IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 611 of 2002 Judgment Reserved on 9th August, 2011 Date of Decision 30th December, 2011 ________________________________________________________ State of H.P. ….Appellant Versus Ashwani Kumar ….Respondent. ________________________________________________________ Coram The Hon’ble Mr. Justice R.B. Misra, J. The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 Yes ________________________________________________________ For the Appellant: Mr. R.K. Sharma, Sr. Additional Advocate General with Mr. Rajinder Dogra, Addl. A.G. For the Respondents: Mr. Ajay Sharma, Advocate. __________________________________________________________________ Dev Darshan Sud, J. This appeal has been preferred by the State against the judgment of acquittal passed by the learned Sessions Judge, Kangra at Dharamshala. The accused-respondent was charged for offences under Section 307 of the Indian Penal Code (hereinafter referred to as the IPC). 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes 2 2. The prosecution case, in brief, is that on 26.10.1999 statement Ext.PA of Prahlad Singh injured was recorded in the Civil Hospital, Nurpur. He states that on that day at around 4.45 PM when he was standing at bus stand, Jaunta after closing his shop, the accused called him aside and when he approached him, he gave him a blow on his head with some sharp edged weapon, quarreled with him and gave another blow with weapon in his stomach. At that time, Tilak Singh, PW2 and Subhash Chand PW3 also reached the scene of occurrence and when they tried to save the injured, accused pushed the injured and threw him in the Nallah. He was taken to the Civil Hospital, where he was medically treated for the injuries inflicted upon him by a Khukhari. The prosecution has examined seven witnesses in all in support of its case and the learned trial Court after consideration of the evidence on record, has acquitted the accused. 3. We advert to the evidence on record. PW1 Prahlad Singh has reiterated the prosecution case and proved his statement Ext.PA on record. He also states that he has some old enmity with the accused and that after he received the injuries, he was taken to the hospital by PW3 Subhash Chand and PW2 Tilak, who had reached the scene when he raised a hue and cry. PW2 Tilak Singh has turned hostile. He states in his evidence that he had heard some commotion at around 4.30/4.45 PM on the day of occurrence when he was present at Jaunta chowk. When he went there he saw that Prahlad complainant and accused Ashwani Kumar were in the Nallah below the road, Prahlad had sustained injuries and blood was oozing out. There was blood present on his head and his clothes were also blood stained. He 3 says that in his presence, no fight took place. He was declared hostile by the prosecution. He denied that the accused had assaulted the complainant with a Khukhari. 4. PW3 Subhash Chand stated that at around 4.45 PM on that day, he heard some commotion near the bus stand. He heard some noise and saw that the accused and Prahlad were in the Nallah. No fight or assault took place in his presence. He was also declared hostile by the prosecution. 5. PW5 Dr. Anil Ohri treated the complainant and found injuries on his scalp, abrasions on his left hand and chest etc. PW6, who is the witness to the recovery Ext.PD, has turned hostile. He refused to support the prosecution version that Khukhari Ext.P5 which is weapon of offence was produced by the accused before the police in his presence. The other witnesses are police personnel. In the entirety of this evidence, the learned Court below holds that (a) weapon of offence Ext.P5 is not proved to have been linked with the assault; (b) all the witnesses except the doctor and the police officials, have turned hostile. In other words, what we find from the evidence is that the offence has not been established, as alleged. The only fact elicited from the cross examination of witnesses PW2 Tilak Singh and PW3 Subhash Chand is that when they heard some commotion at the bus stand on the alleged date and time, both of them rushed to the spot where a number of persons had gathered, they saw both the accused and the complainant in the Nallah. These facts from the examination in chief and cross examination of the witnesses as aforesaid hardly establish facts sufficient to sustain conviction. The principles applicable governing the exercise of 4 pecuniary jurisdiction of the Court have been affirmed by the Supreme Court in Mohammed Ankoos and others vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad (2010)1 SCC 94. The Supreme Court holds: “15. This Court has, time and again, dealt with the scope of exercise of power by the Appellate Court against judgment of acquittal under Sections 378 and 386, Cr.P.C. It has been repeatedly held that if two views are possible, the Appellate Court should not ordinarily interfere with the judgment of acquittal. This Court has laid down that Appellate Court shall not reverse a judgment of acquittal because another view is possible to be taken. It is not necessary to multiply the decisions on the subject and reference to a later decision of this Court in Ghurey Lal v. State Of Uttar Pradesh (2008)10 SCC 450 shall suffice wherein this Court considered a long line of cases and held thus: (SCC p. 477, paras 69-70) "69. The following principles emerge from the cases above: 1. The appellate court may review the evidence in appeals against acquittal under Sections 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate court can reappreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law. 2. The accused is presumed innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent. 3. Due or proper weight and consideration must be given to the trial court's decision. This is especially true when a witness' credibility is at issue. It is not enough for the High Court to take a different view of the evidence. There must also be substantial and 5 compelling reasons for holding that the trial court was wrong. 70. In light of the above, the High Court and other appellate courts should follow the well-settled principles crystallised by number of judgments if it is going to overrule or otherwise disturb the trial court's acquittal: 1. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so. A number of instances arise in which the appellate court would have "very substantial and compelling reasons" to discard the trial court's decision. "Very substantial and compelling reasons" exist when: (i) The trial court's conclusion with regard to the facts is palpably wrong; (ii) The trial court's decision was based on an erroneous view of law; (iii) The trial court's judgment is likely to result in "grave miscarriage of justice"; (iv) The entire approach of the trial court in dealing with the evidence was patently illegal; (v) The trial court's judgment was manifestly unjust and unreasonable; (vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/report of the ballistic expert, etc. (vii) This list is intended to be illustrative, not exhaustive. 2. The appellate court must always give proper weight and consideration to the findings of the trial court. 3. If two reasonable views can be reached--one that leads to acquittal, the other to conviction--the High Courts/appellate courts must rule in favour of the accused." (at p. 100-101) To similar effect is the judgment of the Supreme Court in Ganpat vs. State of Haryana and others, (2010)12 SCC 59 holding: 6 “15. The following principles have to be kept in mind by the appellate court while dealing with appeals, particularly, against an order of acquittal: (i) There is no limitation on the part of the appellate court to review the evidence upon which the order of acquittal is founded and to come to its own conclusion. (ii) The appellate court can also review the trial court's conclusion with respect to both facts and law. (iii) While dealing with the appeal preferred by the State, it is the duty of the appellate court to marshal the entire evidence on record and by giving cogent and adequate reasons may set aside the judgment of acquittal. (iv) An order of acquittal is to be interfered with only when there are "compelling and substantial reasons" for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference. (v) When the trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts, etc. the appellate court is competent to reverse the decision of the trial court depending on the materials placed. [Vide Madan Lal vs. State of J & K, (1997) 7 SCC 677, Ghurey Lal vs. State of U.P., (2008) 10 SCC 450, Chandra Mohan Tiwari vs. State of M.P., (1992) 2 SCC 105, Jaswant Singh vs. State of Haryana, (2000) 4 SCC 484]. (at p. 62) 6. When we apply these principles to the facts of the present case, we find that all the eye witnesses have resiled from their statements and have been declared hostile. Even when they have been cross examined at length, nothing has been elicited from them which would in any manner establish the occurrence as alleged by the prosecution. Accepting that the sole 7 testimony of the injured can be relied upon to convict the respondent, we again find that weapon of offence has not been linked to the injuries caused to the injured. In these circumstances, we do not find that the learned trial Court has erred in dismissing the case of prosecution. 7. We find that this is an unfortunate case where each and every eye witness to the crime has turned hostile and spoken against the prosecution. The principle in Criminal Jurisprudence, to reiterate, is well settled that there can be no conviction without there being facts established on record by way of evidence to sustain such conviction. It is unfortunate that the witnesses choose to resile in Court when testifying on oath from the statements which they made to the police. This rot plagues the Criminal Jurisprudence of this country. We leave it at that. In these circumstances, we dismiss this appeal by holding that the learned Sessions Judge has rightly acquitted the accused. Appeal dismissed. Bail bonds furnished by the respondent-accused stand discharged. (R.B. Misra) Judge December 30 ,2011 (Dev Darshan Sud), ms Judge