The State Of Himachal Pradesh vs Naveen Kumar

STATE OF HIMACHAL PRADESH Appellant(s)

VERSUS

NAVEEN KUMAR Respondent(s)

JUDGMENT

N. V. RAMANA, J.

1. Heard counsels for both the parties.

2. The present appeal is preferred by the State against the

impugned order dated 08.09.2009 passed by the High Court of

Himachal Pradesh, Shimla, wherein the High Court while

accepting the appeal preferred by the accused-Respondent, set

1 aside the earlier order of conviction passed by the trial court and

acquitted the accused-Respondent from all charges.

3. The brief case of the prosecution necessary for the adjudication

of the matter is as follows. On 10.09.1999, around eight persons

including the accused-Respondent were alleged to have formed

an unlawful assembly with a common object of causing deadly

assault upon PW-1 Ashwani Kumar, PW-2 Ram Pal and three

other deceased persons. The accused persons allegedly armed

with deadly weapons such as, swords, gandasis, hockey sticks,

clutch wire, etc. blocked the roads and around 9:30p.m, the

victims reached the place of occurrence, the accused persons

attacked them and the intended criminal act was accomplished

within 3-4 minutes. The alleged persons fled the scene of crime

before the injured and the deceased could raise an alarm.

Thereafter, the police were informed by 9:35 p.m., through the

telephone and an entry was made in the Rojnamacha, at the

Police Station, regarding the aforesaid incident.

4. Thereafter, the injured persons were taken to the hospital. But,

while the deceased persons, Rajiv Kumar, Raj Kumar and

Santokh Singh were undergoing treatment, they succumbed to

their injuries. In the meanwhile, P.W 29-ASI recorded the 2 statement of PW-1 Ashwani Kumar. During the course of

investigation, the accused persons, including the present

accused-Respondent were arrested. Allegedly, the accused-

Respondent made a disclosure statement, which led to the

recovery of the clutch wire. After the completion of the

investigation, seven more accused persons were challaned along

with the present Respondent for screening the accused persons

and helping them in the obstruction of evidence.

5. The trial court after relying upon the statements of two injured

eye-witnesses, PW-1 Ashwani Kumar and PW-2 Ram Kumar,

concluded that, the accused-Respondent along with seven

others are guilty under Sections 302, 324, 323, 341, 148 read

with Section 149 of the Indian Penal Code (hereinafter referred

as “IPC”). Accordingly, the sessions court awarded the following

sentence; Imprisonment for life and a fine of Rs.50,000/- in

default of payment of fine to undergo rigorous imprisonment for

a further period of two years, for offence under Section 302, read

with Section 149 of the Indian Penal Code; rigorous

imprisonment for three years and fine of Rs.10,000/-, in default

of payment of fine to undergo rigorous imprisonment for a

further period of six months, for offence under Section 324, read

3 with Section 149 of the Indian Penal Code; rigorous

imprisonment for one year and a fine of Rs.5,000/- in default of

payment of fine to undergo rigorous imprisonment for a further

period of two months, for offence under Section 323, read with

Section 149 of the Indian Penal Code; simple imprisonment for

one month and a fine of Rs.500/-, in default of payment of fine

to undergo simple imprisonment for a further period of seven

days, for offence under Section 341 read with Section 149 of the

Indian Penal Code; and rigorous imprisonment for three years

and a fine of Rs.5,000/-, in default of payment of fine to undergo

rigorous imprisonment for a further period of six months, for

offence under Section 148, read with Section 149 of the Indian

Penal Code.

6. Aggrieved by the above order of conviction, the accused persons

preferred an appeal before High Court. The High Court, upon

finding lack of evidence against the accused-Respondent and

four other accused persons, allowed their appeal and acquitted

them, while upholding the conviction of the other two accused

persons. It may be noted that, since accused no.5, Ashok Kumar

passed away during the trial, the proceedings against him

stands abated.

4

7. The State has preferred the present appeal against aforesaid

order of acquittal.

8. The counsel on behalf of the appellant-State, while supporting

the order of conviction passed by the Sessions Court, submitted

that, this ocular version of the natural witness is supported

other medical and forensic evidences, hence, the high court

erred while passing the impugned order of acquittal.

9. Whereas, the counsel on behalf of the Accused-Respondent

supported the order of acquittal passed by the High Court as the

prosecution failed to provide conclusive evidence, so as to

implicate the accused-Respondent for the commission of the

alleged offence.

10. Having heard learned counsels for both the parties and after

perusing the record, we find that, the Respondent was not

named as one of the accused in the FIR registered at the instance

of P.W 1-Ashwani Kumar. It was only in the subsequent

statement under Section 161 of the CrPC, that PW1-Ashwani

Kumar improved upon his earlier statement and named two

more persons including the accused-Respondent herein. But,

PW 1-Ashwani Kumar, failed to provide any plausible reason as

5 to why these two persons, including the present Respondent

were not named in the earlier statement, wherein he had ample

opportunity to name the accused persons without any

deliberation. Therefore, the High Court correctly observed that,

in the such circumstances, the accused-Respondent cannot be

convicted in the absence of corroboration of independent

evidences to prove his involvement in the alleged crime.

11. In the present case, the counsel for the State has argued that,

pursuant to the disclosure made by the accused-Respondent, a

clutch wire was recovered. But it is pertinent to note here that,

firstly, the alleged confessional statement was given while the

accused-Respondent was in the police custody. Secondly, the

fact of recovery of the clutch wire is not enough to prove the

culpability of the accused-Respondent as, a clutch wire is a

commonly available material in the market and there was no

specific mark on the recovered clutch wire to associate it with

the offence. Further, postmortem report reveals that the injuries

can be attributed to Gandasis or Khukhri. Therefore, apart from

the subsequent statement made of PW 1-Ashwini Kumar, there

is no other evidence to prove the culpability of the accused-

Respondent.

6

12. Having observed the above facts and circumstances, we are of

the considered opinion that, the High Court has rightfully

acquitted the accused-Respondent, as the case of the present

respondent cannot be equated with that of the convicted accused

persons. In our opinion, there exists no perversity in the

judgment of the High Court. Further, in the absence of

compelling reasons, this court is not keen to entertain this

appeal challenging the order of acquittal.

13. The appeal is accordingly dismissed. Pending applications, if

any, shall also stand disposed of.

……………………………..J. (N. V. Ramana)

……………………………..J. (Mohan M. Shantanagoudar)

NEW DELHI,

OCTOBER 04, 2018

7