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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Criminal Appeal No. : 508 of 2012 Reserved on : 02nd June, 2025 Decided on : 31st July, 2025 State of H.P. …...Appellant Versus Sham Lal @ Shama & Others …...Respondents
Coram: The Hon’ble Mr. Justice Virender Singh, Judge. Whether approved for reporting?1 Yes. For the appellant : Mr. Rohit Sharma, Deputy
Advocate General.
For the respondents : Mr. Abhishek Barowalia & Mr. Vishav Vijay Singh, Advocates, for the respondents, except respondent Khem Chand, whose name already stands deleted. Virender Singh, Judge. State of Himachal Pradesh has preferred the present appeal, under Section 378 of the Criminal Procedure Code (hereinafter referred to as ‘CrPC’), against the judgment of acquittal dated 31.05.2012, passed by the Court of learned Judicial Magistrate First Class, NurpurI, District Kangra, H.P. (hereinafter referred to as ‘trial Court’), in Criminal Case No.91 1 Whether reporters of Local Papers may be allowed to see the judgment?
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II/2008, titled as State of Himachal Pradesh versus Sham Lal @ Shama and others, arising out of FIR No.29/2008, registered, under Sections 341, 147, 149 and 323 of the Indian Penal Code (hereinafter referred to as the ‘IPC’), with Police Station Nurpur, District Kangra, H.P.
2. For the sake of convenience, the parties to the present lis, are referred to, in the same manner, as were referred to, by the learned trial Court.
3.
Brief facts, leading to the filing of the present appeal, before this Court, as borne out from the record, may be summed up, as under:
3.1. The Police of Police Station, Nurpur, has filed the report under Section 173(2) Cr.PC, on the allegations that on 25.01.2008, at about 9.30 a.m., a telephonic information was received in Police Post Kandwal, disclosing therein, that at a place known as Bhadroa, a quarrel had taken place with driver and conductor of Himalaya Bus and the police was requested to come to the spot. Consequently, HC Tarsem Singh I.O., Police Post Kandwal, along with other police officials, reached at the spot. 3 2025:HHC:25797
3.2. On the spot, complainant Joginder Kumar, driver of the Himalaya Bus No.HP228087, made a statement, under Section 154 Cr.PC, disclosing therein, that he is resident of village Sulyali and working as driver in the said bus, for the last eight months. On 25.1.2008, he was driving the bus enroute from Thakurdwara to Jassur and son of owner of the bus Deepak Jaggi, was with him, as conductor of the bus. 3.3. When, the said bus reached at Bhadroa, 810 persons, all of a sudden, came in front of the bus and stopped the same. When, the driver stopped the bus, some persons entered in the bus from the front door and some entered from the driver door and started giving beatings to the driver, as well as, conductor. Due to the beatings, the complainant and Deepak Jaggi sustained injuries. 3.4. The complainant has further got lodged that they have been saved by Dilawar Singh and Surinder Kumar etc. He has named the assailants as Davinder son of Baldev Singh, Pammu song of Ram Chand, Fangu Langda, Tractor wala, Jeevan @ Naseeb, Peon Nurpur College, Pradeep son of Ranjeet, Shama son of Bodh Raj and Mama Khem Chand, all residents of Bhadrao. He has requested that action be taken against them. 4 2025:HHC:25797
4. On the basis of the above facts, police registered the FIR, and the criminal machinery swung into motion. 5. Further investigation was entrusted to HC Tarsem Singh. The driver and conductor of the bus were medicolegally examined at Civil Hospital Nurpur, from where, their medico legal certificates were obtained. Statements of the witnesses were recorded. 6.
On the basis of the statements of the witnesses, accused Pammu Ram son of Shri Ram Chand resident of Bhadroa, was not found to be involved in the crime in question. All the accused were arrested. 7. After completion of the investigation, the police filed the report under Section 173(2) Cr. PC, upon which, the learned trial Court has taken cognizance. 8. On the basis of report under Section 173(2) Cr.P.C, the learned trial Court found a primafacie case against the accused persons, for the commission of offences, punishable under Sections 147, 341, 323, read with Section 149 IPC, as such, they have been chargesheeted, vide order dated
18.12.2008. 5 2025:HHC:25797
9. When the charges, so framed, were put to the accused persons, they had not pleaded guilty and claimed to be tried. As such, prosecution has been directed to adduce evidence, to substantiate the charges framed against them. Consequently, the prosecution has examined, as many as, 7 witnesses. 10. After the closure of the prosecution evidence, the entire incriminating evidence, appearing against the accused persons, was put to them, in their statements, recorded under Section 313 Cr.PC. The accused persons has denied the entire prosecution case and took the defence that they are innocent. However, in defence, the accused have not led any evidence. 11. Thereafter, the learned trial Court, after hearing the learned Assistant Public Prosecutor, as well as, learned defence counsel, has acquitted the accused persons from the charges so framed against them, vide judgment dated 31.05.2012. 12. The said judgment of acquittal has been assailed by way of the present appeal, before this Court, mainly, on the ground that the learned trial Court has failed to appreciate the prosecution evidence in the proper perspective and unrealistic
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standards to evaluate the direct and cogent prosecution evidence have been adopted. 13.
According to the appellant, the reasoning given by the learned trial Court to discard the well reasoned and consistent testimony of the prosecution witnesses, is not sustainable in the eyes of law. 14. The findings have further been assailed on the ground that the learned trial Court has wrongly held that the statements of PW2 and PW3, remain uncorroborated, whereas, evidence of other prosecution witnesses has not been considered by the learned trial Court. 15. Highlighting the defence of the accused persons, when they had suggested about the presence of Naseeb Singh @ Jeewan, on the spot, according to the learned Deputy Advocate General, the occurrence stood established, in this case. No reasons have been assigned by the learned trial Court, while acquitting the accused persons. 16. On the basis of the above grounds of appeal, Mr. Rohit Sharma, learned Deputy Advocate General, has prayed that the judgment of acquittal, dated 31.05.2012, may kindly be set aside and the accused persons may kindly be convicted for
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the offences, for which, they have been chargesheeted by the learned trial Court. 17. Per contra, Mr. Abhishek Barowalia and Mr. Vishav Vijay Singh, Advocates, appearing for the accused persons, except accused Khem Chand, who has expired during the pendency of the present appeal, have argued that the learned trial Court has rightly appreciated that the evidence of the prosecution and the evidence of the prosecution is too short and fragile to connect the accused persons with the crime in question. 18. In order to decide the present appeal, in an effective manner, it would be just and appropriate for this Court to discuss the testimony of the star witnesses i.e. PW1, Dr. P.K. Ahluwalia, PW2 Joginder Kumar and PW3 Deepak Jaggi. 19. PW1, Dr. P.K. Ahluwalia, S.M.O., Civil Hospital Nurpur, had conducted the medicolegal examination of Joginder Kumar son of Shri Ramesh Chand, on 25.1.2008, at about 1.30 p.m. and noticed swelling on the left paratial region 5x2 cm.
He has declared the nature of injury as simple and according to him, it could be caused with blunt object. At about
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1.40 p.m., on that day, he had exmined Deepak Jaggi son of Baldev Jaggi, and found the following injuries on his person: i) Pain dosem of left hand. Nor mark of external injury and no swelling or discolouration of skin. ii) Pain left maxilliary region. No mark of external injury and no swelling. iii) Complaint of pain left upper arm. No mark of external injiry and no swelling. 20. The nature of injuries was declared as simple, caused with blunt weapon. 21. In the crossexamination, this witness has admitted that the injuries could be caused, if a person hits with iron bar of a bus. 22. PW2 Joginder Kumar, is the person, who has put the criminal machinery into motion, by making a statement under Section 154 Cr.PC. According to him, on 25.1.2008, he was driving the bus enroute from Thakurdwara to Jassur. At about 9.15 a.m., when they reached as Bhadroa, then, accused persons came in front of the bus and stopped the bus. Thereafter, they entered in the bus and took the key of the bus. The accused persons had given beatings to him with fist and kicks. Consequently, he sustained injuries on his person. He has made statement to the Police Ex.PW2/A. He has further
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deposed that Deepak was working as conductor of the bus and he was also beaten. 23. This witness, in the crossexamination, has admitted that two hours are required to reach Bhadroa from Teras. The arrival time of the bus at Bhadroa is 9.15 a.m. They had started from Thakurdwara at 7.30 a.m. Police has not taken into possession the time table, nor the same was submitted to the police.
He has denied the suggestion that son of Naseeb Singh had fallen from the bus due to their negligence. He has also denied that Naseeb Singh has also requested to take his son to Hospital, but this witness has refused to do so. There were 2025, passengers in the bus. The driving licence was neither given nor demanded by the police. Although, he has admitted that one young boy climbed in the moving bus, however, he could not tell from where he climbed. Other passengers had left the spot, only two remained there. Their statements were recorded by the police. There are 1012 shops at the place of alleged occurrence. He has further deposed that he was beaten by 1520 person, who were having dandas in their hands. He has further deposed that he could identify only 23 persons. 10 2025:HHC:25797
24. PW3 Deepak Jaggi, has also deposed that on 25.1.2008, bus was enroute from Thakurdwara to Jassur. When the bus reached as Bhadrao, at about 9.15 a.m., then, the accused persons, present in the Court, came in the middle of the road and stopped the bus and entered the same. They have beaten him, as well as, driver of the bus with kick and fist blows, as well as, with danda. They were saved by the passengers. Thereafter, the matter was reported to the police. He was medicolegally examined by the doctor, which is Ex.PW 1/B, Ticket vouchers are Ex. PW3/B and Ex.PW3/C.
25. In the crossexamination, this witness has admitted that he is not having any licence to work as conductor. He is not aware about the child, who allegedly sustained injuries. 34 accused persons were having dandas in their hands. He has identified Khem Chand, Devender Singh and Pradeep Singh, as the persons, who were having the dandas in their hands, however, no test identification report was conducted. Dandas were not handed over by the accused persons to the police. 26.
As per the stand taken in the FIR, in question, the complainant and conductor Deepak Jaggi, were saved by Dilawar Singh and Surinder Kumar. Out of them, Dilawar
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Singh, appeared in the witnessbox, as PW5 and has not supported the case of the prosecution, hence declared hostile. 27. In the crossexamination, this witness has admitted that on 25.10.2008, he was in the bus, in question and when the bus reached at Bhadroa, 67 persons came in front of the same and they had entered in the bus and started beating the driver and conductor. Both of them were saved by him from the accused. However, he has denied that the names of assailants were Devinder Singh @ Goldy, Om Prakash @ Fangu Langda, Jeevan @ Naseeb, Pradeep Singh, Shyam Lal @ Shama and Khem Chand @ Mama. 28. Despite lengthy crossexamination, nothing material could be elicited from this witness, whereas, Surinder Kumar, has not been examined by the prosecution. 29. When, out of the two alleged eye witnesses, one has been examined and he has not supported the case of the prosecution, then, the case of the prosecution also comes under the cloud of suspicion. 30. So far as the other independent witness, who has not been examined, by the prosecution is concerned, the said witness, to the considered opinion of this Court, in case would
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have been examined, he definitely would have deposed against the prosecution. 31. It is no longer res integra that while deciding the appeal against acquittal, in the absence of perversity in the
judgment, interference by this Court, is not warranted.
32. Hon'ble Supreme Court, in Mrinal Das & others vs. State of Tripura, (2011) 9 Supreme Court Cases 479, has laid down parameters, in which, interference can be made in a
judgment of acquittal. Relevant paragraphs 13 and 14, of the said judgment, are reproduced, as under:
“13. It is clear that in an appeal against acquittal in the absence of perversity in the judgment and order, interference by this Court exercising its extraordinary jurisdiction, is not warranted. However, if the appeal is heard by an appellate court, being the final court of fact, is fully competent to reappreciate, reconsider and review the evidence and take its own decision. In other words, law does not prescribe any limitation, restriction or condition on exercise of such power and the appellate court is free to arrive at its own conclusion keeping in mind that acquittal provides for presumption in favour of the accused. The presumption of innocence is available to the person and in criminal jurisprudence every person is presumed to be innocent unless he is proved guilty by the competent court. If two reasonable views are possible on the basis of the evidence on record, the appellate court should not disturb the findings of acquittal.
14. There is no limitation on the part of the appellate court to review the evidence upon which the
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order of acquittal is found and to come to its own conclusion. The appellate court can also review the conclusion arrived at by the trial Court with respect to both facts and law. While dealing with the appeal against acquittal preferred by the State, it is the duty of the appellate court to marshal the entire evidence on record and only by giving cogent and adequate reasons set aside the judgment of acquittal. 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. 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.”
33. Judging the facts and circumstances of the present case, in the light of the decision of the Hon’ble Supreme Court in Mrinal Das’s case supra, this Court has to examine whether the findings recorded by the learned trial Court falls within the definition of ‘perverse findings’ or not. The star witnesses, in the present case, are PW2 and PW3, who are not only complainant, but, also the alleged injured. 34. In the FIR in question, PW2 has not named the accused persons, as assailants, nor, there is any evidence on record to show that how the police can connect the accused persons, with the crime, in question, as the test identification parade has not been got conducted by the police. 14 2025:HHC:25797
35. Identification of the accused, for the first time, in the Court, is no identification, in the eyes of law. It is not the case of PW2 that the accused persons are known to him. In the FIR, PW2 simply stated that when the bus reached at Bhadroa, then 810 persons came in front of the bus and stopped the same. He has not named any of the accused persons, as the person, who had allegedly stopped the bus and entered in the bus and beaten him, as well as, the conductor of the bus. 36. On the basis of such a vague statement, conviction cannot be recorded. As such, the statement of PW2 has rightly been considered by the learned trial Court, while acquitting the accused persons.
37. Learned trial Court has pointed out from the statement of PW3 that Khem Chand, Devender and Pradeep were having dandas in their hands. As stated above, identification of the accused, for the first time, in the Court, is no identification, in the eyes of law, nor, it is the case of the complainant that the above accused persons were already known to him. In such situation, this Court is of the view that where two views are possible, then, the view taken by the learned trial Court is liable to be upheld. 15 2025:HHC:25797
38. My, this view is fortified by the decision of the Hon'ble Supreme Court in Allarakha K. Mansuri vs. State of Gujarat, 2002(1) RCR (Criminal) 748, wherein it has been held has also held that in a case, where two views are possible, then, the view taken by the learned trial Court is liable to be upheld. 39. No other point urged or argued, before this Court. 40. In view of the above discussion, this Court is of the opinion that the view taken by the learned trial Court, in the present case, is the possible view. 41. Hence, no ground for interference with the well reasoned judgment of the learned trial Court is made out and the same is upheld. Accordingly, the appeal is dismissed. The personal and surety bonds furnished by the accused, are discharged. Record be sent back. (Virender Singh)
Judge July 31, 2025 (ps)