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Himachal Pradesh High Court · body

2005 DIGILAW 484 (HP)

STATE OF H. P. v. RAM KISHAN

2005-12-21

ABHILASHA KUMARI

body2005
JUDGEMENT Abhilasha Kumari, J. (Oral).: In the present appeal the State of HP. has assailed the judgment of learned Additional Judicial Magistrate 1st Class (2), Shimla dated 3.7.1999. 2. The facts giving rise to the present case are that on 18.6.1994 at about 12.15 P.M., Sushil Kumar Forest Guard, Municipal Corporation, Shimla was on official patrolling duty in Forest Jakhoo. At that time the accused (hereinafter referred to as the respondent) met him carrying leaves of trees and fodder. The respondent was also grazing his cow in the forest. When complainant (Sushil Kumar) asked him why he has cut and removed the leaves of trees and why he is grazing his cow, the accused caught hold of the complainant and gave beatings to him. In this process the uniform of the complainant got torn. It is the case of the prosecution that the respondent also threatened the complainant with dire consequences in future. The complainant reported the matter to the Divisional Forest Officer, Municipal Corporation, Shimla vide Ext.PW-2/A who referred the matter to the police vide Mark X and FIR. No. 219 of 1994 (Ext.PW-4/A) was registered against the respondent. The statements of the witnesses were recorded during the investigation and the spot map Ext.PW-5/A was prepared. The uniform belonging to the complainant was taken into possession vide Ext.PW-2/B on 17.7.1994. The respondent was arrested and thereafter released on bail. On completion of the investigation the challan was submitted to the trial Court. The respondent was charged for offences under Sections 353 and 506 IPC to which he pleaded not guilty and claimed to be tried. The prosecution examined six witnesses in support its case and thereafter the statement of the respondent under Section 313 Cr. P.C. was recorded wherein he totally denied the allegations of the prosecution. However, no defence evidence was adduced. After necessary trial, the trial ?Court, for the reasons stated in the impugned judgment dated 3.7.1999 found that the prosecution had failed to prove its case beyond reasonable doubt and, therefore, proceeded to acquit the respondent of the charge in question by giving him the benefit of doubt. The State of HP. is aggrieved by this judgment, hence, the present appeal. 3. I have heard Shri Som Dutt Vasudeva, learned Additional Advocate General, for the appellant/State and Shri S.D. Gill, learned counsel for the respondent. 4. The State of HP. is aggrieved by this judgment, hence, the present appeal. 3. I have heard Shri Som Dutt Vasudeva, learned Additional Advocate General, for the appellant/State and Shri S.D. Gill, learned counsel for the respondent. 4. The learned Additional Advocate General has contended that there is no reason to disbelieve the version of complainant who is Forest Guard of the Municipal Corporation and who was prevented by the respondent in the execution of his duty by the use of assault and criminal force, which is amply proved from his statement. The respondent has criminally intimated and abused the complainant while he was lawfully discharging his duty and that the impugned judgment of the trial Court has not appreciated the statement of the complainant in a proper perspective. Moreover, purely imaginary and speculative grounds have been taken by the trial Court in the impugned judgment and it has come to a wrong conclusion that the respondent deserves to be given the benefit of doubt. In support of this contention, the learned Additional Advocate General has referred in detail to the statement of PW-2 Sushil Kumar, Forest Guara, Municipal Corporation, who is the complainant in this case. 5. On the other hand, the learned counsel for the respondent has argued that there is no material on record to prove that the respondent assaulted or used criminal force or criminally intimidated the complainant in the execution of his duty. In fact there are glaring contradictions and discrepancies in the statement of the complainant himself which throw doubt on its very veracity. There is no other independent witness who has been examined by the prosecution in support of its case and the statement of the complainant alone is not sufficient to prove the charge against the respondent. 6. I have carefully gone through the material and evidence on record in order to assess the comparative merit of the submissions made by the opposing parties. It is, no doubt true that apart from the complainant, who has appeared as PW-2, the other prosecution witnesses are formal ones. 6. I have carefully gone through the material and evidence on record in order to assess the comparative merit of the submissions made by the opposing parties. It is, no doubt true that apart from the complainant, who has appeared as PW-2, the other prosecution witnesses are formal ones. PW-2, the complainant, has stated in his testimony that the respondent was grazing his cow in the forest when he met him at 12.15 P.M. The respondent was found taking leaves for fodder on his head and when he was told to remove the cow from the forest the respondent is stated to have beaten him up. PW-2 clearly states that at the time of the beating, the father of respondent- Ram Kishan @ Madan, was also present on the spot who took the Darati "from the hands of Ram Kishan @ Madan and threw it away." It is surprising that if, as per the version of the complaint, the father of the respondent was present at the spot, why he has not been examined as a witness. As per the version of the complainant, he went to the Divisional Forest Officer, Municipal Corporation immediately after the incident and reported it to him vide ExtPW-2/A and thereafter the Divisional Forest Officer lodged the report in the Police Station. Another glaring lacuna, which is present in the case of the prosecution, is that why the said Divisional Forest Officer, to whom the incident was reported in the first place, was not examined. In his cross examination, PW-2 states that respondents four cows were grazing in the forest whereas in his examination in chief he says it is one cow. The suggestion put to him was that there were three cows which he was denied. The complainant has clearly stated in his cross examination that there were other people present in the forest who were 15-20 metres away from the spot when the incident took place and they came to the place of the incident when they say the fight going on. The complainant has clearly stated in his cross examination that there were other people present in the forest who were 15-20 metres away from the spot when the incident took place and they came to the place of the incident when they say the fight going on. It is strange that none of these witnesses have been examined and there are no independent witnesses to the incident A further contradiction in the story of the complainant is that while he states at one place that he found the respondent carrying leaves for fodder on his head, at another place in his cross examination he says that he respondent was cutting grass form the forest. 7.PW-5 Daljeet Singh, who has investigated the case and prepared the spot map Ext. PW-5-A, has stated that is correct that were three houses at a distance of 100 metres from the spot. 8. The main ground, on which the case of the prosecution hinges, is that the respondent is alleged to have given beatings to the complaint while he was lawfully discharging his duties. It is stated that the uniform of the complaint was torn during the course of the beatings given to him by the respondent It is very strange that even though the complaint himself states that he went to the Divisional Forest Officer municipal Corporation on the same day i.e. on 18.6.1994 after the incident took place and the Divisional Forest Officer, Municipal Corporation reported the matter to the police vide Ext. PW-2/A, why the torn uniform of the complainant, which would have been the best evidence of the beatings given to him, was not produced either before the Divisional Forest Officer or the police on the same day i.e. on 18.6.1994. It is in evidence that the said uniform of the complainant, which is alleged to have been torn by the respondent during the course of the beatings, was only taken into possession vide Ext PW-2/B, on 17.7.1994. P-3 Sant Ram, who is the witness to Ext PW-2/B, has deposed to this effect as well. The fact that the uniform was produced about a month after the incident is alleged to have taken place, casts serious doubt upon the entire story of the prosecution. P-3 Sant Ram, who is the witness to Ext PW-2/B, has deposed to this effect as well. The fact that the uniform was produced about a month after the incident is alleged to have taken place, casts serious doubt upon the entire story of the prosecution. There is nothing on record to show that the uniform which has been produced is the same uniform that was own by the complainant on the day of incident. No explanation is given why the torn uniform was not produced when the matter was reported to the police. The possibility cannot be ruled out that the uniform produced after one month could have been torn for tampered with in the meantime. Thee is nothing in record to show whether this uniform indeed belonged to the complainant or not or had been worn by him at the time of incident It is in the evidence of PW-2 that he did not undergo any medical examination since he did not sustain any injures. Therefore, there is no evidence on record to prove that the respondent in fact administered beatings to the complainant in the manner narrated by the prosecution. When the prosecution withholds or fails to produce a material piece of evidence which could go a long way in proving its case, as in the present case, an adverse inference can be drawn against the prosecution and the shoddy manner in which the investigation has been conducted. 9. Admittedly, there are no independent witnesses to the incident which is alleged to have taken place at 12.15 P.M. in the afternoon. As per the version of the complainant himself there were other people present who came to the spot in hearing the altercation. Even the father of the respondent was alleged to have been present at the time of the incident Pw-5 has stated that there were 3 houses at a distance of 100 metres form the spot, why no other person has been examined and why even the Divisional forest Officer at whose behest the FIR. Was lodged has not been examined remains a mystery. There are glaring contradictions in the statement of PW-2 himself who at one point states that he found the respondent was carrying a bundle of leaves on his head and at another point states that he found him cutting grass. Was lodged has not been examined remains a mystery. There are glaring contradictions in the statement of PW-2 himself who at one point states that he found the respondent was carrying a bundle of leaves on his head and at another point states that he found him cutting grass. At one place, he states that the respondent was grazing one cow it the forest and at another place he states that there were four cows. He also sates that the father of the respondent snatched the "Darati from the hands of the respondent and threw it away. It is strange that if the complainant was being assaulted with a Darati why this Darati was not taken into possession or produced. Moreover, the fact that the torn uniform was produced after one month of j the incident throw a serious doubt on the story of the prosecution. All these factors taken together are not conducive to the hypotheses of guilt of the respondent beyond reasonable doubt. 10. In my considered opinion and in view of the above discussion, the prosecution has failed to prove the case against the respondent beyond reasonable doubt and, therefore, there is no reason to interfere with the judgment of the trial Court. 11. There is no merit in this appeal, which is accordingly dismissed.