State of H.P. vs Sher Singh alias Fala and Others

Justice Sanjay Karol, J.—It is the case of the prosecution that on 12.6.1998, Sher Singh (accused No. 1), Sanjiv Kumar (accused No. 2), Baldev Singh (accused No. 3), Bali Ram (accused No. 4), Surender Kumar (accused No. 5) and Karam Singh (accused No. 6) came to the shop of complainant Inderjit Singh (PW-1) at Nalian, abutting National Highway No. 21. All the accused persons, except accused Karam Singh, starting taking liquor outside the shop, which was objected to by him. Thereafter, accused sat outside the adjoining shop where Dhaba was being run and food was being served. There also PW-1 objected to the accused taking liquor. While PW-1 was also taking food at the Dhaba, accused Sher Singh came and stabbed him 10-12 times with a knife. Accused persons immediately ran away from the spot. PW-1 cried for help and Rajinder Kumar (PW-2) arrived at the spot. PW-1 was taken to Primary Health Centre at Swarghat in a truck by (PW-2), Karam Chand, Rajiv and two other teachers. At Swarghat statement of PW-1, u/s 154 of Cr.P.C. (Ex. PW-1/A) was recorded, on the basis of which FIR No. 94 of 1998, (Ex. PW-11/A) was registered on 13.6.1998 under Sections 147, 307 read with Section 149 of the Indian Penal Code at Police Station, Sadar, Bilaspur, H.P. Complainant (PW-1) was taken to the hospital and examined by Dr. Vinod Bhardwaj (PW-6), Medical Officer, who issued MLC (Ex. PW-6/A) and gave his opinion (Ex. PW-6/B), which revealed that complainant suffered injuries on his vital parts, which could have been fatal.

Investigation was conducted by ASI Tej Raj, SHO Surinder Singh (PW-11) and other police officials. Accused Sher Singh is stated to have made a disclosure statement in the presence of Amar Singh (PW-4) and knife (Ex. P-3) was also got recovered by him in presence of an independent witness Smt. Amarjit Kaur (PW-10). Police recorded statements of material witnesses including that of Sh. Pritam Singh (PW-5), father of PW-1, Sh. Rajinder Kumar (PW-2) and Sh. Rajiv Kumar (PW-3), who were allegedly present on the spot. With the completion of investigation, challan was presented in the Court for trial.

Accused were charged for having committed offences punishable under Sections 147, 307 read with Section 149 of the Indian Penal Code, to which they did not plead guilty and claimed trial.

In order to prove its case, prosecution examined as many as eleven witnesses and statements of the accused u/s 313 Cr.P.C. were also recorded, in which they took up defence of innocence.

Court below acquitted the accused of the charged offences, hence the present appeal.

The fact that the complainant Inderjit (PW-1) sustained injuries on his body stands sufficiently proved through the evidence of Dr. Vinod Bhardwaj (PW-6), Medical Officer, Civil Dispensary, Raura Sector, Bilaspur, H.P. MLC (Ex. PW-6/A) and opinion (Ex. PW-6/B) in that regard is quite clear.

Hence this fact alone would not be sufficient to presume the guilt of the accused persons. Suspicion is not a substitute to proof. Prosecution has to prove that accused had formed an unlawful assembly, used force for creating violence and with an intention or knowledge committed an act by giving blows with a knife to PW-1 and thereby attempted to cause his death. Prosecution has to prove these facts beyond reasonable doubt, by leading clear, cogent, convincing, reliable and trustworthy evidence.

Now in the instant case out of eleven witnesses, unfortunately Rajiv Kumar (PW-2), Amar Singh (PW-4), Smt. Amarjit Kaur (PW-10) have not supported prosecution case at all. They are independent witnesses. According to the police, these persons had either witnessed (i) occurrence or offence (ii) seen the accused flew away from the spot; witnessed the accused make a disclosure statement or witnessed recovery of weapon of offence. In spite of their extensive cross-examination by learned Public Prosecutor, these witnesses did not support the prosecution case at all. Their testimonies do not reveal anything favouring the prosecution. There is no reason to disbelieve their testimonies.

To us, foundation of prosecution story appears to be shaky and doubtful. We say so for the reason that in this case no test identification parade was ever carried out by the police. Police officials, namely, Birbal Ram (PW-7), Ramesh Chand (PW-8), Suresh Kumar (PW-9) and Surinder Singh (PW-11) do not state anything about this fact. In the statement (Ex. PW-1/A) of PW-1, recorded by the police u/s 154 of the Code of Criminal Procedure, on the very same day of the incident, i.e. 12.6.1998, complainant specifically got recorded the name of Sher Singh. He referred to presence of only 2-3 other persons, who were accompanying Sher Singh at the relevant time. Now in Court, no doubt in his examination-in-chief PW-1, supports the prosecution version, but in cross-examination, he categorically admits that prior to 12.6.1998 he had only known accused Baldev and did not know any one of the other accused persons. He categorically states that he came to know the names of such other persons only after a period of one month of occurrence of the incident. He states that it was PW-3, who had disclosed the names of such persons to him, which version is not supported by PW-3. Assuming hypothetically that PW-3 has made a false statement in Court, but then why is it that complainant did not specifically name Baldev Singh on which date he was fully aware about his identity. Also how did he get to know about Sher Singh who was specifically mentioned by him. Further according to PW-1, at the time of incident three other shops, adjoining his shop were open. He admits that owners and workers of these shops were present at the relevant time. Yet none of them have been associated by the police or examined in Court by the prosecution. Why so has not been explained. Witness further states that blood was lying on the cot outside his shop. Police has not collected this piece of evidence. Significantly in Court he further states that in all six persons were involved in the alleged crime, but in his statement (PW-1) mentions name of only Sher Singh and 2-3 other persons. Hence we find contradictions to be material, testimonies of prosecution witnesses to be shaky, untrustworthy. It is unsafe to rely upon such testimonies. It cannot be said that prosecution has been able to link the accused to the alleged crime.

The accused have had the advantage of having been acquitted by the Court below. Keeping in view the ratio laid down in Md. Ankoos and Others Vs. The Public Prosecutor, High Court of A.P., it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the accused persons 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 persons are discharged.

We record our appreciation for the assistance rendered by Ms. Kotwal, Advocate.