18.3.2025 vs Suresh Kumar & Anr on 8 April, 2025

Himachal Pradesh High Court

Reserved On: 18.3.2025 vs Suresh Kumar & Anr on 8 April, 2025

Author: Virender Singh

Bench: Virender Singh

12025:HHC:9933

IN THE HIGH COURT OF HIMACHAL PRADESH AT
SHIMLA
Cr. Appeal No. 628 of 2008
Reserved on: 18.3.2025
Decided on : 8.4.2025
State of H.P.

… Appellant
Versus
Suresh Kumar & anr.

…Respondents
_____________________________ ______________
Coram
Hon’ble Mr. Justice Virender Singh, Judge
Whether approved for reporting? yes
___________________________________________________

For the Appellant : Mr. Rohit Sharma, Dy. A.G.

For the Respondents : Mr. N.S. Chandel, Senior
Advocate with Mr. Sidharth
Advocate.

Virender Singh, Judge

Appellant-State of H.P. has preferred the present

appeal, under Section 378 of the Code of Criminal Procedure

(hereinafter referred to as ‘the Cr. P.C.’), against the judgment

of acquittal dated 5.7.2008, passed by the Court of learned

Sessions Judge, Hamirpur, H.P. (hereinafter referred to as

‘the First Appellate Court’), in Cr. Appeal No.2 of 2007, titled

as, ‘Suresh Kumar and anr. versus State of H.P.’.

2. Vide judgment dated 5.7.2008, the learned First

Appellate Court has acquitted the respondents, by setting

aside the judgment of conviction and order of sentence, dated
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2.12.2006, passed by the Court of learned Chief Judicial

Magistrate, Hamirpur, H.P. (hereinafter referred to as ‘the

trial Court’), in case No. 18-11 of 2002/151-11 of 2002/33-

11 of 2006, titled as, ‘State versus Suresh Kumar & others.

3 For the sake of convenience, respondents are

hereinafter referred to, in the same manner, in which, they

were referred to, by the learned trial Court.

4. Brief facts leading to filing the present petition, as

borne out from the record, may be summed up, as under:

The Police of Police Station, Bhoranj has submitted

the report under Section 173 (2) Cr. P.C., before the learned

trial Court, on the ground that on 20.2.2002, at about 11:55

p.m. (midnight), Vijay Kumar, Pradhan, Gram Panchayat,

Amroh, telephonically informed the Police that work of laying

down the floor in the school, was going on. Thereafter,

Suresh Kumar etc. came there and started quarreling with

them. As such, he requested that action be taken against

them, upon which, ASI Raj Kumar, alongwith Police officials,

reached at the spot. At the spot, complainant Pawan Kumar

got recorded his statement, under Section 154 Cr. P.C.,

disclosing therein that he is mason by profession. On

20.2.2002, he was working in Govt. Primary School, Amroh.

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Alongwith him, Raj Kumar and Jeet Ram were working as

labourers, and they were conducting work of laying floor. At

about 10: 00 p.m., accused Suresh Kumar came there and

asked as to why they were working there, during odd hours,

upon which, complainant replied that work of laying floor is

going on, upon which, he has started abusing them. On the

insistence of the complainant, they are stated to have left the

said place. However, after some time, he came alogwith his

sons, Sunil Kumar and Ajay Kumar, and told the

complainant that their Pradhan has made a complaint to the

authorities, regarding the fact that he used to sit in the bank,

during odd hours, then, how the complainant is working

there. Suresh Kumar and his sons abused him and beaten

him, with fist blows. Consequently, complainant sustained

injuries on his eye.

4.1 According to the complainant, one Shakti Chand,

who was working as Head Master in Govt. Middle School,

Amroh had gone to Pradhan to inform about the quarrel.

However, said Shakti Chad was also stopped by the above

three persons, who started abusing him. Sunil Kumar is

stated to have inflicted danda blows on the head of Shakti

Chand, on the right hand and leg. On hearing the
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screamings, Pradhan Vijay Kumar and Up-Pradhan Tara

Chand reached at the spot and saved the complainant and

Shakti Chand. He has prayed that he and Shakti Chand be

medico-legally examined.

4.2 On the basis of above facts, the Police

registered the FIR under Sections 341, 325, 323, 504 and 34

IPC. Criminal machinery swung into motion. Medico-legal

examination of aforesaid persons was conducted at CHC,

Bhoranj. As per the MLC, injuries No. 1, 3 and 5 on the

person of complainant Pawan Kumar, were found to be

simple, whereas, injury No. 2 was advised to be x-rayed. On

X-ray, the said injury was declared as grievous hurt. As such,

Section 325 of IPC was also added. On the statements of

witnesses, Section 451 IPC was deleted.

4.4 The accused persons were arrested and after

completion of investigation, charge-sheet against accused

Suresh Kumar, Ajay Kumar and Sunil Kumar was filed, in

the Competent Court of law, under Sections 341, 323, 325,

504 read with Section 34 IPC.

5 After securing the presence of the aforesaid accused

persons, and complying with the provisions of Section 207

Cr. P.C., the learned trial Court found a prima-facie case, for
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the commission of offence, punishable under Sections 341,

323, 325 read with Section 34 IPC. As such, the learned trial

Court framed the charges against the accused persons, vide

order dated 17.5.2004. The accused persons have not

pleaded guilty and claimed to be tried. Consequently, the

prosecution was directed to adduce evidence, in order to

substantiate the charges, framed against the accused

persons. Consequently, the prosecution has examined, as

many as, nine witnesses.

6. It is worthwhile to mention here that on 24.6.2006,

the learned trial Court has ordered the prosecution to file

separate challan, against accused Sunil Kumar, before the

appropriate Court, on the basis of copy of date of birth.

7. After closure of evidence of the prosecution, the

entire incriminating evidence was put to the accused

persons, in their statements, recorded under Section 313 Cr.

P.C. Accused persons have denied the entire case of the

prosecution and taken the defence that they are innocent

persons. In their defence, the accused persons have

examined two witness.

8. The learned trial Court, after hearing learned APP, as

well as, learned counsel for the accused, convicted accused
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Suresh Kumar and Ajay Kumar, for the commission of

offences punishable under Sections, 323 and 325, read with

Section 34 IPC. Both the accused were sentenced to undergo

simple imprisonment, for a period of six months and to pay a

fine of Rs. 1000/- for the commission of offence punishable

under Section 323 IPC. In default of payment of fine, they

were further convicted to undergo simple imprisonment, for a

period of one month. The accused persons were also

sentenced to undergo simple imprisonment, for a period of

one year and to pay a fine of Rs. 2000/- for the commission

of offence punishable under Section 325 IPC. In default of

payment of fine, they were further convicted to undergo

simple imprisonment, for a period of two months.

9. Against the said judgment of conviction and order of

sentence, accused persons had preferred Criminal Appeal No.

2 of 2007, before the learned First Appellate Court, which

was allowed, vide judgment dated 5.7.2008.

10. Against the said judgment of acquittal, present

appeal has been preferred, assailing the judgment of

acquittal, on the ground that learned First Appellate Court

has wrongly discarded the testimonies of prosecution

witnesses, for untenable reasons, in the absence of any proof
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of animosity. The reasons given by the learned FAC, are

stated to be unreasonable and unsustainable.

11. The aforesaid judgment has been assailed further on

the ground that the learned First Appellate Court has fallen

into error, by setting aside the well reasoned judgment,

passed by the learned trial Court.

12. Findings of the learned First Appellate Court have

also been challenged on the ground that in view of para-8 of

the judgment of the learned trial Court, the learned First

Appellate Court, has committed grave irregularity, while

observing in paragraphs 42 and 43 of the judgment, that it is

not possible, from the evidence to find out as to which was

the aggressor party, as the injuries were on the persons of

the accused persons also.

13. The judgment of acquittal, passed by the learned

First Appellate Court has also been assailed on the ground

that presence of accused Ajay Kumar and Sunil Kumar, at

the spot, has not been disputed, as defence has examined

DW-1 Kiran Kumar, only who has proved that they have also

sustained injuries, on 21.2.2002.

14. On the basis of grounds of appeal, a prayer has been

made to allow the appeal, by setting aside the judgment of
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acquittal, passed by the learned First Appellate Court, by

restoring the judgment of conviction and order of sentence,

passed by the learned trial Court.

15. In order to decide the controversy, involved in the

preset case, it will be apt, for this Court, to discuss the

evidence, so adduced by the prosecution, before the learned

trial Court.

16. After framing the charge, the prosecution has

examined, as many as, nine witnesses.

17. PW-1 is Pawan Kumar, who has put the criminal

machinery into motion, by making statement, under Section

154 Cr. P.C., before the Police. According to him, on

20.2.2002, he alongwith Raj Kumar and Jeet Ram, was

working in Amroh School and they were laying the floor. At

about 10 p.m., Suresh Kumar came there and started

abusing them, by saying as to why they were working during

night hours. It is further deposition of this witness that

Pradhan and Up-Pradhan were also stated to be present

there, who took him out of the school. After some time, he,

alongwith his sons, Sunil Kumar and Ajay Kumar, came

there and started quarreling with him, and also beaten him

up. Consequently, this witness has sustained injuries in his
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right eye. Thereafter, Shakti Chand was also stated to be

beaten up by them, with danda, on his head and injuries

were also stated to be inflicted, on his arm.

17.1 According to his further deposition, thereafter,

Pradhan Vijay Kumar and Up-Pradhan Tara Chand came

there, who saved them. Subsequetly, the matter is stated to

have been reported to the Police.

17.2 In his cross-examination, this witness has admitted

that the incident had taken place on 20.2.2002, and he was

medico legally examined, on 21.2.2002. He has further

deposed that on inquiry, he has disclosed the names of the

assailants to the Doctor. The distance of the Police Station

from the spot is stated to be about 6-7 km. He has further

deposed that the matter was reported to the Police, on the

night of 20th February, 2002. He has admitted that Shakti

Chand is the Head Master of the Middle School, whereas, this

witness is stated to be working in Primary School.

17.3 This witness has further deposed that the work had

started at 9 a.m. He has admitted that accused Suresh

Kumar inquired from him as to what were they doing there.

He has denied the suggestion that he has beaten Jeet Ram,

Shakti Chand and Pawan Kumar. Further, he has admitted
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that a case has already been registered against him. He has

admitted that in the said case, he, Pawan Kumar and Jeet

Ram were the accused.

18. PW-2 Vijay Kumar is Pradhan of Gram Panchayat.

According to him, on 20.2.2002, the work of laying floor was

going on, since morning. The said work was being executed

by Pawan Kumar, Mason. He has further deposed that Raj

Kumar and Jeet Ram were the labourers. The work is stated

to have started from morning and continued till night.

18.1 This witness has further deposed that at about 10

p.m., Suresh Kumar came there and started abusing the

persons, who were working there. However, this witness took

him out of the school and told him to let the workers do their

work. However, after some time, he heard the noise of

commotion. He has deposed that when, he reached there, he

noticed that accused and his sons Sunil Kumar and Ajay

Kumar were quarreling with Pawan Kumar, Mason. Shakti

Chand is stated to have been beaten up by Suresh Kumar,

with danda, upon which, Shakti Chand sustained injuries

on his head. This witness has saved him. Thereafter, as per

his deposition, the matter was reported to the Police.

112025:HHC:9933

18.2 This witness has further deposed that he was also

given a push by accused persons. Thereafter, the Police came

there and took them away from the spot.

18.3 As per the deposition of this witness, on the next

day, Police again visited the spot and taken into possession

the danda, vide memo Ext. PW2/A. This witness has

identified danda. The wearing apparels of Shakti Chand were

also taken into possession.

18.4 This witness has further deposed that the workers

were engaged on daily wage basis. As per him, the work was

not completed, as such, they continued working till late

night. This witness has gone to his house after 10 p.m.

18.5 This witness has admitted that the matter was also

reported against him, to the Police. He has admitted that he

and Pawan Kumar have faced the trial. This witness has

further admitted that Mason and labourers were working in

primary school, whereas, Shakti Chand is the Head Master of

Middle School. He has denied that on the day of incident,

they were consuming liquor in the school and accused

Suresh Kumar objected to the same. He has feigned his

ignorance about the fact that Suresh Kumar was also medico

legally examined.

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19. PW-3 Tara Chand, was Up-Pradhan of Gram

Panchayat, Amroh, at the relevant time. According to him, on

20.2.2002, at about 10 p.m., Mason Pawan Kumar and two

labourers were working in Govt. Primary School, Amroh, as

they were laying floor in the school. As per this witness,

Suresh Kumar came there under the influence of liquor and

quarreled with the mason and labourers. He has voluntarily

stated that he was taken away from the school.

19.1 This witness was on his way to his home, and half an

hour thereafter, he heard the noise of commotion. When, he

reached the spot, he noticed that accused Suresh Kumar was

having a danda, and he has inflicted the danda blow on the

head of Head Master of the school, due to which, he fell

down.

19.2 As per this witness, both the sons of accused Suresh

Kumar were beating Pawan Kumar. He and Pradhan Vijay

Kumar saved them. Thereafter, they were taken to hospital

for their medico-legal examination. Police is stated to have

visited the spot, on the next day. In the presence of this

witness, Police had taken one danda from the spot. Vest of

Shakti Chand was also taken into possession, vide memo

Ext. PW2/A. This witness has duly identified the danda.

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19.3 This witness has admitted that a case was also

registered against Pradhan, Pawan Kumar and Jeet Ram. He

has feigned his ignorance to the fact as to whether Suresh

Kumar was also medico legally examined or not. However, he

could not spell out as to how Suresh Kumar sustained

injuries. This witness has stated that he had left the place

and came there after half an hour of the incident in question.

In the presence of this witness, Suresh Kumar had caught

hold of mason Pawan Kumar and was inquiring from him as

to what they were doing there.

19.4 As per the deposition of this witness, scuffle had

taken place between them. He has admitted that this

material fact was got recorded in his statement, Mark-X. He

has further admitted that against Pradhan and Pawan

Kumar, a case was also registered under Sections 341, 506

and 323 IPC.

20. PW-4 Jeet Ram was working as labourer, at the

relevant time. According to him, on 20.2.2002, when, he was

working with Pawan Kumar and Raj Kumar, then, at about

10:00 p.m., Suresh Kumar, under the influence of liquor,

came there and started abusing them. He has further

deposed that Pradhan and Up-Pradhan took him out of the
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said premises. However, after some time, Suresh Kumar,

alongwith both his sons, came there and started abusing and

beating them.

20.1 This witness has further stated that Shakti Chand

was also beaten by the accused persons with danda and

mason Pawan Kumar was beaten by Suresh Kumar with fists

and blows. Shakti Chand is stated to have sustained injuries

on his head and right arm. As per his further deposition, on

hearing commotion, Pradhan and Up-Pradhan came there

and saved them. He has also deposed that on the next day,

on 21.2.2002, Police came to the spot and took into

possession danda, Ext. P-1. This witness has also identified

danda, Ext. P1.

20.2 In the cross-examination, this witness has admitted

that the case, arising out of the incident in question, was

decided by the Panchayat. Firstly, the proceedings were

stated to be conducted by the learned JMFC, Hamirpur. The

said case was registered against this witness, Pawan and the

Pradhan. Rest of the suggestions have been denied by this

witness.

21. PW-5 Shakti Chand, has deposed that at the

relevant time, he was Incharge Head Master Middle School,
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Amroh. The Primary School was stated to be adjacent to the

Middle School. He has deposed that on 20.2.2002, he had

gone to Primary School, where work of Verandah was going

on. He was called by the Pradhan. At about 10:00 p.m.,

Suresh Kumar came there and started abusing mason and

labourers. He was taken away by Pradhan.

21.1 He has further stated that after some time, he again

came alongwith his sons, Ajay Kumar and Sunil Kumar.

Thereafter, Suresh Kumar has inflicted a danda blow on his

head and hand. Consequently, he sustained fracture on his

finger. As per this witness, Pawan Kumar has also sustained

injuries.

21.2 In the cross-examination, this witness has admitted

that someone else was posted as Incharge Head Master of

Primary School. Their directorate is also stated to be

different. As per the further deposition of this witness, the

work was being executed with the funds provided to the

Primary School.

21.3 As per further deposition of this witness, Suresh

Kumar came there at about 10 p.m. He came back alongwith

his sons at about 10:45-11:00 p.m. The scuffle is stated to

have taken place for 5-7 minutes. He has further admitted
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that till the time, he was not present there, no scuffle had

taken place. He has admitted that when the accused again

came there, then, the scuffle took place. He has admitted that

when he got unconsciousness, accused persons might have

beaten up by the mason, Pradhan and Up-Pradhan. He has

allegedly regained consciousness after 15-20 minutes.

22. PW-7 is Dr. Lalit Kalia, who has examined Incharge,

Head Master, Shakti Chand. This witness has admitted that

injuries on the person of Shakti Chand, could be possible by

fall.

23. Rest of the witnesses are with regard to investigation

and Investigating Officer of the case.

24. In this case, the accused persons have examined Dr.

Kiran Kumar, Medical Officer, M.O. PHC Bharari, as DW-1.

He has deposed that on 21.2.2002, he has medically

examined Ajay Thakur and found one injury, i.e. lacerated

wound, 5 cm in length and ½ cm in width, on the person of

Ajay Kumar. The said injury is stated to be simple. Probable

duration has been mentioned within 24 hours. On the same

day, he has also examined Suresh Kumar and found four

injuries on his person. All the injuries were declared as

simple. The duration of the injuries was stated to be within
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24 hours and kind of weapon used was blunt. He has proved

MLCs of above two persons Ext. DW1/A and Ext. DW1/B.

24.1 In the cross-examination, conducted by the learned

APP, this witness has admitted that the persons examined by

him, had not disclosed the cause of injuries. Lastly, he has

admitted that the injuries, as mentioned in the documents,

Ext. DW1/A and Ext. DW1/B, could be caused by fall, on

irregular/rough space.

25. DW-2 is HC Mohinder Kumar. He has proved rapat

No. 25, Ext. DW2/A.

26. This is the entire evidence led before the learned trial

Court.

27. On the basis of aforesaid evidence, learned trial

Court has convicted the accused persons, as referred to

above. However, the learned First Appellate Court has

acquitted the accused persons, mainly on the ground that

although, occurrence has been admitted in this case, but, no

evidence has been put forward by the prosecution to show as

to which party was the aggressor. The prosecution was duty

bound, to put before the Court, all the relevant facts and it is

for the Court to decide the fact as to who was the aggressor.

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28. PWs 1, 2 and 3 have admitted the fact that they had

also faced the trial arising out of the incident in question. The

factum of scuffle also stood probabilized from the

documentary evidence Ext. DW1/A and DW1/B, which are

MLCs of Suresh Kumar and Ajay Kumar. Ext. DW2/A is the

rapat, lodged by accused Ajay Kumar, in which, he has

alleged against Pradhan Vijay Kumar, Gram Panchayat,

Amroh; Pawan Kumar and Shakti Chand, regarding the fact

that all the three had been beaten up by the aforesaid

persons. The said report was lodged by Ajay Kumar and

Suresh Kumar, at 3:10 a.m., on 21.2.2002. From this fact, it

has rightly been pointed out by learned counsel for the

accused, in this case that genesis of the occurrence has been

withheld, by the prosecution from the scrutiny of the Court.

29. When, the real facts have not been produced before

the Court, then, the learned First Appellate Court has rightly

discarded the version of the prosecution, by acquitting the

accused persons.

30. Evidence of the prosecution witnesses is to be

considered as a whole and not in piecemeal. In this case,

learned trial Court has only reproduced the evidence, so

adduced, by the prosecution and straightaway came to the
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conclusion that prosecution has proved its case, against all

the accused persons, beyond reasonable doubt, and as such,

convicted the accused persons.

31. As per the evidence, discussed above, injuries found

on the persons of accused, have not even been mentioned in

the report under Section 173 (2) Cr. P.C., what to talk about

explaining those injuries.

32. The learned First Appellate Court has rightly

discussed the evidence and thereafter, the judgment of

acquittal has been passed. The said judgment, by no stretch

of imagination, cannot be said to be falling within the

definition of ‘perverse findings’, as the evidence, which has

been produced by the accused, before the learned trial Court,

has also been taken into consideration, whereas, the learned

trial Court, in the judgment, assailed before the learned First

Appellate Court, has not even mentioned the factual position,

as deposed by DW-1, as well as, the documents adduced by

the accused persons, in evidence, in this case, what to talk of

discussing the evidence.

33. At the time of deciding the case, evidence produced

by both the parties should be discussed and after considering

the evidence, legal conclusion should be drawn. As such, the
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learned First Appellate Court has rightly allowed the appeal,

preferred by the accused, against the judgment of conviction and

order of sentence, passed by the learned trial Court.

34. After acquittal, presumption of innocence, which was

available to the accused persons, at the time of commencement of

the trial, before the learned trial Court, becomes double. Thus, this

Court is of the view that the view taken by the learned First

Appellate Court, is the correct view, which according to the

evidence, so adduced, by the prosecution, is probable in this case.

35. No other point is urged or argued.

36. Consequently, there is no occasion for this Court to

interfere with the judgment passed by the learned First Appellate

Court. As such, the present appeal is dismissed, and the judgment

passed by the learned First Appellate Court, is upheld. Bail bonds

discharged.

37. The pending application (s), if any, are also disposed of.

38. Record be sent down.

(Virender Singh)
Judge

8.4.2025
Kalpana