(By Mr. Kunal Thakur vs Son Of Shri Munna Khangar
2021 Latest Caselaw 5812 HP

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     IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

                  ON THE 18th DAY OF DECEMBER, 2021




                                                                .
                                   BEFORE





                        HON'BLE MS. JUSTICE SABINA
                                         &





                 HON'BLE MR. JUSTICE SATYEN VAIDYA
                        CRIMINAL APPEAL No.68 of 2013

    Between:-

    STATE OF HIMACHAL PRADESH

    (BY MR. KUNAL THAKUR,

    DEPUTY ADVOCATE GENERAL)
                                   to                         .... APPELLANT

    AND

    CHANDER PAUL ALIAS BABA


    SON OF SHRI MUNNA KHANGAR,
    R/O VILLAGE & P.O. UTTIAN,
    P.S. KAVRAI, DISTT. MOHVA,
    UTTAR PRADESH




                                                            ....RESPONDENT
    (BY MR. RAM MURTI BISHT,





    ADVOCATE)





                This appeal coming on for hearing this day, Hon'ble Ms.
    Justice Sabina, delivered the following:

                              JUDGMENT

State of Himachal Pradesh has filed the appeal

challenging the judgment dated 15.10.2012, passed by the trial Court,

whereby, the respondent was acquitted of the charges framed against

him.

2. Prosecution story was set in motion on the basis of the

statement of complainant Krishna Devi, Ext.PW-4/A. Complainant had

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stated in her statement that on 6th May, 2011 at about 9.30 p.m. her son

Rajeev Kumar had gone to sleep on the upper storey of the house,

after taking meals. Complainant along with her husband and her

brother-in-law (Devar) Kashmir Singh and sister-in-law (Devrani)

Rampyari had slept on the ground floor. At about 1.30 a.m., they heard

Kumar had slept.

r to the cries of Rajiv Kumar. Immediately, complainant, her husband, her

brother-in-law and her sister-in-law rushed to the room, where Rajeev

They saw that respondent Chander Paul was

inflicting injuries to Rajeev with a sword. On seeing the complainant

and others, Rajeev fled away, after leaving the sword at the spot.

Rajeev Kumar was removed to the Hospital for treatment. On the

basis of the statement of the complainant, formal FIR No.58 dated

7.5.2011, was registered at Police Station Bhawarna, District Kangra,

under Section 452, 323, 324 of the Indian Penal Code. Rajeev Kumar

succumbed to his injuries on 18th May, 2011 and thereafter offence

under Section 302 of the Indian Penal Code was added in the FIR.

3. After completion of investigation and necessary formalities,

challan was presented against the respondent.

4. Trial Court, vide order dated 19.12.2011, framed charges

against the respondent under Sections 302, 304 and 323 of the Indian

Penal Code. Respondent did not plead guilty to the charges framed

against him and claimed trial.

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5. In order to prove its case, prosecution examined 14

witnesses.

6. After the close of prosecution evidence, respondent when

examined under Section 313 of the Code of Criminal Procedure,

prayed that he was innocent and had been falsely involved in the case.

7.

r to He further pleaded that, in fact, he had gone to meet his Guru

Satyanand Bharti and was not present at the spot.

Respondent examined Mahant Satyanand Bharti as DW-1

in his defence.

8. Learned trial Court, vide impugned judgment dated

15.10.2012, ordered the acquittal of the respondent qua the charges

framed against him. Hence, the present appeal by the State.

9. Mr. Kunal Thakur, learned Deputy Advocate General, has

submitted that the trial Court has erred in ordering the acquittal of the

respondent. Prosecution had been successful in proving its case

against the respondent. The case rests on eye witness account and

the eye witnesses had duly supported the prosecution story.

10. Mr. Ram Murti Bisht, learned for the respondent (through

legal aid), on the other hand, has opposed the appeal and has

submitted that the prosecution had failed to establish its case against

the respondent. Respondent had no motive to commit crime. There

were material discrepancies in the statements of the alleged eye

witnesses. Learned counsel has further submitted that as per the

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prosecution story, the weapon of offence was recovered from the spot.

However, prosecution had failed to establish that the same carried

finger prints of the respondent.

11. Present case relates to murder of Rajeev Kumar. As per

the prosecution story, Rajeev Kumar had died on account of injuries

suffered by him with a sharp edged weapon. In order to establish the

fact that the deceased had died on account of injuries suffered by him

in the night intervening 6th/7th May, 2011, prosecution has examined

PW-2 Dr. Anshu Garg, PW-3 Dr. Sushil Sharma and PW-9 Dr.

Anupama Singh.

12. PW-2 Dr. Anshu Garg deposed that on 07.05.2011 Rajeev

Kumar was admitted in the hospital with stab injuries in his chest and

abdomen and injured was treated. He further deposed that on

08.05.2011, Rajeev Kumar suddenly collapsed and could not be

revived and was declared dead at about 4.00 p.m. The probable cause

of death clinically could be firstly, pulmonary embolism, secondly,

tachyarrthymias and thirdly, quarry jaundice. He proved the treatment

summary Ext. PW2/A and death certificate Ext. PW-2/B. He further

deposed that the injuries on the person of Rajeev Kumar could be

caused with sword Ext. P-5, shown to him in the Court. In his cross-

examination, he deposed that he could not say that between

07.05.2011 to 18.05.2011, patient was able to give his statement.

Jaundice was noticed after one week of admission.

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13. PW-3 Dr. Sushil Sharma proved the postmortem

examination report Ext. PW3/D. In his cross-examination, he deposed

that he had conducted postmortem examination of the deceased and

had not treated the patient. Hence, he could not comment that on the

day earlier to his death, the deceased was capable to make a

statement or not.

14. to PW-9 Dr. Anupama Singh deposed that on 07.05.2011,

she had conducted medical examination of the injured and had found

the injuries on his person. In her cross-examination, she deposed that

it was correct that the patient was talking to his relatives when he was

brought to the hospital and was crying with pain. She further stated

that she had not asked about the history from the patient as he was not

able to explain.

15. Thus, from the medical evidence, it stands established that

the deceased had died on account of injuries suffered by him with

sharp edged weapon.

16. The next question, that arises for consideration, is as to

whether the injuries in question had been inflicted on the person of the

deceased by the respondent. In this regard, prosecution has examined

complainant Krishna Devi as PW-4, Kishori Lal as PW-5 and Kashmir

Singh as PW-8. All the said witnesses, in their examination-in-chief,

have deposed as per the contents of the FIR.

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17. PW-4 Krishan Devi, in her cross-examination, deposed

that the only way to reach their upper storey was from the stairs inside

the house and there was no way to reach upper storey from outside.

She also admitted that when they went to sleep, they had closed all the

doors from inside. She further stated that in case one had to go to their

upper storey, then only one person could climb the stairs at a time. She

stated that she had switched on the light of the upper storey after

hearing the noise. She also stated that for two days Rajeev Kumar was

not able to talk, but on the third day he had told her that respondent

had threatened him on telephone.

18. PW-5 Kishori Lal, in his cross-examination, deposed that

in order to reach the upper storey of their house, the only way was from

inside the house and they had properly bolted their house from inside

and no one could enter their house. He stated that when he reached

the room of Rajeev Kumar, the light was switched off. As per this

witness, the deceased was lying on the lintel.

19. PW-8 Kashmir Singh, stated that the light of the room was

on. He also stated that Rajeev Kumar was able to talk but he had not

talked to him.

20. Perusal of the statements of the eye witnesses reveals

that there are material contradictions in their statements. So far as

PW-5 is concerned, he had stated that the occurrence had taken place

on the lintel, whereas, the prosecution story was that respondent had

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inflicted injuries to Rajeev Kumar with sword inside the room on the

first floor of the house. As per the site plans on record, the injuries

were inflicted to the deceased while he was sleeping in his room. As

per the eye witnesses, the house had been bolted from inside and the

only way to reach the upper floor was from inside the house. However,

21.

r to the prosecution has failed to explain as to how the respondent had

managed to enter the house.

Learned trial Court has rightly laid emphasis on the fact

that there was discrepancy in the statements of the material witnesses

with regard to the place of incident. As per the prosecution story, all the

eye witnesses had reached the spot at the same time. Hence, the

discrepancy in their statements, with regard to the place of occurrence,

gains significance.

22. PW-5 had categorically deposed that the lights at the place

of incident were off. In the present case, statements of eye witnesses

are not reliable. In this situation, the identification of the respondent, at

the place of incident, is rendered doubtful.

23. The other witnesses examined by the prosecution during

trial relate to the investigation conducted in the case.

24. Another material fact, which renders the prosecution story

doubtful, is that as per the prosecution witnesses, the respondent had

left the weapon of offence at the spot. However, no effort was made by

the prosecution to match the finger prints on the weapon of offence

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with the finger prints of the respondent. The said evidence would have

been material evidence to connect the respondent with the alleged

crime. Another material fact, which renders the prosecution story

doubtful, is that the prosecution has failed to bring on record any

motive available with the respondent to have committed the crime.

25.

The learned trial Court, while ordering acquittal of the

respondent, has also taken in consideration the fact that the statement

of Rajeev Kumar was not recorded by the investigating agency. The

incident had taken place on 07.05.2011, whereas, Rajeev Kumar had

died on 18.05.2011. Although, there is opinion of the doctor on

07.05.2011 that Rajeev Kumar was not fit to make a statement, but

thereafter no effort was made by the investigating agency to record the

statement of Rajeev Kumar. It has been stated by PW-8 Kashmir

Singh, in his cross-examination, that Rajeev Kumar was able to talk,

but he had not talked to him. Similarly, PW-4 Krishna Devi had also

stated, in her cross-examination, that on the third day of his admission,

Rajeev Kumar had talked to her. If that be so, then there is no

explanation as to why the statement of Rajeev Kumar was not

recorded by the investigating agency as his statement would have

been the most relevant statement with regard to the incident in

question.

26. After carefully going through the entire evidence on record,

we are of the opinion that the prosecution has failed to establish its

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case against the respondent beyond the shadow of reasonable doubt.

It is a settled preposition of law that the prosecution has to prove its

case against an accused beyond the shadow of reasonable doubt.

The prosecution has not been able to bring the truth on record.

Whenever there is any doubt in the prosecution story, the benefit of the

same has to be extended to the accused.

27. It is settled preposition of law that where, in a case, two

views are possible, the one which favours the accused, has to be

adopted by the Court. It has been held so by Hon'ble the Supreme

Court in Allarakha K.Mansuri v. State of Gujarat, 2002(1) RCR

(Criminal) 748. In the present case, the view taken by the learned

trial Court is a possible one.

28. Similarly, in Mrinal Das & others v. The State of Tripura,

2011 (9) Supreme Court Cases 479, the Hon'ble Supreme Court, after

looking into various judgments, has laid down parameters, in which

interference can be made in a judgment of acquittal, by observing as

under:

"8) It is clear that in an appeal against acquittal in the absence of perversity in the judgment and order, interference by this Court exercising its extraordinary jurisdiction, is not warranted. However, if the appeal is heard by an appellate court, being the final court of fact, is

fully competent to re-appreciate, reconsider and review the evidence and take its own decision. In other words, law does not prescribe any limitation, restriction or

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condition on exercise of such power and the appellate

court is free to arrive at its own conclusion keeping in mind that acquittal provides for presumption in favour of the

accused. The presumption of innocence is available to the person and in criminal jurisprudence every person is presumed to be innocent unless he is proved guilty by the competent court. If two reasonable views are possible on

the basis of the evidence on record, the appellate court should not disturb the findings of acquittal. There is no limitation on the part of the appellate court to review the

evidence upon which the order of acquittal is found and to

come to its own conclusion. The appellate court can also review the conclusion arrived at by the trial Court with respect to both facts and law. While dealing with the

appeal against acquittal preferred by the State, it is the duty of the appellate court to marshal the entire evidence

on record and only by giving cogent and adequate reasons set aside the judgment of acquittal. An order of

acquittal is to be interfered with only when there are "compelling and substantial reasons", for doing so. If the

order is "clearly unreasonable", it is a compelling reason for interference. When the trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts etc., the appellate court is competent to reverse the decision of the trial Court depending on the materials placed."

29. Hence, we are of the opinion that no ground for

interference is made out and the judgment passed by the trial Court is

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liable to be upheld. Accordingly, the appeal is dismissed.

(Sabina) Judge

(Satyen Vaidya) Judge December 18, 2021 (ps/vh)