Himachal Pradesh High Court
State Of Himachal Pradesh vs Karam Chand & Anr on 9 August, 2016
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.315 of 2009 Reserved on : 01.08.2016 .
Decided on : 9th August, 2016 State of Himachal Pradesh .......Appellant.
Versus
Karam Chand & anr. ......Respondents
of
Coram
The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
Whether approved for reporting?1 Yes.
For the appellant
rt : Mr. Virender K. Verma, Additional Advocate General with Mr. Pushpinder Singh Jaswal, Dy. Advocate General.
For the respondents : Mr. Ashwai Pathak, Sr. Advocate with Mr. Sandeep Sharma, Advocate.
Chander Bhusan Barowalia, Judge.
The present appeal is maintained by the appellant-State of Himachal Pradesh against the judgment of acquittal of accused persons in a case under Sections 341, 325, 323, 504, 506 read with section 34 of the Indian Penal Code passed by the learned Judicial Magistrate 1st Class, Barsar, District Hamirpur, H.P, dated 27.1.2009, in Criminal Case No.67-II of 2006.
2. Briefly stating the facts giving rise to the present appeal are that on 10.7.2006 at about 8:40 pm, Up-Pradhan, Gram Panchayat, telephonically informed the Police of Police Post, Deotsidh that Krishanu Ram and his wife were given beatings and asked the Police to take 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 20:59:31 :::HCHP 2action. On this, Police lodged rapat Ex.PW7/A, where complainant Smt. Soma Devi got recorded her statement under Section 154 Cr. PC, .
Ex.PW2/A alleging therein that when she was coming from 'Jungle' side, accused, namely, Karam Chand and Piar Chand, who were standing there having 'danda' (sticks) in their hands, wrongfully restrained the complainant and asked her as to why complainant have carved out of 'challa' (trench). They started giving beatings to the complainant by means of 'danda' and caused injuries to her. On hearing hue and cry, her rt daughters, namely, Nisha and Rajni came to the spot, thereafter accused ran away from the spot. She has further reported that in the meanwhile, one Kashmir Singh, her neighbourer also came to the spot and witnessed the alleged occurrence. The accused while leaving the spot were threatening the complainant that she will be killed. Thereafter, the complainant sent her son Ravi Kumar to call her husband, who had gone to Samtana bazaar at about 8:00 pm, when her husband inquired both the accused came to the courtyard of the complainant and started giving beatings to her husband by means of 'danda' and caused him injuries. In the meanwhile, Kashmir Singh and Chint Ram saved her husband from the clutches of accused. Thereafter, the complainant telephonically informed Up-Pradhan Desh Raj qua the occurrence, who further informed the police. On the basis of the statement of the complainant, FIR Ex.PW9/A was registered against the accused persons. The Police conducted investigations and prepared site plan Ex.PW10/B. The police ::: Downloaded on - 15/04/2017 20:59:31 :::HCHP 3 took into possession blood stained shirt Ex.P-3 of the husband of the complainant, vide memo Ex.PW3/A and the same was put in a parcel and .
sealed with seal 'T' and separate seal impressions of seal 'T' were taken on a piece of cloth Ex.PX. The Police took into possession 'danda' Ex.P-1 and Ex.P-2, vide memo Ex.PW2/B. During the course of investigation, the police also conducted the medical examination of the injured and of procured MLCs Ex.PW1/A to Ex.PW1/C alongwith X-ray films Ex.X-1, Ex.X-2 and X-ray reports Ex.PW1/D and Ex.PW1/E. After completion of
3. rt the investigation the challan was presented in the Court.
The prosecution, in order to prove its case, examined as many as 11 witnesses. Statement of accused persons were recorded under Section 313 Cr.P.C, wherein they have denied the prosecution case and claimed innocence.
4. Learned Additional Advocate General appearing on behalf of the appellant has argued that the appeal is required to be allowed and accused persons are liable to be convicted, as the prosecution has proved the guilt of accused beyond the shadow of reasonable doubt.
5. On the other hand, learned counsel appearing on behalf of accused persons argued that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt and so, the accused are rightly acquitted.
::: Downloaded on - 15/04/2017 20:59:31 :::HCHP 46. To appreciate the arguments of learned Additional Advocate General and learned defence counsel, this Court has gone through the .
record in detail and minutely scrutinized the statements of the witnesses.
7. Complainant Smt. Soma Devi/PW-2 has deposed that on 10.7.2006 at about 7:00 pm, when she had gone to answer the call of nature, in the way she has been restrained by the accused persons. She of has deposed that accused were having 'dandas' in their hands and they quarreled with her qua the dispute of 'chala' (trench) and gave her rt beatings. She has further deposed that accused gave her beatings on her hand and back side. She has also identified 'dandas' Ex.P-1 and Ex.P-2, vide which the accused had given beatings to her. She has deposed that on hearing hue and cry, her daughters, Ranju and Nishu came to the spot, but accused persons had also given beatings to them.
She has further deposed that accused also threatened to kill them.
Thereafter, she sent her son Ravi Kumar to call her husband and when her husband came to home, both accused gave him beatings in the courtyard. She has deposed that one Kashmir Singh and Chint Ram came to the spot and rescued them from the clutches of accused. She has further deposed that thereafter the Police got her medically examined vide MLC Ex.PW1/A and also took into possession 'dandas' Ex.P-1 and Ex.P-2, vide memo Ex.PW2/B. In her cross examination, she has admitted that they are not in talking terms with accused for the last 15-18 years. She has admitted that on 24.1.2002, the Panchayat already ::: Downloaded on - 15/04/2017 20:59:32 :::HCHP 5 decided their dispute with regard to 'challa' to the effect that on one side the complainant party will carve out 'challa' and on the other side father .
of the accused, namely, Khiali Ram, will carve out the 'challa'. She has denied the suggestion that they had given beatings to accused persons by means of 'danda'. She has shown her ignorance that how much blows of 'danda' had been given by the accused. She has stated that beatings of continued for half an hour near 'challa' and her son watched the occurrence from the courtyard. She has stated that she cannot say with alleged occurrence.
rt whom her husband was talking, as it was dark on the spot at the time of She has stated that about 10-15 persons had gathered on the spot, but she cannot disclose their names.
8. The husband of the complainant, namely, Krishanu Ram/PW-3 has deposed that on 10.7.2006, he had gone to purchase some articles to Samtana bazaar, while he was coming to his house, his son Ravi Kumar came there and asked him to go to the house as early as possible, as accused have given beatings to his (Ravi Kumar) mother. He has deposed that when he asked his wife what had happened, then she disclosed that at about 7/7:30 pm, when she was coming from 'Jungle' side, accused restrained her in the way and inquired as to why she removed the stones from the 'challa'. Thereafter, accused gave beatings to his wife with 'danda', on hearing her cries, his daughters, namely, Ranju and Nishu came to the spot and brought the complainant to her house. He has further deposed that when he asked the accused persons ::: Downloaded on - 15/04/2017 20:59:32 :::HCHP 6 as to why they have given beatings to his wife, then accused also gave him beatings by means of 'dandas'. He has also identified 'dandas' Ex.P-
.
1, Ex.P-2 and shirt Ex.P-3. In his cross-examination, he has admitted that father of the accused, namely, Khiali Ram had moved an application against him before Deputy Commissioner, Hamirpur, to the effect that his Bull (Bhainsa) has caused loss to the accused party. He has stated that of witness Kashmir Singh is his brother and Chint Ram is his uncle. He has shown his ignorance that accused had lodged rapat against them and rt their medical was also got conducted. He has admitted that they are not in talking terms with accused persons for the last 15-20 years.
9. PW-4 Ranjana Kumari daughter of the complainant has deposed that on 10.7.2006, her sister Nishu alongwith her brother were present at home and their parents had gone for bringing grass. She has deposed that accused were hurling abuses to them and they asked them to call their parents. She has deposed that her mother went to 'Jungle' to answer the call of nature and when she came back, accused persons restrained her mother on the way and gave her beatings with 'danda'.
She has further deposed that when after hearing the noise of her mother, she alongwith her sister reached the spot, the accused also gave them beatings. She has further deposed that thereafter she sent her brother to call their father from the shop and when her father came to the house and asked the accused about the occurrence, then they also gave beatings to her father. She has further deposed that they were ::: Downloaded on - 15/04/2017 20:59:32 :::HCHP 7 rescued from the clutches of accused persons by Chint Ram and Kashmir Singh. While being cross-examined, she has stated that they are having .
litigations with the father of accused for the last 2 to 3 years. She has stated that beatings took place for about two hours. She has further stated that accused gave beatings to them in 'Gahal' (the path through which the villagers used to take their cattle for grazing). She has further of stated that about 40-50 persons had gathered on the spot at the time of occurrence. She has stated that Chint Ram is her grandfather and rt Kashmir Singh is her uncle. She has further stated that accused gave beatings to them in the dark and does not know as to how many persons were present on the spot at the time of occurrence. She has further stated that she does not know which of the accused was holding 'danda', as it was dark on the spot.
10. PW-8 Shri Chint Ram independent witness has deposed that on 10.7.2006 at about 8:00 pm, he had gone to feed his cattle in his cow shed, then he heard noise and when he came to the spot, he saw accused persons were giving beatings to Krishanu with 'danda'. He has deposed that accused Piar Chand had given a blow of 'danda' on the head of Krishanu and blood started oozing out from his head and then Kashmir Singh came there. He has further deposed that he alongwith Kashmir Singh rescued the husband of the complainant from the accused. In his cross-examination, he has stated that accused had also given beatings to the complainant and at that time he was not present ::: Downloaded on - 15/04/2017 20:59:32 :::HCHP 8 there. He has deposed that the complainant was given beatings by the accused persons on 8.7.2006. He has admitted that accused and .
complainant party are having dispute with regard to 'challa'. He has stated that the beatings took place in 'Gahal' and it was dark at that time.
He has further deposed that at the time of occurrence, S/Shri Dev Raj, Jagar Nath, Anant Ram, Bahadur and Ramesh were present on the spot.
of He has deposed that 'dandas', which have been shown to him before the learned Court below, are not the same with which the accused had given rt beatings to the complainant party, as they were big 'dandas' and were 7- 8 feet in length. He has specifically stated that 'danda' which was shown to him in the learned Court below were not in the hands of accused persons and deposed that occurrence continued for about 10-15 minutes.
He has also admitted that complainant party had given beatings to accused persons.
11. PW-1 Dr. Shashi Dutt Sharma, Medical Officer, PHC Bijhari, has deposed that he examined injured PW-2 Smt. Soma Devi/complainant, PW-3/Krishanu, PW-4/Ranjana Devi and found multiple injuries on their persons and issued MLCs Ex.PW1/A to Ex.PW1/C. In his cross-
examination, he has admitted that the injuries mentioned in MLCs Ex.PW1/A to Ex.PW1/C are possible in scuffle except injury No.1 mentioned in MLC Ex.PW1/A. He has admitted the suggestion if a person is being given beatings by means of 'danda' by 3-4 persons, then all the injuries received by accused Karam Chand are possible.
::: Downloaded on - 15/04/2017 20:59:32 :::HCHP 912. Investigating Officer/ASI Chhota Ram, PW-10 has deposed that on 10.7.2006, Up-Pradhan, Gram Panchayat, Samtana informed the .
police and they lodged rapat Ex.PW7/A, he alongwith HC Jagdish Kumar and HHC Joginder Singh went to Samtana bazaar, where they recorded the statement of complainant Smt. Soma Devi Ex.PW2/A, which was sent to Police Station through HHC Joginder Singh for registration of FIR, of thereafter medical examination of injured was got conducted at PHC Bijhari. He has deposed that he prepared site plan Ex.PW7/A, took into rt possession blood stained shirt of Krishanu Ram, vide memo Ex.PW3/A and also took into possession 'dandas' vide memo Ex.PW2/B. In his cross-examination, he has admitted that Jagdish Kumar was posted as Investigating Officer at Police Post, Deotsidh and Joginder Singh had procured MLC. He has deposed that accused Karam Chand was with him, but he had not recorded his statement. He has deposed that accused Karam Chand had not sustained any injury nor he got medically examined accused persons. He has also shown his ignorance that accused Karam Chand was got medically examined by the police official vide MLC No.22. He has denied that complainant Smt. Soma Devi, Ranjana and Krishanu gave beatings to the accused and prepared false case against accused persons.
13. PW-7 MC Ajay Kumar, Police Post Deotsidh, has deposed that on 10.7.2006 at about 8:45 pm, entered rapat No.24 Ex.PW7/A. In his cross-examination, he has admitted that accused Karam Chand has also ::: Downloaded on - 15/04/2017 20:59:32 :::HCHP 10 lodged rapat No.11.7.2006 and he was also got medically examined. He has denied the suggestion that they have not entered rapat of accused .
Karam Chand to give benefit to the complainant party.
14. PW-5 Shri Desh Raj, has deposed that on 10.7.2006, complainant telephonically informed him that accused had given them beatings, then he visited the house of complainant and saw that of complainant and Krishanu were smeared with blood. He has deposed that he inquired the complainant as to what had happened and then she rt narrated him that while she was coming from 'Jungle' side, accused gave beatings to her as well as her husband. He has deposed that police took into possession shirt of Krishanu Ram Ex.P-3 and 'dandas' Ex.P-1 and Ex.P-2, vide memos Ex.PW3/A and Ex.PW3/B. In his cross-examination, he has deposed that he has not been shown shirt and 'dandas' in the learned Court below. He has admitted that the complainant party is not having cordial relations with the accused persons for the last many years.
15. As per the prosecution story, complainant/PW-2 was coming from 'Jungle' side, she was restrained by the accused persons on the way and gave beatings by way of 'danda'. Complainant made hue and cry for help, her daughters, namely, Ranju and Nishu came to the spot, immediately thereafter accused ran away from the spot. The complainant has sent her son Shri Ravi Kumar to call his father, when her husband came to the spot and asked accused persons as to why they have given beatings to his wife. Both accused came to the courtyard of ::: Downloaded on - 15/04/2017 20:59:32 :::HCHP 11 the complainant and gave beatings to her husband, namely, Shri Krishanu Ram.
.
16. The complainant/PW-2 while appearing in the witness box has deposed that her daughters, namely, Ranju and Nishu also came to the spot to save her, but accused persons gave beatings to them. She has deposed that accused persons had given beatings to her husband in the of courtyard, whereas witness Shri Krishanu Ram/PW-3 and Ranjana Kumari/PW-4 have deposed that the incident has taken place at 'Gahal'.
rt As per the complainant, the occurrence took place for a period of half an hour, whereas the witnesses have deposed that it continued for two hours. The statement of PW-4 Ranjana Kumari has deposed that her parents had gone to bring grass before the incident, her sister and brother were also present at home. She has deposed that accused put stones in their 'Challa' and she disclosed this fact to her mother. To this effect, Chint Ram and Kashmir Singh have not deposed about the same.
As per the evidence on record, S/Shri Dev Raj, Jagar Nath, Anant Ram, Bahadur and Ramesh were also present at the time of occurrence. Non-
association of these persons belies the case of prosecution, who are independent witnesses also create a serious doubt about the prosecution story. As per PW-4 Ranjana Kumari, there were 40-50 persons on the spot, whereas complainant PW-2 has deposed that there were 15-20 persons, who have gathered on the spot. Further, Chint Ram and Kashmir Singh, who are independent witnesses, are in relation to the ::: Downloaded on - 15/04/2017 20:59:32 :::HCHP 12 complainant party and they have not deposed the truth. So, their statement cannot be taken as gospel truth to hold the accused persons .
guilty, even when the statement of daughter of the complainant and her husband are contradictory on many points. The prosecution has not examined other daughter and son of the complainant, namely, Shri Ravi Kumar. It has come on record that accused has lodged rapat qua the of occurrence. PW-1 Dr. Shashi Dutt Sharma, has deposed that accused Karam Chand was medically examined by him and there were injuries on rt his person. PW-1 has specifically stated that the injuries are possible in scuffle, as the accused has also received injuries. There would have some scuffle, which story of the prosecution has never put in the learned Court below. The case of the prosecution is not trustworthy against the accused persons.
17. It has been held in K. Prakashan vs. P.K. Surenderan (2008) 1 SCC 258, that when two views are possible, appellate Court should not reverse the judgment of acquittal merely because the other view was possible. When judgment of trial Court was neither perverse, nor suffered from any legal infirmity or non consideration/misappreciation of evidence on record, reversal thereof by High Court was not justified.
18. The Hon'ble Supreme Court in T. Subramanian vs. State of Tamil Nadu (2006) 1 SCC 401, has held that where two views are reasonably possible from the very same evidence, prosecution cannot be said to have proved its case beyond reasonable doubt.
::: Downloaded on - 15/04/2017 20:59:32 :::HCHP 1319. The so called independent witnesses, namely, Chint Ram and Kashmir Singh were in relations of the complainant party and their .
statements were required to be taken into consideration with caution, as they were supposed to favour the complainant. The fact that there were many persons present at the spot and non-examination of other independent witnesses create a suspicion with regard to the deposition of of these independent witnesses that accused persons have given beatings to the complainant party. The complainant has stated that she was rt coming back after answering the call of the nature, but her daughter has stated that her mother had gone to bring grass from the 'Jungle'. The complainant has further stated that she was given beatings for half an hour and her daughter has stated that the beatings were given for about two hours. The complainant has stated that when her daughters came, accused persons ran away from the spot, but they have also stated that accused persons gave beatings to them also. There were dispute with regard to 'Challa' and this fact has also come on record that the father of the accused had also filed a complaint to Deputy Commissioner, Hamirpur, when Bull of the complainant has caused damage father of accused persons. This coupled with the fact that PW-1 Dr. Shashi Dutt Sharma, has stated that the injuries are possible in scuffle and accused Karam Chand also received injuries goes to show that the true story has not come on record. There are material improvements and contradictions in the story of the prosecution witnesses.
::: Downloaded on - 15/04/2017 20:59:32 :::HCHP 1420. So, considered view of this Court that the prosecution story is doubtful and taking into consideration the evidence which has come on .
record, this Court finds that the prosecution has failed to prove the guilt of accused persons conclusively and beyond reasonable doubt.
21. In view of the aforesaid decisions of the Hon'ble Supreme Court and discussion made above, I find no merit in this appeal and the same is of accordingly dismissed.
rt (Chander Bhusan Barowalia)
th
9 August, 2016 Judge
(CS)
::: Downloaded on - 15/04/2017 20:59:32 :::HCHP