State Of H.P vs Miya Lal
2022 Latest Caselaw 9312 HP

    IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA




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                                        Criminal Appeal No.112 of 2022
                                          Date of Decision: 15.11.2022
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    State of H.P.
                                                         .........Appellant/State
                                           Versus
    Miya Lal
                                                   .......Accused/Respondent





    Coram

    Hon'ble Mr. Justice Sandeep Sharma, Judge.
    Whether approved for reporting? Yes.

    For the appellant:        Mr. Sudhir Bhatnagar, Additional Advocate

                              General, with Mr. Sunny Dhatwalia,
                              Assistant Advocate General.

    For the respondent:       Mr. Rajan Kahol, Advocate.


    ___________________________________________________________________________
    Sandeep Sharma, J. (Oral)

Instant criminal appeal filed under Section 378 of Cr.PC,

lays challenge to the judgment of acquittal dated 7.12.2021, passed by

the learned Judicial Magistrate First Class-VII, Shimla, District

Shimla, H.P., in Criminal Case No. 1035/20/2001, whereby learned

court below acquitted the accused for having committed the offenses

punishable under Sections 224 and 323 of IPC.

2. Briefly stated facts of the case as emerge from the record

are that on 4.5.2001, complainant-Constable Naresh Kumar (PW2)

lodged a complaint at PS Sadar, Shimla, alleging therein that he

alongwith Constable Satpal (PW3), under the supervision of HC Lal

Singh (PW7) had obtained three days' judicial custody of the accused-

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respondent Miya Lal from SDM, Shimla. He alleged that while they

were taking the accused to Sub-Jail Kaithu after obtaining jail

warrant, the accused escaped from their custody near Victory Tunnel.

He alleged that though Constable Naresh Kumar (PW2) had held the

accused from the collar of his jacket, but the accused pushed him and

ran away from his custody. He alleged that accused jumped over the

railing towards jungle, but he was again arrested by Constable Naresh

Kumar (PW2) and during the scuffle, Constable Naresh Kumar (PW2)

and accused sustained injuries on their person. In the aforesaid

background, FIR (Ext.PW2/A) came to be lodged against the accused.

3. After completion of the investigation, police presented

challan in the competent court of law, who on being satisfied that

prima facie case exists against the accused, put notice of accusation to

him for having committed offences under Sections 224 and 323 of IPC,

to which he pleaded not guilty and claimed trial. Prosecution with a

view to prove its case examined as many as ten witnesses, whereas

accused in his statement recorded under Section 313 Cr.PC, pleaded

his innocence and claimed that police officials have deposed falsely

against him.

4. Learned trial Court on the basis of evidence collected on

record by the prosecution held the accused not guilty of having

committed offences punishable under Sections 224 and 323 of IPC

and accordingly, discharged him. Being aggrieved and dissatisfied

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with the aforesaid judgment of acquittal recorded by the court below,

appellant-State has approached this Court by way of instant

proceedings, seeking therein conviction of the respondent-accused

after setting aside the judgment of acquittal recorded by the court

below.

5. Having heard learned counsel for the parties and perused

material available on record vis-à-vis reasoning assigned in the

judgment of acquittal recorded by the court below, this Court finds no

force in the submissions of Mr. Sudhir Bhatnagar, learned Additional

Advocate General that impugned judgment of acquittal is not based

upon proper appreciation of evidence, rather this court finds that

prosecution miserably failed to prove the custody, if any, given by the

SDM, Shimla, to the police officials, who were allegedly taking the

accused to the Sub-Jail Kaithu while he attempted to run away.

Moreover, though prosecution witnesses claimed that in the scuffle,

Constable Naresh Kumar (PW2) and the accused suffered injuries, but

interestingly, no doctor ever came to be examined to prove the

aforesaid claim of the prosecution, rather record nowhere reveals that

after the scuffle, accused as well as Constable Naresh Kumar were

taken to the hospital for medical examination.

6. PW2 Constable Naresh Kumar deposed that on 4.5.2001,

he and Constable Satpal ( PW3) were on duty to take the accused to

Kaithu Jail. He further deposed that when they reached near Victory

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Tunnel, accused pushed him and jumped over the railing and ran

towards the Annandale side. He further testified that he and

Constable Satpal (PW3) also jumped over the railing and caught the

accused. He deposed that they produced the accused before SDM

(Urban) Shimla, who sent him for three days' judicial remand. During

cross-examination, this witness deposed that they were taking the

accused to Sub-Jail Kaithu at 7:30pm and he was deputed for the

aforesaid purpose at 6:30pm. He also admitted that while they were

taking the accused to Sub-Jail Kaithu, there was a huge traffic on the

road. He further admitted that there is a market and a locality where

the aforesaid incident took place. He admitted that they have not

made any noise when the accused escaped from their custody, but

self-stated that he jumped over the railing behind the accused. This

witness categorically stated that they did not call any person from the

locality.

7. PW3 Constable Satpal deposed that he alongwith HC Lal

Singh (PW7) had produced the accused before SDM, Shimla, who sent

the accused on judicial remand from 4.5.2001 to 8.5.2001. This

witness deposed that he was deputed to take the accused to Sub-Jail

Kaithu alongwith Constable Naresh Kumar (PW2) and when they

reached ahead of Victory Tunnel, the accused pushed Constable

Naresh Kumar (PW2) and jumped over the railing. He deposed that

Constable Naresh Kumar also jumped over the railing to apprehend

.

the accused. This witness deposed that Constable Naresh Kumar

caught the accused and during the scuffle, he and the accused also

sustained injuries. In his cross-examination, this witness stated that

accused was arrested on 3.5.2001, during night hours from the bus-

stand and thereafter, was produced before the SDM, Shimla, at about

5:30 pm. He admitted that he along with HC Lal Singh (PW7)

produced the accsued before SDM, Shimla, at about 5:30pm and

Constable Naresh Kumar was not with them when they procured the

judicial remand of the accused. He further admitted that there was no

rush at the spot of the occurrence as there was no vehicle moving on

the road. This witness also admitted that there is a market and a

locality where the alleged incident took place.

8. If the statements made by both these witnesses are read

in conjunction juxtaposing each other, there are material

contradictions and inconsistencies because Constable Naresh Kumar

(PW2) claimed that he along with Constable Satpal (PW3) produced the

accused before the SDM, Shimla, whereas Constable Satpal (PW3)

categorically stated that he produced the accused alongwith HC Lal

Singh (PW7) before the SDM. Apart from above, Constable Naresh

Kumar (PW2) deposed that he was deputed for the aforesaid purpose

at 7:30pm, whereas as per statement of Constable Satpal (PW3), they

produced the accused before the SDM, Shimla, at 5:30 pm and took

the judicial remand of the accused at about 5:30pm. If it is so, it is

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not understood that why it took more than two hours for the police

officials to bring the accused from SDM court to Victory Tunnel, which

is hardly at the distance of half kilometer. Constable Satpal (PW3)

also admitted that there was rush on the spot of occurrence and there

was no vehicle moving on the road.

9. PW7 HC Lal Singh while proving on record Jail Warrant

(Ext.P2) deposed that he after giving food to the accused, deputed

Constable Naresh Kumar (PW2) and Constable Satpal (PW3) to take

the accused to Sub-Jail Kaithu and thereafter, he came to the know

that the accused had escaped from the custody of the aforesaid

officials. In his cross-examination, this witness (PW7) deposed that

accused was arrested on 3.5.2001 and was produced before the SDM,

Shimla at 4:30pm by him and Constable Satpal (PW3), whereafter they

took the judicial custody of the accused at 5:00pm. He admitted that

Constable Naresh Kumar (PW2) was not with them when the accused

was produced before the SDM, Shimla, for his remand purpose. PW7

categorically deposed that he had deputed PW2 and PW3 to take the

accused to Sub-Jail Kaithu. If the statements of aforesaid witnesses

are read in conjunction, it cannot be said that Constable Naresh

Kumar was present on the spot while accused was being produced

before the SDM, Shimla. PW7, in his cross-examination, deposed that

accused was arrested on 3.5.2001 and was produced before the SDM

at 4:30pm by him and Constable Satpal (PW3), which version of him is

.

completely contrary to the version put forth by Constable Satpal

(PW3), who deposed that accused was produced before the SDM,

Shimla, at 5:30pm.

10. PW8, I.O. HC Sahib Singh proved on record jacket of the

accused Ext.PW1/B, which was taken into possession by the police.

During his cross-examination, this witness deposed that C. Naresh

Kumar (PW2) and HC Lal Singh (PW7) produced the accused before

the SDM Shimla, which statement is contrary to the statement made

by Mr. Lal Singh (PW7) and Constable Satpal (PW3), who deposed that

they both had produced the accused before the SDM, Shimla.

11. Though prosecution also examined PW1 Sher Singh, PW4

HC Jai Singh, PW5 SI Ramesh Sharma, PW9 C. Hem Raj and PW10 C.

Nanak Chand, but their testimony may not be much relevant for

determining the guilt, if any, of the accused, rather in that regard,

reliance is to be placed upon the statements made by aforesaid

prosecution witnesses. PW2 C. Naresh, PW3 C. Satpal, PW7 HC Lal

Singh and PW8 HC Sahib Singh nowhere supported the case of the

prosecution. Testimony of the aforesaid witnesses fail to prove the

guilt of the accused beyond reasonable doubt. PW8 HC Sahib Singh

i.e. I.O. of the case, deposed that C. Naresh and H.C. Lal Singh

produced the accused before the SDM Office for remand purpose,

however other witnesses have stated that C. Naresh was not with HC

.

Lal Singh when the accused was produced before the SDM, Shimla.

12. Leaving everything aside, there is no explanation that

when spot of occurrence is/was a crowded place, why no independent

witness ever came to be associated. In order to bring the guilt of the

accused under Section 224 of the IPC, it was required to be proved

that accused was detained in a custody, which was lawful and he

escaped from that custody, but in the case at hand, prosecution

miserably failed to establish beyond reasonable doubt that accused

was in the custody of C. Naresh (PW2), C. Satpal (PW3) and HC Lal

Singh (PW7).

13. Having carefully perused the evidence available on record,

this Court is persuaded to agree with the contention of learned

counsel representing the respondent-accused that since there are

material contradictions in the statements made by prosecution

witnesses, learned court below rightly did not place reliance upon

same. Reliance is placed on Judgment passed by the Hon'ble Apex

Court in C. Magesh and Ors. v. State of Karnataka (2010) 5 SCC

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 emphasise, 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 Suraj Singh v. State of U.P., 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 situations 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 consistency in evidence amongst all the witnesses."

14. Consequently, in view of the detailed discussion made

herein above as well as law laid down by the Hon'ble Apex Court, this

Court sees no reason to differ with the well reasoned judgment passed

by the learned Court below, which otherwise appears to be based upon

the proper appreciation of evidence adduced on record and the same is

accordingly upheld. Accordingly, the appeal is dismissed being devoid

of any merits.

    November 15, 2022                                     (Sandeep Sharma),
    manjit                                                     Judge