CR.A/238/2005 on 29 December 2012

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Appeal No. 238 of 2005.

Date of decision: 29.12.2011.

State of Himachal Pradesh

….. Appellant.

Vs. Parkash Chand s/o Sh. Shiv Ram r/o village Gatheh Pargana Chadra, Police Station Theog, Distt. Shimla.

…. Respondent.

Cr.Appeal u/s 378 of the Code of Criminal Procedure

Coram

The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge.

Whether approved for reporting?1 No

For the appellant : Mr. R. K. Sharma, Sr. Addl.A. G.

For the respondent : Mr. G. D. Verma, Sr. Advocate with Mr. B. C. Verma, Advocate.

Justice Sanjay Karol J. (Oral.

For an offence, which is alleged to have been committed on 8.4.2001, accused was put to trial. In terms of judgment dated 11.2.2005 passed by learned Addl. Sessions Judge, Fast Track Court, Shimla, in Sessions Trial No. 39-S/7 of 2004/2002 titled as State of H.P. vs. Parkash Chand, accused stands acquitted of the charged offence.

2. It is the case of the prosecution that on 9.4.2001, Sh. Bhajna Nand Sharma came to Police Station, Theog along with S/Sh. Shiv Lal, Mahi Dev and Roshan Lal and lodged a complaint (Ext.PA) against the accused, on the basis of which, F.I.R. No.

Whether the reporters of the local papers may be allowed to see the Judgment?

41/2001(Ext.PG) under sections 334, 336, 504 & 506 IPC was registered at Police Station, Theog. SI Anant Ram (PW-7) commenced investigation. As per the complaint, S/Sh. Bhajna Nand (PW-1) and Munshi Ram (PW-2) had gone to the temple at Shalli Tibba. On their way back, when they reached a place known as ‘Gadahkufar’, they saw accused Parkash Chand running behind them along with one Mangat Ram. Accused Parkash Chand, who was seen carrying a brick and a danda in his hands, threw the brick which hit PW-2 on the head as a result of which he sustained injuries. Sh. Munshi Ram was got medially examined through Dr. Ashok Chauhan (PW-5), Medical Officer, Civil Hospital, Theog, who issued MLC (Ext.PE). Police recovered brick (Ext.P-2) from the spot in the presence of PW-1. With the completion of investigation challan was presented in the Court for trial.

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

4. In order to prove its case prosecution examined as many as 7 witnesses and statement of the accused under Section 313 Cr.PC was also recorded. Accused did not lead any evidence in defence.

5. The Court below acquitted the accused of the charged offence, inter alia on the ground that testimonies of material witnesses being contradictory in nature, do not inspire confidence.

6. Having minutely gone through the same, we find that there are material contradictions with regard to the actual incident and missing gaps relating to subsequent developments.

7. Sh. Munshi Ram (PW-2) has made the following statement in his examination-in-chief: “On 8.4.2001 I had gone to a temple at Shalli Tibba alongwith my uncle Bhajna Nand (PW-1). While on way back to our houses, we reached Gadahkufri during evening. I do not remember the time when we reached there. Accused Parkash Chand was also present at Gadahkufri where there were many other persons. After having stayed there for some time we started for our houses. When we had reached in the mid way, accused Parkash alongwith Mangat Ram came running. He (accused) asked Bhajna Nand to go to one side as he was to beat me for the reason that I had lodged an F.I.R. against him. When Bhajna Nand tried to pacify him, he remained cool for some time and at that time he was also having a danda. In fact, he had pretended to remain cool but thereafter he threw a piece of brick on me which hit me on the head with the result, I put my both hands on the head and sat down. Thereafter, what happened I did not know. MLC mark ‘Y’ bears my signatures. Brick Ext.P-2 is the same with which the accused had hit me.”

However in cross-examination, he has totally contradicted himself. We find that this witness has not deposed truthfully. Also there is incoherency in his version which, in any event, is full of material improvements and contradictions. He admits that his statement made to the police was correct and one made in the Court is incorrect. He contradicts his earlier version by stating that after the incident he held his head with his hands and sat down on the path. He states that blood oozed from the injury but contradicts by stating that he had not seen the blood on regaining consciousness. He was confronted with his earlier statement recorded under section 161 Cr.PC (Mark ‘Z’) to contradict his version in Court to the effect that Parkash Chand and Mangat Ram were seen running after him. There are also several other improvements in his statement. Strangely he admits that he had informed the police that his mental condition was not all right, yet police asked him to state whatever he remembered. This totally rendered him to be a witness unworthy of credence and credibility and shakes the foundation of the prosecution case. Who took him away from the spot is not disclosed by any one.

8. Now Sh. Bhajna Nand (PW-1) has a different version to state. His statement, to our mind, does not inspire confidence. In fact he does not state the whole truth. Strangely he states that immediately after the incident he left the injured at the spot and came alone to his residence, but before he could reach PW-2 had already reached there. He found PW-2 to be profusely bleeding. Now why would PW-1 leave his nephew alone at the spot has not been explained. It is a very strange behaviour of an uncle to do so. He further states that after F.I.R. was recorded he took the police to the spot and got the brick (Ext.P-2) recovered from there. Now this version of his stands materially contradicted by the Investigating Officer, i.e. Sh. Anant Ram

(PW-7), who categorically states that it was PW-1 who had produced the brick in the Police Station. This inherent contradiction totally demolishes the prosecution case with regard to recovery of weapon of offence, thus casting a serious doubt about the prosecution story. Significantly prosecution has not examined any of the residents of the area where the alleged incident took place. It is the case of the prosecution, as admitted by PW-1 himself, that there were houses of several persons near the place of incident.

9. Sh. Mangat Ram (PW-6) has been examined in Court by the prosecution, but then he was declared hostile and inspite of extensive cross-examination by the Public Prosecutor nothing fruitful could come out in his testimony, favouring the prosecution.

10. There is yet another aspect of the matter. Sh. Ashok Chauhan (PW-5) had referred PW-2 to IGMC hospital at Shimla for medical check-up in the Neuro Surgery department. The same was not done. Why so, has not been explained. According to PW-1, he saw PW-2 bleeding profusely, yet this fact was found not to be true during investigation, as no blood stained clothes were recovered by the police.

11. Thus it cannot be said that prosecution has been able to prove its case, beyond reasonable doubt, by leading clear, cogent and convincing evidence to establish the guilt of the accused to the charged offence.

12. Accused has had the advantage of having been acquitted by the Court below. Keeping in view the principles laid down in Mohammed Ankoos and others vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, 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.

(Justice R. B. Misra ) Judge

(Justice Sanjay Karol) Judge December 29, 2011 (rana)