Himachal Pradesh High Court
State Of Himachal Pradesh vs Brij Lal And Others on 5 December, 2017
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
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Cr. Appeal No.446/2008Judgment reserved on : 29th November, 2017 Date of decision: 5th December, 2017 State of Himachal Pradesh .....Appellant Versus Brij Lal and others ....Respondents Coram:
The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
Whether approved for reporting?1 No For the appellant : Mr. Pushpinder Jaswal, Dy. A.G. and Mr. Rajat Chauhan, Law Officer For the respondents : Mr. R. K. Sharma, Sr. Advocate with Ms. Vidushi Sharma, Advocate Chander Bhusan Barowalia, Judge.
The present appeal is maintained by the appellant-State of Himachal Pradesh under Section 378 of the Code of Criminal Procedure, 1973 against the impugned judgment of acquittal dated 04.03.2008, recorded by the learned Judicial Magistrate Ist Class, Court No.III, Hamirpur, Distt. Hamirpur (H.P.) in Police Challan No.29-II-00 RBT 122- II-04, whereby the accused-respondents (hereinafter referred to as the accused) have been acquitted from the offences punishable under Sections 323 & 325 read with Section 34 of IPC, in which they were charged by the learned Trial Court.1
Whether the reporters of Local Papers may be allowed to see the judgment? Yes ::: Downloaded on - 06/12/2017 23:04:55 :::HCHP 2
2. Brief facts giving rise to the present appeal as per the allegations .
of the prosecution story are that complainant Mehar Singh made a complaint at Police Station, Bhoranj on 19.07.1999 that at about 10.00 A.M., when he was attending to his goats, Pappy accused told him that his buffalo had eaten their crop and payment be made for the same.
Complainant's mother also came at the spot. On this, Pappy accused struck his mother with a 'Danda' of 'Bans' and when he tried to save her, he was also beaten up. Other accused persons also came there and started throwing stones at them. He fled away from there and took shelter in the house of Jadu and came to police station. FIR under Section 325 read with Section 34 IPC was registered against the accused persons.
After completion of the investigation, challan was presented in the Court for trial.
3. The prosecution, in order to prove its case, examined as many as nine witnesses. Statements of accused were recorded under Section 313 of the Criminal Procedure Code, wherein they have denied the prosecution case and claimed innocence. The learned Trial Court by the impugned judgment acquitted the accused, hence the present appeal.
4. Learned Deputy Advocate General has argued that the prosecution has proved the guilt of the accused beyond shadow of reasonable doubt.
All the accused be convicted after re-appreciating the evidence, which the learned Trial Court has failed to do.
::: Downloaded on - 06/12/2017 23:04:55 :::HCHP 35. On the other hand, Sh. R. K. Sharma, learned senior counsel .
appearing on behalf of the accused, has argued that there is no evidence against the accused persons and the prosecution has miserably failed proved the guilt of the accused beyond shadow of reasonable doubt and in these circumstances, the appeal deserves dismissal.
6. In rebuttal, learned Deputy Advocate General has argued that a combined reading of the evidence on record shows that it is only the accused persons, who are responsible for the incident and after re-
appreciating the evidence, the accused be convicted.
7. To appreciate the arguments of learned Deputy Advocate General and learned counsel appearing on behalf of the accused, this Court has gone through the record in detail and minutely scrutinized the statements of the witnesses.
8. Complainant while appearing as PW-1 has deposed that when he was attending to his goats, Brij Lal, his wife and members of family i.e. accused persons came and told him that they would kill the buffalo as she had destroyed their crop. His mother who was in Courtyard, was beaten up with legs and dandas by the accused persons and when he tried to save her, he was also beaten up. The accused persons also pelted stones at him. His right arm got fractured in the process. He fled away from there and took shelter in the house of Jadu Ram at Bhival and came to police station. FIR Ext.PW-1/A was lodged. Dandas Ext.P-1 and P-2 were taken into possession vide recovery memo Ext.PW-1/B. In cross-
::: Downloaded on - 06/12/2017 23:04:55 :::HCHP 4examination, he has denied the suggestion that the accused persons did .
not throw stones at him.
9. PW-2 Purshotam Lal has stated that the accused persons gave beatings with dandas and had also pelted stones on/at his mother and he had also got injured in the process. In cross-examination, he has admitted that there are two paths going by their house and people keep coming and going through it. He has denied the suggestion that on 19.7.1999, Dev Raj and Nuri Devi were grazing cattle in the fields of Brij Lal accused. He has admitted that they do not have social interaction with the accused persons.
10. PW-3 Neelam Kumari has not supported the prosecution story. In cross-examination, she has stated that complainant had revealed her that he got injured as he fell down.
11. PW-4 Vijay Kumar has stated that Mehar Chand came while holding his arm and when he asked him, he did not tell anything. In cross-examination, he has admitted the suggestion that he is not on talking terms with Brij Lal accused.
12. PW-5 Yashpal Sharma, Radiographer, who on the instructions of Dr. N. K. Sharma, took X-Ray Ext.PW-5/A and proved the X-Ray.
13. PW-6 I.O. SI Shashi Pal has lodged FIR Ext.PW6/A and he went to the spot. Map of the spot Ext.PW6/B was prepared by him. He recorded the statements of witnesses. In cross-examination, he has ::: Downloaded on - 06/12/2017 23:04:55 :::HCHP 5 denied that he recorded the statements of witnesses as per his own sweet .
will.
14. PW-7 Dr. Naresh Sharma, who examined Mehar Singh and issued MLC Ext.PW7/A observing fracture of right ulna. The injury was opined to be grievous. He has stated that dandas Ext.P-1 and Ext.P-2 can cause these injuries. In cross-examination, he has admitted the suggestion that these injuries are possible if one struck against pointed and the hard surface like table, pole, almirah etc. with force.
15. PW-8 Dr. S. N. Sharma who examined Giani Devi and issued MLC Ext.PW8/A. In all, three simple injuries were found on her person. In cross-examination, he has admitted the suggestion that these injuries are possible by fall on hard surface.
16. PW-9 MC Karam Chand has lodged report No.9 about quarrel, copy of which is Ext.PW1/A. In cross-examination, he has admitted that it has not been written by him.
17. From the statements of the prosecution witnesses so recorded as well as MLCs Ext.PW7/A & Ext.PW8/A, though it has come that the injuries are possible with dandas, but are not possible with stones, which are shown to the witnesses. So the statement of the complainant that he was injured with stones, which were thrown upon him seems to be not in consonance with the evidence of the medical expert and so the prosecution story qua the injuries to complainant goes, as the injuries on the person of Giani Devi and the complainant could not be possible with ::: Downloaded on - 06/12/2017 23:04:55 :::HCHP 6 stones. The averments of the complainant seems to be exaggerated and .
not believable. So even after appreciating the evidence, which has come on record, it is difficult to hold that the prosecution has proved the guilt of the accused beyond shadow of reasonable doubt.
18. 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.
19. 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.
20. 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 principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge;::: Downloaded on - 06/12/2017 23:04:55 :::HCHP 7
(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, 1973 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', r '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 emphasize 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 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.
::: Downloaded on - 06/12/2017 23:04:55 :::HCHP 8(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.
21. The net result of the above discussion is that the prosecution has failed to prove the guilt of the accused conclusively and beyond reasonable doubt. There is no illegality and infirmity in the findings, so recorded by the learned Trial Court.
22. In view of the aforesaid decisions of the Hon'ble Supreme Court and discussion made hereinabove, I find no merit in this appeal and the same is accordingly dismissed. Record of the learned Trial Court be sent back forthwith.
5th December, 2017 (Chander Bhusan Barowalia),
(rana) Judge.
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