State of Himachal Pradesh vs Dorggal

Sanjay Karol, J.—Assailing the judgment dated 14.03.2014, passed by Additional Sessions Judge (II), Kangra at Dharamshala, District Kangra, H.P., in RBT S.C. No. 13-D/VII/2013, titled as State Versus Dorggal, whereby accused stands 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 25.11.2012, Rajender Kumar (P.W. 7) a police Constable, who was on leave, had gone to attend the marriage of his cousin at Mecleodganj. On his way back, when he reached the Tibetan security office, situate on Bagsu road, he saw accused Dorggal hitting the doors and windows of the security office. When questioned, without any provocation, accused gave a blow with a knife, as a result of which, he sustained injuries on his body. Thereafter, accused immediately fled away from the spot. Finding Rajender Kumar to be bleeding profusely, passersby Ashok Kumar and Surender Kumar (not examined) took him to the Zonal Hospital, Dharamshala. On the basis of the statement of Rajender Kumar (Ex. P.W. 7/A), FIR No. 101 of 2012, dated 25.11.2012 (Ex. P.W. 9/A), under the provisions of Sections 324 and 309 of the Indian Penal Code, stood registered at Police Station, Mecleodganj, District Kangra, H.P. Ashwani Kumar (P.W. 11) conducted the investigation. MLC (Ex. P.W. 5/E) was taken on record as also clothes belonging to the victim were taken into possession. The accused was arrested and his blood stained clothes also taken into possession vide recovery memo (Ex. P.W. 4/A). Clothes belonging to the accused and the victim were sent for scientific analysis and report whereof, taken on record. Presence of the accused on the spot was also noticed by Mohinder Kapoor (P.W. 1), Lucky Kumar (P.W. 2), Rachhpal Singh (P.W. 3) and Vinod Kumar (P.W. 13). MLC, so issued by Dr. Sanjeev Kumar (P.W. 14), was taken on record by the police. Scientific evidence established the prosecution case. With the completion of investigation, which prima facie revealed complicity of the accused in the alleged crime, Challan was presented in the Court for trial.

Accused was charged for having committed an offence punishable under the provisions of Section 307 of IPC, to which he did not plead guilty and claimed trial.

In order to establish its case, in all, prosecution examined as many as fourteen witnesses. Statement of the accused under Section 313 of the Code of Criminal Procedure was also recorded, in which he took the following defence:-

"I am innocent and has falsely implicated in present case. Sh. Rajender Kumar beat me in the stairs of Security Office and thereafter stabbed knife five six times and to save his skin. He colluded with the police officials and registered a false case against me and also a false case u/s. 309 IPC which has been decided in my favour copy of which is Ex. D. I have committed no offence."

One witness is examined by the accused in his defence.

Trial Court, after appreciating the testimony of the prosecution witnesses acquitted the accused. Hence the present appeal.

It is further the case of the prosecution, as has emerged on record, that after assaulting the complainant, accused tried to commit suicide by stabbing himself, using the very same weapon i.e. knife. It is a matter of record that in connection with an offence punishable under the provisions of Section 309 of IPC, in relation to which a separate challan was presented, accused stands acquitted by the competent Court. Through the testimony of Yogesh Thakur (D.W. 1), accused has placed on record and proved testimonies of Lucky Kumar (P.W. 2), Rachhpal Singh (P.W. 3), Dr. Shalini Gautam (P.W. 6), ASI Nirmal Singh (P.W. 8) and Kulwant Singh (P.W. 10), so recorded in the said case and certified copies being Ex. D.W. 1/A to Ex. DW/1/E.

Evidently record reveals that Rachhpal Singh (P.W. 3) and Ashwani Kumar (P.W. 11) were common witnesses in both the cases. Testimonies of these witnesses were found not to be inspiring in confidence while acquitting the accused in relation to the offence punishable under the provisions of Section 309 of IPC. Undisputedly no appeal against the judgment of acquittal stands filed by the State.

We have heard Mr. J.S. Guleria, learned Assistant Advocate General, on behalf of the State and 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 the essential ingredients so as to constitute the charged offence.

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 - Sheo Swarup and Others vs. The King-EmperorAIR 1934 227 (Privy Council) at pp. 229, 230(A), 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."

That the accused was present on the spot is not disputed, as is evident from his statement under Section 313 Cr.P.C. The question which needs to be considered is as to whether, in the instant case, prosecution has been able to establish the charge, beyond reasonable doubt or not. Having heard learned Assistant Advocate General as also perused the record, we are of the considered view it not to be so.

That the victim sustained injuries through a knife blow cannot be disputed in view of the testimony of Dr. Sanjeev Kumar (P.W. 14) and the treatment summary (Ex. P.W. 5/F), so proved on record.

We find that in the instant case, Mohinder Kapoor (P.W. 1), Lucky Kumar (P.W. 2) and Rachhpal Singh (P.W. 3) are the eye witnesses, whereas, Rajender Kumar (P.W. 7) is the victim.

Dr. Sanjeev Kumar (P.W. 14) admits that he also examined the victim, who was brought by the police. Apparently accused had also sustained injuries for which treatment was given.

We find version of Mohinder Kapoor (P.W. 1) to be self contradictory. Through the examination-in-chief part of his testimony, he wants the Court to believe that on 25.11.2012, he reached the spot at 4.30 PM and witnessed the occurrence of the incident. But then, in the very next breath, he states in the cross-examination part of his testimony that he reached the spot five minutes after the occurrence of the incident and never witnessed the accused give blow to the victim.

Version of Lucky Kumar (P.W. 2) to the effect that only one blow was given by the accused to the victim is rendered uninspiring in confidence, in view of the medical evidence on record which records multiple blows.

Rachhpal Singh (P.W. 3) wants the Court to believe that while on traffic duty, he witnessed the occurrence of the incident, but then this version of his is rendered doubtful, in view of his admission, in the cross-examination part of his testimony about the place where he was standing to be busy and at a distance of 50 meters. His version of having reached the spot within 10 seconds is uninspiring in confidence, as the distance of 50 meters could not have been covered within that much of time. Moreover, he does not remember the time when knife was handed over to the police. He is quite evasive in his version. Most importantly, witness admits that the Welfare Office is not visible from Bhagsu road, hence he could not have seen the occurrence of the incident.

Version of Vinod Kumar (P.W. 13) that he also witnessed the occurrence of the incident is rendered doubtful, in view of the fact that his statement was recorded by the police after a gap of seven days. Also the witness admits not to have taken the accused to the hospital. Why would he come forward to render help only to a police constable (victim) and not an accused? remains unexplained, for it is not his case that accused had turned violent or that witness was suffering any threat from him.

Coming to the testimony of victim Rajender Kumar (P.W. 7), we find him to have deposed the prosecution case, in the manner in which they want the Court to believe. He does state that on 25.11.2012, while he was returning from Mecleodganj, he heard some noise near the Tibetan Security Office on the Bhagsu road. Accused was hitting the doors and the windows of the office. When questioned, accused gave him a blow with a knife. Thereafter accused inflicted injuries on himself. This was with the very same knife. The witness was taken to the hospital by Ashok Kumar and Surender Kumar, where his statement under Section 154 Cr.P.C. was recorded. From his testimony, we find that accused was not known to the victim from before. Also there was no proven animosity between them. Why would an accused inflict blows to the injured, or for that matter himself, remains unexplained? Victim was not in uniform. The question which arises for consideration is who took the accused to the hospital; who disclosed his identity; and on what basis his name stood recorded in the FIR. All these questions remain unexplained on record rendering the genesis of the prosecution story to be doubtful.

From the conjoint reading of the testimonies of these witnesses, it is evident that not only local residents, but also members of the Tibetan security were available on the spot, yet police did not bother to make inquiries from anyone of such persons.

Even by way of corroborative evidence, we do not find the version to be inspiring in confidence. Spot map (Ex. P.W. 11/B) prepared by the Investigating Officer (P.W. 11) appears to have been prepared at the Police Station as it is not reflective of the physical characteristics of the spot. Staircase next to the security office, as is so deposed by the spot witnesses, is not mentioned in the spot map.

To our mind, prosecution has not been able to establish, beyond reasonable doubt, by leading clear, cogent, convincing and reliable piece of evidence so as to prove that accused inflicted blow with knife which is a sharp edged weapon in the stomach of victim Rajender Kumar with such intention/knowledge and under such circumstances by that act he would have caused the death of victim.

The Court below, in our considered view, has correctly and completely appreciated the evidence so placed on record by the prosecution. It cannot be said that the judgment of trial Court is perverse, illegal, erroneous or based on incorrect and incomplete appreciation of material on record, resulting into miscarriage of justice.

The accused has 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 Sheo Swarup and Others vs. The King-EmperorAIR 1934 227 (Privy Council) , since it cannot be said that trial Court 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, being devoid of merit, is dismissed, so also the pending application(s), if any. Bail bonds furnished by the accused are discharged. Record of the trial Court be immediately sent back.