State of H.P. vs Amar Nath

Piar Singh Rana, J.—Present appeal filed against the judgment passed by learned Additional Sessions Judge (Fast Track) Kullu HP in Sessions Trial No. 7 of 2007 titled State Vs. Amar Nath and another decided on 29.10.2007.

BRIEF FACTS OF THE PROSECUTION CASE:

Brief facts of the case as alleged by prosecution are that on dated 16.8.2006 at 10.00 PM at village Shat accused persons namely Amar Nath and Tirath Ram in furtherance of common intention gave blow with the aid of darat (sharp edged weapon) on the neck of Radha Devi with intention to cause death of Radha Devi. It is further alleged by prosecution that on the aforesaid date, time and place accused persons caused grievous hurt to Radha Devi. It is further alleged by prosecution that on the same date, time and place accused persons in furtherance of common intention used criminal force to outrage the modesty of prosecutrix. It is further alleged by prosecution that accused persons also torn off the clothes of prosecutrix. It is further alleged by prosecution that after sustaining injuries by prosecutrix blood was oozing out and the clothes of prosecutrix were stained with blood. It is further alleged by prosecution that prosecutrix had also handed over blood stained shirt Ext. P2 vide memo Ext. PB to the police. It is further alleged by prosecution that medical examination of the prosecutrix was conducted at CHC Hospital Jari and as per MLC report prosecutrix sustained grievous injuries. It is further alleged by prosecution that site plan was prepared and torn off clothes were also took into possession by Investigating Officer. It is further alleged by prosecution that report of Forensic Science Laboratory Junga also obtained. Accused persons did not plead guilty and claimed trial.

The prosecution examined as many as twelve witnesses in support of its case:

Prosecution also produced following piece of documentary evidence in support of its case:-

The statements of accused persons were also recorded u/s 313 Cr.P.C. Accused did not examine any defence witness. Learned trial Court acquitted both the accused persons.

Feeling aggrieved against the judgment passed by the learned Trial Court appellant filed the present appeal.

We have heard learned Additional Advocate General appearing on behalf of the State and Mr. Anup Chitkara learned counsel appearing on behalf of respondents and also gone through the entire record carefully.

Question that arises for determination before us is whether learned trial Court did not properly appreciate oral as well as documentary evidence placed on record and learned trial Court had committed miscarriage of justice.

ORAL EVIDENCE ADDUCED BY PROSECUTION:

PW1 Radha Devi has stated that she is house wife and her husband is agriculturist. She has stated that on dated 14.8.2006 her husband had gone to Punjab to sell apples. She has stated that her husband informed her on telephone that he would reach at home on 16.8.2006. She has stated that her husband did not reach home up to 10.00 PM and she got worried and thereafter she along with one Gorkha went in search of her husband to village Shat. She has stated that when she reached on the road accused persons Amar Nath and Tirath Ram met her. She has stated that both accused persons asked her as to where she was going and she told the accused persons that she was going in search of her husband. She has stated that co-accused Amar Nath caught her from breast portion of her shirt and her shirt was torn. She has stated that both the accused persons beaten her. She has stated that she sustained injuries on her right cheek and behind the right ear on the neck side. She has stated that she had also sustained injuries on her finger and back side of her head. She has stated that after sustaining injuries she became unconscious. She has stated that she had also raised alarm. She has stated that her husband also reached at the spot before she became unconscious. She has stated that she disclosed the incident to her husband. She has stated that thereafter accused persons fled away from the spot. She has stated that her statement Ext. PA was recorded by police officials. She has stated that she was also medically examined at CHC Hospital Jari. She has stated that blood was oozing out from her body due to beatings given by accused persons. She has stated that she had handed over blood stained shirt vide memo Ext. PB to police officials. She has stated that Gorkha was working as labourer with her for about 5/6 days. She has denied suggestion that she was eloping with Gorkha. She denied suggestion that accused persons asked her to return back to home. She denied suggestion that Gorkha got furious and tried to attack accused persons. She denied suggestion that Gorkha took out knife in order to inflict injuries on the person of accused persons. She denied suggestion that in scuffle she received injuries from the knife of Gorkha.

9.1 PW2 Chaman Lal has stated that he is agriculturist and prosecutrix is her wife. He has stated that on dated 14.8.2006 he had gone to Punjab to sell apples. He has stated that on dated 16.8.2006 he came from Punjab and reached at Bhunter at 10 PM. He has stated that thereafter he boarded a truck from Bhunter in order to reach at village Shat. He has stated that he reached at village Shat at about 11 PM. He has stated that he went to rivulet at village Shat in order to answer the call of nature. He has stated that he heard cries of her wife and he reached on the road where he saw with the aid of torch that accused persons had caught hold her wife Radha Devi. He has stated that when he flashed torch light towards the accused persons they fled away from the spot. He has stated that his wife was lying on the ground in semi conscious condition. He has stated that his wife told that accused persons Amar Nath and Tirath Ram had tried to outrage her modesty. He has stated that his wife told him that accused persons had inflicted injuries on her person with sharp edged weapon. He has stated that his mother had also reached at the spot. He has stated that her mother was also having torch in her hand. He has stated that he had seen injuries on the cheek, neck and hand of his wife. He has stated that shirt worn by his wife was torn and was stained with blood. He has stated that due to excessive bleedings of his wife Radha Devi she became unconscious. He has stated that he informed the police at Police Post Jari about incident. He has stated that police reached at the spot after half an hour. He has stated that thereafter his wife Radha Devi was took to Jari hospital where she was medically examined by the doctor. He has stated that his wife regained conscious after half an hour. He has stated that accused persons had tried to kill his wife after outraging her modesty. He has stated that when he reached at the spot Gorkha fled away due to fear. He has stated that Gorkha was not traceable. He has denied suggestion that he had not gone to Punjab to sell apple boxes. He denied suggestion that his wife was eloping with Gorkha during night. He denied suggestion that accused persons had informed him and his family members about the presence of his wife with Gorkha during night. He denied suggestion that Gorkha got furious and tried to attack the accused persons. He denied suggestion that Gorkha took out knife in order to inflict injuries on the persons of accused. He denied suggestion that in scuffle Radha Devi received injuries accidentally from the knife of Gorkha. He denied suggestion that accused persons did not inflict injuries on the person of his wife. He denied suggestion that accused persons did not try to outrage the modesty of his wife.

9.2 PW3 Dr. Rajinder Kohli has stated that he was posted as Medical Officer at Community Health Centre Jari since 2004. He has stated that on dated 17.6.2006 ASI Khem Chand Incharge Police Post Jari had moved an application Ext. PC for medical examination of prosecutrix. He has stated that application was allowed by him. He has stated that prosecutrix was fit to give her statement. He has stated that prosecutrix was brought to hospital at 1.30 AM by police officials. He has stated that prosecutrix was accompanied by one local person. He has stated that when prosecutrix was brought to hospital she was conscious but she was in the state of dizziness. He has stated that he found the following injuries upon the prosecutrix. (1) Horizontal lacerated wound over right side of neck, below right ear, size 10 cm x 2 cm x 1 cm. Sharp edged tailing towards mouth. (2) Horizontal V-shaped lacerated wound over right side of face, cheek area, size 4 cm x 2 cm x 3 cm. He has stated that injuries sustained by prosecutrix were grievous in nature. He has stated that injuries were caused with sharp edged weapon. He has stated that probable duration of injuries was within three hours. He has stated that he obtained signature of prosecutrix on MLC and he issued MLC Ext. PD which bears his signature. He has stated that he medically examined the prosecutrix. He has stated that he identify the prosecutrix in Court. He has stated that injuries upon the person of prosecutrix could be caused with sharp edged weapon Ext. P13. He has stated that he also obtained blood sample of prosecutrix and same was handed over to police officials in sealed parcel for chemical examination. He has stated that injury No. 1 could be dangerous to life. He has stated that injury No. 2 could be caused during the scuffle when person fall on sharp edged weapon or object. He has denied suggestion that injuries upon prosecutrix could not be caused with the aid of darat. He has admitted that if the injuries on the person of prosecutrix would not have stitched she would have died.

9.3. PW4 Mehar Chand has stated that he was posted as general duty Constable at Police Post Jari since 2006. He has stated that statement of prosecutrix u/s 154 Cr.PC. was recorded by ASI Khem Chand at CHC Jari. He has stated that ASI Khem Chand handed over the same to him with a direction to take the same to Police Station Kullu for registration of FIR. He has stated that he took statement of prosecutrix to Police Station Kullu and handed over the same to SI Mohinder Singh. He has stated that on the basis of the statement of prosecutrix FIR was registered by SI Mohinder Singh. He has stated that co-accused Amar Nath handed over his T-shirt to police officials in his presence which was taken into possession vide memo Ext. PE. He has stated that co-accused Tirath Ram also handed over his T-shirt in his presence to police officials which was taken into possession vide memo Ext. PF. He has stated that both shirts were sealed in two different parcels. He denied suggestion that he did not take statement of prosecutrix from police post Jari to Police Station Kullu for registration of FIR. He denied suggestion that memos Ext. PE and Ext. PF had been prepared falsely in order to implicate accused persons. He denied suggestion that shirt Ext. P14 and Ext. P15 were not handed over to police officials by accused persons.

9.4 PW5 Hira Singh has stated that he was posted as general duty Constable at Police Post Jari since November 2005. He has stated that on dated 17.8.2006 he along with ASI Khem Chand, Constable Dina Nath and Constable Mehar Chand went to CHC Hospital Jari in order to provide medical aid to prosecutrix. He has stated that prosecutrix was taken to CHC hospital Jari from village Shat. He has stated that after providing first aid to prosecutrix her statement was recorded by ASI Khem Chand u/s 154 Cr.PC. He has stated that statement was handed over to Constable Mehar Chand with a direction to take the same to Police Station Kullu for registration of FIR. He has stated that T-shirts of co-accused Amar Nath and co-accused Tirath Ram were taken into possession by police officials vide memo Ext. PE and Ext. PF. He has stated that shirts are Ext. P14 and Ext. P15. He has stated that on dated 18.8.2006 co-accused Tirath Ram gave a disclosure statement before Police that he had kept sharp edged weapon under a cot. He denied suggestion that shirts Ext. P14 and Ext. P15 were not handed over to police officials in his presence.

9.5 PW6 Hira Lal has stated that he is agriculturist by profession. He has stated that he was associated with investigation. He has stated that darat was recovered by police officials from the room of his house underneath the cot at the instance of co-accused Tirath Ram. He has stated that recovery memo was prepared at the spot. He has stated that darat Ext. P13 is the same which was recovered by police at the instance of co-accused Tirath Ram. He has stated that prosecutrix had handed over torn shirt stained with blood to police officials. He denied suggestion that darat Ext. P13 was not recovered at the instance of co-accused Tirath Ram. He denied suggestion that prosecutrix had eloped with Gorkha. He denied suggestion that accused persons had noticed prosecutrix in the company of Gorkha during the night. He denied suggestion that accused persons had objected about the presence of prosecutrix with Gorkha during the night. He denied suggestion that he was deposing falsely in present case.

9.6 PW7 Harender Kumar has stated that he was posted as Muharar Constable at Police Post Jari. He has stated that he had brought rojnamcha pertaining to Police Post Jari. He has stated that copy of rapat No. 19 recorded in rojnamcha on dated 16.8.2006 is correct as per the original record. He denied suggestion that report No. 19 was not recorded in the rojnamcha during night. He denied suggestion that report was recorded falsely on the next day.

9.7 PW8 HC Jia Lal has stated that he was posted as Additional MHC at Police Station Kullu w.e.f. 2001 to September 2006. He has stated that on dated 26.8.2006 Constable Hira Singh handed over five sealed parcels to him at Police Station Kullu. He has stated that all parcels were sealed and seals were intact. He has stated that entry was made by him in malkhana register. He has stated that on dated 27.8.2006 the aforesaid sealed parcels were handed over to HHC Jai Krishan. He has stated that HHC Jai Krishan deposited the aforesaid articles in the office of FSL Junga vide RC No. 233/2006 and obtained receipt from laboratory and handed over the same to him. He has stated that copy of extract of malkhana register is Ext. PN. He has stated that copy of RC is Ext. PO and copy of receipt is Ext. PP. He has stated that case property was not tampered till it remained in his custody. He denied suggestion that case property was not sent to FSL Junga by him. He denied suggestion that case property was not deposited in the malkhana with him by Constable Hira Singh.

9.8 PW9 HHC Jai Krishan has stated that he was posted as general duty Constable at Police Station Kullu since December 2003. He has stated that on dated 27.8.2006 MHC Jia Lal had handed over five sealed parcels to him with a direction to deposit the same in the office of FSL Junga vide RC No. 233/2006. He has stated that he went to FSL Junga along with aforesaid articles and deposited the same in laboratory. He has stated that he obtained receipt from laboratory and handed over the same to MHC Jia Lal at Police Station Kullu. He has stated that case property was not tampered at any stage. He denied suggestion that he did not take aforesaid articles to FSL Junga.

9.9 PW10 SHO Sarwan Kumar has stated that he was posted as Station House Officer at Police Station Kullu since 2006. He has stated that on dated 18.8.2006 co-accused Tirath Ram had given disclosure statement before him in the presence of Hira Singh and Harnam Singh to the effect that he had concealed darat and could get the same recovered. He has stated that disclosure statement of co-accused Tirath Ram was reduced into writing by him. He has stated that disclosure statement is Ext. PJ. He has stated that after aforesaid disclosure statement co-accused Tirath Ram led the police party and witnesses to village Shat and at the instance of co-accused Tirath Ram darat (sharp edged weapon) was recovered. He has stated that recovery memo was prepared at the spot which was signed by accused persons and witnesses. He has stated that recovery memo is Ext. PL and sketch of darat was also prepared by him which is Ext. PK. He has stated that after preparation of sketch of darat same was sealed in parcel. He has stated that six seal impressions of ''H'' were affixed on the parcel. He has stated that samples of seal impressions were obtained. He has stated that seal after use was handed over to witness Hari Singh. He has stated that site plan of the place of recovery was also prepared which is Ext. PQ. He has stated that prosecutrix had handed over blood stained torn clothes to police officials and same were sealed in separate parcel. He has stated that six seal impressions of ''T'' were affixed on the parcel. He has stated that statements of the witnesses were also recorded by him. He has stated that after completion of investigation challan was prepared and presented in Court. He has stated that after receiving the report of FSL Junga Ext. PR supplementary challan was prepared and was presented in Court. He has stated that blood stained shirt of prosecutrix Ext. P2 is the same which was handed over to the police by prosecutrix. He has stated that darat Ext. P13 is the same which was recovered at the instance of co-accused Tirath Ram. He denied suggestion that co-accused Tirath Ram had not given disclosure statement to police. He denied suggestion that entire proceedings conducted at Police Station Kullu. He denied suggestion that investigation was not conducted by him.

9.10 PW11 ASI Khem Chand has stated that he was posted as Incharge Police Post Jari since 2005. He has stated that on dated 16.8.2006 he was present at Police Post Jari. He has stated that at about 11.35 PM a telephonic message was received at Police Post Jari from Chaman Lal of village Shat to the effect that accused persons had tried to commit rape of his wife and information was also received that prosecutrix was lying in injured condition. He has stated that on receiving information necessary report was recorded in rojnamcha which is Ext. PM. He has stated that thereafter he along with Constable Purshotam Ram, Constable Dina Nath, Constable Mehar Chand and Constable Hira Lal went to the spot. He has stated that it was found that prosecutrix was lying in injured condition by the side of the road near village Shat. He has stated that the husband of prosecutrix and her mother-in-law Kamla Devi were also present at the spot. He has stated that prosecutrix was unconscious and not able to speak. He has stated that he took photographs of the prosecutrix at the spot with the aid of police camera which are Ext. P3 to Ext. P7. He has stated that prosecutrix was brought to CHC Hospital Jari in vehicle in which they had gone to the spot from Police Post Jari. He has stated that first-aid was provided to prosecutrix at CHC Jari. He has stated that he recorded the statement of prosecutrix Ext. PA u/s 154 Cr.PC and MLC report of the prosecutrix also obtained from Medical Officer CHC Jari. He has stated that accused persons were wearing blood stained shirts. He has stated that blood stained shirts of accused persons were taken into possession by police and were sealed in separate parcels. He denied suggestion that prosecutrix had eloped with Gorkha. He denied suggestion that accused persons have been falsely implicated in present case.

9.11 PW12 SI Mohinder Kumar has stated that he was posted as Additional Station House Officer at Police Station Kullu since 2004. He has stated that on dated 17.8.2006 he received statement Ext. PA of prosecutrix recorded u/s 154 Cr.PC for registration of FIR. He has stated that on the basis of statement Ext. PA FIR was registered. He has stated that he prepared case file. He denied suggestion that FIR was registered on concocted facts.

(A) Non examination of Gorkha Ram Bahadur is fatal to the prosecution in present case.

It is the case of the prosecution that incident took place in the presence of Gorkha Ram Bahadur but prosecution did not examine Gorkha Ram Bahadur in present case. It is held that non-examination of material eye witness Gorkha Ram Bahadur in present case is fatal to the prosecution case because as per testimony of injured prosecutrix witness Gorkha Ram Bahadur was the material eye witness of the incident.

(B) Material improvements in the testimony of injured prosecutrix is fatal to the prosecution in present case.

It is proved on record that statement of injured prosecutrix was recorded u/s 154 Cr PC vide document Ext. PA placed on record. Court has carefully perused the contents of document recorded u/s 154 Cr.PC. There is recital in statement recorded u/s 154 Cr PC that on dated 6.8.2006 when husband of injured prosecutrix did not come back from Punjab till 10 PM then prosecutrix along with Gorkha Ram Bahadur went out during night period to search the husband of injured prosecutrix. There is further recital in statement recorded u/s 154 Cr.PC that when injured prosecutrix along with Gorkha Ram Bahadur reached near Khushal Chand Hotel then co-accused Amar Nath son of Kishan Chand and another co-accused Tirath Ram son of Kishan Chand met injured prosecutrix and Gorkha Ram Bahadur and inquired about the presence of prosecutrix and Gorkha Ram Bahadur during the mid night upon the road nearby Khushal Chand Hotel. Injured prosecutrix has specifically stated in her statement recorded u/s 154 Code of Criminal Procedure that co-accused Amar Nath caught her and torn off her shirt and another co-accused Tirath Ram had inflicted injury upon the person of the prosecutrix with sharp edged weapon but when injured prosecutrix appeared in Court she has stated in positive manner that both accused persons have inflicted injuries upon the persons of prosecutrix. It is held that there is material improvement qua causing of injury upon injured prosecutrix. No reason has been assigned by injured prosecutrix as to why she did not state earlier this fact when her statement was recorded u/s 154 Code of Criminal Procedure that both accused persons have inflicted injuries upon her with sharp edged weapon. Hence it is held that in view of material improvements between the testimony of the prosecutrix recorded before the Court and between the statement of the prosecutrix recorded u/s 154 Code of Criminal Procedure it is not expedient in the ends of justice to convict the accused persons simply on the testimony of injured prosecutrix. It is held that the testimony of injured prosecutrix did not inspire confidence of the Court in view of material improvements in present case.

(C) Non-examination of mother-in-law of injured prosecutrix is fatal to the prosecution case.

Injured prosecutrix has specifically stated in her statement that her husband and her mother-in-law have rescued her from the clutches of the accused persons. Prosecution did not examine the mother-in-law of injured prosecutrix in order to prove that her mother-in-law had also rescued injured prosecutrix from the clutches of the accused persons and the same is fatal to the prosecution case.

(D) Testimony of PW2 Chaman Lal husband of injured prosecutrix did not inspire confidence of the court.

It is proved on record that when statement of injured prosecutrix was recorded she has stated that injuries were caused to her by accused persons upon the road nearby the Hotel of Khushal Chand. Even as per site plan Ext. PS placed on record the injury was caused to the injured prosecutrix upon the road but PW2 Chaman Lal husband of injured prosecutrix has specifically stated that prosecutrix and accused persons were found in the rivulet when he went in the rivulet to meet the call of nature. There is a material contradiction between the place of incident reported by the Investigating Officer and the place of incident mentioned by PW2 Chaman Lal. Hence it is held that it is not expedient in the ends of justice to convict the accused persons on the testimony of PW2 Chaman Lal.

(E) FSL report Ext. PR not helpful to the prosecution.

As per FSL report Ext. PR although blood was found upon darat but the same was not sufficient for examination. Hence it is held that even weapon of attack i.e. Darat is not connected with accused persons as per chemical analyst report. Public analyst did not mention in his report that blood of injured prosecutrix was found upon the weapon of attack i.e. Darat. Hence it is held that weapon of attack is not connected with the injuries sustained by injured prosecutrix.

(F) Disclosure statement of accused persons is not helpful to the prosecution.

It is held that disclosure statement of co-accused Tirath Ram is also not helpful to the prosecution because as per chemical analyst report the blood found upon weapon of attack i.e. Darat was not sufficient for chemical examination. It is well settled principle of law that vested right accrued in favour of the accused with the judgment of acquittal by learned trial Court. (See Mookkiah and Another Vs. State rep. by the Inspector of Police, Tamil Nadu, . See State of Rajasthan Vs. Talevar and Another, . See Surendra Vs. State of Rajasthan., . See State of Rajasthan Vs. Shera Ram @ Vishnu Dutta, ). It is well settled principle of law (i) That appellate Court should not ordinarily set aside a judgment of acquittal in a case where two views are possible though the view of the appellate Court may be more probable. (ii) That while dealing with a judgment of acquittal the appellate Court must consider entire evidence on record so as to arrive at a finding as to whether views of learned trial Court are perverse or otherwise unsustainable (iii) That appellate Court is entitled to consider whether in arriving at a finding of fact, learned trial Court failed to take into consideration any admissible fact (iv) That learned trial court took into consideration evidence brought on record contrary to law. (See Balak Ram Vs. State of U.P., , See Allarakha K. Mansuri Vs. State of Gujarat, , See Raghunath and Ram Kishan and Others Vs. State of Haryana and Others, , See State of Uttar Pradesh Vs. Ram Veer Singh and Others, , See S. Rama Krishna Vs. S. Rami Reddy (D) by his LRs. and Others, , See Arulvelu and Another Vs. State represented by the Public Prosecutor and Another, , See Perla Somasekhara Reddy and Others Vs. State of A.P. rep. by Public Prosecutor, , See Ram Singh @ Chhaju Vs. State of Himachal Pradesh, ).

It is well settled law that evidence of Medical Officer is not evidence of fact but is a evidence of opinion only. It is well settled law that conviction in criminal case is sustained on the proof of fact alleged by prosecution. (See Kodali Purnachandra Rao and Another Vs. The Public Prosecutor, Andhra Pradesh, . Also see Daryao Singh Vs. State of Madhya Pradesh, ) It was held in case reported in State (Delhi Administration) Vs. Shri Gulzari Lal Tandon, that moral conviction however strong cannot amount to legal conviction sustainable in law. (See Sharad Birdhichand Sarda Vs. State of Maharashtra, . See Bhugdomal Gangaram and Others Vs. State of Gujarat, See State of U.P. Vs. Sukhbasi and Others, . See Anjlus Dungdung Vs. State of Jharkhand, . It was held in case reported in Nanhar and Others Vs. State of Haryana, that prosecution must stand or fall on its own leg and it cannot derive any strength from the weakness of defense. Also See Sharad Birdhichand Sarda Vs. State of Maharashtra, .

Keeping in view of the ratio of law laid down by the Apex Court reported in Md. Ankoos and Others Vs. The Public Prosecutor, High Court of A.P., High Court of Andhra Pradesh Hyderabad it is held that Court below has correctly appreciated the oral as well as documentary evidence placed on record. It is held that no ground for interference is called for in present case. Present appeal is dismissed and judgment of acquittal passed by learned trial court is affirmed and benefit of doubt is given to accused persons in present case. Appeal stands disposed of. All pending application(s) if any are also disposed of.