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2003 DIGILAW 77 (HP)

State of Himachal Pradesh v. Rajinder Kumar

2003-04-07

M.R.VERMA

body2003
JUDGMENT : M.R. Verma, J. This appeal by the State of Himachal Pradesh is directed against the judgment dated 5.7.2002 passed by the learned Judicial Magistrate, 1-Class, Nurpur whereby the respondents/accused (hereafter referred to as 'the accused persons') have been acquitted of a charge under sections 323, 324, 325 and 506 read with Section 34 of the Indian Penal Code. 2. The case of prosecution against the accused persons is that complainant Uttam Chand (PW-1) working as a 'havildar' in the Indian Army at the relevant time, had been residing separately from his parents and brothers for one-and-a-half years before 25.6.1995. His father decided not to give land or share in the house to him which was a cause for a constant dispute between them. He had moved an application to Tehsilder, Nurpur. On 25.6.1995 at about 6.45 a.m. he had called OM Parkash (PW-2), Ratnu and one more person known as 'Thanedar' to visit his house and inspect the spot because his father and brothers had thrown thorns in front of the house. When all these persons reached on the spot, the accused persons started beating PW-1. He raised hue and cry and his wife Sheela Devi (PW-3) came to the spot and tried to rescue him from the clutches of the accused persons. However, the accused persons gave beatings to her also. PW-1 sustained injuries on his arm, face and other parts of the body and PW-3 also sustained injuries. PW-1 sustained injuries on his arms, face and other parts of the body and PW-3 also sustained injuries. PW-1 was warned by the accused persons with dire consequences in future. At the time of the occurrence accused Madan lal was armed with a Darati' in his hand whereas other accused persons were armed with sticks. PW-1 reported the matter to the police on the basis of which FIR Ext. PW-6/A was recorded under Section 323, 324 and 506/34 of the Indian Penal Code. The injured were got medically examined and the MLCs. about such examination arte Ext. PW-7/S and PW-7/B. During the investigation the investigating agency recovered two sticks vide memo. Ext. PW-4/A and a 'Sanga' vide recovery memo. Ext. PW-8/8. On completion of the investigation, S.H.O. Nurpur submitted a charge sheet against four accused out of whom Nasib chand had died and the remaining accused are the present respondents/accused. about such examination arte Ext. PW-7/S and PW-7/B. During the investigation the investigating agency recovered two sticks vide memo. Ext. PW-4/A and a 'Sanga' vide recovery memo. Ext. PW-8/8. On completion of the investigation, S.H.O. Nurpur submitted a charge sheet against four accused out of whom Nasib chand had died and the remaining accused are the present respondents/accused. The accused persons were tried on a charge under Sections 323, 324, 325, 506/34 of the Indian Penal Code. To prove the charge against the accused prosecution examined as many as nine witnesses. Statements of the accused persons were recorded under Section 313 of the Code of Criminal Procedure wherein they denied the prosecution case as a whole and claimed to be innocent. The accused, however, did not lead any defence evidence. 3. On appreciation of the evidence on record, the learned trial Magistrate concluded that there was no sufficient evidence to prove the charge against the accused persons and by giving them benefit of doubt, acquitted them. 4. I have heard the learned Additional Advocate General for the State and the learned counsel for the respondents and have gone through the record. 5. It may be pointed out that there is no evidence to prove that the accused in any manner criminally intimidated PW-1. 6. In view of the statements of Dr. R.K. Chaudhary (PW-7) read with MLC Exs. PW-7/A and PW-7/B, it is indisputably established that PW-1 and PW-3 had sustained injuries at or about the time of alleged occurrence. Therefore, the questions requiring determination in this appeal are (i) whether accused or one or more of them in furtherance of common intention of the accused had caused these injuries and (ii) whether the accused or one or more of them criminally intimated PW-1 or PW-3. 7. To prove that the injuries were caused by the accused to PW-1 and PW-3 with sharp as well as blunt weapons in furtherance of their common intention, the prosecution examined PW-1, PW-3, Om Parkash (PW-2) Kishan Chand (PW-4) and Rattan Singh (PW-5), all alleged eye witnesses of the occurrence. According to the prosecution, PW-2, PW-4 and PW-5 are the witnesses of the occurrence who had been named as such in the FIR. However, PW-4 and PW-5 have not supported the case of the prosecution at all. According to the prosecution, PW-2, PW-4 and PW-5 are the witnesses of the occurrence who had been named as such in the FIR. However, PW-4 and PW-5 have not supported the case of the prosecution at all. On the contrary, both of them have denied the alleged beatings of PW-1 and PW-3 by the accused or anyone of them. Both these witnesses were cross examined of the prosecution at length but there is nothing in their statements or other material on record from which it may be inferred that they had not made the true disclosure of what they are alleged to have seen. Thus, their evidence instead of supporting the prosecution version, belies it. 8. Om Parkash, concerned Ward Member, is not only the eye witness of the alleged occurrence but during investigation, the weapon of offence Sanga Ex. P-1 was also recovered from accused Mandan Lal in his presence. Insofar as the version of the prosecution about recovery of Ex. P-1 is concerned, this witness has not supported it. He has, however, stated that accused Madan Lal had given one blow each of Sanga to PW-1 and PW-3. It may, however, be pointed out that it is evident from the statement of this witness that accused Madan Lal is not the aggressor. As per the statement of PW-2, Madan Lal was removing thorny, bushes from the spot. PW-3, however, pushed him and the quarrel ensued in which even PW-1 assaulted Madan Lal with a stick. Thus, the statement of this witness not only raised suspicion about the trustworthiness of the version of the prosecution about the genesis of the occurrence but also indicates that PW-3 was the first assailant. The version of this witness further contradicts the vision as contained in the FIR and as given by PW-1 and PW-3. According to this version, all the accused (including deceased) first attacked PW-1 and when PW-3 intervened to save him, all the accused assaulted him. This version is not supported even by PW-2 according to whom the first assault was made by PW-3 and then PW-1 also assaulted accused Madan Lal and as a retaliation, received the injuries. In view of the statement of PW-2, none of the accused other than Madan Lal was a party to the quarrel or assault. 9. This version is not supported even by PW-2 according to whom the first assault was made by PW-3 and then PW-1 also assaulted accused Madan Lal and as a retaliation, received the injuries. In view of the statement of PW-2, none of the accused other than Madan Lal was a party to the quarrel or assault. 9. It may be pointed out here that it is admitted case of the prosecution that Nasib Chand accused (since deceased), father of PW-1, I had disinherited him and litigation was pending between them in the Court of Sub Divisional Magistrate. It is also not in dispute that about the occurrence out of which this case had arisen, accused Madan Lal had also instituted a case against PW-1 and PW-3 in the trial court. The investigating agency or the prosecution did not disclose about the institution and pendency of the case by Madan Lai. Therefore, the prosecution has not only failed to establish the genesis of the case but also concealed it. 10. It may be pointed out that the investigation in the case right form the beginning had not been fair. It is case of the prosecution that the occurrence was reported to the police by PW-1 vide report No. 32 dated 25.6.1997 of Daily Diary of Police Station, Nurpur and the formal FIR Ex. PW-6/A. However, it is admitted by PW-1 that this report was dictated by his wife pW-3. If so, the police ought not to have distorted the report Ex. PW-6/A in a manner so as to show that it was lodged by PW-1. This distortion in the document which set the law in motion investigating agency had not acted fairly and impartially. Even alleged recovery of Ex. P-1 on production by accused Madan Lal appears to be a farce as it has not been supported even by PW-2. Thus by the act and conduct of the concerned police officials as stated above, the very foundation of the prosecution is demolished. 11. The learned trial Magistrate has taken into account all the relevant and material aspects of the case and discussed the evidence in detail. In view of what has been stated hereinabove, he has drawn permissible conclusions from the evidence on record. Therefore, the impugned judgment does not a call for any interference. 12. As a result, this appeal merits dismissal and is accordingly dismissed. In view of what has been stated hereinabove, he has drawn permissible conclusions from the evidence on record. Therefore, the impugned judgment does not a call for any interference. 12. As a result, this appeal merits dismissal and is accordingly dismissed. The bail bounds furnished by he accused are discharged.