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2004 DIGILAW 203 (HP)

State Of Himachal Pradesh v. Sandeep Kumar

2004-08-25

M.R.VERMA

body2004
JUDGMENT : M.R. Verma, J. (Oral)- 1. The State has preferred the present petition for grant of leave to appeal against the judgment dated 27.5.2004 passed by the learned Chief Judicial Magistrate, Hamirpur whereby the accused-respondents (hereafter referred to as 'the accused persons') have been acquitted of a charge under Sections 325, 323, 506 read with Section 34 of the Indian Penal Code. 2. Case of the prosecution in brief is that on 28.11.2000 at about 5.30 p.m. at Partap Nagar, Hamirpur, accused Sandeep Kumar was singing an obscene song near the house of complainant Renu Thakur (PW- 11) which was objected to by her father Parshotam Dass (PW-10). The accused persons then started abusing PW-11 and her parents and accused Sandeep Kumar entered into the verandah of PW-11 armed with Danda and gave a Danda blow on her head. PW-10 was also beaten up by him. In the meantime accused Krishna Devi also came there and gave Danda blow on the chest and back of PW- 10. Both the accused then threatened the injured to do away with their lives. The matter was reported to. the police and after completion of the investigation the police submitted a charge-sheet against the accused persons who came to be tried on a charge under Sections 323, 325 and 506 read with Section 34 of the Indian Penal Code. 3. To prove the charge against the accused persons, prosecution examined 12 witnesses. Statements of the accused persons were recorded under Section 313 of the Code of Criminal Procedure wherein they claimed to be innocent and that the case against them was outcome of enmity. The accused persons led defence and examined two DWs to prove that the occurrence was reported by them to the police and they were medically examined and were found to have sustained injuries. 4. On consideration of the material on record, the learned trial magistrate came to the conclusion that the charge against the accused persons was not proved and accordingly acquitted them. Hence, this petition by the State. 5. I have heard the learned Deputy Advocate General for the State-petitioner who has read out the statements of the prosecution witnesses attested copies whereof are available with him. 6. Be it stated at the very outset that the FIR was initially recorded under Sections 451, 294, 323 and 506 read with Section 34 of the Indian Penal Code. 5. I have heard the learned Deputy Advocate General for the State-petitioner who has read out the statements of the prosecution witnesses attested copies whereof are available with him. 6. Be it stated at the very outset that the FIR was initially recorded under Sections 451, 294, 323 and 506 read with Section 34 of the Indian Penal Code. However, the investigation record did not disclose the commission of the offences other than those punishable under Section 323, 325 and 504 read with Section 34 of the Indian Penal Code. Thus, the version regarding obscene songs etc. as reported by PW-11 to the police was not found believable at the stage of the framing of the charge and rightly so because accused Sandeep Kumar is son of accused Krishna Devi and it is utterly unbelievable that a son will sing obscene songs in the presence of his mother and when the son will be stopped by someone not to sing obscene songs the mother would retaliate by beating up such person. 7. Three of the eyewitnesses of the case are the injured, PW-10 and PW-11, and Raj Kumari (PW-9) wife of PW- 10, who belong to the same family. It clearly emerges from the admissions in the statement of PW-9 that there is a boundary dispute between the parties and even demarcation thereof was taken but it appears that the dispute was not settled. Thus, the statements of these witnesses, who are evidently interested witnesses, had to be read with care and caution and keeping in view the contradictions interse the statements of these witnesses and the contradictions in their statements and the version as contained in the FIR no implicit reliance could have been laid on the testimony of these witnesses and the trial court has rightly concluded so. 8. The other eye witnesses of the occurrence are Tilak Raj (PW-2), Raghu Nath (PW-3) and Pardeep Kumar (PW-7). PW-2 Tilak Raj has not supported the prosecution version and there is nothing in his statement as read out by the learned Deputy Advocate General which may in any manner create even a doubt that this witness is intentionally and with a view to help the accused persons not making a true statement. 9. PW-2 Tilak Raj has not supported the prosecution version and there is nothing in his statement as read out by the learned Deputy Advocate General which may in any manner create even a doubt that this witness is intentionally and with a view to help the accused persons not making a true statement. 9. PW-3 Raghu Nath has stated that the accused gave a Danda blow to PW-11 and when PW-9 and PW- 10 came to save her he gave Danda blows to them also and PW-9 was beaten up by both the accused persons. This witness is admittedly a chance witness. His admitted conduct raises suspicion about his trustworthiness. It is his admitted case that when the alleged victims were beaten up by the accused persons he did not intervene to save the injured nor he raised any hue and cry but kept silently watching the occurrence which is evidently an unnatural conduct of a human being. He has even exaggerated the statement and improved upon even the version as contained in, the FIR and the evidence of.PW-10 and PW-11 by stating that even PW-9 was beaten up by the accused persons whereas it is not the case of the prosecution at all. Thus, his statement being tainted with contradictions and exaggerations could not have been relied upon. 10. PW-7 has stated that on hearing the noise he went to the spot and found the parties fighting with each other and accused gave a Danda blow to Parshotam. However, his house admittedly is at a distance of two kilometers from the place of occurrence and he is not in a position to state as to whether the Danda used by accused Sandeep Kumar was of iron or wood. He is also not aware as to in what position PW-10 was standing at the relevant time. He is also not aware that the complainant party had demolished a Nali in between the houses of the complainant and the accused and had started putting up iron angles thereon. Further, he is not aware that it was the complainant party i.e. Renu Thakur (PW- 11), Raj Kumari (PW-9) and Savitri Devi who caught hold of accused Sandeep Kumar and gave beatings to him. Further he is not aware that an FIR was lodged by the accused against the complainant party. Further, he is not aware that it was the complainant party i.e. Renu Thakur (PW- 11), Raj Kumari (PW-9) and Savitri Devi who caught hold of accused Sandeep Kumar and gave beatings to him. Further he is not aware that an FIR was lodged by the accused against the complainant party. He has, however, admitted that both the parties were fighting with each other and both the parties had sustained injuries. Thus, from the statement of this witness it clearly emerges that the complainant party and the accused were seen by him fighting with each other and even the accused persons had sustained injuries. 11. There is no dispute that FIR Ext. DW-1/A proved by HC Karam Chand (DW-1) was lodged against the complainant party by the accused giving the date and time of the occurrence as 28.11.2000 at 4 p.m., wherein the allegations are that because of some boundary dispute between the parties PW-9, PW-10 and PW-11 picked up a quarrel with the accused persons and gave beatings to both of them. The accused persons were also medically examined by Dr. Dhruv Sharma (DW-2) and they were found to have sustained injuries vide MLCs Exts. DW-2/A and DW-2B. The injuries sustained by the accused persons have nowhere been explained which in the facts and circumstances of the case were required to be explained to rule out the possibility of the complainant party being the aggressors. 12. It may also be pointed out here that the FIR out of which the present case arises and the FIR lodged by accused Sandeep Kumar were lodged in the same Police Station and Investigation in both the cases evidently was carried out by the investigators of the same Police Station. However, the prosecution kept it a guarded secret that, accused party had sustained injuries and had lodged FIR about the occurrence. It has also not been brought on record by the prosecution as to what happened to the FIR lodged by the accused. However, the prosecution kept it a guarded secret that, accused party had sustained injuries and had lodged FIR about the occurrence. It has also not been brought on record by the prosecution as to what happened to the FIR lodged by the accused. Fair play and justice required of the police to have submitted the final reports in both the FIRs to the same Court so that in the event of the parties having been sent up for trial both the trials could have been held by the same Court and if in the FIR lodged by the accused cancellation report was submitted the same could have been gone into by the same Court. Keeping concealed the factum of lodging of FIR by the accused, fate thereof and not explaining as to how the injuries were sustained by the accused persons are the factors which not only render the conduct of the police and the prosecution unfair but also leads to the inference that the prosecution has not disclosed the true genesis of the occurrence and the failure to do so in the facts and circumstances of the case is fatal to the case of the prosecution. 13. The above discussion leads to the conclusion that the trial Court which has looked into all material aspects of the matter and has properly appreciated the evidence, has not committed any material irregularity or illegality in acquitting the accused persons. Therefore, this is not a case fit for grant of leave to appeal. 14. As a result, this petition is dismissed.