State of Himachal Pradesh vs Ramesh Chand

Chander Bhusan Barowalia, J.

The present appeal is maintained by the appellant-State of Himachal Pradesh against the judgment of acquittal of accused in a case, under Sections

341, 355, 323 and 506 of the Indian Penal Code, passed by the learned Additional Chief Judicial Magistrate, Sarkaghat, District Mandi, (H.P) dated

8.9.2008, in Police Challan No.69-II/2005.

Briefly stating facts giving rise to the present appeal are that on 15.3.2005, complainant-Prem Singh (PW-1) had gone to the house of Ashwani

Kumar, around 10:00 AM, at village Bassi Satmala. Near the house of Ashwani Kumar, there is a shop of Roshan Lal (PW-2). Thereafter, the

complainant (PW-1) went to the shop of Roshan Lal, where he was talking with him. In the meantime, accused came there and threatened the

complainant to kill him. Accused gave four slaps to the complainant (PW-1) and threw him on the earth and also gave kicks blows to him. Ashwani

Kumar and Roshan Lal (PW-2) rescued the complainant from the clutches of accused. During the course of investigation, statement of witnesses

recorded and site plan was prepared. Thereafter, codal formalities were completed and challan was presented in the Court.

The prosecution, in order to prove its case, examined as many as three witnesses. Statement of accused was recorded, under Section 313 of the

Code of Criminal Procedure, wherein he has denied the prosecution case and claimed innocence. No defence evidence was led by the accused.

Learned Additional Advocate General appearing on behalf of the appellant has argued that the judgment of acquittal passed by the learned Court

below is without appreciating the evidence correctly. He has argued that the learned Court below has failed to take into consideration the fact that the

prosecution has proved the guilt of the accused beyond the shadow of reasonable doubt.

On the other hand, learned counsel appearing on behalf of the accused has argued that the prosecution has failed to prove the guilt of the accused

beyond the shadow of reasonable doubt. He has argued that no one from the locality was joined as a witness, which shows that the case prepared by

the prosecution is false. He has further argued that the delay in lodging of FIR itself shows that nothing has happened on the spot. He has argued that

the prosecution has failed to prove the guilt of the accused beyond the shadow of reasonable doubt, the case of the prosecution was without any basis

and the findings recorded by the learned Court below are as per law.

To appreciate the arguments of learned Additional Advocate General and learned counsel for the accused, this Court has gone through the record

in detail and minutely scrutinized the statements of the witnesses.

In order to prove its case, the prosecution has examined PW-1, Prem Singh, he has deposed that the occurrence took place on 15.3.2005, but the

application was given by him to the Police on 17.3.2005. He has further deposed that Ashwani Kumar and Roshan Lal (PW-2) were present at the

spot, but said Ashwani Kumar, has not been examined by the prosecution. Roshan Lal-PW-2 has stated that accused had thrown the complainant-

Prem Singh (PW-1) on the earth and gave kicks blows to him. He has deposed that there was exchange of words going on between the parties. He

has given different version by saying that accused caught hold the complainant-Prem Singh from his arms and took him on the road. He has simply

deposed that he tried to rescue the complainant from the accused, which fact, is contrary to the facts, as mentioned in the FIR. In his cross-

examination, he has stated that no one was present at the spot, whereas in application Ex.PW1/A, it is mentioned that one Ashwani Kumar had also

rescued the complainant-Prem Singh (PW-1) from the clutches of accused. He has also stated that accused had threatened the complainant to do

away with his life. PW-3, Inspector Hari Ram-Investigating Officer, who has deposed that an application was given by the President, Prem Singh, on

the basis of which, FIR, Ex.PW3/A was registered. He has admitted that he had received the application of the complainant (PW-1) in Police Station

on 17.3.2005.

At the very outset, in the present case, there is no medical of the injured meaning thereby that the prosecution has failed to prove the guilt of the

accused by leading cogent and convincing evidence that any injury was received by the injured. At the same point of time, non-examination of the

independent witness, who as per the prosecution, rescued the complainant (PW-1) has not been examined. In these circumstances, the prosecution

evidence is analysed that as per the complainant, he was present in the shop of Roshan Lal (PW-2) at Satmala. Accused came there and wrongfully

restrained the complainant from going forward and gave kicks blows to him. Accused also assaulted the complainant with intention to dishonour him

and threatened him to do away with his life. All these facts coupled with the fact shows that there is delay of two days in lodging of FIR and there is

also nomedical evidence, which shows that the prosecution has failed to prove the guilt of the accused beyond the shadow of reasonable doubt.

It has been held in K. Prakashan vs. P.K. Surenderan (2008) 1 SCC 258, that when two views are possible, appellate Court should not reverse the

judgment of acquittal merely because the other view was possible. When judgment of trial Court was neither perverse, nor suffered from any legal

infirmity or non consideration/misappreciation of evidence on record, reversal thereof by High Court was not justified.

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.

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.â€​

The net result of the above discussion is that the prosecution has failed to prove the guilt of the accused conclusively and beyond reasonable doubt.

There is no illegality and infirmity in the findings, so recorded by the learned trial Court.

Accordingly, in view of the observations and analysis, made hereinabove, there is no merit in the appeal and the same is dismissed. Record of the

learned trial Court be sent back forthwith.