High Court of H.P. 1

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Criminal Appeal No. 71 of 2009

Decided on: October 3, 2017

_______________________________________________________________

Inder Verma alias Raju ……Appellant

Versus

State of Himachal Pradesh …..Respondent

_______________________________________________________________

Coram:

The Hon’ble Mr. Justice Sandeep Sharma, Judge.

Whether approved for reporting?

1 yes.

_______________________________________________________________

For the appellant : Mr. Naresh K. Gupta, Advocate.

For the respondent : Mr. M.L. Chauhan, Additional

Advocate General.

_______________________________________________________________

Sandeep Sharma, Judge (Oral)

Instant appeal under Section 374 CrPC, i s directed

against judgment of conviction dated 26.3.2009, passed by

learned Sessions Judge, Chamba, in Sessions Trial No. 6 of

2008, whereby learned Court below, while holding accused

guilty of having committed offence punishable under Section

304 IPC, convicted him to undergo rigorous imprisonment for

five years and to pay a fine of `10,000/- and in default of

payment of fine, to further undergo imprisonment for six

months.

2. Briefly stated the facts of the case, as emerge from record

are that, one Shri Vijay Kumar, got recorded his statement

1

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

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under Section 154 CrPC, alleging therein that deceased Rajinder

Kumar was a mason as well as a contractor, and he was

constructing house of accused, Inder Verma, at village Udaypur

on contract basis. On 5.6.2006, labo urers employed by

deceased Rajinder Kumar did not turn up for construction and,

on that day, Rajinder Kumar was in the shop of PW -1 Vijay

Kumar i.e. complainant, at Udaypur. Accused alongwith 5 -6

persons, including his father, came to the shop of Vijay Kumar

and asked Rajinder Kumar as to why the labourers did not turn

up to carry out construction work at the site. Deceased told

accused that since payment was not made to labourers, they did

not turn up for work. Accused, after having heard aforesaid

explanation rendered by deceased, started giving beatings to

deceased Rajinder Kumar. Accused gave 2 -3 blows with his

head on the head of deceased, as a result of which, Rajinder

Kumar fell unconscious on the spot. Complainant, Vijay Kumar,

provided water to deceased, but it was not taken by him.

Thereafter, accused alongwith other persons, took deceased to

Satyam Hospital, Sultanpur in his vehicle, but unfortunately, he

was declared brought dead. Doctors at Satyam Hospital,

informed police telephonically with regard to death of Rajinder

Kumar, whereafter, Inspector Jatinder Kumar reached the

hospital to verify the fact. On the basis of aforesaid statement of

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Vijay Kumar, recorded under Section 154 CrPC, (Ext. PW-1/A),

formal FIR Ext. PW-6/A came to be registered at Police Station,

Sadar, Chamba, under Section 302 IPC, against the accused.

On the request of police i.e. Ext. PW-5/A, a team of doctors

conducted post-mortem examination of deceased at Zonal

Hospital, Chamba. Since the team of doctors at Zonal Hospital,

Chamba, was unable to find out the exact reason of death of

deceased Rajinder Kumar, dead body was sent to Dr. Rajinder

Prasad Government Medical College, Tanda, for expert opinion.

Doctor Chanderdeep Sharma, posted as Junior Resident, after

having conducted post-mortem examination, on the dead body

of deceased Rajinder Kumar, gave his report stating therein that

deceased died due to neurogenic shock due to ante mortem

injury.

3. After completion of investigation, police presented

Challan under Section 302 IPC against the accused before the

Chief Judicial Magistrate, Chamba, who further committed the

case to the learned Sessions Judge, Chamba. Learned Sessions

Judge, Chamba, on being satisfied that prima facie case exists

against accused, framed charge against accused for having

committed offence punishable under Section 302 IPC, to which

he pleaded not guilty and claimed trial.

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4. Prosecution, examined as many as ten witnesses to prove

its case. Accused in his statement recorded under Section 313

CrPC, denied the case of prosecution in toto and claimed

himself to be innocent. Learned Sessions Judge, after having

perused evidence collected on record by prosecution held

accused guilty of having committed offence punishable under

Section 304 IPC, for causing death of Rajinder Kumar and

accordingly convicted and sentenced him, as noticed above.

5. Accused being aggrieved and dissatisfied with the

judgment of conviction passed by learned Court below, has

come before this Court, by way of instant proceedings seeking

therein his acquittal after setting aside judgment of conviction

recorded by the learned Court below.

6. Mr. Naresh K. Gupta, learned counsel representing the

accused, while referring to the impugned judgment of conviction

recorded by the learned Court below, vehemently argued that

impugned judgment passed by the learned Court below is not

sustainable in the eye of law, as the same is not based upon

correct appreciation of evidence adduced on record by the

prosecution and as such deserves to be set aside. Lea rned

counsel representing the accused while inviting attention of this

Court to the impugned judgment of conviction, strenuously

argued that bare perusal of impugned judgment suggests that

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the learned Court below, while holding accused guilty of having

committed offence punishable under Section 304 IPC, has not

dealt with evidence in its right perspective, as a result of which,

erroneous findings have come on record to the detriment of the

accused, who is an innocent person. To substantiate his

aforesaid arguments, Mr. Gupta, made this court to travel

through the evidence led on record by the prosecution to

demonstrate that prosecution was not able to prove beyond

reasonable doubt that deceased Rajinder Kumar had died due

to injuries allegedly inflicted upon his body by the accused,

rather, there is ample evidence available on record, suggestive of

the fact that deceased suffered injury after having fallen from

stair case. Mr. Gupta, further contended that all the material

prosecution witnesses i.e. PW-1, PW-2 and PW-3, who could be

termed as spot witnesses, nowhere supported the case of

prosecution, because, all of them categorically stated that

deceased Rajinder Kumar, suffered injury while attempting to

pick up a stone from the ground. Mr. Gupta, further contended

that both the material prosecution witnesses i.e. PW-1 and PW-

2, turned hostile and nowhere supported the case of the

prosecution, save and except the factum with regard to quarrel,

if any, between accused and deceased. Mr. Gupta, while making

this Court to read the statement of PW-3, contended that no

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reliance, if any, could be placed upon version put forth by this

witness, especially in view of material contradictions in her

statement. While concluding his arguments, Mr. Gupta,

contended that though there was no requirement at all for the

police to get the re-post mortem done from Dr. RPGMC, Tanda

after having received a conclusive report from Zonal Hospital,

Chamba, but even otherwise, second report given by Dr.

Rajinder Prasad Government Medical College, Tanda, could not

be read in evidence, especially in view of the fact that the

Doctor, who gave that opinion was not an expert on the subject.

With the aforesaid submissions, Mr. Gupta, prayed that

accused be acquitted of the charge framed against him under

Section 304 IPC, after setting aside impugned judgment of

conviction recorded by learned Court below.

7. Mr. M.L. Chauhan, learned Additional Advocate General,

while refuting aforesaid submissions having been made by Mr.

Gupta, learned counsel representing the accused, supported the

impugned judgment of conviction recorded by the learned Court

below and contended that there is no scope of interference with

the judgment of court below, which is based upon correct

appreciation of evidence adduced on record, as such, present

appeal deserves to be dismissed. Mr. Chauhan, while referring

to the statements of PW -1, PW-2 and PW-3, refuted the

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contentions of Mr. Gupta, that there are material contradictions

in the statements of prosecution witnesses with regard to

beatings given by accused. Mr. Chauhan, while referring to the

statement of PW-3, strenuously argued that, all the prosecution

witnesses categorically stated that there was a quarrel between

the deceased and the accused, who, on the issue of payment of

wages, gave head blow on the head of deceased, as a result of

which, he (deceased) died. Mr. Chauhan, further contended that

since doctors of Zonal Hospital, Chamba, were unable to give

specific reason for death of deceased, dead body was sent for

further examination to Dr. Rajinder Prasad Government Medical

College, Tanda. Mr. Chauhan, further contended that PW-10 Dr.

Chanderdeep Sharma, may not be an expert in the field of

forensics, but it has specifically come in his statement that he

remained posted as Registrar, Department of Forensic

Medicines, Dr. RPGMC, Tanda from April, 2005 to January,

2008, as such, it can not be said that he did not have the

sufficient experience in the field of forensic science. Lastly, Mr.

Chauhan, contended that if statements of prosecution witnesses

are read in conjunction, it clearly suggests that prosecution

successfully proved on record, beyond reasonable doubt, that

deceased died due to the injury caused to him by the accused,

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who admittedly, caused blow of head on the head of deceased,

who later on died due to neurogenic shock.

8. I have heard the learned counsel for the parties and gone

through the record carefully.

9. As per prosecution story, on 5.6.2006, accused picked up

quarrel with deceased Rajinder Kumar since labourers did not

turn up for construction work. Accused gave 2-3 head blows on

the head of deceased Rajinder Kumar, as a result of which,

Rajinder Kumar, suffered severe injuries and fell unconscious

on the spot. Prosecution, with a view to prove its case also

placed on record, medical evidence in the shape of FSL report,

Ext. PW-8/H, dated 11.8.2008, wherein, it was opined that

deceased died due to neurogenic shock, due to ante mortem

injury, whereas, accused, in his statement, under Section 313

CrPC, stated that no quarrel took place between him and

deceased, rather, husband of PW-3 Raj Kumari had quarreled

with him and he had pushed him out of shop. He further stated

that on the date of alleged occurrence, he was in his shop at

Udaypur. After having heard the noise of quarrel, he went to the

place. He further stated that when quarrel had taken place,

deceased Rajinder Kumar, went to lift a big stone and lost his

balance, as a result of which, he fell on the stairs and became

unconscious. He further stat ed that 8-10 persons were

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quarrelling at that time, and he could not state that who were

those persons. In nutshell, case of the accused before the

learned Court below was that deceased suffered injuries after

having fallen on cemented stairs.

10. PW-1, Vijay Kumar deposed that deceased Rajinder

Kumar was a mason, who was constructing house of accused

on contract basis. On 5.6.2006, deceased came to his shop at

Udaypur and apprised him about dispute pertaining to payment

of wages by accused. He further stated that in the meantime,

accused also came there and a brawl took place between

accused and Rajinder Kumar, over the issue of payment of

wages to the labourers. It has specifically come in his statement

that both, accused and deceased, started exchanging blows on

each other. As per PW-1, a few persons, present on the spot,

made an attempt to stop the aforesaid persons, from fighting,

but Rajinder Kumar fell unconscious in front of shop. Since

aforesaid witness was not able to prove case of the prosecution,

he was declared hostile and was allowed to be cross-examined

by the Public Prosecutor. In his cross -examination, PW-1

admitted that deceased tried to lift a stone at the time of

occurrence and he lost his control, and fell unconscious on the

stairs. It has specifically come in his cross-examination that he

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did not see accused giving blows to the deceased Rajinder

Kumar.

11. PW-2, Durgi Devi, i.e. wife of PW-1, Vijay Kumar,

also did not support the prosecution case. She stated that she

was inside the house, when she heard noise of quarrel. It has

also come in her statement that when she came out of house,

she saw accused and deceased scuffling with each other. This

witness like PW-1 stated that she did not see accused giving

blows to the deceased. This witness was also declared hostile

and was cross-examined by the learned Public Prosecutor. But,

even her cross-examination nowhere suggests that prosecution

was able to extract something contrary to what she stated in her

examination-in-chief. This witness also stated that Rajinder

Kumar, deceased, tried to lift a stone and lost his balance and

fell on stairs.

12. PW-3 Raj Kumari, who was allegedly present on the

spot at the time of occurrence, supported the prosecution story

that deceased Rajinder Kumar, was constructing the house of

accused on contract basis. This witness deposed before the

learned Court below that on the date of alleged occurrence, she

came to shop of Vijay Kumar, to receive wages, where accused

also came with 5-6 persons, in a vehicle. As per this witness,

accused and deceased started quarelling with each other over

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the issue of payment of wages to the labourers. PW-3 further

stated that accused gave head blows to the head of Rajinder

Kumar and Rajinder Kumar fell unconscious on the spot. This

witness, further deposed before the learned Court below that

accused also gave knee blow on the ribs of deceased. As per this

witness, water was provided to Rajinder Kumar, but he did not

take the same since he was unconscious. Interestingly, this

witness though denied that Rajinder Kumar fell on stairs, and

became unconscious, but categorically admitted that Rajinder

Kumar tried to lift stone but he could not lift the same.

13. Apart from PW-1, Vijay Kumar, PW-2 Durgi Devi,

and PW-3 Raj Kumari, none of other prosecution witnesses were

present on the spot, at the time of alleged occurrence, as such,

their statements may not be very relevant to determine the

correctness and genuineness of the story put forth by the

prosecution especially as far as beatings allegedly given by

accused to deceased are concerned.

14. Conjoint reading of statements having been made

by PW-1, PW-2 and PW-3, certainly compels this Court to agree

with the contentions of Mr. Gupta, learned counsel representing

the accused that none of prosecution witnesses specifically

stated that they saw accused giving head blows to deceased.

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15. True it is, that perusal of aforesaid statements

having been made by these prosecution witnesses though

suggests that quarrel took place between deceased and accused

but, definitely there is no positive evidence available on record

suggestive of the fact that accused gave blows on the head of

deceased, rather, aforesaid prosecution witnesses in one way or

other, have admitted that deceased, while making an attempt to

pick up stone, lost his balance and fell on the cemented stairs.

If the version put forth by these material witnesses is

analyzed/examined, juxtaposing statement made by accused

under Section 313 CrPC, there appears to be force in the

defence taken by accused that deceased suffered injury after

having fallen from stairs.

16. Otherwise also, if statements made by PW-1, PW-2

and especially that of PW-3 are read in their entirety, there

appear to be major contradictions, which could not be ignored

/brushed aside by the learned Court below, while determining

the guilt of the accused.

17. True it is, contradictions minor in nature, can be

overlooked by the Court while ascertaining correctness of story

put forth by the prosecution, but major contradictions, if any,

which create doubt with regard to correctness and genuineness

of story of prosecution, can not be ignored and in that regard,

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benefit of doubt, if any, is required to be extended to the

accused.

18. In the instant case, though PW-1 and PW-2 turned

hostile, but on the request of Public Prosecutor, opportunity

was granted to the prosecution to cross -examine these

witnesses, but, as has been noticed above, cross-examination

conducted on these witnesses, nowhere suggests that

prosecution was able to extract from them that injuries caused

on the person of deceased were caused by the accused.

19. In the case at hand, bare perusal of judgment of

conviction recorded by the learned Court below, suggests that

the deposition made by PW-3 Raj Kumari weighed heavily with

the Court below, while holding accused guilty of having

committed offence punishable under Section 304 IPC. At the

cost of repetition, it is stated that even PW-3 Raj Kumari

nowhere supported the case of prosecution, because, there are

material contradictions in her statement with regard to infliction

of injuries on the body of the deceased by the accused. PW-3, in

her examination in chief stated that accused gave two -three

head blows on the head of deceased and deceased fell

unconscious on the spot. In her cross -examination, she

admitted that Rajinder Kumar (deceased) tried to lift a stone,

but he could not lift the same. Though this witness denied that

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the deceased Rajinder Kumar fell down from the stairs and

became unconscious, but, if her statement recorded under

Section 161 CrPC is perused, she has taken altogether a

different stand before the learned Court below. PW-3, nowhere

stated in her statement recorded under Section 161 CrPC, that

she saw accused giving head blows to the head of deceased.

20. Similarly, she deposed before the learned Court

below that she had got recorded in her statement given to the

police that she was working in the house of accused in

construction work but when confronted with the contents of her

statement recorded under Section 161 CrPC, it was not

recorded so. Similarly, she stated that she had got recorded in

her statement given to the police that both, accused and

deceased were quarrelling with each other, but it is not recorded

so in her statement under Section 161 CrPC. Most importantly,

she stated that she had got recorded in her statement given to

the police that accused had given two head blows to the head of

deceased, but nothing as such is recorded in her statement

recorded under Section 161 CrPC. Similarly, in her statement

before the Court below, PW-3 stated that accused gave knee

blows on the ribs of the deceased, but no such statement was

ever made by her to the police under Section 161 CrPC. In her

cross-examination, she categorically admitted that no

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conversation took place in her presence between Vijay Kumar

and deceased. She further admitted that there are 8-10 stairs

on the right side of the shop of Vijay Kumar and deceased fell

down on the floor and not on stairs. She claimed that this fact

was got recorded by her in her statement given to the police, but

same was not recorded in her statement under Section 161

CrPC. Most importantly, in her cross-examination, she admitted

that deceased tried to lift a stone but could not do so. She

further admitted that it is correct to suggest that deceased fell

down from 8-10 steps of stairs.

21. This Court, after having carefully perused the

statement of PW-3, which has been heavily relied upon by the

learned Court below, while holding accused guilty of having

committed offence punishable under Se ction 304 IPC, is not

inclined to agree with the contention of the learned Additional

Advocate General, that the statement of PW-3 is cogent, reliable

and confidence inspiring, rather, this Court, after having

carefully gone through the records, has no he sitation to

conclude that no reliance, if any, could be placed upon the

statement of PW-3, but for material contradictions in her

statement with regard to beatings allegedly given by the

accused to deceased, Rajinder Kumar.

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22. By now, it is well settled that in criminal trials,

evidence of eye witnesses requires careful assessment and

needs to be evaluated for its credibility. It has been repeatedly

held by the Hon'ble Apex Court that 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 situation where there

are multiple testimonies and equally large number of witnesses

testifying before the Court. It has been repeatedly held by the

Hon'ble Apex Court that there must be a string that should join

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 SCC 645, wherein it has been held as under:-

“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)

“14. The evidence must be tested for its

inherent consistency and the inherent

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probability of the story; consistency with the

account of other witness is held to be

creditworthy;..the probative value of such

evidence becomes eligible to be put into the

scales for a cumulative evaluation.”

46. In a criminal trial, evidence of the eye witness

requires a careful assessment and must be

evaluated for its cre ditability. 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.

23. Apart from above, this Court, after having carefully

gone through the medical evidence led on record by the

prosecution i.e. Ext. PW-10/B, finds substantial force in the

arguments of learned counsel representing the accused that no

reliance, if any, could be placed upon the medical opi nion,

rendered by PW-10, Dr. Chanderdeep Sharma, who was

admittedly a Junior Resident /OBS, Gynaecology from PGI MER

Chandigarh. Though, PW-10, in his statement stated that he

remained posted as a Registrar, Department of Forensic

Medicines, Dr. Rajinder Prasad Government Medical College,

Tanda from April 2005 to January, 2008, but, admittedly, there

is nothing on record suggestive of the fact that aforesaid witness

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was an expert in the field of Forensic Science , rather,

qualification described by him itself suggests that he was an

expert in Gynaecology and not in forensic sciences.

24. In the case at hand, post mortem, at the first

instance was conducted by a team of Doctors at Zonal Hospital,

Chamba. PW -5, Dr. Subhash Chauhan, RH, Chamba,

categorically stated that in the month of June 2006, he was

posted as Medical Officer in Zonal Hospital, Chamba. On

6.6.2006, a Board of Doctors consisting of him and Dr. Devinder

Kumar, conducted post-mortem examination on the body of

deceased, after having received application from Police, Ext. PW-

5/A. It would be appropriate to take note of the opinion

rendered by him, which is as follows:

“An average built body measuring 5 -6” wearing black

Checkdar white shirt, white Banyan, light brown

underwear black shocks and shoes. There was no any

external injury on the body seen. There was slight

swelling over left cheek. Small cut on the left angele of

mouth (1x.05 cms.). No ligature marks or signs of injury

seen on the back.

On examining Cranium and spinal card, no external

injury was seen on the skull (skull vault) opened and no

any injury to meninges, bran mater, blood vesells could

not be ascertained. Body of the deceased was send for

expert opinion to R.P. Medical College, Tanda. On

examining thorax, the walls, ribs, cattilages, pleaurac,

larynx, and trachea, right lung, left lung were found

normal. Heard was found empty chamber. Abdomen. On

examination of abdomen-walls, Pharanyx, mouth, harynx

and oesophagus were found normal. Stomach and its

contents, small intestines and their contents, liver spleen

and kidney were sent for chemical examination. Bladder

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was empty. Organs of generation external and internal

were normal. Muscles, bones and joints were normal.

Opinion. After post mortem of the body of the deceased,

the cause of death could not be ascertained and the body

of the deceased was send to department of Forensic

Medicines, Dr. R.P. MC College Tanda for expert opinion.

The viscera also send for Chemical analyst. The probable

time that elapsed between injury and death was half an

hour and between the death and post mortem, within 24

hours. The body of the deceased alongwith clothing,

viscera handed over to Constable Chaman Lal no. 361 for

expert opinion from Forensic Department, Dr. R.P.MC

Tanda in a sealed cover containing 15 seals. I issued PMR

Ex. PW.5/B which bears my signatures.”

25. As per PW-5, cause of death could not be

ascertained and accordingly, matter was referred to Dr. Rajinder

Prasad Government Medical College, Tanda, for expert opinion.

But, otherwise, perusal of report submitted by the aforesaid

Doctor nowhere suggests that external injury, if any, on the

skull of deceased was found by the team of doctors, rather,

doctors at Chamba, categorically stated that on examination of

cranium and spinal chord, no external injury was seen on skull

and no injury was seen to the meninges, brain matter or blood

vessels. Similarly, it was concluded that on examination of

thorax, walls, ribs, cartilages, pleaurac, larynx and trachea,

right and left lungs, they were found normal.

26. Once matter was referred to Dr. Rajinder Prasad

Government Medical College, Tanda, post-mortem examination

was expected to be conducted by an expert and not by a Junior

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Resident, who had done OBS in Gynaecology from PGI MER

Chandigarh. Though the op inion, if any, given by aforesaid

doctor, PW-3, has no relevance, but even if read and examined,

it nowhere connects the accused with the injury allegedly

caused to the body of the deceased, Rajinder Kumar. PW-10, in

his opinion, PW-10/B, categorically stated that the findings

retuned by the team of doctors at Chamba were consistent with

the injuries mentioned in post-mortem report, dated 6.6.2006,

except for the following injuries:

“1. Reddish brown grazed abrasion right leg medial side

3 cm x 0.5 cms size.

2. Reddish brown grazed abrasions bilaterally on

scrotem, 2 in no. each measuring 3 inch x 2 inch.

3. Contusion on right fronto tempro parietal region of

scalp measuring 9 Cm x 8 Cms in size, reddish coloured.

4. Extradural haemorrhage 9 Cm. X 8 Cms size fronto

tempo parietal region on right side, reddish coloured.

5. Intra Cerebrial haemorrhage in mid frontal intra

cerebral region 3 Cm X 3 Cms. size in midline of brain,

reddish in colour.”

27. Save and except injury No.5, i.e. intra-cerebral

haemorrhage in mid frontal intra cerebral region, none of the

injuries is directly related to head injury. The aforesaid witness,

in his cross-examination, categorically admitted that injury No.5

detailed in Ext. PW-10/B, is possible by fall and rolling over

cemented stairs.

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28. Though this Court, is of the clear view that no

reliance, if any, could be placed upon the report, if any,

rendered by PW-10, who was not a forensic expert, but,

admission made by him in the cross-examination that injury at

Sr. No. 5 could be caused due to fall and rolling over cemented

stairs, lends support to the defence taken by the accused, who

categorically stated that deceased suffered injury, after having

fallen over cemented stairs.

29. At this stage, it may be appropriate to take note of

the fact that PW-1, PW-2 and PW-3, all categorically stated

before the Court below that deceased Rajinder Kumar, while

making an attempt to pick up a stone, fell from the stairs and

thereafter he had become unconscious.

30. After perusing the statements of the prosecution

witnesses as well exhibits placed on record, two views are

possible in the present case and as such, the petitioner-accused

is entitled to benefit of doubt. The learned counsel for the

accused has placed reliance on the judgment passed by Hon’ble

Apex Court reported in State of UP versus Ghambhir Singh &

others, AIR 2005 (92) Supreme Court 2439, wherein the

Hon’ble Apex Court has held that if on the same evidence, two

views are reasonably possible, the one in favour of the accused

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High Court of H.P. 22

must be preferred. The relevant paragraph is reproduced as

under:-

“6. So far as Hori Lal, PW-1 is concerned, he had

been sent to fetch a basket from the village and it

was only a matter of coincidence that while he was

returning he witnessed the entire incident. The

High Court did not consider it safe to rely on his

testimony because he evidence clearly shows that

he had an animus against the appellants.

Moreover, his evidence was not corroborated by

objective circumstances. Though it was his

categorical case that all of them fired, no injury

caused by rifle was found, and, only two wounds

were found on the person of the deceased. Apart

from this PW-3 did not mention the presence of

either PW-1 or PW-2 at the time of occurrence. All

these circumstances do create doubt about the

truthfulness of the prosecution case. The presence

of these three witnesses becomes doubtful if their

evidence is critically scrutinized. May be it is also

possible to take a view in favour of the prosecution,

but since the High Court, on an appreciation of the

evidence on record, has recorded a finding in favour

of the accused, we do not feel persuaded to interfere

with the order of the High Court in an appeal

against acquittal. It is well settled that if on the

same evidence two views are reasonably possible,

the one in favour of the accused must be preferred.”

31. The Hon’ble Division Bench of this Court vide

judgment reported in Pawan Kumar and Kamal Bhardwaj

versus State of H.P., latest HLJ 2008 (HP) 1150 has also

concluded here-in-below:-

“25. Moreover, when the occurrence is admitted but

there are two different versions of the incident, one

put forth by the prosecution and the other by the

defence and one of the two version is proved to be

false, the second can safely be believed, unless the

same is unnatural or inherently untrue.

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High Court of H.P. 23

26. In the present case, as noticed hereinabove, the

manner of occurrence, as pleaded by the defence, is

not true. The manner of the occurrence testified by

PW-11 Sandeep Rana is not unnatural nor is it

intrinsically untrue, therefore, it has to be believed.

27.Sandeep Rana could not be said to have been

established, even if the prosecution version were

taken on its face value. It was pleaded that no

serious injury had been caused to PW-11 Sandeep

Rana and that all the injuries, according to the

testimony of PW-21 Dr. Raj Kumar, which he

noticed on the person of Sandeep Rana, at the time

of his medical examination, were simple in nature.

32. Consequently, in view of detailed discussion made

herein above, appeal is allowed and impugned judgment of

conviction recorded by learned Court below is set aside.

Accused is acquitted of the offence punishable under Section

304 IPC. Fine amount, if any, deposited by the accused, is

ordered to be refunded to him. Bail bonds, if any, furnished by

the accused are discharged.

Pending applications, if any, stand disposed of.

(Sandeep Sharma)

Judge

October 3, 2017

Vikrant

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