Himachal Pradesh High Court
State Of H.P vs Narender Kumar & Another on 1 September, 2023
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 471 of 2011 Reserved on: 17.08.2023 Date of Decision:01.09.2023 .
State of H.P. ....Appellant
Versus
Narender Kumar & another .....Respondents.
Coram
of
Hon'ble Mr. Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 Yes For the appellant : Mr. Prashant Sen, Deputy Advocate General.
rt For the Respondents : Mr. Malay Kaushal, Advocate.
Rakesh Kainthla, Judge The present appeal is directed against the judgment dated 17.06.2011 vide which the respondents (accused before the Trial Court) were acquitted of the commission of offences punishable under Sections 341, 323, and 325 read with Section 34 of the IPC. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned trial Court for convenience).
2. Briefly stated, the facts giving rise to the present appeal are that the Police presented a challan against the 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes ::: Downloaded on - 01/09/2023 20:34:31 :::CIS 2 accused before the learned Trial Court for the commission of offences punishable under Sections 341, 323, and 325 read with .
34 of the IPC. It was asserted that the informant-Raju Ram (PW-
1) and Vijay Kumar (PW-2) were returning to their home on 26.10.2008. When they reached Kuswar Floor Mill, accused Sunny Kumar and Narender Kumar came from the opposite side.
of The accused stopped the informant and Vijay Kumar and asked Vijay Kumar to switch off the torch. Vijay Kumar switched off rt the torch. The accused caught hold of the neck and arm of the informant Raju Ram and gave him kicks and fist blows. The accused dragged the informant towards the field, where he was beaten. Vijay Kumar shouted for help, on which Prithi Chand (PW-3) reached the spot. Prithi Chand and Vijay Kumar rescued the informant from the accused. Three teeth of the informant were broken and the informant sustained injuries on his chest, face and back. The matter was reported to the Police, on which FIR (Ext. PW-1/A) was registered. An application was filed for the medical examination of the informant. Dr.Kamal (PW-5) conducted the medical examination and he found the tooth of the informant missing. Pain and tenderness on the lower chest right side was also reported by the informant. Dr. Kamal issued ::: Downloaded on - 01/09/2023 20:34:31 :::CIS 3 MLC (Ext.PW-5/A). The informant was referred to the Dental Surgeon for expert opinion. Dr. Kamaljit Singh (PW-6) .
conducted the dental examination of the informant and found a fractured socket corresponding to the missing tooth. The nature of the injury was grievous, which could have been caused within 12 to 24 hours. HC Manohar Lal (PW-8) conducted the of investigation. He visited the spot and prepared the site plan (Ext.
PW-8/A). He recorded the statements of witnesses as per their rt version. After the completion of the investigation, the challan was prepared and presented before the Court.
3. The accused were charged with the commission of offences punishable under Sections 341, 323 and 325 read with Section 34 of IPC. They pleaded not guilty and claimed to be tried.
4. The prosecution examined 8 witnesses to prove its case. Raju Ram (PW1) is the informant. Vijay Kumar (PW-2) and Prithi Chand (PW-3) are the eyewitnesses. Dr.Sanjeev Sharma (PW-4) stated that he had not examined Raju Ram. Dr.Kamal (PW-5) and Dr. Kamaljit Singh (PW-6) medically examined the informant. Inspector Anil Verma (PW-7) signed the FIR and ::: Downloaded on - 01/09/2023 20:34:31 :::CIS 4 prepared the challan. HC-Manohar Lal (PW-8) conducted the investigation.
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5. The accused in their statements recorded under Section 313 Cr.P.C. denied the prosecution case in its entirety.
They stated that witnesses deposed against them falsely because they had an old family feud with the informant. The informant of used to abuse the mother of the accused and a compromise was effected to this effect before the Panchayat. No defence was rt sought to be adduced by the accused.
6. The Learned Trial Court held that there were discrepancies in the testimonies of the witnesses. It was not explained when the statements of witnesses were recorded. The witnesses asserted that the accused had given beatings to the informant for 5-10 minutes and the informant had sustained blood-stained injuries; however, the Medical Officer did not notice any blood-stained injury. There was a delay in reporting the matter to the Police, which was not properly explained. The Medical Officers admitted that the injuries sustained by the informant could have been caused by a fall. Learned Trial Court held that the prosecution had not succeeded in establishing the ::: Downloaded on - 01/09/2023 20:34:31 :::CIS 5 guilt of the accused beyond reasonable doubt and acquitted the accused.
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7. Being aggrieved and dissatisfied with the judgment passed by the learned Trial Court, the present appeal has been filed asserting that the learned Trial Court had not properly appreciated the evidence led before it. The material evidence of was ignored. The version of the informant was supported by the independent witnesses. Medical evidence also proved that the rt teeth of the informant were broken; hence, it was prayed that the present appeal be allowed and judgment passed by the learned Trial Court be set aside.
8. I have heard Mr. Prashant Sen, learned Deputy Advocate General for the appellant & Mr. Malay Kaushal, learned counsel for the respondents-accused.
9. Sh. Prashant Sen, learned Deputy Advocate General for the appellant/State submitted that the learned Trial Court erred in acquitting the accused on irrelevant considerations. The statement of the informant was duly corroborated by the statements of eyewitnesses and medical evidence. The enmity pleaded by the accused is a double-edged weapon as it furnishes ::: Downloaded on - 01/09/2023 20:34:31 :::CIS 6 the motive for the commission of the crime as well. Learned Trial Court erred in acquitting the accused on the ground of .
defective investigation. The delay was properly explained.
Therefore, it was prayed that the present appeal be allowed and judgment passed by the learned Trial Court be set aside.
10. Sh. Malay Kaushal, learned counsel for the of respondents-accused submitted that the learned Trial Court had taken a reasonable view based on the evidence led before it. This rt Court should not interfere with the view taken by the learned Trial Court while deciding the appeal for acquittal, even if another view is possible. There is no perversity in the judgment passed by the learned Trial Court and no interference is required.
11. I have given considerable thought to the rival submissions at the bar and have gone through the record carefully.
12. The present appeal has been filed against a judgment of acquittal. The Hon'ble Supreme Court laid down the parameters of deciding an appeal against acquittal in Jafarudheen v. State of Kerala, (2022) 8 SCC 440, as under:-
::: Downloaded on - 01/09/2023 20:34:31 :::CIS 7"Scope of Appeal filed against the Acquittal:
25. While dealing with an appeal against acquittal by invoking Section 378 of the Cr.PC, the Appellate Court has to consider whether the Trial Court's view can be termed .
as a possible one, particularly when evidence on record has been analyzed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the Appellate Court has to be relatively slow in reversing the order of the Trial Court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened.
of Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters."
13. This position was reiterated in Siju Kurian versus State rt of Karnataka 2023 online SCC 429, wherein it was held:-
"15. One of the main contentions raised by the learned counsel appearing for the appellant is to the effect that the High Court ought not to have interdicted with the judgment of the acquittal passed by the Trial Court and only in the event of the judgment of the Trial court was riddled with perversity and the view taken by the Trial Court was not a possible view, same could have been reversed by relying upon the judgment of this Court in case of Murugesan V. State through the Inspector of police(2012) 10 SCC 383 whereunder it came to be held as follows:
"33. The expressions "erroneous", "wrong" and "possible" are defined in the Oxford English Dictionary in the following terms: "erroneous.-- wrong; incorrect.
wrong.--(1) not correct or true, mistaken.
(2) unjust, dishonest, or immoral.::: Downloaded on - 01/09/2023 20:34:31 :::CIS 8
possible.--(1) capable of existing, happening, or being achieved.
(2) that may exist or happen, but that is not certain or probable."
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34. It will be necessary for us to emphasize that a possible view denotes an opinion, which can exist or be formed irrespective of the correctness or otherwise of such an opinion. A view taken by a court lower in the hierarchical structure may be termed as erroneous or wrong by a superior court upon a mere disagreement. But such a conclusion of of the higher court would not take the view rendered by the subordinate court outside the arena of a possible view. The correctness or otherwise of any conclusion reached by a court has to be tested on rt the basis of what the superior judicial authority perceives to be the correct conclusion. A possible view, on the other hand, denotes a conclusion, which can reasonably be arrived at regardless of the fact where it is agreed upon or not by the higher court. The fundamental distinction between the two situations has to be kept in mind. So long as the view taken by the trial court can be reasonably formed, regardless of whether the High Court agrees with the same or not, the view taken by the trial court cannot be interdicted and that of the High Court supplanted over and above the view of the trial court."
16. It need not be restated that it would be open for the High Court to re-apprise the evidence and conclusions drawn by the Trial Court and in the case of the judgment of the trial court being perverse that is contrary to the evidence on record, then in such circumstances the High Court would be justified in interfering with the findings of the Trial Court and/or reversing the finding of the Trial Court. In Gamini Bala Koteswara Rao v. State of Andhra Pradesh (2009) 10 SCC 636: AIR 2010 SC 589 it has been held by this Court as under:
::: Downloaded on - 01/09/2023 20:34:31 :::CIS 9"14. We have considered the arguments advanced and heard the matter at great length. It is true, as contended by Mr Rao, that interference in an appeal against an acquittal recorded by the trial court .
should be rare and in exceptional circumstances. It is, however, well settled by now that it is open to the High Court to reappraise the evidence and conclusions drawn by the trial court but only in a case when the judgment of the trial court is stated to be perverse. The word "perverse" in terms as understood in law has been defined to mean of "against the weight of evidence". We have to see accordingly as to whether the judgment of the trial court which has been found perverse by the High rt Court was in fact so.
17. The Appellate Court may reverse the order of acquittal in the exercise of its powers and there is no indication in the Code of any limitation or restriction having been placed on the High Court in the exercise of its power as an Appellate court. No distinction can be drawn as regards the power of the High Court in dealing with an appeal, between an appeal from an order of acquittal and an appeal from a conviction. The Code of Criminal Procedure does not place any fetter on the exercise of the power to review at large the evidence upon which the order of acquittal was founded and to conclude that upon that evidence the order of acquittal should be reversed.
18. In the case of Sheo Swarup v. King Emperor AIR 1934 PC 227, it has been held by the Privy Council as under:
But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as:
1) The views/opinion of the trial judge as to the credibility of the witnesses;
2) The presumption of innocence in favour of the accused;::: Downloaded on - 01/09/2023 20:34:31 :::CIS 10
3) The right of the accused to the benefit of any doubt; and
4) The slowness of an appellate court in disturbing a finding of fact arrived at by a .
judge who had the advantage of seeing the witnesses.
19. This Court has time and again reiterated the powers of the Appellate Court while dealing with the appeal against an order of acquittal and laid down the general principles in the matter of Chandrappa v. State of Karnataka (2007) 4 SCC 415 to the following effect:
of "42. From the above decisions, in our considered view, the following general principles regarding the rt 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 Criminal Procedure Code, 1973 puts no limitation, restriction or condition on the exercise of such power and an Appellate court on the evidence before it may reach its own conclusion, both on questions of fact and 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.::: Downloaded on - 01/09/2023 20:34:31 :::CIS 11
(4) An Appellate court, however, must bear in mind that in case of acquittal, there is a 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 of reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible rt on the basis of the evidence on record, the Appellate court should not disturb the finding of acquittal recorded by the trial court."
14. The incident had taken place on 26.10.2008 at about 7:00 to 7:30 p.m. The place of the incident is at a distance of 35 Kilometers from the Police Station as per the FIR. The matter was reported to the Police on 27.10.2008 at about 10:00 a.m. The FIR does not contain any reason for the delay against the column no. 8. Vijay Kumar (PW-2) stated in his cross-
examination that informant Raju Ram stated that they should go to Police Station, Sujanpur. However, they did not visit the Police Station, Sujanpur. This explanation is not satisfactory as per the FIR. The informant had sustained blood-stained injuries.
His teeth were broken and any reasonable person would have ::: Downloaded on - 01/09/2023 20:34:31 :::CIS 12 taken the injured person to the hospital to provide first aid to him. The fact that the informant intended to visit the Police .
Station immediately shows that there was some urgency in the matter. Vijay Kumar has not explained why the informant was not taken to the Police Station or at least to the hospital. Thus, there is no satisfactory explanation for the delay.
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15. It was laid down in Meharaj Singh (L/Nk.) v. State of U.P., (1994) 5 SCC 188 that the delay in lodging FIR leads to rt embellishments, concoction and fabrication and the Court should see the prosecution case with utmost care and caution in case of delay. It was observed:
"FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eyewitnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of the delay, the FIR not only gets bereft of the advantage of spontaneity, but danger also creeps in the introduction of a coloured version or exaggerated story. With a view to determine whether the FIR was lodged at the time it is alleged to have been recorded, the courts generally look for certain external checks. One of the checks is the receipt of the copy of the ::: Downloaded on - 01/09/2023 20:34:31 :::CIS 13 FIR, called a special report in a murder case, by the local Magistrate. If this report is received by the Magistrate late it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded, unless, of .
course, the prosecution can offer a satisfactory explanation for the delay in dispatching or receipt of the copy of the FIR by the local Magistrate. The prosecution has led no evidence at all in this behalf. The second external check equally important is the sending of a copy of the FIR along with the dead body and its reference in the inquest report. Even though the inquest, prepared of under Section 174 CrPC, is aimed at serving a statutory function, to lend credence to the prosecution case, the details of the FIR and the gist of statements recorded during inquest proceedings get reflected in the report. rt The absence of those details is indicative of the fact that the prosecution story was still in an embryo state and had not been given any shape and that the FIR came to be recorded later on after due deliberations and consultations and was then ante-timed to give it the colour of a promptly lodged FIR. In our opinion, on account of the infirmities as noticed above, the FIR has lost its value and authenticity and it appears to us that the same has been ante-timed and had not been recorded till the inquest proceedings were over at the spot by PW 8."
16. This position was reiterated in P. Rajagopal v. State of T.N., (2019) 5 SCC 403 = 2019 SCC OnLine SC 506, wherein it was observed:-
"12. Normally, the Court may reject the case of the prosecution in case of inordinate delay in lodging the first information report because of the possibility of a concoction of evidence by the prosecution. However, if the delay is satisfactorily explained, the Court will decide the matter on merits without giving much importance to such delay. The Court is duty-bound to determine ::: Downloaded on - 01/09/2023 20:34:31 :::CIS 14 whether the explanation afforded is plausible enough given the facts and circumstances of the case. The delay may be condoned if the complainant appears to be reliable and without any motive for implicating the .
accused falsely. [See Apren Joseph v. State of Kerala, (1973) 3 SCC 114; Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1."
17. Therefore, the prosecution case is to be seen with due care and caution keeping in view the delay in reporting the matter.
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18. The learned Trial Court held that the investigation was defective and this was sufficient to acquit the accused. This rt was not proper as a defective investigation will not result in the acquittal of the accused. It was held in Karnel Singh vs. State 1995 (5) SCC 518 that the prosecution case cannot be doubted due to the defective investigation because I.O. is not under the control of the complainant and the complainant cannot be penalized for the negligence of the I.O. It was held:
"4. We have very carefully scrutinized the evidence having regard to the fact that (PW 6) the Investigation Officer had not taken the care expected of him. He did not record the statements of the two witnesses nor did he refer to the attachment of the 'Chaddi' in his oral evidence. That was a very vital piece of evidence to which little or no attention was paid. If the seizure of that article was properly proved, the article with semen stains would have lent strong corroboration to the evidence of the prosecutrix. There is no doubt that the investigation was casual and defective. But despite these deficiencies both ::: Downloaded on - 01/09/2023 20:34:31 :::CIS 15 the Courts below have recorded a conviction. The question is: are they right?
5. Notwithstanding our unhappiness regarding the nature of the investigation, we have to consider whether .
the evidence on record, even on strict scrutiny, establishes the guilt. In cases of defective investigation, the Court has to be circumspect in evaluating the evidence but it would not be right in acquitting an accused person solely on account of the defect; to do so would be tantamount to playing into the hands of the Investigating Officer if the investigation is designedly defective. Any of Investigating Officer, in fairness to the prosecutrix as well as the accused, would have recorded the statements of the two witnesses and would have drawn up a proper seizure memo in regard to the 'Chaddi'. That is the reason rt why we have said that the investigation was slipshod and defective.
6. We must admit that the defective investigation gave us some anxious moments and we were at first blush inclined to think that the accused was prejudiced. But on closer scrutiny, we have reason to think that the loopholes in the investigation were left to help the accused at the cost of the poor prosecutrix, a labourer. To acquit solely on that ground would be adding insult to injury."
19. This position was reiterated in Sachin Kumar Singhraha v. State of M.P. (2019) 8 SCC 371 = 2019 SCC OnLine SC 363, and it was held:
"At this juncture, we would like to recall that it is well- settled that criminal justice should not become a casualty because of the minor mistakes committed by the Investigating Officer. We may hasten to add here itself that if the Investigation Officer suppresses the real incident by creating certain records to make a new case altogether, the Court would definitely strongly come ::: Downloaded on - 01/09/2023 20:34:31 :::CIS 16 against such action of the Investigation Officer. There cannot be any dispute that the benefit of doubt arising out of major flaws in the investigation would create suspicion in the mind of the Court and consequently, such .
inefficient investigation would accrue to the benefit of the accused. As observed by this Court in the case of State of H.P. v. Lekh Raj, (2000) (1) SCC 247, a criminal trial cannot be equated with a mock scene from a stunt film. Such trial is conducted to ascertain the guilt or innocence of the accused arraigned and in arriving at a conclusion about the truth, the courts are required to adopt a rational of approach and judge the evidence by its intrinsic worth and the animus of the witnesses. The courts are not obliged to make efforts either to give latitude to the prosecution or loosely construe the law in favour of the rt accused. The traditional dogmatic hypertechnical approach has to be replaced by a rational, realistic and genuine approach for administering justice in a criminal trial."
20. Thus, the prosecution case cannot be doubted due to the defective investigation. The case has to be seen independently of the defective investigation.
21. The Investigating Officer stated in his cross-
examination that the informant had sustained blood-stained injuries on his back and chest. This is incorrect as the Medical Officer had only noticed the missing central incisors, looseness of left lateral incisors upper side, pain and tenderness over the lower chest right side. He had not noticed any blood-stained injury. Hence, the initial prosecution case supported by the ::: Downloaded on - 01/09/2023 20:34:31 :::CIS 17 Investigating Officer that the informant had sustained blood-
stained injuries is not corroborated by the medical evidence.
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This shows that the prosecution is prone to exaggeration and the prosecution case has to be seen keeping this consideration in mind.
22. The informant admitted in his cross-examination of that he had put his signatures on the compromise (Ex. D-1) in Gram Panchayat, Gawardu and apologized for the abuses hurled rt at the mother of the accused Narender. He identified his signatures on the compromise (Ext. D-1). This compromise reads that Raju, Rajesh Kumar and Pritam Singh had hurled filthy abuses at Gamro Devi and they had apologized for the same. They assessed not to hurl any abuse and in case, they did so, they would be liable for legal action. This compromise was effected on 4.10.2008. The present incident is stated to have taken place on 26.10.2008. Mr. Prashant Sen, learned Deputy Advocate General, submitted that enmity can be a motive for the commission of the crime. There can be no dispute with this proposition of Law. However, in such a situation, the informant would have specifically stated that the incident had taken place due to the old enmity between the parties. He would not have ::: Downloaded on - 01/09/2023 20:34:31 :::CIS 18 concealed this fact and stated that he was beaten without any reason.
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23. The informant stated that his three teeth were broken. Vijay Kumar (PW-2) stated that the accused dragged the informant to the field while beating him. Prithi Chand (PW-3) stated in his cross-examination that he saw the accused beating of the informant with kicks and fist blows and he rescued the informant from the accused. Learned trial Court had rightly rt pointed out that in case, the informant was beaten by two accused with kicks and fist blows, he would have sustained some injuries on his person; however, the informant had only sustained injuries on his teeth. Even the injury on the chest was pain and tenderness, which is a subjective injury and not an objective one. Thus, the learned trial Court had taken a reasonable view while doubting the prosecution case.
24. It was submitted on behalf of the State that the defence taken by the accused that the informant had sustained injuries by falling is not probable because no corresponding injuries were found. The learned Trial Court had rightly relied upon the cross-examination of the Medical Officers who had ::: Downloaded on - 01/09/2023 20:34:31 :::CIS 19 admitted that injuries are possible by falling on a hard and uneven surface. Further, the Medical Officers admitted that .
there was no corresponding injury on the cheek, legs, arms and other parts of the body, which clearly falsifies the version of the eyewitnesses regarding the beating being given to the informant by kicks and fist blows.
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25. Therefore, the prosecution case was not proved beyond reasonable doubt. There were circumstances which rt would make it difficult to place reliance upon the prosecution case. The view taken by the learned Trial Court was a reasonable view and this Court will not interfere with this view while deciding the appeal against the acquittal, even if it would have taken a different view while deciding the matter.
26. Therefore, no interference is required with the judgment passed by the learned trial Court. Consequently, the present appeal fails and the same is dismissed. The bail bonds are discharged.
27. The record of the learned Trial Court be returned.
(Rakesh Kainthla) Judge 01, September, 2023(pathania) ::: Downloaded on - 01/09/2023 20:34:31 :::CIS