Dismissed

State of Hp v. Yashpal

Himachal Pradesh HC1 May 2018CR.A/83/2018

Case brief

AI extract

What is this about?

In this criminal appeal, the State challenged the acquittal of the respondent accused under Sections 341, 323, and 325 IPC. The High Court rejected the State's argument, finding that the prosecution failed to prove the alleged beatings and injuries beyond reasonable doubt due to inconsistencies in witness testimonies and lack of independent corroboration. The Court upheld the trial court's order o

What did the court decide?

Bail bonds furnished by the accused were discharged. Pending applications were disposed of.

State of Hp Vs Yashpal — Criminal Trial and Appeal | Himachal Pradesh HC (2018)

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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

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Cr. Appeal No. 83 of 2018 Decided on: May 1, 2018

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____________________________________________________________ State of Himachal Pradesh ……...Appellant Versus Yashpal …Respondent ____________________________________________________________ Coram Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting?¹ Yes.

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____________________________________________________________ For the appellant: Mr. Dinesh Thakur, Additional Advocate General with Mr. Vikrant Chandel, Deputy Advocate General. For the respondent: Mr. Y.P. Sood, Advocate. ____________________________________________________________ Sandeep Sharma, J. (oral)

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Appellant-State being aggrieved and dissatisfied with the judgment of acquittal recorded by learned Judicial Magistrate 1st Class, Court No. VII, Shimla, Himachal Pradesh in Police Challan No. 26/2 of 1312, whereby learned Court below on the basis of evidence led on record by prosecution, held the respondent-accused (hereinafter, ‘accused’) not guilty of having committed offences punishable under Sections 341, 323 and 325 IPC and acquitted him, has approached this Court in the instant proceedings, seeking therein conviction of respondent-accused, after setting aside impugned judgment of acquittal recorded by the court below.

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Whether reporters of the Local papers are allowed to see the judgment? .

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2. Facts as emerge from the record are that complainant namely Ghanshyam vide exhibit PW-1/A got his statement recorded under Section 154 CrPC, on the basis of which formal FIR exhibit PW-10/A came to be registered on 7.4.2016, at Police Station Dhalli, alleging therein that on 29.8.2012, at about 3.30 pm, near Jaghedi Suni, complainant Ghanshyam, his wife and one Yashodha were working under MGNAREGA Scheme on a road, whereupon, accused came there, stopped them from working and started abusing them. Further, the accused slapped Yashodha and kicked Kaushalya, due to which she became unconscious, fell on the road and received injuries. Complainant called one Babu Ram and injured were taken to Ghanahatti dispensary for treatment in the car of one Daleep, being driven by one Tej Ram, from where injured were referred to DDU Hospital Shimla. Complainant, his wife and Yashodha were medically examined. On the basis of aforesaid complaint, FIR detailed herein above, came to be lodged against accused and after completion of investigation, police presented Challan in the competent Court of law, which being satisfied that prima facie case exists against accused, charged him for having committed offences punishable under Sections 341, 323 and 325 IPC, to which accused pleaded not guilty and claimed trial. However, fact remains that he did not lead any evidence

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in his defence despite sufficient opportunity. Learned trial Court, on the basis of material adduced on record by the prosecution, acquitted the accused of the charges framed against him under Sections 341, 323 and 325 IPC. In the aforesaid background, appellant-State approached this Court in the instant proceedings praying therein for conviction of respondent-accused for having committed offences punishable under Sections 341, 323 and 325 IPC.

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3. Mr. Dinesh Thakur, learned Additional Advocate General, vehemently argued that the impugned judgment of acquittal passed by learned Court below is not sustainable in the eye of law as the same is not based upon proper appreciation of evidence and as such, same deserves to be quashed and set aside. While inviting attention of this Court to the impugned judgment of acquittal recorded by the learned Court below, Mr. Thakur, strenuously argued that the learned Court below has failed to appreciate evidence in its right perspective as a consequence of which, erroneous findings have come on record and accused has been let off on flimsy grounds. While making this Court to travel through the statements having been made by material prosecution witnesses, Mr. Thakur made a serious attempt to persuade this Court to agree with his contention that prosecution successfully proved beyond reasonable doubt that on the date

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of alleged incident, accused gave beatings to the wife of the complainant and another person namely Yashodha, as a result of which they suffered grievous injuries. While referring to the medical evidence led on record, exhibits PW-7/A, PW7/B, PW-9/A and PW-9/C and statements having been made by PW-5 Dr. Ankur Gupta, PW-7 Dr. Tarun Shastri and PW-9 Dr. Ravinder Mokta, Mr. Thakur contended that it stands duly proved on record that on account of injuries inflicted on account of beatings given by the respondent-accused, victims suffered simple as well as grievous injuries, as such, there was no scope left for the court below to acquit the accused of the charges framed against him. Lastly, Mr. Thakur, contended that the learned Court below has wrongly drawn adverse inference against the complainant for delay in lodging FIR, whereas, as per record, complainants, who were daily wage workers, on the very first opportunity lodged FIR against the accused.

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4. Mr. Y.P. Sood, learned counsel representing the accused supported the judgment of acquittal passed by learned Court below and stated that there is no illegality or infirmity in the judgment, rather same is based upon correct appreciation of evidence adduced on record by the prosecution and as such, same deserves to be upheld. With a view to demonstrate that prosecution miserably failed to

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prove its case beyond reasonable doubt, Mr. Sood, made this Court to travel through the evidence led on record by prosecution to suggest that none of the prosecution witnesses stated anything specific with respect to motive, if any, for giving beatings to the complainant, his wife and another person namely Yashodha. Mr. Sood, stated that if statements having been made by complainant, PW-1, his wife PW-3 (Kaushalya) and PW-4 Yashodha are read in their entirety, it clearly suggests that there are material contradictions and inconsistencies in the statements with regard to infliction of injury, if any, on the person of wife of the complainant and PW-4 Yashodha. He further stated that though prosecution by way of placing MLC on record, made an attempt to prove that on account of beatings given by accused, PW-3 and PW4 suffered injuries, but it is quite apparent from the statements having been made by PW-6 Shonk Ram that the victim as well as her husband and Smt. Yashodha came to the site for work on all the days from 29.8.2012 to 31.8.2012 and they were physically fit and had come to work on the next day also as such, it can be safely concluded that no serious injury if any was caused to PW-3 and PW-4 on account of beatings, if any, inflicted by accused. While referring to the statement of PW-9, Dr. Ravinder Mokta, Mr. Sood contended that there was no fracture of 9^th rib in the

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left side of chest and as such, there is no force in the contention of the learned Additional Advocate General that on account of beatings given by accused, wife of complainant suffered grievous injuries, rather, the Doctor categorically admitted in his cross-examination that the injury witnessed on the body of victim can be caused due to fall on hard surface. Lastly, Mr. Sood contended that the alleged incident took place on 29.8.2012, whereas, FIR came to be lodged on 1.9.2012 i.e. after three days and there is no explanation rendered on record with regard to delay in lodging FIR, as such, learned Court below rightly held accused not guilty of having committed offences punishable under Sections 341, 323 and 325 IPC.

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5. Before adverting to the rival contentions of the learned counsel representing the parties vis-à-vis impugned judgment of acquittal recorded by learned Court below, it may be noticed that while granting leave to appeal, this Court had called for records of the learned Court below, which has been made available and perused. Having carefully gone through record, made available, especially statements having been made by prosecution witnesses, this court is not inclined to agree with the contention of the learned Additional Advocate General that the court below has misread and misinterpreted the evidence led on record by prosecution,

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rather, this Court is convinced and satisfied that the court below while ascertaining guilt of accused has dealt with every aspect of the matter very meticulously. It clearly emerges from the perusal of statements having been made by prosecution witnesses that prosecution failed to prove beyond reasonable doubt that on the date of alleged incident, accused gave beatings to the victims, as a consequence of which they suffered injuries, much less grievous. Needless to say, with a view to prove the guilt of the accused under Sections 341 and 323 IPC, it is/was incumbent upon the prosecution to prove beyond reasonable doubt that the accused voluntarily caused obstruction to prevent eh complainant/victims from proceeding in a direction, in which he/they had a right to proceed and in this process accused caused bodily pain, disease or infirmity to the complainant with the intention of causing hurt or with the knowledge that hurt was likely to be caused. Apart from above, it is/was also incumbent upon the prosecution to prove guilt, if any, of the accused under Section 325 IPC that the accused caused hurt to the victims voluntarily without any grave and sudden provocation by the victims.

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6. Having carefully perused the material available on record, this Court finds that though PW-1, PW-3 and PW-4 stated that when they were working on the road, accused

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stopped them from doing the work, abused them and slapped Yashodha (PW-4) and kicked in the stomach of Kaushalya (PW-3), whereupon she became unconscious and fell on road, but none of the prosecution witnesses stated anything specific with regard to the reason, if any, for aforesaid altercation, which allegedly took place between complainant and accused.

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7. PW-1, Ghanshyam, in his cross-examination categorically admitted that he is having 3-4 Bigha land in the village and his father has encroached upon one Biswa land of accused and due to this encroachment there is enmity between both the families. He further stated that prior to the present incident also, earlier accused and his wife/victim had a fight, whereupon matter was brought before the Panchayat and same was resolved. He also admitted that the victim Kaushalya gave in writing to the Panchayat that she will not fight with the accused again. Interestingly, it has come in the statements having been made by these three prosecution witnesses that on the date of alleged incident, they were cleaning the drains on both sides of the road under MGNAREGA scheme and were throwing waste material downwards and as such, it is not understood on what count, accused gave beatings, if any, to PW-3 and PW-4.

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8. PW-2 Tej Ram and PW-6 Shonk Ram are the independent witnesses. They stated that accused had given beatings to the wife of complainant and they were taken to Ghanahatti dispensary but in the cross-examination, categorically admitted that incident did not take place in their presence and they had come to the spot after the incident.

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9. PW-6 Shonk Ram in his cross-examination admitted that the victim as well as husband and Yashodha came to the spot for work on next day also and they were physically fit.

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10. Leaving everything aside, it also emerges from the record that there were 7-8 houses in the vicinity, where alleged incident took place but police neither came to the spot nor victim and complainant were taken/called by police to Police Station, Suni, as admitted by PW-4 Yashodha in her cross-examination. Kaushalya Devi, PW-3, in her crossexamination though denied the suggestion put to her that from 29.8.2012 to 31.8.2012, she had gone to the place and was doing work under MGNAREGA scheme but, as has been taken note herein above PW-6 has categorically stated that on all three days, complainant and victim had come to work and they were physically fit.

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11. PW-10 IO ASI Shiv Kumar in his crossexamination admitted that the complainant Ghanshyam

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came to the Police Station Suni to lodge FIR on 1.9.2012, wherein he reported that the incident took place on 28/29 August 2012. He further stated that he inquired from the complainant with regard to delay in lodging FIR and he was informed that earlier they had talked to accused to bear expenses of treatment but when he refused to do so, they lodged FIR. Interestingly, this witness stated that he had gone to the spot on 2.9.2012 for investigation. He also admitted that both the accused and victim are having strained relations with each other. He also admitted that he has not associated any person from the vicinity for investigation.

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12. No doubt, medical evidence led on record i.e. exhibits PW-7/A, PW-7/B, PW-9/A and PW-9/C suggests that PW-3 and PW-4 suffered injuries but that may not be sufficient to conclude that injuries witnessed by the doctor on the person of PW-3 were inflicted by accused because none of the independent witnesses i.e. PW-6, Shonk Ram, Mate and PW-2, Tej Ram, who had taken wife of the complainant and PW-4 to Ghanahatti dispensary, stated that they had an occasion to see the incident with their eyes, rather they categorically admitted that incident did not take place in their presence.

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13. True it is, version put forth by interested witnesses in the present case, can not be brushed aside

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solely on account of their close relationship or prior enmity but by now it is well settled that version the put forth by interested witnesses needs to be examined very carefully, while ascertaining the guilt, if any, of the person against whom allegation is made. In the case at hand, as has been taken note herein above, it has been categorically admitted by all the material prosecution witnesses i.e. PW-1, PW-3 and PW-4 that father of complainant had a long standing litigation with the father of accused. Moreover, if statement of PW-9 Dr. Ravinder Mokta is perused, he categorically stated that after X-ray examination, he found doubtful fracture of 9^th rib in the chest. He further admitted that although there was no fracture but this type of injury can be caused due to fall on hard surface, meaning thereby that fracture, if any, in the 9^th rib of chest of victim was not proved and as such, it can not be said that injury suffered on account of beatings given by accused were grievous.

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14. Having carefully perused the statements made by victim Kaushalya Devi (PW-3), complainant Ghanshyam (PW1) and Yashodha (PW-4), it clearly emerges that victim despite having suffered injuries in the alleged incident went to work continuously from 29^th to 31^st August, 2012 and they were found to be physically fit by PW-6, as such, story with regard to infliction of injury on the persons of victims PW-3 and PW-

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4 does not appear to be trustworthy rather same is shrouded by suspicion.

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15. Apart from above, there is nothing on record either in the examination-in-chief or cross-examination of victim as well as eye witnesses that at any point of time, accused restrained victims from proceeding in a direction, in which they had a right to proceed. Similarly, there is no evidence to show as to how and in what manner, they were restrained as such, learned Court below rightly came to the conclusion that the prosecution miserably failed to prove wrongful restraint on the part of accused.

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16. On the top of everything, alleged incident took place on 29.8.2012 at about 3.30 pm near Jaghedi Suni, whereas FIR came to be lodged after three days of incident i.e. 1.9.2012.

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17. True it is, that delay in lodging FIR can not be a ground to disbelieve everything put forth by prosecution but certainly, delay in lodging FIR raises doubt with regard to correctness of averments contained in the complaint. It has been repeatedly held by Hon'ble Apex Court as well as this Court that, wherever there is delay in lodging report, it not only gets bereft of its spontaneity but danger also creeps in of coloured version and innocent persons can be roped in and named as culprits through consultation and discussion as

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such, to avoid these dangers, court always insists for prompt lodging of report with the police.

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18. In the case at hand, neither the victim nor the eye witnesses stated anything specific with regard to delay in lodging FIR. In the cross-examination all these material prosecution witnesses admitted that they had all the opportunity to go to the police for lodging FIR but despite that they all went for doing work on the site. PW-1 in his crossexamination categorically stated that FIR was not lodged prior to 1.9.2012 because there was agreement between the parties and accused had agreed to bear the expenses of treatment of the victims. There is no plausible/reasonable explanation rendered on record by the complainant and other material prosecution witnesses for delay in lodging FIR, as such, learned Court below rightly arrived at a conclusion that no cogent reason has been given for delay in lodging FIR, as such, evidence of prosecution can not be taken without a pinch of doubt.

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19. Having sifted entire evidence, this Court finds no illegality or infirmity in the judgment of acquittal recorded by the learned Court below especially when there are material contradictions in the statements of the material prosecution witnesses, rendering the whole story put forth by them improbable.

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20. By now it is well settled that in a criminal trial evidence of eye-witness requires careful assessment and needs to be evaluated for its creditability. Hon’ble Apex Court has repeatedly held that since fundamental aspect of criminal jurisprudence rests upon well established principle that “no man is guilty until proved so”, utmost caution is required to be exercised in dealing with the situation where there are multiple testimonies and equally large number of witnesses testifying before the Court. Most importantly, Hon’ble Apex Court has held that there must be a string that should join the evidence of all the witnesses thereby satisfying the test of consistency in evidence amongst all the witnesses. In nutshell, it can be said that evidence in criminal cases needs to be evaluated on the touchstone of consistency. In this regard, reliance is placed upon the judgment passed by Hon’ble Apex Court in C. Magesh and others versus State of Karnataka (2010) 5 Supreme Court Cases 645, wherein it has been held as under:-

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“45. It may be mentioned herein that in criminal jurisprudence, evidence has to be evaluated on the touchstone of consistency. Needless to emphasis, consistency is the keyword for upholding the conviction of an accused. In this regard it is to be noted that this Court in the case titled Surja Singh v. State of U.P. (2008)16 SCC 686: 2008(11) SCR 286 has held:-( SCC p.704, para 14)

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“14. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other

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witness is held to be creditworthy; ..the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.”

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In a criminal trial, evidence of the eye witness requires a careful assessment and must be evaluated for its creditability. Since the fundamental aspect of criminal jurisprudence rests upon the stated principle that “ no man is guilty until proven so,” hence utmost caution is required to be exercised in dealing with situation where there are multiple testimonies and equally large number of witnesses testifying before the Court. There must be a string that should join the evidence of all the witnesses and thereby satisfying the test of consistence in evidence amongst all the witnesses.”

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21. In view of above, there is no merit in the present appeal and same is accordingly dismissed. Bail bonds if any furnished by accused are discharged. Pending applications, if any, are disposed of.

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(Sandeep Sharma) Judge

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May 1, 2018 (vikrant)

State of Hp v. Yashpal

Case brief

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State of Hp v. Yashpal

Case brief

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