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2000 DIGILAW 106 (HP)

STATE OF HIMACHAL PRADESH v. ARJUN SINGH

2000-05-12

C.K.THAKKER

body2000
JUDGMENT C.K. Thakker, C.J.—This appeal is filed \against the judgment and ordenpf acquittal recorded by learned Additional Chief Judicial Magistrate, Paonta Sahib, District Sirmaur, on August 14, 1996 in-Criminal -Challan No. 116/2 of 95. / J 2. The case of the prosecution was that one Suresh Kumar was serving as a Pump Operator at Bhungarni Pump House of Giri Irrigation Sub Division, Paonta, Sahib. On June 10, 1995 at about 8.30 p.m., ttie complainant was at his working place, meanwhile respondent-accused Arjun Singh came there and started abusing him. The accused also gave slap and fist blows. The complainant was rescued by Jagdish Chand, Dhani Ram and Paras Ram, who were present at the Pump House. The Incident was, thereafter, reported to the police by the complainant. A case was registered against the accused for offences punishable under Sections 353 and 506 of the Indian Penal Code. After usual investigation challan was submitted. 3. At the trial, the prosecution examined eight witnesses in support of its case, including eye witnesses, namely, PW-1 Suresh Kumar complainant, PW-2 Ranbir Singh and PW-3 Dhani Ram. It may be recalled that when PW-1 complainant was beaten by the accused, he was rescued by PW-2 Ranbir Singh and PW-3 Dhani Ram. Medical evidence was produced and Medical Officer as well as Investigating Officer were examined. 4. The case of the accused was of total denial. Over and above, denying the allegations levelled against him, the accused in his further statement under Section 313 of the Code of Criminal Procedure, 1973, stated that as the accused had made a complaint against the complainant to superior officers of his department, as a counter blast a case was filed and he was falsely implicated therein. The accused also examined three defence witnesses in support of his defence, namely, DW-1 Bhagwan Dass, Clerk of Irrigation and Public Health Department, DW-2 Malkiat Singh and DW-3 Jaswant Singh. The accused also produced a copy of the complaint filed by him against the complainant. 5. On the basis of the evidence adduced by the prosecution as well as by the defence, the learned Magistrate held that it was not proved beyond reasonable doubt that the accused had used criminal force against the complainant with an intent to prevent him from discharging his duties as a public servant. The case, therefore, could not be said to be proved beyond all reasonable doubts. 6. The case, therefore, could not be said to be proved beyond all reasonable doubts. 6. For coming to the above conclusion, the learned Magistrate observed that there was variation in the version of the complainant at the initial stage of the incident and at a subsequent stage. It was also observed that in the light of the evidence on record, it could not be said that the complainant was prevented from discharging his duties as a public servant, since at the time of occurrence the complainant was sitting outside the Pump House. It had also come in evidence that on that day there was no water in the canal, hence, there was no question of preventing him from discharging his duties as a public servant. The case would be covered by Section 353 of the Indian Penal Code provided the action of the accused had real nexus or causal connection with the discharge of duties by a public servant in his capacity as a public servant. Reliance in this connection was placed by the learned Magistrate on a decision of the Honble Supreme Court in D. Ckattaiah and another v. State of Andhra Pradesh, AIR 1978 SC 1441. 7. The learned Magistrate also observed that it was no doubt true that PW-2 and PW-3, eye witnesses, supported the case of PW-1 complainant, but no implicit reliance could be placed on the evidence of PW-2 and PW-3 as they were related to the complainant and that fact was admitted by PW-3 Dhajni Ram in his cross-examination. From the record, it was clear over and above PW-2 and PW-3 there were a number of persons present at the time of occurrence. Names of some persons were also mentioned including Paras Ram, Jagdish and Ram Pal, but they were not examined by the prosecution and in the opinion of the learned Magistrate there was no sufficient explanation on the part of the prosecution why it failed to examine them. 8. According to the learned Magistrate, it was also doubtful whether the complainant was present on duty on June 10, 1995. To prove the factum of presence of complainant, the prosecution relied upon Ex. PW-5/A. But, according to the learned Magistrate, the entry regarding night duty of the complainant appeared to be doubtful because of the reasons mentioned at page 7 of the judgment. 9. To prove the factum of presence of complainant, the prosecution relied upon Ex. PW-5/A. But, according to the learned Magistrate, the entry regarding night duty of the complainant appeared to be doubtful because of the reasons mentioned at page 7 of the judgment. 9. Finally, the learned Magistrate held that it was clearly established by the accused that he had made a complaint to the department against the complainant and that fact was corroborated by other defence witnesses. In view of such complaint by the accused, it could not be said that the case, put forward by the accused that as a counter blast, a case was registered against him. On all these grounds, the learned Magistrate thought it fit to acquit the accused. The said order is challenged by the State by filing this appeal. 10. Mr. Chauhan, learned Deputy Advocate General for the appellant, submitted that it was proved from documentary evidence that the complainant was on night duty on June 10, 1995. The said fact was corroborated by PW-2 and PW-3, who were present at the time of occurrence and rescued the complainant. Injuries sustained by the complainant were duly proved by examining Medical Officer and production of medical certificate. If the case of the accused was that he had some grievance against the complainant and that he had also approached the department by filing a complaint against the complainant, there was every reason for the accused to abuse the complainant and to beat him. Learned Magistrate, hence, committed an error of fact and of law in acquitting the accused. He, therefore submitted that the order of acquittal deserves to be quashed and set aside by convicting the accused for the offences with which he was charged. 11. Mr. Kuldip Singh, learned senior counsel with Mr. Bimal Gupta, learned Counsel for the accused, supported the order of acquittal recorded by the learned Magistrate. He submitted that apart from the fact that the case was not proved by the prosecution beyond reasonable doubt, even the defence version was probable and when it was accepted by the trial Court, this Court will, normally, not interfere with the said- reasoning and convert an acquittal into conviction. He, therefore, prayed that the appeal deserves to be dismissed. — 12. In facts and circumstances of the case, in my opinion, the order of acquittal does not deserve interference. He, therefore, prayed that the appeal deserves to be dismissed. — 12. In facts and circumstances of the case, in my opinion, the order of acquittal does not deserve interference. It is, no doubt, true that the complainant, who claimed to be discharging his duties as a public servant, was sought to be prevented by attacking him. In the facts and circumstances, however, the learned Magistrate observed that it was doubtful as to whether the incident at all had taken place; that the complainant was present on that day; and that the action was not taken against the accused as a counter-blast by the complainant in the light of grievance made by him to the department. Again, PW-2 and PW-3, according to the learned Magistrate, were related to the complainant. 13. In my opinion, the learned Magistrate was right in observing that when independent witnesses were available and names of some of them were brought to the notice of the prosecution, without there being any reason it ought not to have ignored them and they could have been examined to support the case of the prosecution. If in the light of all these circumstances the learned Magistrate thought it fit to acquit the accused, it cannot be said that by taking such view, the learned Magistrate has committed an error of law or exceeded his jurisdiction. I, therefore, see no infirmity in the order of acquittal recorded by the learned Magistrate. 14. For the foregoing reasons, in my opinion, no ground has been made by the prosecution to set aside the order of acquittal recorded by the trial Court and to convict the accused. The appeal, therefore, deserves to be dismissed and is, accordingly, dismissed. Bailable warrant issued against the respondent-accused shall stand discharged. Appeal dismissed.