Dismissed

State v. Bhagmal

Himachal Pradesh HC3 Jul 2017CR.A/361/2006

Case brief

AI extract

What is this about?

In this criminal appeal, the State challenged an acquittal. The High Court upheld the trial court's decision of acquittal, finding that the prosecution failed to prove guilt beyond reasonable doubt due to lack of independent witnesses and failure to examine a Dental Surgeon to substantiate grievous injuries caused by dislocated teeth.

What did the court decide?

The criminal appeal was dismissed; the acquittal of the respondent was upheld.

State Vs Bhagmal — Cheating and Forgery | Himachal Pradesh HC (2017)

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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

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Cr. Appeal No. 361 of 2006 Reserved on: 19.06.2017 Decided on: 03.07.2017

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State of Himachal Pradesh

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…..Appellant Versus ……Respondent

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Bhagmal

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___________________________________________________ Coram_

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The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.

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1 Whether approved for reporting? Yes.

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____________________________________________________ For the appellant : Mr. Pushpinder Jaswal, Dy. AG with Mr. Rajat Chauhan, Law Officer. For the respondent : Mr. N.K. Thakur, Sr. Advocate with Mr. Divya Raj Singh, Advocate.

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Chander Bhusan Barowalia, Judge.

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The present criminal appeal, under Section 378

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of the Code of Criminal Procedure has been maintained by the appellant-State, against the judgment of acquittal, dated 12.01.2006, passed by the learned Additional Chief Judicial Magistrate, Sarkaghat, District Mandi, H.P., in Police challan No. 102-II/2001.

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The key facts, giving rise to the present appeal

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as per the prosecution story are that on 21.11.2000, at about

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1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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6.00 p.m., dog of the accused was wandering into the courtyard of the complainant, when it was objected by the complainant, the parties entered into an altercation and during the course of said altercation, the accused picked up a stone and hit the complainant on his face, which resulted into dislocation of his six teeth. The complainant after being hit by the accused was taken to CHC, Dharampur, for medical assistance, wherefrom he was referred to Regional Hospital, Sarkaghat. After medical examination, it was found that the complainant has sustained grievous injuries due to the dislocation of his teeth. Thereafter, the matter was reported to the Police and statement of the complainant, under Section 154 Cr.P.C., was recorded, on the basis of which, FIR No. 305/2000, dated 22.11.2000, under Sections 325, 504 and 506 IPC, was registered against the accused. The Investigating Officer visited the spot on 23.11.2000 and took into possession the teeth and stones, vide separate seizure memo. He also prepared the spot map and recorded the statements of the witnesses under Section 161 Cr.P.C. After completion of investigation, challan was presented before the learned trial Court.

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Prosecution, in order to prove its case, examined

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as many as 9 witnesses. Statement of the accused was recorded under Section 313 Cr.P.C, wherein he denied the prosecution case and claimed innocence. Accused did

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not lead any defence evidence. The learned trial Court, vide impugned judgment dated 12.01.2006, acquitted the accused.

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I have heard the learned counsel for the parties and gone the record carefully.

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Learned Deputy Advocate General has argued that learned Court below, ignoring the evidence which has come of record, acquitted the accused on the basis of surmises and conjectures, 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. He has further argued that present is a fit case where judgment of the learned Court below is required to be set aside and after reappreciating the evidence, the accused be convicted. On the other hand learned counsel appearing on behalf of the respondent-accused has argued that the prosecution has failed to prove the guilt of the accused beyond the

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shadow of reasonable doubt and there is nothing on record to conclude that any injuries were caused to the complainant or there was any altercation, thus the judgment of the learned Court below is required to be upheld.

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To appreciate the arguments of learned Deputy Advocate General and learned defence counsel, this Court has gone through the record in detail and minutely scrutinized the statements of the witnesses.

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PW-3, complainant and PW-4, his wife, both have testified the involvement of the accused in the said accident and have stated that on the said day of occurrence, the altercation between the parties started, when the complainant hit the dog of the accused, who was wandering into his courtyard. The minor altercation between the parties later took the shape of scuffle, the accused picked up a stone and hit the complainant on his face, which resulted into dislocation of his six teeth, due to which, the complainant sustained grievous injuries. However, both these witnesses have also admitted the fact of personal enmity between the parties.

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PW-2, Jai Ram, eye witness of the occurrence,

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has not supported the case of the prosecution and feigned

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his ignorance about the involvement of the accused in the

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said accident.

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From the above, it is clear that there is no independent assertion qua involvement of the accused in the said accident. The only evidence which has come on record, is in the form of interested witnesses i.e., complainant and his wife. The complainant in his statement has also admitted the personal enmity between the parties and as independent witnesses have not supported the prosecution case, in these circumstances, the involvement of the accused, on account of personal enmity in the present case, cannot be ruled out. There is no unbiased evidence on record which suggests that the parties entered into an altercation when the complainant hit the dog of the accused, who was wandering into the courtyard of the accused, thus in absence of any cogent and reliable evidence, the occurrence is not established. Further to prove injury i.e., dislocation of teeth, Dental Surgeon was not examined, the same is fatal to the prosecution case, when the case is based upon dislocation of teeth.

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In view of what has been discussed hereinabove, this Court finds that the prosecution has failed to proved the guilt of the accused beyond the shadow of

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reasonable doubt, as neither the Dental Surgeon was examined to prove the grievous injuries, nor any independent witnesses have supported the version of the complainant and his wife. The complainant and his wife have also admitted old enmity inter se the parties, in these circumstances, it is difficult to hold that the prosecution has proved the guilt of the accused beyond the shadow of reasonable doubt.

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It has been held in K. Prakashan vs. P.K.

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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.

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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.

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In view of the aforesaid decisions of the Hon’ble Supreme Court and the discussion made hereinabove, I find no merit in this appeal and the same deserves dismissal and is accordingly dismissed. Pending application(s), if any, shall also stands disposed of.

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(Chander Bhusan Barowalia) Judge

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3^rd July, 2017

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(raman)

State v. Bhagmal

Case brief

What is this about?

What did the court decide?

State v. Bhagmal

Case brief

What is this about?

What did the court decide?

What the court decided

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