Himachal Pradesh High Court
Nanku Ram And Ors vs State Of H.P on 2 May, 2025
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No. 352 of 2009
Reserved on: 10.03.2025
Date of Decision: 02.5.2025
Nanku Ram and Ors. …Appellants
Versus
State of H.P.
…Respondent
Coram
Hon’ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 yes
For Appellants No.1 to 4: Mr. N.S. Chandel, Sr. Advocate
with Mr. Vinod Kumar Gupta,
Advocate.
Appellant No.5 stated to have
expired.
For the Respondent/State: Mr. Jitender Sharma,
Additional Advocate General.
Rakesh Kainthla, Judge
The present appeal is directed against the
judgment of conviction dated 17.8.2009 and order of sentence
dated 21.8.2009, passed by the learned Sessions Judge,
Sirmour, District at Nahan H.P., (learned Trial Court), vide
which the appellants (accused before the learned Trial Court)
were convicted and sentenced as under:
Section Sentence
307 read with Section 149 Rigorous imprisonment for three
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
Page |2
IPC years and fine of ₹ 2000/- each, and
in default of payment of fine to
undergo simple imprisonment for
six months
147 IPC Simple imprisonment for six months
323 IPC Simple imprisonment for six months
It was also ordered that all the aforesaid substantive sentences
shall run concurrently.
(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 against the
accused for the commission of offences punishable under
Sections 147, 149, 323, and 307 of the IPC. It was asserted
that the informant/victim, Ranveer Dutt (PW3), and his son
Chandan Sharma (PW4) had gone to attend the marriage of
Charan Dass at Dilman on 13.12.2006. They were returning to
their home in the evening. They met accused Nanku, Sanju,
and Taru at Dilman Chowk. The accused started talking to each
other after watching the informant. The informant and his son
proceeded further. They had reached half a km ahead of
Dilman at about 7:45 P.M, when a motorcycle arrived on the
spot. Accused Aman Sood was driving the motorcycle. The
pillion rider had a stick in his hand. The motorcycle stopped
near the informant. A Maruti car bearing registration number
Page |3
HP-14-6594 also reached the spot. The accused, Vijay Kumar,
was driving the van. Nanku, Taru, Sanju, and 3-4 persons came
out of the van. Nanku was armed with a stick. Nanku told the
informant that he was portraying himself to be a big leader.
Nanku and the pillion rider started beating the informant with
stick. Other assailants gave beatings with fists and kicks.
They also slapped him. The informant sustained injuries to his
head, forehead, and right foot. He became unconscious. When
he regained consciousness, he found himself in a vehicle going
towards Sarahan. Chandan Sharma revealed that the accused
had also given beating to him and he had sustained injuries on
his left leg and right arm. The informant had a scuffle with
Nanku Ram one week before the incident regarding the
departure of the HRTC Bus. Nanku Ram called the informant a
big leader, and the informant retaliated by slapping Nanku
Ram. Nanku Ram had beaten the informant in connivance with
the other persons to take revenge for the incident. The police
recorded the FIR (Ex.PW3/A). S.I. Chaman Lal Bhatia (PW16)
conducted the investigation. He visited the spot and prepared
the site plan (Ex. PW16/A). He seized the blood-stained hair
and leaves from the bushes near the place of the incident. He
sealed them in a jar with seal ‘T’ and seized the jar vide memo
(Ex. PW6/A). He seized the Maruti van bearing registration
number HP-14-6594 vide memo (Ex. PW8/A). The informant,
Page |4
Ranveer Dutt, was referred to the regional hospital, Solan, by
Medical Officer PHC Sarahan. The informant remained
admitted to the hospital and was discharged on 20.12.2006.
The informant produced one blood-stained shirt (Ex. P3) and a
Sweater (Ex. P4). S.I. Chaman Lal seized them vide memo
(Ex.PW3/B) after sealing them in a parcel with seal ‘A’. S.I.
Chaman Lal also seized the motorcycle bearing registration
number HP-15-5043 vide memo (Ex.PW9/A). He seized the
documents of the van vide memo (Ex. PW16/B). He filed an
application (Ex. PW16/C) for conducting the medical
examination of the injured. Dr. M.P. Singh (PW2) conducted the
medical examination of the informant and found that he had
sustained multiple injuries, which could have been caused
within 12 hours of the examination. He referred the informant
to the Zonal hospital, Solan for further management and
investigation. Dr. R.K. Sharma (PW1) treated the informant in
the Regional Hospital, Solan. He issued the summary of the
treatment chart of the informant (Ex. PW1/A). Dr. M.P. Singh
(PW2) issued a final opinion stating that the injuries sustained
by the informant were simple in nature. The injuries could
have proved fatal without timely medical intervention. These
injuries could have been caused by the sticks (Ex.P1 and
Ex. P2).He issued MLC (Ex. PW2/C). Dr. M.P. Singh also
examined Chandan Sharma and found that he had suffered
Page |5
simple injuries which could have been caused by a blunt
weapon within 12 hours of the examination. He issued MLC
(Ex.PW2/E). The injuries sustained by the victim Chandan
Sharma were possible by the sticks (Ex. P1 and Ex. P2). The
statements of the remaining witnesses were recorded as per
their version. After the completion of the investigation, the
challan was prepared and presented in the Court of learned
Judicial Magistrate First Class Nahan, Camp at Sarahan, who
committed it to the learned Sessions Judge, Nahan (learned
Trial Court) for trial.
3. The learned Trial Court charged the accused with
the commission of offences punishable under Section 147,
323, and 307 read with Section 149 of the IPC, to which the
accused pleaded not guilty and claimed to be tried.
4. The prosecution examined sixteen witnesses to
prove its case. Dr. R.K. Sharma (PW1) treated the informant at
Solan. Dr. M.P. Singh (PW2) conducted the medical
examination of the informant and his son Chandan Sharma.
Ranveer Dutt Sharma (PW3) is the informant/victim who
narrated the incident. Chandan Sharma (PW4) is the son of the
informant and a victim. Bachhi Ram (PW5) arrived on the spot
and helped in transporting the informant to the hospital.
Nirmal Thakur (PW6) is the witness to the recovery of the
blood-stained leaves and blood-stained hairs. Constable Ram
Page |6
Krishan (PW7) is the witness to the recovery of the blood-
stained shirt and sweater. Yashwant Singh (PW8) is the witness
to the recovery of the Maruti van. Kishan Thakur (PW9) did not
support the prosecution’s case. Devender Dutt (PW10) is the
son of the informant and an eyewitness. Constable Baldev
(PW-11) is the witness to the recovery of the motorcycle. ASI
Satvir Singh (PW12) is the witness to the recovery of the sticks.
H.C. Jeet Ram (PW13) was working as MHC with whom the case
property was deposited. HHC Pratap Singh (PW14) carried the
case property to FSL Junga. Shakuntla Devi (PW15) proved the
enmity between the accused and the informant. S.I Chandan
Lal (PW16) conducted the investigation.
5. The accused, in their statements recorded under
Section 313 of CrPC, denied the prosecution’s case in its
entirety. They stated that the witnesses deposed against them
due to enmity; they were innocent, and they were falsely
implicated. Statement of Jai Prakash (DW-1) was recorded in
defence.
6. The learned Trial Court held that the testimonies of
the prosecution witnesses corroborated each other. The
medical evidence and recovery of blood-stained leaves from
the spot corroborated the testimonies of the prosecution
witnesses. The defence version that the informant was
intoxicated and he sustained injuries due to a fall was not
Page |7
probable. The Medical Officer did not find any smell of alcohol
in the informant’s breath, which falsified the defence version
that the informant had fallen in a state of intoxication. The FIR
was promptly lodged. Minor contradictions in the statements of
the prosecution witnesses were not sufficient to discard them.
However, the names of the accused, Shanta Devi, Ghanshyam
and Chattar Singh, were not mentioned in the FIR. It was not
explained how they were arrayed as the accused. Hence, the
learned Trial Court convicted the appellants and acquitted
Shanta Devi, Ghanshyam and Chattar Singh of the charged
offences.
7. Being aggrieved by the judgment and order passed
by the learned Trial Court, the accused/appellants have filed
the present appeal, asserting that the learned Trial Court erred
in convicting and sentencing them. The incident took place at
7:45 pm, the victim was sent for medical examination at 1:15
a.m, he was medically examined at 2 a.m., and the FIR was
lodged afterwards. The possibility of due deliberation and
consultation cannot be ruled out because of the delay in
reporting the matter to the police. Nirmal Thakur (PW6)
categorically stated that the informant was in a state of
intoxication. This version was corroborated by Jai Prakash
(DW-1). However, this aspect was not considered by the
learned Trial Court. No witness from the vicinity was examined
Page |8
to corroborate the informant’s version. The statement of
Chandan Sharma (PW4) that the informant was thrown towards
the bushes is not corroborated by the medical evidence. The
conduct of Devinder Dutt (PW10) in running away from the
spot is highly suspicious. The prosecution evidence, even if
accepted, does not make out a case for the commission of an
offence punishable under Section 307 of the IPC. Therefore, it
was prayed that the present appeal be allowed and the
judgment and order passed by the learned Trial Court be set
aside.
8. I have heard Mr. N.S. Chandel, learned Sr. Advocate
assisted by Mr. Vinod Kumar Gupta, learned counsel for the
appellants/accused Nos 1 to 4 and Mr. Jitender Sharma,
learned Additional Advocate General for the respondent/State.
9. Mr. N.S. Chandel learned Sr. Advocate for the
appellants/accused submitted that there are various
contradictions in the testimonies of the prosecution witnesses.
The incident had taken place at 7:45 p.m., whereas the FIR
was lodged at 00.20 hours. There is no explanation for the
delay in reporting the matter to the police. The presence of
Devinder Dutt (PW10) on the spot is highly suspicious. His
name was not mentioned in the FIR. The witnesses materially
improved upon their earlier version given to the police, which
made their testimonies suspect. Therefore, he prayed that the
Page |9
present appeal be allowed and the judgment and order passed
by the learned Trial Court be set aside.
10. Mr. Jitender Sharma, learned Additional Advocate
General, for the respondent/State, submitted that the learned
Trial Court had rightly appreciated the evidence. The informant
was injured and was being taken to the hospital. The priority of
the relatives of the informant was to provide medical aid to
him, and the delay in reporting the matter to the police is
clearly explained. The minor contradictions were bound to
come with time, and the learned Trial Court had rightly ignored
them. There is no infirmity in the appreciation of the evidence
by the learned Trial Court. Therefore, he 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 informant was unconscious. He regained
consciousness when he was being taken to Sarahan. He was
referred to RH Solan from PHC Sarahan, where he was taken.
Thus, the informant’s condition was serious, and the priority of
his family members would have been to provide him with
medical aid and not to report the matter to the police. It was
laid down by the Hon’ble Supreme Court in Ravi Kumar v.
State of Punjab, (2005) 9 SCC 315: (2006) 1 SCC (Cri)
P a g e | 10
738: 2005 SCC OnLine SC 491 that the delay caused by
taking the injured to the hospital is not sufficient to doubt the
prosecution’s case. It was observed at page 319:
“11. As the evidence on record shows, the occurrence
took place around 7 a.m. on 30-5-1996. In the said
occurrence, the deceased was seriously injured.
Therefore, the first priority of his brothers, i.e. Mohan Lal
(PW 3) and Ram Lubhaya was to provide immediate
medical aid so that his life could be saved. He was
immediately taken to Primary Health Centre, Jadla and
thereafter was taken to Civil Hospital, Nawanshahr.
There, the doctor, after examining him, found the
condition to be serious and referred the patient to PGI at
Chandigarh, where he ultimately died at 1.15 p.m. After
his death, PW 3 lodged the first information report at
Police Station Nawanshahr shortly thereafter, after
making arrangements for his funeral. The distance
between the hospital and the police station is a few
kilometres. The special report was received by the Illaqa
Magistrate shortly after midnight. The sequence of
events as is evident from the record shows that there
was no unreasonable delay in lodging the FIR as the first
effort of his brothers was to take the deceased to
different hospitals for medical aid. As has been rightly
observed by the courts below the first priority of the
family members was to save the life of the deceased.
Similarly, there was no unexplained delay in sending the
special report to the Special Magistrate, as the distance
between the police station and the place where the
Illaqa Magistrate was stationed was not small.
12. In Ram Jag v. State of U.P. [(1974) 4 SCC 201:
1974 SCC (Cri) 370: AIR 1974 SC 606] it was
observed as follows : (SCC p. 208, para 16)
Whether the delay is so long as to throw a cloud of
suspicion on the seeds of the prosecution case must
depend upon a variety of factors. Even a long delay
can be condoned if the witnesses have no motive for
implicating the accused. On the other hand, prompt
filing of the report is not an unmistakable guarantee
of the truthfulness of the version of the prosecution.
P a g e | 11
It is true that witnesses cannot be called upon to
explain every hour’s delay in filing information, and a
common-sense view has to be taken in ascertaining
whether the first information report was lodged after an
undue delay so as to afford enough scope for
manipulating evidence.”
13. It was laid down in Ramdas v. State of
Maharashtra, (2007) 2 SCC 170: (2007) 1 SCC (Cri) 546:
2006 SCC OnLine SC 1167 that the delay in lodging the FIR
has to be seen in the light of the circumstances of the case. It
was observed at page 179:
“24. Counsel for the State submitted that the delay in
lodging the first information report in such cases is
immaterial. The proposition is too broadly stated to
merit acceptance. It is no doubt true that a mere delay
in lodging the first information report is not necessarily
fatal to the case of the prosecution. However, the fact
that the report was lodged belatedly is a relevant fact of
which the court must take notice. This fact has to be
considered in the light of other facts and circumstances
of the case, and in a given case the court may be
satisfied that the delay in lodging the report has been
sufficiently explained. In the light of the totality of the
evidence, the court of fact has to consider whether the
delay in lodging the report adversely affects the case of
the prosecution. That is a matter of appreciation of
evidence. There may be cases where there is direct
evidence to explain the delay. Even in the absence of a
direct explanation, there may be circumstances
appearing on record which provide a reasonable
explanation for the delay. There are cases where much
time is consumed in taking the injured to the hospital for
medical aid and, therefore, the witnesses find no time to
lodge the report promptly. There may also be cases
where on account of fear and threats, witnesses may
avoid going to the police station immediately. The time
of occurrence, the distance to the police station, mode of
conveyance available, are all factors which have a
bearing on the question of delay in lodging of the report.
It is also possible to conceive of cases where the victim
P a g e | 12and the members of his or her family belong to such a
strata of society that they may not even be aware of
their right to report the matter to the police and seek
legal action, nor was any such advice available to them.
In the case of sexual offences, there is another
consideration which may weigh in the mind of the court
i.e. the initial hesitation of the victim to report the
matter to the police which may affect her family life and
family’s reputation. Very often in such cases only after
considerable persuasion, the prosecutrix may be
persuaded to disclose the true facts. There are also
cases where the victim may choose to suffer the
ignominy rather than to disclose the true facts which
may cast a stigma on her for the rest of her life. These
are cases where the initial hesitation of the prosecutrix
to disclose the true facts may provide a good
explanation for the delay in lodging the report. In the
ultimate analysis, what is the effect of delay in lodging
the report with the police is a matter of appreciation of
evidence, and the court must consider the delay in the
background of the facts and circumstances of each case.
Different cases have different facts and it is the totality
of evidence and the impact that it has on the mind of the
court that is important. No straitjacket formula can be
evolved in such matters, and each case must rest on its
own facts. It is settled law that however similar the
circumstances, facts in one case cannot be used as a
precedent to determine the conclusion on the facts in
another. (See Pandurang v. State of
Hyderabad [(1955) 1 SCR 1083: AIR 1955 SC 216].)
Thus, mere delay in lodging of the report may not by
itself be fatal to the case of the prosecution, but the
delay has to be considered in the background of the
facts and circumstances in each case and is a matter of
appreciation of evidence by the court of fact.”
14. Hence, the submission that the prosecution’s case is
to be rejected due to the delay is not acceptable.
15. Learned Trial Court held that the involvement of
Shanta Devi, Ghanshyam and Chattar Singh was not proved
and acquitted them. The State did not prefer any appeal
P a g e | 13
against the acquittal, and their acquittal has attained finality. It
was laid down by the Hon’ble Supreme Court in Yogarani v.
State, 2024 SCC OnLine SC 2609, that the Court cannot
convict one accused and acquit the other on the same set of
evidence. It was observed:
“10. The Court cannot convict one accused and acquit
the other when there is similar or identical evidence
pitted against two accused persons. In the case of Javed
Shaukat Ali Qureshi v. State of Gujarat reported in 2023
INSC 829, this court has held that:
“15. When there is similar or identical evidence of
eyewitnesses against two accused by ascribing
them the same or similar role, the Court cannot
convict one accused and acquit the other. In such
a case, the cases of both the accused will be
governed by the principle of parity. This principle
means that the Criminal Court should decide like
cases alike, and in such cases, the Court cannot
make a distinction between the two accused,
which will amount to discrimination.”
In the case on hand, allegations against the appellant
being the same as made against Accused No.. 3 & 4, the
Courts below could not have convicted the Appellant
while acquitting the other two.”
16. In the present case, the prosecution has led the
same evidence against the appellants/accused and acquitted
co-accused, and it is impermissible to convict the appellants on
the same set of evidence when the co-accused stand
acquitted.
17. The FIR (Ex. PW3/A) mentions that the informant
and his son Chandan Sharma were returning after attending
the marriage in the house of Charan Dass at Dilman. They met
P a g e | 14
Nanku Ram, Sanju and Taru at Dilman Chowk. A motorcycle
being driven by Aman Sood intercepted the informant and his
son about half k.m ahead of Dilman at 7:45 p.m. A Maruti van
bearing registration number HP 14-6594, being driven by Vijay,
also reached the spot. Vijay, Nanku Ram, Taru and Sanju and
3-4 persons came out and gave beatings to the informant, who
became unconscious. He was told on the way that his son
Chandan Sharma had sustained injuries.
18. The informant has given an entirely different
version in the Court. He stated, while appearing as PW3, that
he and his son were returning to his home when they met
Nanku Ram, Taru and Sanju. They threatened him with dire
consequences. Devinder Dutt (PW10) was with him. He sent
Devinder to bring Chandan, who arrived within 5-6 minutes. All
of them proceeded towards his house. He and Chandan were
together, whereas Devinder was behind them by about 50
meters. A motorcycle being driven by Aman Sood and a Maruti
van, being driven by Vijay stopped near them. Vijay, Aman
Sood, Ghanshyam and 3-4 other persons came out of the van.
Nanku Ram gave a stick blow to the informant’s head, as a
result of which he became unconscious and fell on the road.
The accused also gave beatings to Chandan with sticks, fists
and kicks blow.
P a g e | 15
19. It is apparent from the comparison of the statement
made by the informant on oath and the statement made by
him before the police under Section 154 of Cr. P.C. that the
name of Devinder was nowhere mentioned in the FIR. It was
further not mentioned in the FIR that the accused Nanku, Taru,
and Sanju had threatened the informant. As per the FIR,
Chandan Sharma was with the informant, whereas the
informant stated on oath that Chandan was called by him by
sending Devinder Dutt. The FIR mentioned that Vijay, Taru,
Nanku and Sanju came out of the van, whereas the statement
on oath mentioned that Vijay, Raman and Ghanshyam came
out of the vehicle. Thus, it is apparent that the informant has
given an entirely different version of the incident on oath. It
was laid down by this Court in Nirmal Singh v. State of
Himachal Pradesh, 1986 SCC OnLine HP 27: 1987 Cri LJ
1644 that where the prosecution tries to introduce a new
version during the trial, the Court should be reluctant to accept
it at its face value. It was observed on page 1647:
“9. Before we advert to the evidence we would like to
point out that in case where the prosecution endeavours
to introduce at the trial a new version or a version which
is materially different from the original, as narrated in
the first information report, the Court, as a rule of
prudence, is required to act with utmost care and
circumspection in scrutinising the evidence and normally
it should be reluctant to accept the prosecution
evidence at its face value unless a satisfactory and
cogent explanation is given for the deviations and
improvements made. This rule of prudence was
P a g e | 16completely ignored by the trial Court in the instant case,
though it was fully applicable.”
20. In the present case learned Trial Court did not
notice the variation in the statement of the informant vis-à-vis
the statement made under Section 154 of CrPC.
21. The informant stated that Ghanshyam was a pillion
rider, and he came out of the van. A person cannot be a pillion
rider and be present in the van. The learned Trial Court has
acquitted Ghanshyam, which means that he was not present
on the spot, and the statement of the informant to this effect is
incorrect.
22. Chandan Sharma (PW-4) has given a different
version. He stated that the informant left the marriage at about
7.30 p.m. along with his brother Devinder Dutt. Devinder Dutt
came running to him and asked him to accompany him
(Devinder Dutt) to Dilman Chowk. He rushed towards the
chowk where the informant was alone. The informant revealed
that Sanju, Nanku Ram, and Taru had misbehaved with him,
and he should accompany the informant. Devinder Dutt
remained at the wedding. He and the informant had crossed a
distance of half a kilometer, when a motorcycle being driven
by Raman and a van bearing registration number HP-14-6594,
being driven by Vijay, stopped near them. Nanku Ram, Taru
and Sanju came out of the van. All of them were armed with
sticks. They gave beatings to the informant. Accused Shanta
P a g e | 17
Devi stated that the informant had died and he should be
thrown away. The accused threw the informant in the bushes.
The accused pelted stones at the informant. All the accused
boarded the van and went away. He dragged his father to the
roadside. Bachhi Ram and Sita Devi came to the spot.
23. His testimony is also not as per the prosecution
case because, as per the prosecution case, he and the
informant had started together from the marriage and met the
accused Nanku Ram, Sanju and Taru at Dilman Chowk. The
prosecution’s case is silent regarding the presence of Devinder.
He claimed that the accused threw the informant into the
bushes, which was not stated by the informant and was also
not mentioned in the FIR, which is the earliest version. He
claimed that all the occupants of the van were armed with
sticks, whereas the informant stated that only Nanku Ram was
armed with sticks. He claimed that Devinder Dutt remained in
the marriage, whereas the informant stated that Devinder Dutt
followed them and was about 50 meters behind them. He
stated about the presence of Shanta Devi, whose name was
not mentioned by the informant. Learned Trial Court acquitted
Shanta Devi, and her presence on the spot is not established.
Hence, his version that Shanta Devi told the accused to throw
the informant into the bushes is not acceptable.
P a g e | 18
24. Devinder Dutt (PW10) stated that he went towards
his home after attending the marriage and met his father near
Dilman Chowk, who asked him to call Chandan Sharma. He
called Chandan Sharma, and all of them proceeded towards
their home. He was 15 to 30 meters behind the informant and
Chandan Sharma. A motorcycle being driven by Raman and a
van being driven by Vijay stopped near the informant. Nanku
Ram. Sanju, Taru and 3-4 other persons came out of the van.
They had sticks in their hands. They started beating the
informant. He rushed to his home and informed his mother and
uncle about the beatings. They came to the spot and saw
Chandan Sharma dragging the informant from the bushes
towards the road.
25. His version is also not as per the prosecution
version as recorded in the FIR and as narrated by the informant
and Chandan. He claimed that he went alone and met the
informant at Dilman Chowk, which is not the case of the
informant on oath because the informant stated that he and
Devinder Dutt were walking together when the accused had
threatened him (the informant). Chandan Sharma stated that
only he and the informant proceeded towards the home,
whereas he stated that all three went towards their home, and
he was 15-30 meters behind them.
P a g e | 19
26. As per the prosecution, the accused went to the
spot in the vehicle bearing registration number HP-14-6594.
Chaman Lal Bhatia (PW16) stated in his cross-examination that
he had brought the van to the Police Station by towing it with a
jeep. His version is also supported by Yashwant Singh (PW-8), a
witness to the recovery who stated in his cross-examination
that the van was parked on the spot for the last 20-22 days.
Chaman Lal Bhatia (PW16) admitted that he had submitted a
report (Ex.D1) to the Court at the time of release of the
vehicle. It was mentioned in the report that the van was seized
in defective condition. All these documents established that
the van was defective and could not have been driven. This
falsifies the prosecution’s version that the accused stopped the
van near the informant.
27. Learned Trial Court held that the van might have
been towed because its key was not with the police. This is
contrary to the evidence on record. The investigating officer
had found the van in a defective condition, and Yashwant
Singh (PW-8) stated that the van was parked at the place for
20-22 days. There is a presumption regarding the continuity of
things under Section 114 of the Evidence Act, which
presumption applies forward as well as backwards. This
position was laid down in Salem Municipality v. P. Kumar,
P a g e | 20
(2019) 13 SCC 307: (2018) 5 SCC (Civ) 708: 2018 SCC
OnLine SC 2735, wherein it was observed at page 320:
“36. It is no doubt true that under Section 114 of the
Evidence Act, 1872, there is a presumption of
continuance of a state of affairs once shown to have
prevailed. It is open to the court under Section 114 to
presume the continuity of any fact once shown to have
prevailed. Such a presumption of continuity can be
drawn not only forward but backward also. The Court
can presume that such a state of affairs might have
existed in past also unless discontinuity is proved…”
28. Therefore, if the van was defective at the time of its
seizure, the presumption is that it was defective earlier as well,
and the burden is upon the prosecution to establish that the
van was in working condition. No such evidence was led, and
the prosecution’s version will become doubtful by the fact that
there is evidence regarding the van being defective. Hence,
the genesis of the prosecution’s case is made doubtful by this
evidence.
29. The informant stated in the FIR that the accused
had enmity with him because of the plying of the bus. He
stated on oath that he and his family members visit the house
of Ranjeet, but the accused do not like this, therefore, they had
beaten him for this reason. The version regarding the enmity
over the visit to the house of Ranjeet was stated for the first
time in the statement on oath. Shakuntla Devi (PW15) also
stated this fact, but since this was never asserted earlier,
P a g e | 21
therefore, her testimony cannot be relied upon to establish the
enmity.
30. In any case, the enmity is a double-edged weapon,
while it furnishes a motive for the commission of a crime. It
also furnishes a motive for false implication. Therefore, not
much advantage can be derived from the enmity.
31. Nirmal Thakur (PW-6) stated in his cross-
examination that Ranveer met him near his house on
13.12.2006 at about 9:30 p.m. He was travelling in a van of Jai
Prakash, and he was under the influence of liquor. This witness
was put forward as a witness of truth by the prosecution. He
was not re-examined, which means that his testimony was
accepted as correct by the prosecution. This shows that the
incident has become doubtful because the informant was
travelling in the van on 13.12.2006 at 9:30 p.m.
32. Learned Trial Court held that the Medical Officer did
not smell any alcohol. Even if the part of the statement of
Nirmal Thakur that the informant was under the influence of
liquor is taken out of his consideration, his testimony that the
informant was travelling in the van at 9:30 p.m. on the date of
the incident cannot be ignored.
33. Bachhi Ram (PW-5) and Sita Devi reached the spot
after the incident. They only saw Chandan Sharma dragging
P a g e | 22
the informant from the bushes towards the road. Therefore,
their testimonies will not prove the incident
34. There is no other evidence to prove the incident.
The independent witnesses were not examined, even though
the site plan (Ex. PW16/A) shows the cow shed at a distance of
about 100 meters.
35. Therefore, in these circumstances, the prosecution’s
version was not proved beyond a reasonable doubt, and the
learned Trial Court erred in convicting and sentencing the
accused. Therefore, the judgment and order passed by the
learned Trial Court are not sustainable.
36. In view of the above, the present appeal is allowed,
the judgment and order passed by the learned Trial Court are
ordered to be set aside, and the accused are acquitted of the
charged offences. The fine amount, if deposited by the
appellants, be refunded to them after the expiry of the
statutory period of limitation in case no appeal is preferred,
and in case of appeal, the same be dealt with as per orders of
the Hon’ble Apex Court.
37. 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 appellants/accused are
directed to furnish their personal bonds in the sum of ₹25,000/-
each with one surety each in the like amount to the
P a g e | 23
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 appellants/accused, on receipt of
notice(s) thereof, shall appear before the Hon’ble Supreme
Court.
38. 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.
(Rakesh Kainthla)
Judge
02 May, 2025(G.M)