Himachal Pradesh High Court
State Of Himachal vs State Of Tamil Nadu (2006) 1 Scc 4 on 1 September, 2021
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 1st DAY OF SEPTEMBER, 2021
BEFORE
HON'BLE MR. JUSTICE CHANDER BHUSAN BAROWALIA
.
CRIMINAL APPEAL No. 189 of 2009
Between:
1. STATE OF HIMACHAL
PRADESH
......APPELLANT
(BY SH. ARVIND SHARMA, SH. P.K.
BHATTI AND SH. BHARAT
BHUSHAN, ADDL. AGS WITH SH.
AMIT DHUMAL, DY. AG AND SH.
MANOJ BAGGA, ASST. AG)
AND
1. UJJAGER SINGH, S/O SH.
AMAR SINGH, R/O BHUPPUR,
TEHSIL PAONTA SAHIB,
DISTT. SIRMAUR, H.P.
2. PRITAM SINGH, S/O SH.
AMAR SINGH, R/O VILLAGE
CHARVI MOHALLA, HOUSE
NO. 261/01, AMBALA,
HARYANA.
3. RANJOT SINGH, S/O SH.
MAHIMA SINGH, R/O
VILLAGE SABARPUR
TAPRIYA, DISTT. YAMUNA
NAGAR, HARYANA.
......RESPONDENTS
(SH. ASHOK KUMAR, ADVOCATE
VICE SH. KARAN SINGH KANWAR,
ADVOCATE)
Whether approved for reporting? Yes.
This appeal coming on for hearing this day, the Court
delivered the following:
JUDGMENT
The present appeal is maintained by the appellant/State laying challenge to judgment dated 30.09.2008, ::: Downloaded on - 31/01/2022 22:59:27 :::CIS 2 passed by learned Judicial Magistrate 1 st Class, Court No. 2, Paonta Sahib, District Sirmaur, H.P., in Criminal Case No. 57/2 of 2002, whereby the respondents/accused persons (hereinafter .
referred to as "the accused persons") were acquitted for the offences punishable under Sections 451, 323, 324, 506 read with Section 34 of the Indian Penal Code (hereinafter referred to as "IPC").
2. Briefly stated the facts giving rise to the present case are that on 29.04.2002, at about 09:00 p.m., complainant Kamaljeet Singh alongwith his wife Smt. Rupinder Kaur was at his wife's maternal house at Bhhupur. In the meantime, the accused persons came there and after exchange of some heated arguments, they hit the complainant with Kirpan. Owing to which, the complainant sustained injuries on his fingers. The accused persons also hit the wife of the complainant with kick and fist blows and she also sustained injuries in the occurrence.
Consequently, the complainant reported the matter to the police, whereupon, a case was registered against the accused persons and investigation ensued. Police prepared the site plan and procured medico legal certificates of injured. Police also recorded the statements of the witnesses. After completion of investigation, police presented challan in the learned Trial Court.
::: Downloaded on - 31/01/2022 22:59:27 :::CIS 33. The prosecution, in order to prove its case, examined as many as five witnesses. Statements of the accused persons were recorded under Section 313 Cr.P.C., wherein they .
pleaded not guilty. In defence, the accused persons have examined two witnesses.
4. The learned Trial Court, vide impugned judgment dated 30.09.2008, acquitted the accused persons for the commission of the offences punishable under Sections 451,
5. The r learned to 323, 324, 506 and 34 of IPC, hence the present appeal.
Additional Advocate General argued that the learned trial Court has wrongly appreciated the has facts and the impugned judgment is based upon surmises and conjectures. He has further argued that the learned trial Court did not appreciate the evidence in its right and true perspective and the accused persons have wrongly been acquitted. He has argued that the statements of PW1, PW3 and PW4 have not been properly appreciated by the learned trial Court and were discarded merely on the ground of minor contradictions and improvements, thus the same is liable to be set aside.
6. Conversely, the learned counsel for the respondents has argued that there are contradictions and improvements in the testimonies of the prosecution witnesses. He has further argued the learned trial Court has correctly appreciated the material, which has come on record, and the judgment, as ::: Downloaded on - 31/01/2022 22:59:27 :::CIS 4 rendered by the learned trial Court, is after appreciating the facts and law to their right and true perspective and as such, the judgment of acquittal needs no interference and the appeal .
be dismissed.
7. In rebuttal, the learned Additional Advocate General has argued that after reappreciating the evidence, the accused persons be convicted by setting aside the judgment of the learned trial Court, as the prosecution has proved the guilt of the accused.
8. to In order to appreciate the rival contentions of the parties, I have gone through the record carefully.
9. In the case at hand, the statements of the PW3 Complainant, PW2 Smt. Rupinder Kaur and PW4 Smt. Surender Kaur are very important. Admittedly, the accused persons are relatives of the injured persons and had some litigation going on.
10. The complainant, Sh. Kamaljeet Singh, has appeared in the witness box as PW3 and deposed that on 29.04.2002, when he alongwith his wife was sitting in his courtyard, the accused persons alongwith one unknown person came there, abused them and made an effort to hit him with Kirpan, however, he held the Kirpan with his hand, on account of which, he sustained injuries on his fingers. Thereafter, he managed to escape from the clutches of the accused persons ::: Downloaded on - 31/01/2022 22:59:27 :::CIS 5 and ran to the police station, where he got his statement recorded and the police got him and his wife medically examined. The complainant further deposed that to reach police .
station, he has taken lift on motor cycle from some unknown person. The complainant deposed that in the said occurrence, his clothes were stained with blood.
11. If the statement of the complainant is seen, there appears to be many new assertions and doubts, as the fact qua being abused by the accused persons, has not been disclosed to the police. Further, the statement of the complainant that his wife (PW2) was got medically examined, is also a new fact, as neither any medical certificate of PW2 is on record nor it is the story of the prosecutrix that she was medically examined. The fact that the complainant took lift from some unknown person on motor cycles to reach police station is also a new assertion in his statement, since nothing in this regard has come in the investigation, nor he has mentioned the number of such motor cycle and name of the rider. Further, the statement of the complainant that in the occurrence his clothes were stained with blood is also a new fact, as no blood stained clothes have been taken into possession by the police. The another fact, which is quite strange and raise suspicion on the story of the complainant is that as to how he rescued from the accused persons, who were carrying Kirpan and four in number and ::: Downloaded on - 31/01/2022 22:59:27 :::CIS 6 reached police station, leaving his wife, including his children all alone in danger.
12. This Court has also gone through the statement of .
PW2, Rupinder Kaur, who, though bestowed all her support to the prosecution case, however, her statement that at the time of alleged offence one Gurnam Kaur also came to the spot and caught hold of her hair and pushed her, due to which she sustained injuries, is a new assertion in the case, whereas, the prosecution story has no mention regarding this. Further, her statement that Pritam and Jodha alongwith three other persons also abused them and had quarrel with them is also new to the case. The statement of this witness regarding the fact that complainant had gone to the police station immediately after the offence, also does not match with the statement of the complainant, as complainant in her statement has deposed that he left the spot without anybody's notice.
13. Smt. Surender Kaur, who was stated to be present on the spot at the time of alleged incident and appeared in the witness box as PW4, though narrated the whole incident, however, her statement that Kirpan as has been shown to her in the Court is not the same which was used by the accused persons at the time of alleged incident, raise doubt qua the prosecution story.
::: Downloaded on - 31/01/2022 22:59:27 :::CIS 714. Now coming to the statements of DW1 Chhetru Ram and DW2 Gurbachan Singh, who were examined to prove the fact that at the time of alleged incident, accused Ranjot .
Singh and Pritam Singh were not present on the spot. As per the statement of DW2, the aforesaid accused persons had come to his house on 28.04.2002 to attend a function and they left on 30.04.2002 and he denied that accused persons went to the house of the complainant. PW1 also in his statement denied
15.
r to the fact that he has seen accused Ranjot Singh and Pritam Singh in the house of accused Ujjagar Singh.
In addition to above key witness, the prosecution has also examined PW1, Dr. Anand, M.O. Paonta Sahib, who issued MLC, Ext. PW1/A and opined the injuries to be simple in nature. PW5, Sh. Ashwani Kumar, Investigating Officer of the case.
16. After exhaustively and carefully examining the testimonies of key prosecution witnesses, this Court finds that there are many improvements and contradictions in the testimonies of key prosecution witnesses. Further, there are also many flaws in the Investigation carried out by the Investigating Officer, as no independent witness was associated in the investigation and the witnesses as examined by the prosecution are related to each other, hence, the possibility of theirs' being interested witnesses, cannot be ruled out. The ::: Downloaded on - 31/01/2022 22:59:27 :::CIS 8 identification of the alleged weapon is also not proved, as PW4 in her examinationinchief has denied the Kirpan to be the same, as was used by the accused persons at the time of .
incident. Further, the witnesses have deposed that blood injuries were sustained by the complainant at the time of incident, but the Investigating Officer has not made any efforts to take such clothes into possession. The presence of accused Pritam Singh and Ranjot Singh at the time of incident on the spot has also not been proved, as in defense it has come that the aforesaid accused persons were not present with accused Ujjagar Singh on the day of incident, so it would be apt to conclude that the conclusion of acquittal of the accused, as arrived at by the learned Trial Court is not wrong.
17. 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.
18. In Chandrappa vs. State of Karnataka, (2007) 4 SCC 415, the Hon'ble Supreme Court has culled out the following principles qua powers of the appellate Courts while dealing with an appeal against an order of acquittal:
"42. From the above decisions, in our considered view, the following general ::: Downloaded on - 31/01/2022 22:59:27 :::CIS 9 principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
1. An appellate court has full power to review, reappreciate and reconsider the .
evidence upon which the order of acquittal is founded.
2. The Code of Criminal Procedure, 1873 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
3. Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
4. An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court.
5. If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial Court."
19. In view of the settled legal position, as aforesaid, and on the basis of material, which has come on record, it is ::: Downloaded on - 31/01/2022 22:59:27 :::CIS 10 more than safe to hold that the prosecution has failed to prove the guilt of the accused beyond reasonable doubts and the findings of acquittal, as recorded by the learned trial Court, .
needs no interference, as the same are the result of appreciating the facts and law correctly and to their true perspective.
Accordingly, the appeal, which sans merits, deserves dismissal and is dismissed.
20. In view of the above, the appeal, so also pending r to application(s), if any, stand(s) disposed of.
(Chander Bhusan Barowalia) Judge 1st September, 2021 (raman) ::: Downloaded on - 31/01/2022 22:59:27 :::CIS