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State of HP v/s Dina Nath (Since Deceased) & Another


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    Criminal Appeal No. 189 of 2008

    Decided On, 11 June 2020

    At, High Court of Himachal Pradesh

    By, THE HONOURABLE MR. JUSTICE VIVEK SINGH THAKUR

    For the Appearing Parties: Desh Raj Thakur, R.P. Singh, Raju Ram Rahi, Gaurav Gautam, Advocates.



Judgment Text


1. This appeal has been preferred by State against judgment dated 17.11.2007, passed by learned Additional Sessions Judge, Ghumarwin, District Bilaspur, H.P. in Criminal Appeal No. 36/10 of 2005, titled Dina Nath & Another Vs. State of H.P., whereby learned Additional Sessions Judge (herein after referred to as the 'first Appellate Court'), reversed the judgment passed by learned Additional Chief Judicial Magistrate, Ghumarwin, District Bilaspur, H.P. (herein after referred to as the 'trial Court') in case No. 337/1 of 1999/97, titled as State of Himachal Pradesh Vs. Dina Nath and Another, in case FIR No. 59 of 1997, dated 15.3.1997, registered under Sections 341, 323 read with Section 34 IPC in Police Station Hamirpur, H.P., wherein respondents were convicted by the trial Court under Section 323 and 341 IPC and sentenced under Section 323 IPC till rising of the Court with fine of Rs. 1,000/- and in default of payment thereof, to undergo simple imprisonment for 1 month and under Section 341 IPC till rising of the Court with fine of Rs. 500/- and in default of payment thereof to further undergo simple imprisonment for 15 days.

2. Prosecution case in brief is that complainant Yash Pal Singh was a practicing Advocate in District Courts Hamirpur and was having personal litigation with accused Dina Nath and also had accepted a case against daughter of Dina Nath and the said case was listed in Lok Adalat on 15.3.1997 at Hamirpur and on that day respondent Dina Nath had assaulted the complainant, regarding which a complaint was lodged by Yash Pal Singh with learned Chief Judicial Magistrate, Ghumarwin and thereafter, on the same day, respondent Dina Nath along with his son respondent No. 2 Vishal Puri and grandson of Dina Nath, Gaurav Walia (Juvenile), at around 4:45 P.M., had stopped and assaulted complainant Yash Pal Singh in the main Bazar, Hamirpur near the shop of Panwala after stopping the scooter being driven by complainant, when he was returning to his home situated at Shiv Nagar, Hamirpur. Immediately after the incident in market, the matter was reported to the Police in Police Station, Hamirpur and this intimation was entered in central diary as entry No. 18 at 5:30 P.M. and on the basis of the said information FIR Ex. PW-1/A was registered by Sub Inspector/Additional SHO Bihari Lal (PW-6) and complainant was medically examined through Medical Officer i.e. PW-8 Dr. Anjali Soni and PW-7 Dr. Wattan Singh on the very same day. PW-8 Dr. Anjali Soni had issued MLC Ex. PW-8/A, whereas PW-7 Dr. Wattan Singh, as an ENT Specialist, had issued MLC Ex. PW7/A after medical examination at about 7:30 A.M. Complainant Yash Pal Singh was also subjected to radiological examination and after having opinion of Radiologist, it was found that there was no fracture in the body parts, which were x-rayed and thereafter at about 8:15 P.M. complainant was also subjected to medical examination by Dental Surgeon PW-4 Dr. S.C. Aggarwal with respect to injury No. 1 and as per opinion of Doctors who had examined the complainant, Yash Pal Singh, all three injuries on the body of complainant were found simple in nature.

3. During investigation, on the basis of identification of complainant, site map of spot Ex. PW-6/B was prepared, statements of witnesses were recorded, blood stained clothes of complainant were taken in possession vide memo Ex. PW-1/B, in presence of witnesses and on completion of investigation, challan was prepared by SHO Gulab Singh.

4. During investigation, it was found that one of the accused, namely, Gaurav Kalia was juvenile and therefore, separate challan was presented against him in the H.P. Juvenile Court at Una, District Una, H.P.

5. On the basis of challan presented against accused Dina Nath and Vishal Puri, trial Court had put notice of accusation to them under Sections 341, 323 read with Section 34 IPC, wherein respondents had claimed trial. On completion of trial, respondents were convicted under Sections 341 and 323 read with Section 34 IPC as referred supra.

6. Respondents assailed their conviction in Sessions Court, by filing an appeal wherein first appellate Court allowed the appeal and acquitted the respondents.

7. Being aggrieved by judgment of acquittal passed by first appellate Court, the State has preferred this appeal, wherein during pendency of appeal, respondent Dina Nath has expired and appeal against him stands abated.

8. Respondent-Accused has put reliance on Ex. DA and Ex. D-2, previous statements of PW-6 Bihari Lal and PW-2 Ramesh Chand for impeaching their credibility. Considering these documents, first appellate Court has observed that statements of complainant PW-1 Yash Pal Singh as well as PW-2 Ramesh Chand are not reliable.

9. Section 155 of the Indian Evidence Act (herein after referred to as "the Act") permits that credit of a witness may be impeached by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted.

10. Section 145 of the Act enables the accused to cross-examine a witness as to previous statement made by him in writing or reduced into writing and it also provides that a witness may be cross-examined without writing been shown to him or being proved which is relevant to the matter in question, but with rider that if it is intended to contradict the witness by writing, the attention of the witness must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.

11. Section 145 of the Act provides the manner in which a witness can be contradicted, whereas Section 155 of the Act enables the adverse party to impeach the credit of witness by proving a former statement in consistent with any part of evidence of such witness which is liable to be contradicted. Section 155 of the Act is an enabling provision, whereas Section 145 of the Act provides procedure for contradiction of witness with his previous statement, which is made by the witness in writing or reduced into writing.

12. The Privy Council in case Bal Gangadhar Tilak and others Vs. Shrinivas Pandit and others, (1915) AIR PC 7, has held that on general principles it would appear to be sound that if a witness is under cross-examination on oath he should be given the opportunity, if documents are to be used against him, to tender his explanation to clear up the particular point of ambiguity or dispute. It is further held that this is a general salutary and intelligible rule, and where a witness's reputation and character are at stake the duty of enforcing this rule would appear to be singularly clear.

13. The Apex Court in case Tara Singh Vs. The State, (1951) AIR SC 441, has observed that Section 145 of the Act is a fair and proper provision and is in accord with the sense of fairplay to which Courts are accustomed and on giving effect to the plain meaning of this provision, the evidence in one Court cannot be used in any other Court, unless the witness is confronted with his previous statement as required by Section 145 of the Act. For using the previous testimony to the contrary as a substantive evidence, the witness must be confronted with those parts of previous statement, which are to be used for the purpose of contradicting the said witness.

14. Six Judges Bench of the Apex Court in Tehsildar Singh and another Vs. State of U.P., (1959) AIR SC 1012, had held that Section 145 of Evidence Act indicates the manner in which contradiction is to be brought out and cross-examining counsel shall put the part or parts of the statement which affirm(s) the contradiction to what is stated in evidence.

15. Admission before being used against any person must not only be proved but also the party must be confronted at the stage of cross-examination with its previous admission. (See Sita Ram Bhau Patil Vs. Ramchandra Nago Patil (Dead) by LRs, (1977) 2 SCC 49.)

16. In Rammi Alias Rameshwar Vs. State of M.P., (1999) 8 SCC 649, the Apex Court has held that merely because there is inconsistency in evidence, it is not sufficient to impair the credit of witness and no doubt Section 155 of the Act provides scope for impeaching the credit of witness by proof of an inconsistent former statement, but reading of Section would indicate that all inconsistent statements are not sufficient to impeach the credit of the witness and a former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction and only such of the inconsistent statement which is liable to be contradicted would affect the credit of the witness and Section 145 of the Act, enabling the cross-examiner to use any former statement of the witness, but if it is intended to contradict the witness, the cross-examination is enjoined to comply with the formality prescribed therein. The same principle has been re-iterated by the Apex Court in its pronouncement in case Majid Vs. State of Haryana, (2001) 10 SCC 6, wherein it is held that it is a method recognized by law under Section 155(3) of the Act that credit of a witness can be impeached by proof of former statement inconsistent with any part of his evidence, which is liable to be contradicted. It is further held that if the former statement was in writing or was reduced into writing, Section 145 of the Act requires that attention of the witness must be called to those parts of it which are used for the purpose of contradicting him.

17. From the aforesaid exposition of law, it is clear that contradiction has to be put to the witness as required under Section 145 of the Act and if contradiction put to the witness is denied by the witnesses, then attention of witness has to be drawn to the statement made by the said witness reduced into writing and witness must be given a reasonable opportunity to explain as to why such contradictions appear and the witness may give any answer if the statement made by him is put to him and he is confronted with such statement. The previous statement must be proved in accordance with law, then only it amounts to putting the contradictions to the witness to impeach his credibility.

18. In present case, statement Ex. DA was put to PW-6 Bihari Lal, Investigating Officer and his attention was invited to its portion, wherein he had stated in his deposition before the Juvenile Court that he had not made any shopkeeper a witness. PW-6 Bihari Lal, though, had admitted to have made such statement before the Juvenile Court, but had explained that meaning of such statement was that there were shops on the main front, but none from those was made witness, however, witnesses from the area around the spot were made, who had seen the incident. Therefore, PW-6 Bihari Lal has explained the meaning as well as essence of his previous statement and has given satisfactory explanation for such statement.

19. So far as previous statement of PW-2 Ramesh Chand is concerned, the same has been tendered in evidence at the time of closing the evidence by respondent/accused. Contents thereof, intended to be used as contradiction to the statement made in Court by the said witness, were never put to the said witness. Even the said statement was also not referred or put to the said witness in his cross-examination, therefore, as propounded by the Supreme Court, for non compliance of provisions of Section 145 of the Evidence Act, statement Ex. DA cannot be used for impeaching the credit of this witness by invoking the provisions of Section 153 (3) of the Evidence Act.

20. Veracity of statements of witnesses PW-2 Ramesh Chand and PW-5 Keshar Lal have also been questioned on the ground that they are interested witnesses, having relationship of Advocate and client with complainant PW-1 Yash Pal Singh. It is settled law that statement of interested/related witness is not to be disbelieved outrightly, but in such cases, minute and close scrutiny of the evidence is necessary.

21. In present case, the core issue is as to whether PW-1 Yash Pal was wrongly restrained by the main accused Dina Nath and all accused had given beatings to him, thereby voluntarily causing simple hurt to complainant or not.

22. So far as version of complainant PW-1 Yash Pal Singh with respect to happening of incident, as alleged, is concerned, the same has been substantiated and corroborated not only by PW-2 Ramesh Chand and PW-5 Keshar Lal, but has also been admitted in cross-examination on behalf of respondents. There is suggestion to PW-1 Yash Pal Singh that at the time of incident, he was going on foot, holding his scooter with his hand. It has also been suggested that complainant had tried to crush respondent Dina Nath with his scooter. Contrary to the suggestion put to PW-1 Yash Pal Singh, it has been positively suggested to PW-2 Ramesh Chand that in case scooter would not have been stopped by accused Dina Nath, it would have run over the accused and further that scooter had touched accused, whereupon accused had started beating complainant Yash Pal Singh.

23. To PW-5 Keshar Lal also it has been suggested that complainant had tried to crush Dina Nath with his scooter and Dina Nath had stopped the scooter in order to save himself and because of that scooter had fallen, as a result whereof blood started oozing from the nose of complainant Yash Pal Singh. In view of aforesaid suggestion put to witnesses, their deposition with respect to happening of incident has been affirmed by accused himself and, therefore, objection with respect to their credibility and veracity raised on behalf of accused on the ground of related/interested witnesses has become irrelevant.

24. Incident and suffering injuries therein has not only been corroborated by PW-2 Ramesh Chand, PW-3 Rajinder and PW-5 Keshar Lal, but also by PW-4 Dr. S.C. Aggarwal, PW-7 Dr. Wattan Singh and PW-8 Dr. Anjali Soni, Medical Officers, Zonal Hospital, Hamirpur. Respondent Dina Nath and Vishal Puri had also appeared as witnesses in defence wherein respondent Vishal Puri, who is son of Dina Nath has stated that no incident had happened. Respondent Dina Nath has stated that when he was going to attend the call of nature, complainant Yash Pal Singh had tried to crush him with scooter and had threatened to kill him.

25. According to prosecution, grandson of Dina Nath, namely, Gaurav Walia was also involved in the incident, who was found juvenile and separate proceedings were conducted against him in H.P. Juvenile Court at Una, wherein he was held to be guilty for commission of offence and was released after due admonition. Copy of judgment has also been placed on record as Ex. PJ by prosecution. There is nothing on record to suggest that said judgment was ever assailed by family of respondents. No doubt, the said judgment cannot be made basis for conviction of respondents in present case, but being a final decision in the proceedings concluded against the juvenile involved in the same incident, the same has corroborative evidentiar

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y value as in these proceedings also same set of witnesses were examined by the prosecution. 26. In view of aforesaid discussion, I find that the first appellate Court has not appreciated the evidence on record and law applicable to the case in right perspective and has committed mistake of law in setting aside conviction of respondents. Whereas, prosecution has proved its case beyond reasonable doubt by leading cogent, reliable and convincing evidence. Therefore, impugned judgment passed by learned Additional Sessions Judge, Ghumarwin, referred supra is set aside and conviction of respondents by the trial Court is upheld. 27. At this stage, it is to be noteworthy that main accused Dina Nath has expired and appeal, against him, stands abated and the incident is of the year 1998, now about 22 years have already passed, respondents have suffered trauma of facing criminal trial and conviction therein and also suffered trauma of litigation in appeals before Sessions Court as well as this Court during these years and injuries caused to the complainant in the incident were simple in nature. Therefore, considering the entire facts and circumstances of the case, nature of accusation, injuries caused to the complainant and trauma suffered by respondent, I am of the opinion that it is a fit case where powers under Section 3 of Probation of Offenders Act can be exercised. Therefore, despite confirmation of conviction, extending benefit of Section 3 of Probation of Offenders Act, respondent is admonished. 28. The appeal is allowed in the aforesaid terms. Record be sent back immediately. Bail bonds furnished by the respondent are discharged.
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