Himachal Pradesh High Court

____________________________________________________________ vs Saneh Lata And Others on 5 August, 2021

Bench: Sandeep Sharma

         IN THE HIGH COURT OF HIMACHAL PRADESH AT
                          SHIMLA

                                     Cr. Appeal No. 591 of 2010




                                                                       .
                                    Decided on: August 5, 2021





    ____________________________________________________________
    State of Himachal Pradesh                    .........Appellant
                                         Versus





    Saneh Lata and others                         ...Respondents
    ____________________________________________________________
    Coram
    Hon'ble Mr. Justice Sandeep Sharma, Judge.





    Whether approved for reporting?1
    ____________________________________________________________
    For the appellant:     Mr. Sudhir Bhatnagar and Mr. Desh
                           Raj Thakur, Additional Advocates
                           General with Mr. R.P. Singh and Mr.
                    r      Narinder Thakur, Deputy Advocates

                           General.
    For the respondent:    Mr. N.K. Thakur, Senior Advocate
                           with Mr. Divya Raj Singh, Advocate.
    ____________________________________________________________
    Sandeep Sharma, J.

By way of instant Cr. Appeal filed under S.378

CrPC, challenge has been laid to judgment of acquittal dated

31.7.2010 passed by learned Additional Sessions Judge, Fast

Track Court Una in Cr. Appeal No. 12/2008, reversing

judgment of conviction and order of sentence dated

7.2.2008/7.3.2008 passed by learned Judicial Magistrate 1st

Class, Court No. 1, Amb, District Una, in Cr. Case No. 227-I

of 05/100-II/05.

Whether reporters of the Local papers are allowed to see the judgment? .

2. Precisely the case of the prosecution, as emerges

from the record is that on 15.5.2005, at about 4.30 pm,

complainant Bhagwanti Devi, PW-1 was returning from Pindi

Baba after paying obeisance and when she reached Athma

Rig (tube well), accused Tripta Devi, Rajrani, Snehlata and

Poonam were standing on the road. Allegedly the above

named accused stopped the complainant and told her that

since she has not permitted them to take water from

Hodi/water tank, she would be taught a lesson. Complainant

though told the accused named herein above, that water has

not been stopped by her but by the Panchayat, but in the

meanwhile, accused Sukh Raj and Malkiyat Singh, reached

the spot, armed with sickles and women accused were armed

with sticks. All the accused named above started giving

beatings to the complainant, Bhagwanti Devi. Sukh Raj

attacked on the arm of complainant with sickle, upon which

she raised alarm and on hearing noise, her daughter Kalpana

Sharma, PW-2, reached the spot. Allegedly, the daughter of

complainant was also attacked by accused Malkiyat Singh

with sickle on her head and other women accused also gave

beatings with sticks. Subsequently, the accused after having

seen Dhiraj, PW-7 and Sushma Sharma, PW-10 and other

people gathered on the spot, ran away from the spot

threatening complainant with dire consequences. Ms.Kalpana

(daughter of complainant) informed the police about the

incident. Police after getting complainant, PW-1 and her

daughter, PW-2 medically examined, registered case against

all the accused persons, for commission of offence under Ss.

341, 147, 148, 323, 324, 506(1) read with S.149 IPC. After

completion of investigation police presented challan in

competent court of law against all the accused except

Poonam, who was minor at the time of incident.

3. Learned trial Court after having found prima facie

case against all the accused proceeded to frame charges

against them under aforesaid provisions of law, but all the

accused pleaded not guilty and claimed trial.

4. Prosecution examined as many as ten witnesses

to prove its case and the accused despite opportunity, failed

to lead any evidence in their defence. However, in their

examination under S.313 CrPC, accused denied the case of

prosecution in toto.

5. Learned trial Court on the basis of evidence led

on record by prosecution, though held all the accused guilty

of having committed offences punishable under aforesaid

provisions of law but later on released them extending benefit

of S.4 the Probation of Offenders Act. Though the accused

laid challenge to aforesaid judgment of conviction in the

court of learned Additional Sessions Judge, Fast Track Court,

Una, but the appellant State did not lay challenge, if any, to

the judgment of conviction as well as order of release of

accused made under Probation of Offenders Act. Appeal

having been filed by accused came to be allowed vide

judgment dated 31.7.2010, whereby appellate court, after

having set aside judgment of conviction and order of release,

acquitted all the accused of the charges framed against them.

In the aforesaid background, appellant-State has approached

this court in the instant appeal praying therein for conviction

of accused, after setting aside judgment of acquittal recorded

by learned first appellate court below.

6. Having heard learned counsel for the parties and

perused material available on record vis-à-vis the reasoning

recorded by learned Additional Sessions Judge, while

acquitting all the accused, this court finds no force in the

submission of Shri Sudhir Bhatnagar, learned Additional

Advocate General that the first appellate court below has not

appreciated the evidence in its right perspective, rather, this

court finds that the learned court below, while setting aside

judgments and order of conviction recorded by learned trial

Court has very carefully appreciated the evidence led on

record by prosecution vis-à-vis the offence alleged to have

been committed by the accused and has rightly acquitted all

the accused. Otherwise also, this court is of the view that

once the State has not laid challenge to the order releasing all

the accused on probation under S.4 of Probation of Offenders

Act, appeal at this stage laying therein challenge to judgment

of acquittal recorded by learned first appellate court, deserves

outright dismissal. In the case at hand, this court finds that

though the prosecution examined ten witnesses in all but

statements of PW-1, complainant (Bhagwanti Devi), PW-2

Kalpana Sharma, PW-3 Tarsem Singh and PW-7, Dhiraj

Kumar have weighed heavily with learned trial Court, while

concluding guilt of accused. However, having carefully

perused the statements of aforesaid witnesses, this court

finds that the prosecution has not been able to prove that

which of the accused caused injury to complainant and her

daughter Kalpana. Moreover, PW-1 and PW-2 are closely

related to each other being mother and daughter and as

such, their statements could not have been made basis to

hold accused guilty in the absence of corroboration of their

version by some reliable independent witness. In the case at

hand, though prosecution cited PW-3 Tarsem Singh and PW-

7, Dhiraj Kumar as independent witnesses, but the version

put forth by these witnesses if read in entirety, nowhere

supports the case of prosecution. Admittedly aforesaid

witnesses were not present on the spot when accused

allegedly gave beatings to complainant and her daughter.

Rather, as per their own admission these witnesses reached

spot after having heard noise. Though PW-3, Tarsem Singh

and PW-7 Dhiraj Kumar deposed before learned court below

that the accused after having seen them and other people

gathered on the spot, ran away, but there is no specific

mention with regard to infliction of injury on the person of

PW-1 Bhagwanti and PW-2 Kalpana Sharma in the presence

of these two independent witnesses. Besides above, this court

finds that PW-3 Tarsem Singh and PW-7 Dhiraj Kumar

though are not in close relation with complainant, but PW-3

has admitted that he ploughs fields of complainant

Bhagwanti and there is already one criminal case pending

against him instituted at the behest of accused. In the

aforesaid facts and circumstances, Tarsem Singh PW-3,

otherwise cannot be said to be an independent witness.

7. So far statements of PW-7 Dhiraj Kumar and PW-

10 Sushma, are concerned, they cannot be of much help to

prosecution case, for the reason that though both these

witnesses deposed before learned court below that they

reached spot after hearing noise but none stated that the

accused gave beatings to the complainant and her daughter

in their presence, rather PW-7 stated on the basis of her own

knowledge that too without seeing incidence with his eyes,

before learned court below that the complainant and her

daughter Kalpana Sharma were given beatings by accused.

8. PW-10 Sushma Devi was declared hostile for the

reason that she failed to support the prosecution case, but

cross-examination r conducted on his witness nowhere

suggests that the prosecution was able to extract anything

contrary to what she stated in her examination-in-chief.

9. If the statements of PW-1 and PW-2 are read in

conjunction, both appear to be contradictory and

inconsistent to each other. PW-1 Bhagwanti deposed that on

15.5.2005 at 4/4.15 pm accused present near Athma tube

well gave her beatings for the reason that she failed to give

them water. She deposed that she told accused person that

water has been stopped by Panchayat but yet Sukhraj

inflicted injury on her person with sickle. Accused Sukh Raj

was also having a Darati in hand and remaining accused were

having sticks. This witness also deposed that remaining

accused inflicted injuries with sticks and hands. If

description of injuries given by complainant during her

examination-in-chief is perused, vis-à-vis MLC, Exhibit PW-

5/B, there appears to be considerable force in the submission

made by learned senior counsel representing the accused

that the injuries alleged to have been inflicted on the person

of the complainant do not befit the description of weapon

allegedly used by accused while inflicting injuries. MLC

Exhibit PW-5/B reveals that all injuries except injury No.1

were termed to be simple. Injury no. 1 was allegedly caused

by a sharp weapon but description of wound i.e. 1 cm long

punctured bleeding wound on left forearm near elbow, cannot

be said to be caused with sickle, because, had accused

caused injury on forearm of the complainant with sickle, it

would not have caused punctured wound, rather, there

would have been a clear cut edge of sharp edged weapon

used by accused.

10. Though, PW-5 Dr. RK Garg, while proving MLC

PW-5/B has stated that the injury caused on forearm can be

caused by Darati, however PW-5 in his cross-examination

has admitted that the injuries as described in MLC, can be

caused if a person falls on sharp object or on a hard surface.

11. As per PW-1, her daughter, PW-2, Kalpana

reached the spot after having heard noise raised by her and

she was also inflicted injuries on her person with Darati by

remaining accused persons. Perusal of MLC Exhibit PW-5/A

reveals that PW-2 Kalpana suffered 4 cm long incisive wound

on scalp on right side, 10 cm above right ear and such injury

was caused by accused Malkiyat with sickle. PW-5, Dr. RK

Garg, though has termed aforesaid injury to be caused by

sharp edged weapon but all the injuries have been termed to

be simple in nature by him.

12. Version put forth by PW-2, who has almost

narrated same sequence of events as has been narrated by

her mother, PW-1, cannot be taken as gospel truth for the

reason that she was surely not present on the spot, when her

mother, PW-1 Bhagwanti was being given beatings by

accused, rather, she as has been fairly admitted by her,

reached the spot of incident after having heard noise and

thereafter, accused started giving her beatings, meaning

thereby PW-2 Kalpana had no occasion to see the accused

inflicting injuries on person of PW-1, Bhagwanti. If statement

of PW-1 is read in its entirety, she though states that the

accused caused injuries on the person of her daughter,

Kalpana, but she has not specifically stated that who caused

injury on the head of her daughter Kalpana.

13. Leaving everything aside, both the above named

witnesses, PW-1 and PW-2 were actually present on the spot

and the other independent witnesses associated by

prosecution reached the spot after having heard noise and as

per independent witnesses, accused ran away from spot after

having seen people gathered on the spot, meaning thereby

that once independent witnesses alongwith other villagers,

reached spot, accused had fled away and thereafter, no injury

was caused to complainant and her daughter.

14. PW-1 and PW-2 are the so called eye-witnesses of

the incident, but their version being interested witnesses and

closely related to each other cannot be otherwise accepted

without there being any corroboration by independent

witness. Though independent witnesses PW-3 and PW-7,

stated /deposed that the accused gave beatings to the

complainant and her daughter, but as has been observed

herein above, once they were not present on the spot, while

complainant and her daughter were being allegedly beaten by

accused, it is not understood how they came to know about

the fact that the complainant and her daughter were given

beatings by the accused. Moreover, PW-3 and PW-7 otherwise

cannot be said to be independent witnesses for the reason

that PW-3 admitted in his cross-examination that he ploughs

fields of Bhagwanti and there is already one case registered

against him instituted at the behest of accused. No doubt

version put forth by closely related witnesses cannot be

brushed aside easily but it well settled law that the version of

closely related witnesses and interested witnesses is required

to be considered with utmost care and caution while

determining guilt of the accused.

15. By now it is well settled that in a criminal trial

evidence of the eye witness requires a careful assessment and

needs to be evaluated for its creditability. Hon'ble Apex Court

has repeatedly held that since the fundamental aspect of

criminal jurisprudence rests upon the 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 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 and

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."

46. 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.

16. After perusing the statements of the prosecution

witnesses as well exhibits placed on record, two views are

possible in the present case and as such, the accused is

entitled to the benefit of doubt. The learned counsel for the

accused has placed reliance on the judgment passed by

Hon'ble Apex Court reported in State of UP versus Ghambhir

Singh & others, AIR 2005 (92) Supreme Court 2439, wherein

the Hon'ble Apex Court has held that if on the same evidence,

two views are reasonably possible, the one in favour of the

accused must be preferred. The relevant paragraph is

reproduced as under:-

"6. So far as Hori Lal, PW-1 is concerned, he had been sent to fetch a basket from the village and it was only a matter of coincidence that while he was returning he

witnessed the entire incident. The High Court did not consider it safe to rely on his testimony because he evidence clearly shows that he had an animus against the appellants. Moreover, his evidence was not corroborated by objective circumstances. Though it

was his categorical case that all of them fired, no injury caused by rifle was found, and, only two wounds were found on the person of the deceased. Apart from this PW-3 did not mention the presence of either PW-1 or PW-2 at the time of occurrence. All

these circumstances do create doubt about the truthfulness of the prosecution case. The presence of

these three witnesses becomes doubtful if their evidence is critically scrutinized. May be it is also possible to take a view in favour of the prosecution, but since the High Court, on an appreciation of the evidence on record, has recorded a finding in favour of

the accused, we do not feel persuaded to interfere with the order of the High Court in an appeal against acquittal. It is well settled that if on the same evidence two views are reasonably possible, the one in

favour of the accused must be preferred."

17. The Hon'ble Division Bench of this Court vide

judgment reported in Pawan Kumar and Kamal Bhardwaj

versus State of H.P., latest HLJ 2008 (HP) 1150 has also

concluded here-in-below:-

"25. Moreover, when the occurrence is admitted but there are two different versions of the incident, one put forth by the prosecution and the other by the defence and one of the two version is proved to be false, the second can safely be believed, unless the same is unnatural or inherently untrue.

26. In the present case, as noticed hereinabove, the manner of occurrence, as pleaded by the defence, is not true. The manner of the occurrence testified by

.

PW-11 Sandeep Rana is not unnatural nor is it

intrinsically untrue, therefore, it has to be believed.

27.Sandeep Rana could not be said to have been established, even if the prosecution version were

taken on its face value. It was pleaded that no serious injury had been caused to PW-11 Sandeep Rana and that all the injuries, according to the testimony of PW- 21 Dr. Raj Kumar, which he noticed on the person of Sandeep Rana, at the time of his medical examination, were simple in nature.