State of Himachal Pradesh vs Dinesh Kumar

Sanjay Karol, J.—Assailing the judgment dated 30.8.2008, passed by learned Sessions Judge, Chamba Division Chamba, H.P., in Sessions Trial No. 57/2007, titled as State of Himachal Pradesh v. Dinesh Kumar @ Guddu & another, whereby respondents-accused stand acquitted, State has filed the present appeal under the provisions of Section 378 of the Code of Criminal Procedure, 1973.

It is the case of prosecution that on 25.5.2006 complainant Sh. Bishan Singh (PW-1) who was working as Senior Foreman, National Hydroelectric Power Corporation, Chamera-III Project, Dharbala was assaulted by the accused persons. He was given blow with a stone and a belcha - "pick up axe" (as recorded in his testimony). As a result of beatings so given, he sustained injuries and lost his tooth. The matter was reported to the police on the basis of which F.I.R. No. 27/2006, dated 25.5.2006 (Ext. PW-1/A) was registered at Police Station Bharmour, Distt. Chamba, under the provisions of Sections 353, 332 both read with Section 34 of the Indian Penal Code, against the accused. Complainant was got medically examined from Dr. Kuldeep Singh (PW-2) who issued MLC (Ext. PW-2/B). ASI-Anup Kumar (PW-6) conducted the investigation and with the completion of same, which prima facie revealed complicity of the accused in the alleged crime, challan was presented in the Court for trial.

Accused were charged for having committed offences punishable under the provisions of Sections 353 and 333 both read with Section 34 of the Indian Penal Code, to which they did not plead guilty and claimed trial.

In order to prove its case, in all, prosecution examined seven witnesses and statements of the accused under Section 313 Cr.P.C. were also recorded, in which they took plea of innocence and false implication. No evidence in defence was led by the accused.

Based on the testimonies of witnesses and the material on record, trial Court acquitted both the accused of the charged offences. Hence, the present appeal by the State.

We have heard Mr. B.S. Parmar, learned Addl. Advocate General assisted by Mr. Vikram Thakur, learned Dy. A.G and Mr. J.S. Guleria, learned Asstt. A.G., on behalf of the State as also Mr. Rakesh K. Dogra, learned Advocate, on behalf of the accused. We have also minutely examined the testimonies of the witnesses and other documentary evidence so placed on record by the prosecution. Having done so, we are of the considered view that no case for interference is made out at all. We find that the judgment rendered by the trial Court is based on complete, correct and proper appreciation of evidence (documentary and ocular) so placed on record. There is neither any illegality/infirmity nor any perversity with the same, resulting into miscarriage of justice.

It is a settled principle of law that acquittal leads to presumption of innocence in favour of an accused. To dislodge the same, onus heavily lies upon the prosecution. Having considered the material on record, we are of the considered view that prosecution has failed to establish essential ingredients so required to constitute the charged offences.

In Prandas Vs. The State, , Constitution Bench of the apex Court, has held as under:

"(6) It must be observed at the very outset that we cannot support the view which has been expressed in several cases that the High Court has no power under S. 417, Criminal P.C., to reverse a judgment of acquittal, unless the judgment is perverse or the subordinate Court has in some way or other misdirected itself so as to produce a miscarriage of justice. In our opinion, the true position in regard to the jurisdiction of the High Court under S. 417, Criminal P.c. in an appeal from an order of acquittal has been stated in - AIR 1934 227 (Privy Council), in these words:

"Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognized in the administration of justice."

Dr. Kuleep Singh (PW-2) medically examined the complainant and found the following injuries:- "1. There was tenderness on the right side of the chest, inframammary. There was no cripitus. 2. There was dental injury: a, b and c. a):Right lower central incisor. Tooth was abulsed. b): Left lower central and lateral incisor-mobile 3rd degree. c): Mild laceration of lavial mucusa." The Doctor has not ruled out possibility of the injury being sustained on account of fall on a stony or hard surface.

Sh. Naveen Kumar (PW-7) simply states that he had not witnessed any fight. He saw accused Dinesh and Foreman Bishan Singh quarrelling with each other. Hence he separated them. Nothing more than that. What transpired thereafter is not stated.

Complainant Bishan Singh (PW-1) has also not fully supported the prosecution. He was declared hostile and cross examined by the Public Prosecutor. His version in court that accused gave him beatings with belcha or stone is a mere exaggeration for he was confronted with the F.I.R. (Ext. PW-1/A) wherein such fact was not so recorded. He denies having lodged the F.I.R. He admits that ten to twelve labourers were present on the spot yet none came forward to support his version. Also police did not associate any one of them present on the spot. Why so? has not been explained. In fact, he goes to contradict his version by stating that "The other accused Ved Parkash was in a drunken condition. He had not done anything to me". His version that he sustained injuries when accused threw stone at him is also an improvement, for in the F.I.R. he simply mentions that he was beaten by the accused with fist and kick blows. Testimony of this witness thus is unbelievable and uninspiring in confidence. In fact it falsifies the prosecution case of both the accused having given beatings to the complainant. Thus doubt cannot be said to have been cleared. By way of link evidence there is nothing on record to establish complicity of the accused in the alleged crime for no blood was found on the stone (Ext. P-2).

Having perused the testimony of prosecution witnesses on record, it cannot be said that prosecution has been able to prove its case, beyond reasonable doubt, to the effect that accused in furtherance of their common intention, voluntarily assaulted and used criminal force with intent to prevent or deter the complainant, a public servant, from discharging his duties and also caused grievous hurt to him, by leading clear, cogent, convincing and reliable material on record. It cannot be said that findings returned by the Court below are not borne out from record, are perverse, illegal, erroneous or arisen out of incomplete appreciation of the prosecution evidence. There are improvements, which are major, embellishments and contradictions, rendering the testimonies of these witnesses to be shaky and unbelievable.

The accused have had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down by the Apex Court in Md. Ankoos and Others Vs. The Public Prosecutor, High Court of A.P., , since it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice, no interference is warranted in the instant case.

For all the aforesaid reasons, present appeal, devoid of merit, is dismissed, so also pending applications, if any. Bail bonds, if any, furnished by the accused are discharged. Records of the Court below be immediately sent back.