State of Hp Vs Naresh Kumar @ Rinku

The present appeal is directed against the judgment dated 17.01.2013, passed by learned Judicial Magistrate First Class, Court No. IV, Shimla, District Shimla, H.P. (learned Trial Court), vide which the respondents (accused before the learned Trial Court) were acquitted of the commission of offences punishable under Sections 147, 148, 323, and 325 read with Section 149 of the Indian Penal Code (IPC). (Parties shall

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

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hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.)

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Briefly stated, the facts giving rise to the present appeal are that the police presented a challan against the accused for the commission of offences punishable under Sections 147, 148, 323 and 325 read with Section 149 of the IPC. It was asserted that the informant, Babu Ram (PW1), had gone to Village Paneya to attend a marriage on 10.11.2009. He saw that Lekh Raj was being beaten by Rinku, Sanju, Rajesh, and Daleep without any reason. The informant enquired from the assailants as to why they were beating Lekh Raj. The assailants gave the informant beatings with sticks. He sustained injuries to his nose, eye, back, legs, and ribs. Jagdish (PW2), Deep Ram (PW4), and Vinay Kumar (PW6) rescued the informant from the assailants. The assailants threatened to kill the informant in case the matter was reported to the police. The informant made a complaint (Ext.PW1/A) to the police. FIR (Ext. PW11/B) was registered. Dr Anita Negi (PW8) examined the victim and found that he had sustained injuries that could have been caused within 72 hours of examination. She advised an ultrasound of the abdomen and an X-ray of the chest. Dr Neeti Aggarwal

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(PW7) went through the X-ray and the report of the ultrasound. She found that there was no fracture. She issued the report (Ext.PW7/A). Dr Anita issued a final opinion stating that the nature of the injury was simple. She issued the MLC (Ext.PW8/A). ASI Kushal Kumar (PW11) investigated the matter. He visited the spot and prepared the site plan (Ext.PW11/A). He seized the sticks (Ext.P1 to Ext.P3) vide memo (Ext.PW3/A). Jagdish Kumar (PW2) had also sustained injuries. Dr Manjula Gupta (PW9) examined him and found that he had sustained injury on his left index finger. She advised X-rays. Dr Shikha Sood (PW10) went through the X-rays and found that there was a fracture of the proximal phalanx of the index finger of the left hand. She issued the report (Ext.PW10/B). Dr Manjula Gupta (PW9) found that the nature of the injury was grievous, which could have been caused by beating the victim with a stick. She issued the MLC (Ext.PW9/A). The statements of witnesses were recorded as per their version and after the completion of the investigation, the challan was prepared and presented before the learned Trial Court.

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The learned Trial Court found sufficient reasons to summon the accused. When the accused appeared, they were

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charged with the commission of offences punishable under Sections 147, 148, 323 and 325 read with Section 149 of the IPC, to which they pleaded not guilty and claimed to be tried.

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The prosecution examined eleven witnesses to prove its case. Babu Ram (PW1) is the informant/victim. Jagdish Kumar (PW2) sustained injuries. Tulsi Ram (PW3), Deep Ram (PW4), Lekh Ram (PW5), and Vinay Kumar (PW6) are the eyewitnesses. Dr Neeti Aggarwal (PW7) went through the informant’s X-ray. Dr Anita Negi (PW8) examined the informant. Dr Manjula Gupta (PW9) examined Jagdish Chand. Dr Shikha Sood (PW10) went through the X-ray of Jagdish. ASI Kushal Kumar (PW11) investigated the matter.

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The accused, in their statements recorded under Section 313 of Cr.P.C., denied the prosecution's case in its entirety. They claimed that witnesses had falsely deposed against them. However, they did not produce any evidence in defence.

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Learned Trial Court held that the informant denied his signature on the complaint made by him to the police. This made the genesis of the incident doubtful. The incident occurred

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on 10.11.2009 at 9:30 PM and the matter was reported to the police on 13.11.2009 at 4:05 PM. The delay was not explained by the prosecution. This delay makes the prosecution's case highly doubtful. The prosecution failed to establish that the accused were known to the victim. Lekh Ram (PW5) admitted in his cross-examination that there was a power cut, and the identification of the accused was not possible. There was litigation between the parties, and the possibility of false implication could not be ruled out. The sticks were already kept in the police station, and their recovery from the spot was not established. The prosecution had failed to prove its case beyond a reasonable doubt. Hence, the learned Trial Court acquitted the accused.

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Being aggrieved by the judgment passed by the learned Trial Court, the State has filed the present appeal asserting that the learned Trial Court erred in appreciating the material on record. The testimonies of the prosecution witnesses were discarded without any cogent reasons. The eyewitnesses had consistently stated that the accused had given beatings to informant Babu Ram, Jagdish and Lekh Ram. Their testimonies were duly corroborated by the medical evidence.

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The learned Trial Court erred in acquitting the accused. Therefore, it was prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside.

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I have heard Mr. Ajit Sharma, learned Deputy Advocate General for the appellant/State and Mr. Kartik Kumar, learned counsel for the respondents/accused.

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Mr. Ajit Sharma, learned Deputy Advocate General for the appellant/State, submitted that the prosecution had proved its case beyond a reasonable doubt. All the witnesses had consistently stated that the accused had given beatings to the informant, Jagdish and Lekh Ram. This was duly corroborated by the medical evidence in which the injuries were noticed. Learned Trial Court discarded the testimonies of the witnesses without any cogent reason and had taken a view which could not have been taken by any reasonable person. Therefore, he prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside.

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Mr Kartik Kumar, learned counsel for the respondents/accused, submitted that the matter was reported to the police after a delay of two days, which made the

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prosecution’s case suspect. There was no evidence that the witnesses knew the accused before the incident. Therefore, it was essential to carry out a Test Identification Parade to determine the identity of the accused. The recovery of the stick was also not proved. Learned Trial Court had taken a reasonable view, and this Court should not interfere with the reasonable view of the learned Trial Court, even if another view is possible. Therefore, he prayed that the present appeal be dismissed.

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I have given considerable thought to the submissions made at the bar and have gone through the records carefully.

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The present appeal has been filed against a judgment of acquittal. It was laid down by the Hon’ble Supreme Court in Surendra Singh v. State of Uttarakhand, (2025) 5 SCC 433: 2025 SCC OnLine SC 176 that the Court can interfere with a judgment of acquittal if it is patently perverse, is based on misreading of evidence, omission to consider the material evidence and no reasonable person could have recorded the acquittal based on the evidence led before the learned Trial Court. It was observed at page 438:

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“24. It could thus be seen that it is a settled legal position that the interference with the finding of acquittal recorded

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by the learned trial Judge would be warranted by the High Court only if the judgment of acquittal suffers from patent perversity; that the same is based on a misreading/omission to consider material evidence on record; and that no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.”

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This position was reiterated in State of M.P. v.

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Ramveer Singh, 2025 SCC OnLine SC 1743, wherein it was observed:

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“21. We may note that the present appeal is one against acquittal. Law is well-settled by a plethora of judgments of this Court that, in an appeal against acquittal, unless the finding of acquittal is perverse on the face of the record and the only possible view based on the evidence is consistent with the guilt of the accused, only in such an event, should the appellate Court interfere with a judgment of acquittal. Where two views are possible, i.e., one consistent with the acquittal and the other holding the accused guilty, the appellate Court should refuse to interfere with the judgment of acquittal. Reference in this regard may be made to the judgments of this Court in the cases of Babu Sahebagouda Rudragoudar v. State of Karnataka (2024) 8 SCC 149 ; H.D. Sundara v. State of Karnataka (2023) 9 SCC 581 , and Rajesh Prasad v. State of Bihar (2022) 3 SCC 471 .”

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The present appeal has to be decided as per the parameters laid down by the Hon’ble Supreme Court.

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The incident occurred on 10.11.2009 at about 9:30 PM. The matter was reported to the police on 13.11.2009 at about 4:05 PM as per the entry made in the FIR (Ext. PW11/B). Babu

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Ram (PW1) stated in his examination-in-chief that he was injured and not in a position to file the case. Hence, he filed the complaint after 2-3 days. This explanation is not acceptable. His MLC (Ext.PW8/A) mentions that he had sustained a small laceration on the left upper eye, a small lacerated wound on the nasal bridge, a bruise on the left side of the chest, a bruise on the left lumbar region and a contusion on the left side of the thigh. All injuries were stated to be simple. Dr Anita Negi (PW8) has nowhere stated that the victim, Babu Ram, was unable to move because of the injuries sustained by him. Therefore, the explanation provided by Babu Ram for the delay in reporting the matter to the police is not established on record. It was laid down in Mehraj Singh v. State of U.P. (1994) 5 SCC 188 that the delay in lodging FIR leads to embellishments, concoction and fabrication and the court should see the prosecution case with utmost care and caution in case of delay. It was observed:

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"FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence to appreciate the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstances in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eyewitnesses, if any.

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Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of the delay, the FIR not only gets bereft of the advantage of spontaneity, but danger also creeps in with the introduction of a coloured version or exaggerated story. With a view to determining whether the FIR was lodged at the time it is alleged to have been recorded, the courts generally look for certain external checks. One of the checks is the receipt of a copy of the FIR, called a special report in a murder case, by the local Magistrate. If this report is received by the Magistrate late, it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded, unless, of course, the prosecution can offer a satisfactory explanation for the delay in dispatching or receipt of the copy of the FIR by the local Magistrate. The prosecution has presented no evidence at all in this case. The second external check, equally important, is the sending of a copy of the FIR along with the dead body and its reference in the inquest report. Even though the inquest, prepared under Section 174 CrPC, is aimed at serving a statutory function, to lend credence to the prosecution's case, the details of the FIR and the gist of statements recorded during inquest proceedings get reflected in the report. The absence of those details is indicative of the fact that the prosecution's story was still in an embryonic state and had not been given any shape, and that the FIR came to be recorded later on, after due deliberations and consultations and was then ante-timed to give it the colour of a promptly lodged FIR. In our opinion, on account of the infirmities as noticed above, the FIR has lost its value and authenticity, and it appears to us that the same has been ante-dated and had not been recorded till the inquest proceedings were over at the spot by PW 8."

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This position was reiterated in P Rajagopal vs State of

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Tamil Nadu 2019 (5) SCC 40 , wherein it was observed: -

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“12. Normally, the Court may reject the case of the prosecution in case of inordinate delay in lodging the first information report because of the possibility of a concoction of evidence by the prosecution. However, if the delay is satisfactorily explained, the Court will decide the matter on the merits without giving much importance to such delay. The Court is duty-bound to determine whether the explanation afforded is plausible enough given the facts and circumstances of the case. The delay may be condoned if the complainant appears to be reliable and without any motive for implicating the accused falsely. [See Apren Joseph v. State of Kerala, (1973) 3 SCC 114; Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1 ].”

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A similar view was taken in Sekaran v. State of T.N. ,

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(2024) 2 SCC 176: (2024) 1 SCC (Cri) 548: 2023 SCC OnLine SC 1653,

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wherein it was observed on page 182:

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“14. We start with the FIR, to which exception has been taken by the appellant, urging that there has been no satisfactory explanation for its belated registration. It is trite that merely because there is some delay in lodging an FIR, the same by itself and without anything more ought not to weigh in the mind of the courts in all cases as fatal for the prosecution. A realistic and pragmatic approach has to be adopted, keeping in mind the peculiarities of each particular case, to assess whether the unexplained delay in lodging the FIR is an afterthought to give a coloured version of the incident, which is sufficient to corrode the credibility of the prosecution’s version.

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15. In cases where delay occurs, it has to be tested on the anvil of other attending circumstances. If on an overall consideration of all relevant circumstances it appears to the court that the delay in lodging the FIR has been explained, mere delay cannot be sufficient to disbelieve the prosecution case; however, if the delay is not satisfactorily explained and it appears to the court that

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cause for the delay had been necessitated to frame anyone as an accused, there is no reason as to why the delay should not be considered as fatal forming part of several factors to vitiate the conviction.”

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Therefore, the learned Trial Court was justified in doubting the prosecution’s case because of the delay.

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Lekh Ram (PW5) stated that he had gone to attend the marriage of Mohan Singh in Village Panehar on 10.11.2009. All the accused persons gave him beatings at about 9:30 pm. Babu Ram came to rescue him, and the accused gave him beatings with a stick. Babu Ram (PW1) stated that one boy named Rinku started beating his cousin, Lekh Ram. He tried to rescue Lekh Ram, and the accused persons gave him beatings with kicks, fist blows and sticks. He sustained injuries. Jagdish Kumar (PW2) stated that an attack was mounted upon Babu Ram by the accused with the sticks, who sustained injuries. He went to the spot, and he was also beaten. Deep Ram (PW4) stated that all the accused gave beatings to Lekh Ram and when informant Babu Ram intervened they gave him beatings with sticks. Vinay Kumar (PW6) stated that the accused came together and gave beatings to Babu Ram and him with sticks.

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These witnesses have not mentioned the name of any

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person. They have used the term ‘accused persons’ without specifying their names or the acts done by them. It was laid down by the Hon’ble Supreme Court in Pandurang vs. State of Hyderabad, AIR 1955 SC 216, that it is unsafe to rely upon the omnibus statement that the accused had committed the offence. It was observed:

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“Rasikabai says that the "accused" raised their axes and sticks and threatened her when she called out to them, but that again is an all-embracing statement which we are not prepared to take literally in the absence of further particulars. People do not ordinarily act in unison like a Greek chorus, and, quite apart from dishonesty, this is a favourite device with witnesses who are either not mentally alert or are mentally lazy and are given to loose thinking. They are often apt to say "all" even when they only saw "some" because they are too lazy, mentally, to differentiate. Unless, therefore, a witness particularises when there are several accused, it is ordinarily unsafe to accept omnibus inclusions like this at their face value.”

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Therefore, the generalised statements made in the

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Court that the accused persons gave beatings to Babu Ram Jagdish and Lekh Ram are not sufficient to convict the accused.

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Lekh Ram (PW5) stated in his cross-examination that the incident occurred in the Verandha of the house. 200300 people were present on the spot. The light was switched off,

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and the scuffle occurred in the darkness. It was difficult to identify the person because of the darkness. His testimony that the incident occurred during the night when 200-300 people were present made it essential to establish the identity of the accused. It was laid down in State of Himachal Pradesh v. Ram Sarup, 1996 SCC OnLine HP 70 that when the incident occurred in total darkness, but it is not specified as to how the accused were identified, their identification is suspect. Similarly, it was held in Bollavaram Pedda Narsi Reddy v. State of A.P., (1991) 3 SCC 434: 1991 SCC (Cri) 586: 1991 SCC OnLine SC 183 that where the occurrence took place in the night, and the assailants were strangers, the identification assumes significance. It was observed at page 440:

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“10. Therefore, in the absence of cogent evidence that PWs 1 and 2 by reason of the visibility of the light at the place of occurrence and proximity to the assailants had a clear vision of the action of each one of the accused persons in order that their features could get impressed in their mind to enable them to recollect the same and identify the assailants even after a long lapse of time, it would be hazardous to draw the inference that the appellants are the real assailants. There is no whisper in Ex. P-1 that there was some source of light at the scene. The omission cannot be ignored as insignificant. When the Investigating Officer has visited the scene, he made reference to the street lights, petrol bunk light, etc. Whether the street lights and the petrol bunk light had

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been burning at the time of the occurrence, and the spot where the incident happened was so located as to receive the light emanating from these sources, are required to be made out by the prosecution. When this significant fact is left out in the earliest record, the improvement in the course of the investigation and trial could be of no avail. The fact that there had been no proof regarding the identity of the assailants until August 18, 1974, would suggest that even persons who collected at the scene in the course of the incident or soon thereafter were not in a position to identify any one of the assailants. Since the Investigating Officer arrived at the scene the same night and the inquest was held the next morning, it would have been possible for the investigating agency to collect information regarding the identity of the assailants earlier to August 18, 1974, if they had been really identified by any one of the witnesses examined in the case. When no natural light was available, and the street light was at a distance, it is unlikely that the eyewitnesses, by a momentary glance of the assailants who surrounded the victim, had a lasting impression and the chance of identifying the assailants without mistake. The credibility of the evidence relating to the identification depends largely on the opportunity the witness had to observe the assailants when the crime was committed and memorise the impression. This aspect of the matter had been stressed by the trial court in appreciating the evidence of PWs 1 and 2. The High Court has ignored the inherent infirmity and failed to deal effectively with every important circumstance in the evidence which weighed with the trial court to disbelieve the prosecution's case.”

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Thus, the test identification parade of the accused

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was essential in the present case. ASI Kushal Kumar (PW11) has nowhere stated in his examination-in-chief that he had conducted the Test Identification Parade during the

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investigation. Thus, the learned Trial Court was justified in doubting the prosecution's case because of the absence of the Test Identification Parade.

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It was submitted that the witnesses had identified the accused in the Court, and the learned Trial Court could not have discarded their testimonies. The testimonies of the eyewitnesses for want of Identification, Professor Rupert Cross has stated in his celebrated treatise, Cross on Evidence , Fifth Edition, Butterworths, that identification of the accused for the first time in the dock is highly suspect. He observed:

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"It might be thought that in criminal cases there could not be better identification of an accused than that of a witness who goes into the box and swears that the man in the dock is the one he saw coming out of a house at a particular time, or the man who assaulted him. Nevertheless, such evidence is suspect where there has been no previous identification of the accused by the witness, and this is because its weight is reduced by the reflection that, if there is any degree of resemblance between the man in the dock and the person previously seen by him. The witness may very well think to himself that the police must have got hold of the right person, particularly if he has already described the latter to them, with the result that he will be inclined to swear positively to a fact of which he is by no means certain.

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People have mistakenly identified friends and relations well known to them with sufficient frequency to make them question the propriety of convicting an accused person on nothing more than the visual identification of a

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single witness who may only have had a fleeting glance of him in poor light."

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It has been stated in Halsbury's Laws of England 4^th

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Edition Volume 2 that the identification of the accused for the first time in the Court is improper and the witness should be asked to identify the accused in a prior test identification parade. It has been observed in para 363:

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“A witness shouldn't be asked to identify the defendant for the first time in the dock at his trial; and as a general practice, it is preferable that he should have been placed previously in a parade with other persons, so that potential witnesses may be asked to pick him up.”

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It was laid down by the Hon’ble Supreme Court in P.

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Sasikumar v. State of T.N., (2024) 8 SCC 600: (2024) 3 SCC (Cri)

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791: 2024 SCC OnLine SC 1652 that when the accused were not known to the witnesses on the date of the incident, their identification in the dock is not acceptable. It was observed on page 605:

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“17. The admitted position in this case is that the test identification parade (hereinafter referred to as “TIP”) was not conducted. All the prosecution witnesses who identified the accused in the Court, such as PW 1 and PW 5, were not known to the present appellant, i.e. Accused 2. They had not seen the present appellant before the said incident. He was a stranger to both of them. More importantly, both of them have seen the appellant/Accused 2 on the date of the crime while he was wearing a “green-coloured monkey cap”!

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21. It is well settled that TIP is only a part of the police investigation. The identification in TIP of an accused is not a substantive piece of evidence. The substantive piece of evidence, or what can be called evidence, is only dock identification, that is, identification made by a witness in court during the trial. This identification has been made in court by PW 1 and PW 5. The High Court rightly dismisses the identification made by PW 1 for the reason that the appellant i.e. Accused 2 was a stranger to PW 1 and PW 1 had seen the appellant for the first time when he was wearing a monkey cap, and in the absence of TIP to admit the identification by PW 1 made for the first time in the court was not proper.

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23. We are afraid the High Court has gone completely wrong in believing the testimony of PW 5 as to the identification of the appellant. In cases where the accused is a stranger to a witness, and there has been no TIP, the trial court should be very cautious while accepting the dock identification by such a witness (see: Kunjumon v . State of Kerala , ( 2012) 13 SCC 750: (2012) 4 SCC (Cri) 406] ).

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27. In the facts of the present case, the identification of the accused before the court ought to have been corroborated by the previous TIP, which has not been done. The emphasis of TIP in a given case is of vital importance, as has been shown by this Court in the recent two cases of Jayanv. State of Kerala, (2021) 20 SCC 38 and Amrik Singh v. State of Punjab, (2022) 9 SCC 402: (2023) 2 SCC (Cri) 404 .

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28. In Jayan v. State of Kerala, (2021) 20 SCC 38 , this Court disbelieved the dock identification of the accused therein by a witness, and while doing so, this Court discussed the aspect of TIP in the following words: ( Jayan v. State of Kerala, (2021) 20 SCC 38 , SCC p. 44, para 18)

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“ 18 . It is well settled that the TI parade is a part of the investigation, and it is not substantive evidence. The question of holding a TI parade arises when the accused is not known to the witness beforehand. The identification by a witness of the accused in the Court who has, for the first time, seen the accused in the incident of the offence is a weak piece of evidence, especially when there is a large time gap between the date of the incident and the date of recording of his evidence. In such a case, the TI parade may make the identification of the accused by the witness before the Court trustworthy.”

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Therefore, the identification of the accused by the

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witnesses for the first time in the Court without any corroboration from previous Test Identification Parade will be meaningless, upon which no conviction can be based.

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The complaint (Ext.PW1/A) mentions that Jagdish, Deep Ram and Vinay had rescued the informant from the accused, however, it is silent regarding any beatings given to Jagdish. Jagdish was also not examined on the date of the incident, but was examined on 16.11.2009, six days after the incident. Dr Manjula Gupta (PW9) issued the MLC, but she did not mention the probable duration of the injuries in the MLC or in her statement in the Court. Therefore, the medical evidence does not support the prosecution's version regarding the injuries sustained by Jagdish.

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Dr Anita Negi (PW8) examined the victim. She admitted in her cross-examination that the injuries noticed by her could have been caused by a fall. She had not mentioned any patterned wound, which is likely to be caused by means of a stick² . The absence of the patterned wound and the admission by her in her cross-examination that the injuries can be caused by a fall does not provide unequivocal corroboration to the prosecution's version.

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Tulsi Ram (PW3) stated that Rinku, Joginder and son of Sant Ram, gave beatings to Babu Ram, and he sustained injuries. He admitted in his cross-examination that he was inimical and was not on visiting terms with the accused. Therefore, he had an interest in deposing against the accused. His admission that he was not on visiting terms with the accused would make his presence in the marriage doubtful.

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Babu Ram (PW1) stated in his cross-examination that he had made an oral complaint to the police. His signatures were obtained on one document (Ext.PW1/A) by the police. This document was dictated by the police to him. He admitted that (Ext.PW1/A) did not bear his signature and was not written by

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2 Modi A textbook of Medical Jurisprudence and Toxicology 24th Edition 2012 at page 521

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him. This application (Ext.PW1/A) was written by the Investigating Officer of the Police Station.

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Learned Trial Court had rightly held that the testimony of this witness made the First Information Report to the police suspect. He disowned the complaint made by him and stated that he had made an oral complaint to the police. This would also cast a doubt regarding the initial version mentioned by the informant, and the learned Trial Court was justified in doubting the prosecution's case in view of these admissions.

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Therefore, the learned Trial Court had taken a reasonable view that would have been taken based on the material placed before it, and this Court will not interfere with the reasonable view of the learned Trial Court, even if another view is possible.

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In view of the above, the present appeal fails, and it is dismissed.

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Keeping in view of the provisions of Section 437-A of the Code of Criminal Procedure [Section 481 of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)], the respondents/ accused are directed to furnish personal bonds in the sum of

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₹25,000/- each with one surety each in the like amount to the satisfaction of the learned Registrar (Judicial) of this Court/learned Trial Court, within four weeks, which shall be effective for six months with stipulation that in the event of Special Leave Petition being filed against this judgment, or on grant of the leave, the respondents/accused, on receipt of notice thereof, shall appear before the Hon’ble Supreme Court.

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A copy of this judgment, along with the records of the learned Trial Court, be sent back forthwith.

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Pending miscellaneous application(s), if any, also stand(s) disposed of.

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(Rakesh Kainthla) Judge

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18^th March, 2026 (Nikita)

State of Hp v. Naresh Kumar @ Rinku

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State of Hp v. Naresh Kumar @ Rinku

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