State of Himachal Pradesh vs Vishal

Sanjay Karol, J.—State has appealed against the judgment dated 26.2.2008 of the learned Sessions Judge, Bilaspur, Himachal Pradesh, passed in Sessions Trial No. 5 of 2005/04, titled as State of Himachal Pradesh v. Vishal alias Lovely, challenging the acquittal of respondent Vishal (hereinafter referred to as the accused), who stands charged for having committed an offence punishable under the provisions of Sections 307, 326, 324 and 323 of the Indian Penal Code.

It is the case of the prosecution that on 19.9.2003, at about 7 p.m., three boys, namely Rajinder (PW-4), Amar Singh (not examined) and one another person, asked victim Rakesh Kumar (PW-2) to call for Gian (not examined). Rakesh Kumar went to the house of Gian to call him. On his way, accused Vishal met him and without any provocation started beating him. He was given blows with fist and knife. Hearing cries of Rakesh Kumar, his relatives Nirmala Devi (PW-9), Hoshiar Singh (not examined), Kaku (not examined), Pooja (PW-14) and Khima Devi (PW-15) arrived on the spot, and also witnessed the incident. Soon thereafter, accused ran away from the spot and Rajinder Kumar (PW-4) alongwith other persons took Rakesh Kumar to the dispensary at Kandraur. Police was telephonically informed about the incident and HC Suresh Kumar (PW-10) registered report (Ex. PW-10/A). ASI Hari Ram (PW-13), learning that the injured was taken to the Zonal Hospital, Bilapur, went there and recorded his statement (Ex. PW-2/A), on the basis of which FIR No. 319/03, dated 19.9.2003 (Ex. PW13/A), under the provisions of Sections 307, 323 of the Indian Penal Code, was registered at Police Station, Sadar. Dr. Dharmendar Dogra (PW-1) medically examined Rakesh Kumar, issued MLC (Ex. PW-1/A) and opined some of the injuries so sustained by Rakesh Kumar to be grievous and dangerous to life. The injured was also referred for treatment to the PGI Hospital at Chandigarh. Police conducted investigation on the spot and took into possession blood stained leaves (Ex. P-2), sand (Ex. P-3) and stones (Ex. P-4), in the presence of Karan Singh (PW-3) and Bhag Singh. Accused was arrested and from his pocket, knife was recovered. Incriminating articles were sent for chemical examination to the Forensic Science Laboratory, Junga and reports (Ex. PX and PY) taken on record. 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 Sections 307, 326, 324 and 323 of the Indian Penal Code, to which he did not plead guilty and claimed trial.

In order to establish its case, prosecution examined as many as 16 witnesses and statement of the accused under the provisions of Section 313 of the Code of Criminal Procedure was also recorded, in which he pleaded innocence and false implication.

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

We have heard Mr. V.S. Chauhan, learned Additional Advocate General, on behalf of the State as also Mr. T.S. Chauhan, 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 offence.

In Prandas Vs. The State, AIR 1954 SC 36 , 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) , 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." "

From the testimony of Dr. Dharmender Dogra (PW-1), it is quite apparent that Rakesh Kumar sustained injuries, grievous and serious, which were caused with a blunt weapon. Significantly, there is no history of the incident recorded in the MLC, so issued by the doctor. Also, doctor was not informed about the assailant. The doctor admits that opinion with regard to injury being grievous is not based on any depth examination of the wound. With regard to certain other injuries, which were also grievous, his opinion is based on the report issued by the hospital at Chandigarh (PGI). Out of six injuries so sustained by the injured, five were as a result of sharp edged weapon, but then whether they were grievous or not, cannot be said. Be that as it may, we hasten to add, clarifying that this factor has not weighed with us while rendering our opinion.

What is crucial, in the instant case, is the testimony of the victim, who, according to us, has not fully supported the prosecution case. He was not declared hostile, but his testimony cannot be said to be inspiring in confidence, rendering the prosecution story to be absolutely truthful, or free from doubt. The manner of occurrence, which the prosecution wants the Court to believe, has not been so disclosed by him in the Court.

In Court, the victim admits that there is no prior animosity between the accused and him. He states that "it is correct that there was no reason for the accused to cause any attempt on my life". It is his version that while he was returning from the house of Gian Chand, accused objected to his looking towards his (accused''s) house. It appears that the accused objected to the same, which perhaps resulted into an altercation between the two. Now significantly, genesis of the prosecution story of the victim, on the asking of three persons, having gone to the house of Gian Chand, remains unestablished on record. Victim admits that "it is correct that my earlier statement that I delivered the message to Gian Chand is wrong". He clarifies that the message was given to his wife, who incidentally has not been examined in Court. In his previous statement, so recorded under the provisions of Section 154 of the Code of Criminal Procedure, he does not record the name of the persons on whose asking he had gone to call Gian Chand. In fact, there is no mention of three persons in his said statement or the purpose of calling Gian Chand. His version, so deposed in his examination-in-chief part of the testimony, that accused and his brother surrounded him, is mere exaggeration and improvement, for it is not so recorded in his previous statement. The brother, whose presence, he records, has not been arrayed as an accused. In fact, it is the case of the prosecution that accused Vishal was alone. Hence, improvements, exaggeration and embellishments are there. What totally knocks down the prosecution case is his further admission so made in the following terms: "When the Vishal gave me the first blow I became unconscious and fainted as such I cannot tell how other injuries were caused on my person. Again said I was surrounded by Vishal and he had caused the injuries. Remaining injuries were caused on my person by the accused but I do not know with which weapon he had caused the injuries. Police had not shown to me any weapon of offence till today." Now, if the victim had not seen the accused giving blow with a knife or that he had not seen the knife, then his testimony totally renders the prosecution case to be doubtful, more so in the light of other evidence on record.

We find that Kumari Puja (PW-14), Khima Devi PW-15), independent witnesses, have not supported the prosecution case at all. They were declared hostile and cross-examined by the Public Prosecutor. Despite extensive cross-examination, nothing fruitful could be elicited from their testimony. In view of the deposition of Rakesh Kumar, we do not find these witnesses to have falsely deposed in Court.

In fact there is a contrary version on record, which remains unrebutted. Rajinder Kumar (PW-4) states that brother of Vishal came and informed that "Rakesh had fallen on the way". It is not the case of the prosecution that Rajinder Kumar has deposed falsely in Court. It was he who took the victim to the Hospital. He would have been the first one to have disclosed about the incident to the relatives, doctor or the police. In fact, this witness goes on to clarify that even mother of Rakesh Kumar, who was weeping did not disclose the cause of injuries. He is not aware as to what transpired between Amar Singh and Rakesh Kumar.

Prosecution relies upon the testimony of another independent witness, Virender Singh (PW-8), who has also not supported the prosecution.

However, Nirmala Devi (PW-9) does state that the accused gave a blow with the knife to her son (victim). But then she does record presence of Puja on the spot, who contradicts such version and does not support the prosecution. The question, which needs to be considered, is as to whether this witness, has deposed truthfully in Court or not, and/or as to whether her testimony is inspiring in confidence or not. Close scrutiny of cross-examination part of her testimony only reveals her testimony not to be so. It is her case that after hearing cries, only she reached the spot. Significantly, she contradicts herself on this aspect. In Court, she states that she was standing on the second floor of her house, whereas in her previous statement she records that she was standing in the courtyard of her house. She has so deposed as she wants the Court to believe that from the second floor, the spot of crime was visible. The contradiction is not significant, but what is important is her testimony to the effect that Rakesh Kumar was lying injured on the path alongside the bushes, near the house of Nikki and Judhya. She is categorical that none witnessed the occurrence of the incident, except her. Now, this version of hers, which is contrary to the prosecution case, renders her statement to be uninspiring in confidence. She admits that her house is at a distance of 100 feet from the place of occurrence of the incident. Then how is it that she could hear the cries of her son and be the only one to reach the spot. The alleged incident took place in the month of September, at 7 p.m, when normally days are long and villagers are at home. Her version is contradicted by Rakesh Kumar, who categorically states that Hoshiar Singh, Kaku, Puja and his mother (Nirmala) were the ones to have reached the spot.

Hence, it cannot be said that prosecution has been able to prove its case, by leading clear, cogent, convincing and reliable piece of evidence so as to prove that the accused has committed the charged offences.

For all the aforesaid reasons, we find no reason to interfere with the judgment passed by the trial Court. The Court has fully appreciated the evidence so placed on record by the parties.

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 Md. Ankoos and Others Vs. The Public Prosecutor, High Court of A.P., AIR 2010 SC 566 : (2010) CLT 222 : (2010) CriLJ 861 : (2009) 14 JT 6 : (2009) 13 SCALE 584 : (2010) 1 SCC 94 : (2009) 15 SCR 616 : (2009) 10 UJ 4781 , 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 ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged.

Appeal stands disposed of, so also pending application(s), if any.