at Gajnoha. He further stated that he noticed that five persons were giving beatings to one boy, who was lying on the ground. Most importantly, this witness stated that on hearing his noise, person namely Hem Singh and ::: Downloaded on - 28/03/2018 23:31:52 :::HCHP 17 other people arrived there. He further stated that then five persons, who were given beatings had run away and they .
were saying that "Billa take out pistol, if you want to save yourself". Upon this, Billa took out pistol. There is nothing in his statement from where it can be inferred that accused remained present on the spot of occurrence when this witness arrived at the spot. Similarly, this Court is unable to understand that how court below came to the conclusion that accused before fleeing from spot also gave blow of knife in the stomach of Ramesh Chand In his cross-examination, Ramesh Chand has stated nowhere that accused before fleeing away from the site of occurrence, gave blow of knife in his stomach, rather, very candidly he stated that accused after having heard his noise, fled from the spot. There is major contradiction in the statement of this witness since on one hand, he states that all the accused after having heard his noise, fled from the spot but, on the other hand, he states that Billa (co-accused) took out pistol and one of accused inflicted knife blow in his stomach. It is not understood, when accused had already fled from the spot and none was chasing them how could accused give blow of knife in the stomach of this witness namely Ramesh Chand. Leaving everything aside, this witness was also unable to identify any ::: Downloaded on - 28/03/2018 23:31:52 :::HCHP 18 of the accused in the court as is evident from the cross-
examination, wherein he categorically admitted that he can .
not identify any of those persons, who were quarelling on the date of alleged incident. Aforesaid admission of this witness totally belies of prosecution case because admittedly at the time of his cross-examination, accused were present in the court.
11. Another material prosecution witness, PW-3 Hem Singh, stated that on 17.5.2009 at about 2-2.30 am he heard sound of "Chor Hai Chor hai Pakdo Pakdo, maar diya, maar diya". He also stated that Ramesh had already reached there prior to him. He noticed that five persons were standing there and had inflicted knife blow on the back of driver of the vehicle. He further stated that he and Ramesh rescued driver from the accused and accused were saying "Bhag jao" "Katta Nikali." and were calling each other by their names. He further stated that one of the accused inflicted knife blow in the stomach of Ramesh Chand, but as has been taken note above, he was unable to identify accused because of darkness. As per version of Ramesh Chand, who was allegedly stabbed in the stomach, all the accused had fled from the spot and they were not chased and as such, it is not understood that how accused could inflict injury in the ::: Downloaded on - 28/03/2018 23:31:52 :::HCHP 19 stomach of Ramesh Chand. Interestingly, PW-3 Hem Singh deposed before the court below that he had caught one of the .
accused who is present in the court but he does not know his name. This witness further stated that he kept this accused in the house and subsequently handed over to the police at 4.30 am but interestingly in this regard no recovery memo was prepared by the investigating agency, rather there is nothing on record to suggest that the other accused, who subsequently came to be declared as proclaimed offender namely Pawan was apprehended by this witness. This court further finds from the record that save and except the aforesaid person, who was apprehended by PW-3, there is nothing on record suggestive of the fact that other co-accused were apprehended on the spot on the same day. Though, investigating agency has made an endeavour to prove on record that all the accused were arrested at the spot but this Court was unable to lay its hand on any document suggestive of the aforesaid factum intended to be proved by the prosecution rather statement of accused recorded under Section 313 CrPC clearly suggests that all the accused save and except Pawan Kumar came to be arrested later on from Gurudwara Rewalsar.
::: Downloaded on - 28/03/2018 23:31:52 :::HCHP 2012. PW-3 in his statement stated that when he reached the spot, 10-12 persons were fighting with each .
other. He further stated that PW-2 Ramesh Chand reached the spot prior to him but if statements of other witnesses are examined, same reveals that there were only seven people i.e. five accused, complainant and Hem Singh (PW-3). This witness (PW-3 Hem Singh) further stated that after his arrival quarrel continued for about 12 minutes, which version is in total contradiction to the statement of PW-2, who stated that accused after having heard his noise, fled from the spot.
13. PW-3 has categorically stated in his examination-
in-chief that he reached spot after PW-2 Ramesh Chand. This witness further feigned ignorance as to which accused was armed with knife and as such, this Court finds considerable force in the arguments of Ms. Anu Tuli Azta, learned counsel representing the accused that none of the prosecution witnesses was able to state specifically with regard to person, who allegedly inflicted blow of knife on the back of complainant and in the stomach of PW-2 Ramesh Chand.
14. Conjoint reading of statements made by PW-1, PW-2 and PW-3 certainly compels this Court to draw an inference that no reliance could be placed upon version put forth by these witnesses by the court below, while ::: Downloaded on - 28/03/2018 23:31:52 :::HCHP 21 ascertaining guilt of accused. In totality of circumstances vis-
à-vis evidence available on record, story put forth by .
prosecution does not appear to be trustworthy. There is no cogent and convincing evidence led on record by prosecution to prove quarrel /fight if any on the spot on the alleged date of incident and thereafter injury, if any, inflicted on the persons of complainant and PW-2 Ramesh Chand.
15. If for the sake of argument, it is presumed that on the alleged date of incident, fight had taken place between all the accused and complainant and in that process, accused had inflicted injury on the persons of PW-1 and PW-2, even then none of prosecution witnesses was able to identify the accused who actually gave blow of knife on the back of PW-1 and in the stomach of PW-2. PW-1 and PW-2 though stated that accused Tinku had inflicted blow of knife on the back of PW-1, but as has been taken note herein above PW-1 was unable to identify Tinku in the Court. In the case at hand, neither the accused, who had allegedly stabbed PW-2 Ramesh Chand, has been identified nor identity of person, who allegedly was carrying Katta and knife has been established.
16. PW-3 Hem Singh categorically stated before the court below that he could not identify the person who took out Katta as it was dark at the time. If version put forth by this witness is believed that he caught one of accused Pawan Kumar and handed over to the police, then version put forth by other witnesses that all ::: Downloaded on - 28/03/2018 23:31:52 :::HCHP 22 the accused had fled from spot is in contradiction to the statement of this witness. Most importantly, this witness in cross-
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examination further stated that he could not tell that which particular accused out of five was armed with knife.
17. At this stage, it is also important to take note of the admission made by PW-4 Murlidhar, who happened to be witness of recovery. This witness in his cross-examination categorically stated that he can not identify the person who got recovered the knives. This witness in his cross-examination stated that he could not tell number of seals affixed on the parcel. He further stated that seals have been lost by him and no report was made by him in this regard. He also stated that he does not know who had signed memo of recovery.
18. PW-8 Hoshiyar Singh stated that no recovery of any article was effected in his presence and he does not know whether or not Investigating Officer called any independent witness at the time of disclosure statement. PW-3 Hem Singh categorically denied recovery, if any, effected in his presence. PW-9 Head Constable Chaman Lal further admitted in his cross-examination that place and time was not mentioned in the memo and no independent witness was associated at the time of recovery. Careful perusal of statement made by this witness of recovery further creates doubt with regard to correctness of story put forth by prosecution.
19. There is another aspect of the matter which further compels this Court to reject the story of the prosecution. In the ::: Downloaded on - 28/03/2018 23:31:52 :::HCHP 23 case at hand, there is no effort, if any, on the part of prosecution to prove motive, which led accused to attack the complainant (PW-
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1). As has been taken note above, allegedly complainant on the askance of accused gave them lift in his car. Complainant himself took all the accused upto the place called Gajnoha, but there is nothing on record suggestive of the fact that there was some altercation or dispute between the complainant and accused, which subsequently led to scuffle between accused and complainant. This Court has already observed herein above that it can be safely inferred from the statement of complainant that he had prior acquaintance with the accused that is why he readily agreed to give lift to them in his car, who, as per complainant were requesting complainant (PW-1) to drop them at Rewalsar. If complainant had no acquaintance with the accused, there was no occasion as such that too at 1.30 am in the night, for the complainant to give lift to five unknown persons
20. Though, as per prosecution story, accused gave blow of knife on the persons of PW-1 and PW-2 with a view to snatch vehicle of complainant PW-1 but evidence in this regard is completely missing because none of the prosecution witnesses save and except complainant has stated anything specific with regard to effort if any, made by accused to snatch vehicle from the complainant, rather PW-1 and PW-2 categorically stated in their statements that accused after having heard noise fled from spot.
Otherwise also, if story put forth by prosecution that accused ::: Downloaded on - 28/03/2018 23:31:52 :::HCHP 24 attacked complainant with a view to snatch his vehicle is presumed to be correct, it is not understood that why accused .
would wait for the complainant to reach Gajnoha because as per own admission of complainant PW-1, there was nobody in the Mandi Bus Stand, when for the first time, accused allegedly met the complainant at 1 am. Allegedly this incident took place at 1.30 am when there was nobody in the Mandi Bazaar, as has been admitted by the complainant himself.
21. Having perused evidence led on record by the prosecution to prove guilt of accused, this Court is inclined to agree with the contention of Ms. Anu Tuli Azta, learned counsel representing the accused that prosecution has not been able to connect accused with the offence allegedly committed by them and as such, there was no occasion for the court below to convict them for the commission of alleged offence. Statements made by these witnesses are not only contradictory but there are material inconsistencies and crucial link evidence is missing.
22. By now it is well settled that in a criminal trial evidence of eyewitness requires careful assessment and needs to be evaluated for its creditability. Hon'ble Apex Court has repeatedly held that since fundamental aspect of criminal jurisprudence rests upon well established principle that "no man is guilty until proved so", utmost caution is required to be exercised in dealing with the situation where there are multiple testimonies and equally large number of witnesses ::: Downloaded on - 28/03/2018 23:31:52 :::HCHP 25 testifying before the Court. Most importantly, Hon'ble Apex Court has held that there must be a string that should join .
the evidence of all the witnesses thereby satisfying the test of consistency in evidence amongst all the witnesses. In nutshell, it can be said that evidence in criminal cases needs to be evaluated on touchstone of consistency. In this regard, reliance is placed upon the judgment passed by Hon'ble Apex Court in C. Magesh and others versus State of Karnataka (2010) 5 Supreme Court Cases 645, wherein it has been held as under:-
"45. It may be mentioned herein that in criminal jurisprudence, evidence has to be evaluated on the touchstone of consistency. Needless to emphasis, consistency is the keyword for upholding the conviction of an accused. In this regard it is to be noted that this Court in the case titled Surja Singh v. State of U.P. (2008)16 SCC 686: 2008(11) SCR 286 has held:-( SCC p.704, para 14) "14. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witness is held to be creditworthy; ..the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation."
In a criminal trial, evidence of the eye witness requires a careful assessment and must be evaluated for its creditability. Since the fundamental aspect of criminal jurisprudence rests upon the stated principle that " no man is guilty until proven so," hence utmost caution is required to be exercised in dealing with situation where there are multiple testimonies and equally large number of witnesses testifying before the Court. There must be a string that should join the evidence of all the witnesses and thereby satisfying the test of consistence in evidence amongst all the witnesses."
::: Downloaded on - 28/03/2018 23:31:52 :::HCHP 2623. Similarly, this Court finds that there is no cogent .
and convincing evidence on record adduced by the prosecution to connect accused with the knife and pistol allegedly used by them for causing injury on the persons of PW-1 and PW-2. As has been taken note above, none of recovery witnesses has been able to prove recovery of knife allegedly recovered by the investigating agency at the behest of the accused. Their presence on the spot is itself doubtful, especially in view of the fact that immediately after alleged incident, only one accused namely Pawan Kumar was apprehended.
24. In this regard, reliance is placed upon judgment rendered by Apex Court in Surinder Pal Jain v. Delhi Administration, AIR 1993 SC 1723, wherein it has been held as under:
"5. After the disclosure statement was made by the appellant leading to the recovery of the ornaments and after noticing injuries on his person, the case which was originally registered under Section 460 IPC was converted, into one under Section 302/203 IPC. The SHO during the course of investigation also took sample hair of the appellant and sent the same alongwith the hair recovered from the cot of the deceased to the Central Forensic Science Laboratory. The nail clippings of the deceased were also sent for analysis to CFSL. Site plan, ::: Downloaded on - 28/03/2018 23:31:52 :::HCHP 27 EX.PO, was also prepared during the investigation. After completion of the investigation, challan was filed against .
the appellant and he was sent up for trial for offences under Section 302/203 IPC in the court of Additional Sessions Judge, New Delhi.
6. There being no eye-witness of the occurrence, the prosecution sought to establish the case against the appellant on the basis of circumstantial evidence. The circumstances set up by the prosecution against the appel- lant during the trial were
(i) information to the police at 4.55 AM given by a neighbour and not the appellant;
(ii) that information not specifically giving out that a murder had taken place and simply intimating happening of an incident;
(iii) The accused having slept alone at night in the verandah with the deceased after having locked the collapsable door of that verandah from inside and that lock having been found in the corner of the back courtyard in the morning without being tampered with;
(iv) The deceased and accused were last seen together,
(v) The dogs of the Dog Squad having pointed out the accused after picking up scent from that lock;
(vi) The ornaments which were stated to be on the person of the deceased while she was sleeping, and which were found missing when she was discovered ::: Downloaded on - 28/03/2018 23:31:52 :::HCHP 28 dead having been recovered from the drain hole of the bath room attached to the bed room of the .
accused in consequence of and in pursuance of a disclousre statement made by the accused;
(vii) injuries found on the person of the accused in the nature of abrasions, contusions and lastly;
(viii) the accused having given false information to the police by means of hi s statement Ext. P5"
The learned Sessions Judge carefully analysed each of the circumstance and finally observed "On a resume of the analysis of prosecution evidence, and on a very careful appraisal of all the facts and circumstances set up by the prosecution, I am of my earnestly considered view that the prosecution in this case has entirely failed to prove any of the circumstances set up against the accused, much less to establish the chain of circumstances, so as to bring out a nexus between the crime and the accused."
The appellant was, therefore, acquitted of the offences under Section 302/203 IPC."
25. There is another glaring aspect of the matter, which demolishes the case of the prosecution. In the case at hand, prosecution with a view to prove injuries allegedly caused on the bodies of PW-1 and PW-2 placed reliance upon exhibit PW-5/C i.e. MLC dated 17.5.2009 qua injuries on the person of Krishan Kumar complainant, wherein the concerned doctor opined that injuries on the body of complainant were found to be simple in nature. Interestingly, ::: Downloaded on - 28/03/2018 23:31:52 :::HCHP 29 PW-2, at the time of medical examination was referred to IGMC Shimla, from where he was discharged on 25.5.2009.
.
Investigating agency moved an application to the medical officer at IGMC Shimla requesting therein to give final opinion with regard to injuries on the person of PW-2. Dr. Seema pursuant to aforesaid request, vide MLC exhibit PW-19/L dated 16.8.2009 opined the injuries to be grievous in nature and fatal. Prosecution by producing MLC/discharge certificate exhibit PW-19/L made an endeavour to prove on record that injuries suffered by PW-2 were grievous but, interestingly, Dr. Seema, who had issued this certificate was never examined as a witness. Apart from above, alleged incident occurred on 17.5.2009, whereas, report exhibit PW-
19/L was obtained on 16.8.2009 i.e. after three months of alleged incident. As has been noticed herein above, PW-5, proved MLC exhibit PW-5/C in accordance with law but interestingly prosecution failed to prove MLC exhibit PW-
19/L, with regard to injury caused on the person of PW-2, which was termed to be grievous and fatal by Dr. Seema.
26. At this stage, it would be appropriate to take note of Section 320 IPC, which defines "grievous injury" as under:
"320. Grievous hurt. -- The following kinds of hurt only are designated as "grievous"
First: Emasculation.
::: Downloaded on - 28/03/2018 23:31:52 :::HCHP 30Secondly: Permanent privation of the sight of either eye. Thirdly: Permanent privation of the hearing of either ear .
Fourthly: Privation of any member or joint.
Fifthly: Destruction or permanent impairing of the powers of any member or joint.
Sixthly: Permanent disfiguration of the head or face. Seventhly: Fracture or dislocation of a bone or tooth. Eighthly: Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain or unable to follow his ordinary pursuits."
27. Admittedly, injuries allegedly suffered by PW-1 and PW-2 on account of knife blow on the back of PW-1 and stomach of PW-2, do not fall under the first seven clauses.
Even the evidence available on record nowhere covers the case of prosecution under eighth clause, because there is no material on record to conclude that injury endangered life of PW-2, who remained admitted in IGMC for a considerable period. As has been noted above, prosecution save and except MLC/discharge slip, exhibit PW-19/L i.e. medical opinion rendered by Dr. Seema, has not placed on record any material suggestive of the fact that the injury allegedly suffered by PW-2 caused him severe physical pain for twenty days or during this period, he was unable to follow his ordinary pursuits. In the absence of any categorical evidence ::: Downloaded on - 28/03/2018 23:31:52 :::HCHP 31 on record that too through the mouth of the Doctor, court below ought not have arrived at a conclusion that PW-2 .
suffered grievous injury on account of knife blow in the stomach by the accused. Medical evidence is "opinion of expert " under Section 45 of the Indian Evidence Act. It is only with regard to physical aspect of injury and opinion of the medical expert on this count was relevant. Doctor, while giving evidence in the court, explains the facts based on his own examination and such opinion should be backed by actual observations as well as reasons recorded in this regard to reveal as to why doctor considered a particular injury to be grievous in nature. No doubt, keeping in view the situs and extent of injury, court can come to its own conclusion, but in case from the facts observed by the doctor, court is not in a position to come to a conclusion that the injury does not come within any of eight clauses mentioned in Section 320, it becomes difficult for court to come a definite conclusion regarding injury. In such like situation, examination of doctor on oath is crucial for determination of character of injury allegedly suffered by victim. In the case at hand, though Dr. Seema in her opinion in the MLC, exhibit PW-19/L, has termed injuries to be grievous but has not explained/observed that how injuries allegedly suffered on ::: Downloaded on - 28/03/2018 23:31:52 :::HCHP 32 account of knife blow, endangered life of victim, who in turn remained admitted in the hospital.
.
28. In this regard, reliance is also placed upon judgment passed by Orissa High Court in Abhiram Mukhi v.
State of Orissa, 1996 Crl.L.J. 2341, wherein it has held as under:
"8. The next question is as to whether the offence which has been committed is one under Section 326, or under Section 324, I.P.C. If it is held that the injury caused by the action of the petitioner was grievous in nature, there would be no escape from the conclusion that the offence is one under Section 326, otherwise it will be under Section 324, I.P.C. In the present case, the doctors, examined as P.Ws. 7 and 8, have baldly stated that the injury was grievous in nature without giving any reason as to why they consider the injury to be grievous. What is considered to be "grievous injury" under the Indian Penal Code is ascertainable from Section 320, I.P.C, wherein eight clauses have been included. Section 320 runs as follows:-
320. Grievous hurt.-
The following kinds of hurt only are designated as 'grievous' :
Firstly,- Emasculations.
Secondly,- Permanent privation of the sight of either eye.
Thirdly.- Permanent privation of the hearing of either ear.::: Downloaded on - 28/03/2018 23:31:52 :::HCHP 33
Fourthly.- Privation of any member or joint.
Fifthly.- Destruction or permanent impairing of the .
powers of any member of joint.
Sixthly.- Permanent disfigurations of the head or face.
Seventhly.- Fracture or dislocation of a bone or tooth.
Eighthly.- Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.
Evidently, the injury does not come under the first seven clauses. In the present case, the injury inflicted also does not come under the 8th clause as there is no material on record to come to a conclusion that the injury endangered the life of the injured who was discharged from the hospital after a few days. There is no material on record to conclude that the injury caused severe physical pain for twenty days or that the victim was unable to follow his ordinary pursuits for twenty days. In the absence of any categorical evidence on record through the mouth of the doctor that the injury had endangered the life of the victim, it would not be appropriate to come to a conclusion that a grievous injury had been caused in spite of the opinion of the two doctors to the contrary.
The medical evidence is "opinion evidence" admissible under Section 45 of the Evidence Act. Medical evidence is only with regard to the physical aspects of the injury and the opinion of a medical expert on that score is relevant. The doctor while giving evidence in court also gives evidence on facts based on his own examination of the injured. His evidence regarding the situs, the extent and ::: Downloaded on - 28/03/2018 23:31:52 :::HCHP 34 the physical appearance of the injury is "evidence of fact", whereas his evidence regarding the possible weapon used, .
the nature of injury, that is to say, whether simple or grievous, is "opinion evidence". Such opinion should be backed by actual observations as well as reasons. The records should reveal as to why a doctor considers a particular injury to be grievous in nature. If from the facts observed by the doctor, the court is not in a position to come to a conclusion that the injury comes within any of the eight clauses mentioned in Section 320, it becomes difficult for the court to come to a definite conclusion regarding the nature of the injury. No doubt, keeping in view the situs and the extent of injury, the court may come to its own conclusion. However, in the absence of clear materials in this case, it is difficult to come to a conclusion from the mere ipse dixit of the two doctors that grievous injury had been caused. In short, it is held that the offence committed is one under Section 324 and not under Section 307 or Section 326, I.P.C. Almost in similar circumstances, similar view had been taken by this Court in Gangadhar Bohidar v. State of Orissa, (1995) 8 OCR 175.
In view of the aforesaid, the conviction of the petitioner is altered to one under Section 324, I.P.C.
29. Hence, omission on the part of the prosecution to examine Dr. Seema, who had issued MLC, is fatal to the prosecution case and prosecution has not been able to prove infliction of grievous injury, if any, on the person of PW-2 by accused, whose identity otherwise is not established as has ::: Downloaded on - 28/03/2018 23:31:52 :::HCHP 35 been discussed herein above. Since, there is no evidence available on record suggestive of the fact that PW-1 or PW-2 .
suffered grievous injury on their persons, accused could not be convicted under Section 307 IPC.
30. Needless to say that mere use of knife or pistol to cause injury on the persons of PW-1 and PW-2 will not bring the case within the ambit of Section 307 and certainly there can not be any presumption that accused intended to cause death because he used knife or pistol. At this stage, it would be relevant to take note of S. 307 IPC:
"307. Attempt to murder.--Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to 1[imprisonment for life], or to such punishment as is hereinbefore mentioned. Attempts by life convicts.--2[When any person offending under this section is under sentence of 1[imprisonment for life], he may, if hurt is caused, be punished with death.]"
31. Bare perusal of aforesaid provision of law clearly suggests that intention of accused person is required to be established before ascertaining guilt, if any, of accused under Section 307 IPC. Intention of accused can only be established either from the nature of the injury inflicted or surrounding ::: Downloaded on - 28/03/2018 23:31:52 :::HCHP 36 circumstances. Prosecution with a view to prove guilt of accused needs to establish on record that the real intention .
of the accused was to cause injury nature of which was sufficient in the ordinary course of nature to cause death or was so dangerous that it would cause death. Burden of proof in this regard is solely on the prosecution. However, aforesaid aspect of the matter has been totally ignored by the court below, while holding accused guilty of having committed offence punishable under Section 307 IPC. Since this Court had an occasion to peruse entire evidence, as has been taken note herein above, this Court has no hesitation to conclude that there is no evidence led on record by prosecution to prove intention of the accused.
32. At the cost of repetition, it may be stated that mere use of knife or pistol may not be sufficient to prove intention, rather, prosecution with a view to bring guilt of accused within the ambit of Section 307 IPC, ought to have established on record by leading cogent and convincing evidence that real intention of the accused was to inflict injury, which was sufficient in the ordinary course of nature, to cause death.
33. Reliance is placed upon a judgment of the Hon'ble Apex Court in Parsuram Pandey & Ors. v. The State of ::: Downloaded on - 28/03/2018 23:31:53 :::HCHP 37 Bihar, 2004(4) Crimes 248 (SC), wherein it has been held as under:
.
"14. To constitute an offence under Section 307 two ingredients of the offence must be present:-
(a) an intention of or knowledge relating to commission of murder ; and
(b) the doing of an act towards it.
For the purpose of Section 307 what is material is the intention or the knowledge and not the consequence of the actual act done for the purpose of carrying out the intention. Section clearly contemplates an act which is done with intention of causing death but which fails to bring about the intended consequence on account of intervening circumstances. The intention or knowledge of the accused must be such as is necessary to constitute murder. In the absence of intention or knowledge which is the necessary ingredient of Section 307, there can be no offence 'of attempt to murder'. Intent which is a state of mind cannot be proved by precise direct evidence, as a fact it can only be detected or inferred from other factors. Some of the relevant considerations may be the nature of the weapon used, the place where injuries were inflicted, the nature of the injuries and the circumstances in which the incident took place. On the evidence on record, where the prosecution has been able to prove only that the villagers have sustained injuries by indiscriminate firing and it was an open area with none of the injured nearby there is a complete lack of evidence of intention to cause such injuries for which the accused persons Parshuram and Bishram could have been convicted under Section 302 of the IPC. Nature of the injuries sustained by the villagers is simple. None of the witnesses have stated that the fire arm causing injuries was being used by any particular accused for causing injuries to them.
::: Downloaded on - 28/03/2018 23:31:53 :::HCHP 38In fact the injured have not seen any of the accused persons using fire arms. There is no evidence about the distance from which the said two accused fired. The only evidence led .
by the prosecution is indiscriminate firing by Parshuram and Bishram which has caused simple injuries to the villagers. Amongst the injured villagers, only PW1 and DW-1 were examined. Thus this evidence does not constitute the intention or knowledge of the accused persons for committing the murder or doing of an act towards it. The evidence only shows that the villagers have sustained simple injuries. In the circumstances, we acquit Parshuram and Bishram under Section 307 of IPC.
15. It is evident from the evidence placed on record that injuries caused to the villagers are the result of indiscriminate firing from the guns used by Parshuram Pandey and Bishram Pandey. It has also proved that Somaru Pandey was carrying spear which he had hurled at PW-5 but no injury was caused to him by it. It appears that after exchange of hot words between Raghunath Pandey and members of the complainant-party at the field of Birender Pandey the accused Raghunath Pandey came to his house and left his house within few minutes with rifle, observing Raghunath Pandey in a furious mood returning back to the field armed with rifle, the accused-appellants Parshuram Pandey, Bishram Pandey and Somaru Pandey must have apprehended some danger and thus accompanied him to the field. Raghunath Pandey immediately after reaching the field opened fire from the gun which he was carrying. He fired four shots, two shots out of them hit the deceased Kanhaiya Pandey and he fell down on field at the spot. The three accused persons finding Kanhaiya Pandey, deceased falling on the field seriously injured, apprehended retaliation from the complainant-party and from other villagers present nearby the field and to ward off any attack on them ::: Downloaded on - 28/03/2018 23:31:53 :::HCHP 39 including Raghunath Pandey, must have started indiscriminate firing from the fire arms held by them. In the same process Somaru Pandey also threw spear at the .
member of the complainant-party which of course has not caused any injury. The common intention of the three accused developed immediately after the shots were fired at Kanhaiya Pandey, as a result thereof he fell down on the ground seriously injured. The plan to ward off attack in retaliation by the complainant-party and the other villagers present nearby and to prevent them from approaching towards place of incident and the accused persons, common intention developed at the spur of the movement at the place of occurrence during the commission of crime. The act of all the three accused persons of firing and throwing spear was in furtherance of the common intention of all of them. When the fire arms were used indiscriminately in the open place, the assailants may be presumed to know that result of such use of the weapon will very likely to give bodily injury to the persons and when such injuries are caused to the persons, it is the actual result from the assault made, and everyone of the persons concerned in the act will be guilty for that injury irrespective of the fact whether the prosecution has proved that a particular injury was caused by a particular accused person or not. Injury caused to the villagers by the fire arm although simple in nature are caused by accused person in furtherance of the common object of all the three accused persons. We, therefore, hold the accused/appellants Parshuram Pandey, Bishram Pandey and Somaru Pandey guilty of offence under Section 324 read with 34 IPC."
::: Downloaded on - 28/03/2018 23:31:53 :::HCHP 4034. Reliance is also further placed upon judgment rendered by Rajasthan High Court in Harlal v. State, 2005 .
(3) Crimes 33, wherein, it has been held as under:
"12. It is to be seen that in the present matter the incident took place in the year 1986 and now more than 18 years have elapsed. It is further to be seen that the injuries sustained by Pokar Ram on his fingers and thigh were of simple nature. thus, merely for the reason that the accused is alleged to have used a gun that by itself is not sufficient to bring the offence one to be under Section 307 of the IPC.13.
r In the case of Mani Ram (Supra), where the pistol shots were fund on non-vital parts of the body and the injuries were simple in nature, this Court found proved in the circumstances that Section 324 was only made out and not one which may fall under Section 307 of the IPC. The Court referred to a decision of Allahabad High Court Bhagwan Din & Ors. v. State, wherein it was held that the mere fact that a firearm was used to cause injuries will not bring the case under Section 307, IPC and there can be no presumption that the accused intended to cause death because he used firearm which caused hurt. The intention of the accused persons has to be established from either the nature of his act actually committed by him or from other surrounding circumstances. Where injury has actually been caused to the victim, the prosecution while attempting to establish that the real intention of the accused to cause an injury or the nature which was sufficient in the ordinary course of nature to cause death or was so imminently dangerous that it would cause death ::: Downloaded on - 28/03/2018 23:31:53 :::HCHP 41 had further to establish the intention or knowledge of the accused as contemplated in Section 307, IPC. The burden of proof is on the prosecution and not on the .
accused. In the instant case also, the gun was fired and some of the pallets injured Pokar Ram and the injuries sustained are simple in nature as per the statement of Dr. B.K. Dabda."
35. So far other Sections with which accused have been charged and found guilty i.e. Ss. 395 and 397 are concerned, this Court deems it fit to take note of aforesaid provisions as under:
"395. Punishment for dacoity.--Whoever commits dacoity shall be punished with 1[imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
396. x x x x
397. Robbery, or dacoity, with attempt to cause death or grievous hurt.--If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any per- son, the imprisonment with which such offender shall be punished shall not be less than seven years."
36. Section 395 IPC provides that whosoever, commits dacoity shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine. Section 397 provides that if, ::: Downloaded on - 28/03/2018 23:31:53 :::HCHP 42 at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts .
to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years.
37. As has been noticed above, there is no evidence worth the name suggestive of the fact that that accused made an attempt to commit dacoity or robbery, because none of the prosecution witnesses, save and except, PW-1, stated anything specific with regard to effort, if any, made by accused to snatch vehicle of complainant. Though, PW-1 in his statement stated that perhaps accused wanted to snatch his car, statement made by him is not sufficient to prove guilt, if any, of accused under Sections 395 and 397 IPC, especially when none of prosecution witnesses, who claim to be present on the spot, stated anything specific with regard to effort, if any, made be accused to snatch the vehicle. To the contrary, it clearly emerges from the statements of PW-2 and PW-
3 that when they immediately reached the spot after having heard cries of PW-1, accused had fled from the spot. Similarly, there is no conclusive proof led on record by prosecution that accused caused grievous injuries on the persons of PW-1 and PW-2, while making attempt to snatch vehicle and as such, provisions of Ss. 395 and 397 IPC are not attracted. By no stretch of imagination, accused could be held guilty of having committed offence punishable under aforesaid provisions.
::: Downloaded on - 28/03/2018 23:31:53 :::HCHP 4338. Consequently, in view of detailed discussion made herein above, this Court has no hesitation to conclude .
that prosecution has not been able to prove its case beyond reasonable doubt.
39. Resultantly, both the appeals are allowed.
judgment dated 30.11.2015 rendered by the learned Additional Sessions Judge(II) Mandi, District Mandi, H.P. (Mandi Court) in Session trial no. 55/2010 is set aside. Both the accused namely Satnam Singh alias Tinku and Dipti Singh alias Dipti are acquitted of the commission of offences under Sections 395, 397 and 307 IPC and Section 25 of Arms Act by giving them benefit of doubt. Fine amount if any, deposited by them is ordered to be refunded to them. They be released forthwith, if not required by the police in any other case. Pending applications, if any, are disposed of.
40. Registry to prepare and send the release warrants of both the accused, to the quarter concerned, forthwith.
(Sandeep Sharma) Judge March 24, 2018 (vikrant) ::: Downloaded on - 28/03/2018 23:31:53 :::HCHP