Research › Search › Judgment

Himachal Pradesh High Court · body

2025 DAILYLAW 3373 (HP)

State of H. P. v. Nitya Devi Sharma

2025-11-06

Rakesh Kainthla

body2025
JUDGMENT : Rakesh Kainthla, J. The present appeal is directed against the judgment dated 27.06.2012 passed by learned Judicial Magistrate First Class, Palampur, District Kangra (learned Trial Court) vide which the respondents (accused before the learned Trial Court) were acquitted of the commission of offences punishable under Sections 325 and 504 read with Section 34 of the Indian Penal Code (hereinafter referred to as IPC). (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.) 2. Briefly stated, the facts giving rise to the present appeal are that the police presented a challan before the learned Trial Court against the accused for the commission of offences punishable under Sections 325 and 504 read with Section 34 of the IPC. It was asserted that informant Satish Kumar (PW1) and his father Jagjivan Ram (PW6) were creating a passage on 02.12.2008 at about 9 am for taking the tractor to their land. Nitya Sharma (accused) had a field on the way. She had put the bamboo fencing in her field. One bamboo was erected on the corner of the informant’s field. Jagjivan Ram uprooted the bamboo. The accused became infuriated and started abusing the informant and his father. She pushed Jagjivan, who fell. Accused Susheel and Pooja abused the informant and his father. The matter was reported to the police. An entry (Ext.PW4/A) was recorded in the daily diary, and an application was filed for conducting the medical examination of Jagjivan. Dr Umesh Kashyap (PW8) conducted the medical examination and found that he had sustained multiple injuries. He advised an X-ray and a CT scan. As per the report of the Radiologist, a fracture was seen. Hence, the nature of the injury was stated to be grievous, which could have been caused within three hours of the examination. He issued the MLC (Ext.PW8/A). An entry (Ext.PW4/B) was recorded after the receipt of the MLC, and FIR (Ext.PW7/A) was registered in the Police Station. HC Khem Singh (PW7) conducted the investigation. He went to the spot and prepared the site plan (Ext.PW7/C). He recorded the statements of witnesses as per their version. After the completion of the investigation, the challan was prepared and presented before the learned Trial Court. 3. HC Khem Singh (PW7) conducted the investigation. He went to the spot and prepared the site plan (Ext.PW7/C). He recorded the statements of witnesses as per their version. After the completion of the investigation, the challan was prepared and presented before the learned Trial Court. 3. The learned Trial Court charged the accused with the commission of offences punishable under Section 325 and 504 read with Section 34 of the IPC, to which they pleaded not guilty and claimed to be tried. 4. The prosecution examined 8 witnesses to prove its case. Satish Kumar (PW1) is the informant. Suresh Singh (PW2) is an eyewitness. Dr Kalpana Mahajan (PW3) is the Radiologist who went through the X-ray and issued the report regarding the fracture. HC Ravinder Chand (PW4) proved the entries in the daily diary. Vipan Sharma (PW5) treated the injured. Jagjivan Ram (PW6) is the injured. HC Khem Singh (PW7) investigated the matter. Dr Umesh Kashyap (PW8) conducted the initial medical examination. 5. The accused, in their statements recorded under Section 313 of Cr.P.C., denied the prosecution’s case in its entirety. They claimed that they were innocent and falsely implicated. They did not produce any evidence in their defence. 6. The learned Trial Court held that Jagjivan Ram (PW6) had not stated that the field of Nitya Sharma was located on the way to his field or that she had fenced it with bamboo. The presence of Suresh Singh (PW2) was not established satisfactorily. Satish Kumar (PW1) stated in his cross- examination that Jagjivan Ram had not uprooted the bamboo pole, which is contrary to his statement in his examination-in- chief. The site plan (Ext.PW7/C) also made the prosecution’s case suspect. There was no corroboration of the testimonies of prosecution witnesses, and the prosecution had failed to prove its case beyond a reasonable doubt. Hence, the accused were acquitted of the charged offences. 7. 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 evidence. The testimonies of prosecution witnesses were discarded without any cogent reason. The statements of Satish Kumar (PW1), Suresh Singh (PW2), and Jagjivan Ram (PW6) proved the prosecution’s case. Their testimonies were duly corroborated by the medical evidence. The testimonies of prosecution witnesses were discarded without any cogent reason. The statements of Satish Kumar (PW1), Suresh Singh (PW2), and Jagjivan Ram (PW6) proved the prosecution’s case. Their testimonies were duly corroborated by the medical evidence. It was a specific case of the prosecution that the field of the accused was located on the way to the informant’s field, and the omission to state this fact is not fatal. The discrepancy regarding the uprooting of the bamboo pole was also not significant and could not have been used for discarding the prosecution’s case. Therefore, it was prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside. 8. I have heard Mr Prashant Sen, learned Deputy Advocate General for the appellant/State, and M/s Anjali Soni Verma and Shivani Tegta, learned counsel for the respondent/accused. 9. Mr Prashant Sen, learned Deputy Advocate General for the appellant/State, submitted that the learned Trial Court discarded the statements of the prosecution witnesses without any cogent reasons. The testimonies of prosecution witnesses were corroborated by the medical evidence and the initial report made to the police. Minor discrepancies were not sufficient to discard the prosecution’s case. Therefore, he prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside. 10. Ms Anjali Soni Verma, learned counsel for the respondent/accused, submitted that the learned Trial Court had taken a reasonable view, and this Court should not interfere with it while deciding the appeal against acquittal. The site plan (Ext.PW7/C) made the prosecution’s case highly suspect. Therefore, she prayed that the present appeal be dismissed. 11. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 12. 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 SCC OnLine SC 176: (2025) 5 SCC 433 that the Court can interfere with a judgment of acquittal if it is patently perverse, is based on misreading/omission to consider the material evidence and reached at a conclusion which no reasonable person could have reached. It was observed at page 440: “23. It was observed at page 440: “23. Recently, in the case of Babu Sahebagouda Rudragoudar v. State of Karnataka 2024 SCC OnLine SC 4035, a Bench of this Court to which one of us was a Member (B.R. Gavai, J.) had an occasion to consider the legal position with regard to the scope of interference in an appeal against acquittal. It was observed thus: “38. First of all, we would like to reiterate the principles laid down by this Court governing the scope of interference by the High Court in an appeal filed by the State for challenging the acquittal of the accused recorded by the trial court. 39. This Court in Rajesh Prasad v. State of Bihar [Rajesh Prasad v. State of Bihar, (2022) 3 SCC 471 : (2022) 2 SCC (Cri) 31] encapsulated the legal position covering the field after considering various earlier judgments and held as below: (SCC pp. 482-83, para 29) “29. After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal in   the   following   words:   (Chandrappa case [Chandrappa v. State of Karnataka, (2007) 4 SCC 415 : (2007) 2 SCC (Cri) 325], SCC p. 432, para 42) ‘42. From the above decisions, in our considered view, the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Criminal Procedure Code, 1973, puts no limitation, restriction or condition on the exercise of such power and an appellate court, on the evidence before it, may reach its own conclusion, both on questions of fact and law. (3) Various expressions, such as “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc., are not intended to curtail the extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with an acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with an acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in the case of acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused, having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.” 40. Further, in H.D. Sundara v. State of Karnataka [H.D. Sundara v. State of Karnataka, (2023) 9 SCC 581 : (2023) 3 SCC (Cri) 748], this Court summarised the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378CrPC as follows: (SCC p. 584, para 8) 8. … 8.1. The acquittal of the accused further strengthens the presumption of innocence. 8.2. The appellate court, while hearing an appeal against acquittal, is entitled to reappreciate the oral and documentary evidence. 8.3. The appellate court, while deciding an appeal against acquittal, after reappreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record. 8.4. If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and 8.5. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible.” 41. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible.” 41. Thus, it is beyond the pale of doubt that the scope of interference by an appellate court for reversing the judgment of acquittal recorded by the trial court in favour of the accused has to be exercised within the four corners of the following principles: 41.1. That the judgment of acquittal suffers from patent perversity. 41.2. That the same is based on a misreading/omission to consider material evidence on record; and 41.3. 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.” 24. It could thus be seen that it is a settled legal position that the interference with the finding of acquittal recorded 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.” 13. The present appeal has to be decided as per the parameters laid down by the Hon’ble Supreme Court. 14. The site plan (Ext.PW7/C) shows the spot position. A village foot path is shown at the point ‘XY’, which was five feet wide. The fields of Jagjivan Ram are shown at point ‘B’. These fields are located adjacent to the passage. A Kuhal is shown at point ‘E’ adjacent to the field of accused Nitya shown at point ‘C’. 15. The site plan falsifies the prosecution’s case as the fields of Jagjivan Ram are shown adjacent to the footpath. Therefore, there was no need to create any passage for them. These fields are located adjacent to the passage. A Kuhal is shown at point ‘E’ adjacent to the field of accused Nitya shown at point ‘C’. 15. The site plan falsifies the prosecution’s case as the fields of Jagjivan Ram are shown adjacent to the footpath. Therefore, there was no need to create any passage for them. If the passage was intended to be created through the field of Nitya Sharma, it was not possible because a Kuhal exists before the field of Nitya Sharma, and it is difficult to believe that a person would first cover Kuhal to go the field of Nitya Sharma and thereafter visit his field when he could have easily approached the field by moving from the foot path. 16. HC Khem Singh (PW7) admitted in his cross-examination that a Kuhal exists ahead of the land of the Nitya Sharma. He also admitted that the bamboo fences were created towards the other side of the road. These admissions will make the prosecution’s case suspect. If the bamboo poles existed on the other side of the road, Jagjivan Ram had no reason to uproot them to make way to his field, and Nitya Devi had no reason to abuse him. Thus, the testimony of this witness makes the prosecution’s case suspect. 17. The informant Satish Kumar (PW1) stated that the field of Nitya Devi is located on the way to her field, and she had erected a bamboo fence. She had also put a bamboo in his field, which was uprooted by Jagjeevan Ram. Accused Nitya came to the spot and abused the informant and his father. Sushil and Pooja also came to the spot. Nitya pushed Jagjeevan Ram. He admitted in his cross-examination that Nitya had erected the fence six months before the incident, and no objection was raised at that time. He admitted that his father had not uprooted the bamboo pole. He stated that he had mentioned to the police that his father was about to remove the bamboo pole, and both of these statements were correct. 18. Learned Trial Court had rightly pointed out that the testimony of this witness was highly unsatisfactory. As per him, the incident occurred because Jagjivan Ram had uprooted the bamboo pole; however, he contradicted this version in his cross-examination and stated that Jagjivan Ram was about to uproot the bamboo pole. 18. Learned Trial Court had rightly pointed out that the testimony of this witness was highly unsatisfactory. As per him, the incident occurred because Jagjivan Ram had uprooted the bamboo pole; however, he contradicted this version in his cross-examination and stated that Jagjivan Ram was about to uproot the bamboo pole. This testimony made the genesis of the incident highly suspect, and the learned Trial Court was justified in doubting his testimony. 19. The prosecution relied upon the statement of Suresh Singh (PW2). However, the learned Trial Court had rightly pointed out that his name was not mentioned in the FIR and was also not stated by any person. Therefore, his presence on the spot was highly doubtful. 20. Jagjivan Ram (PW6) stated that he was creating a passage on 02.12.2008 at about 9 am. He was removing a bamboo fence erected by him around his field when Susheel, Nitya and Pooja came to the spot and abused him. Nitya gave him beatings with the sticks 3-4 times. She pushed him, and he fell. He sustained an injury. He admitted in his cross-examination that he had litigation with Nitya pending in Court No.2. He volunteered to say that the case was decided in his favour. He admitted that cases were pending before the Revenue Authorities between him and Nitya. He denied that he had fallen and sustained injuries due to the fall. He admitted that he had not mentioned to the police that Susheel Kumar had threatened him to cut him with the darat. He admitted that Susheel and Pooja did not give him any beatings. He denied that he fell and made a false complaint due to the land dispute. 21. The testimony of this witness is not satisfactory. He stated that Susheel Kumar had threatened him to kill him with the darat. He admitted that he had not mentioned this fact to the police, which clearly shows that it is an improvement, and this improvement would affect his credibility adversely. 22. Jagjivan Ram admitted that litigation was pending with accused Nitya Devi before the Court and the Revenue Authorities, which means that the relationship between the parties was strained. The learned Trial Court had rightly held that the testimony of this witness is required to be seen with due care and caution due to the strained relationship between him and the accused Nitya Devi. 23. The learned Trial Court had rightly held that the testimony of this witness is required to be seen with due care and caution due to the strained relationship between him and the accused Nitya Devi. 23. Jagjivan Ram had also not stated that the accused Nitya Devi had erected a bamboo pole in his land, and he had uprooted it. He only stated that he was uprooting the bamboo fence erected by him around his field. Thus, his testimony makes the genesis of the prosecution case doubtful because accused Nitya would have no reason to object to or abuse him if he were removing his own bamboo fence. 24. Therefore, the learned Trial Court had taken a reasonable view while acquitting the accused, and this Court will not interfere with the reasonable view of the learned Trial Court, even if another view is possible. 25. Thus, there is no reason to interfere with the judgments of the learned Trial Court. Hence, the present appeal fails, and it is dismissed. 26. 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 their personal bonds in the sum of Rs.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(s) thereof, shall appear before the Hon’ble Supreme Court. 27. A copy of this judgment, along with the records of the learned Trial Court, be sent back forthwith. Pending miscellaneous application(s), if any, also stand(s) disposed of.