State Of Himachal vs Unknown
2021 Latest Caselaw 4254 HP

    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,

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.

3. 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

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

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

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.

14. 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

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

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

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)