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2006 DIGILAW 55 (HP)

STATE OF H. P. v. OM PRAKASH

2006-03-14

SURJIT SINGH

body2006
JUDGMENT Surjit Singh J. - State of Himachal Pradesh is aggrieved by the judgment dated 1.5.1999 of the trial Judicial Magistrate, whereby respondents, Om Parkash and Hem Raj, who were sent up for trial for offence, under Sections 451 and 323 read with Section 34 of the Indian Penal Code, have been acquitted. 2. First the prosecution version may be stated. On 25.6.1995 around 2.00 in the night, one Madan Lal went to Police Station, Barsar and reported that on the same night around 11.00 p.m., the respondents, namely Om Parkash and Hem Raj, came to their house armed with Dandas and gave beatings to him, his father Sukru and his wife Reshmi Devi. It was also reported that about an hour prior to the aforesaid incident, the two respondents had been stealthy removing a branch of tree belonging to Madan Lals father and when they were challenged, they not only hurled abuses at them but also pelted stones. The police got Madan Lal, his father- Sukru and his wife Reshmi Devi medically examined and also recorded the statements of the witnesses named in the report of Madan Lal. Ultimately, the respondents were challenged. 3. Respondents were charged for the aforesaid two offences. They pleaded not guilty and were therefore, put on trial. At the end of the trial, the trial Magistrate acquitted them holding that the prosecution case was not proved beyond reasonable doubt. Learned Magistrate has noticed some contradictions appearing in the statements of the witnesses. 4. I have heard the learned Deputy Advocate General and the learned Counsel for the respondents and gone through the record. 5. Prosecution besides examining the three injured, namely Madan Lal (PW 1), Sukru (PW 2) and Reshmi Devi (PW4), examined an independent witness named Bishan Dass (PW 3). All the three injured stated with one voice that the two respondents came to their Courtyard on the relevant night and gave beatings to them by means of Dandas. Reshmi Devi (PW4) stated that when the respondents started giving beating to her husband, she and her elder daughter raised cries for help and upon hearing their cries, one Home Guard Havaldar and one Bishan Dass came to their rescue. Bishan Dass corroborates the version of the above named three injured. Medico legal evidence also corroborates the evidence of the injured. Dr. Arun Sexena (PW 5) was examined by the prosecution. Bishan Dass corroborates the version of the above named three injured. Medico legal evidence also corroborates the evidence of the injured. Dr. Arun Sexena (PW 5) was examined by the prosecution. He proved the medico legal reports issued by him after examining injured Sukru and Reshmi Devi. The witness stated that he noticed an injury on the scalp of Reshmi Devi, which appeared to have been caused by means of some blunt weapon and also noticed an injury on the abdomen of Sukru. Injuries were opined by him to have been sustained within twelve hours. 6. What was suggested to the injured witnesses in the cross-examination by the defence was that the injuries had been sustained by them by fall on stones. The suggestion itself indicates shallowness of the defence plea. It is unimaginable that three members of a family at an odd hour of night, while present in their Courtyard would simultaneously fall on stones. 7. Learned Counsel representing the respondents has urged that Bishan Dass cannot be believed because he hails from a place about 16-18 kilometers away from the place of occurrence. Bishan Dass has explained that on the relevant night he had been in the village where the incident took place because he had gone there to visit his relative, named Bhagwan Dass. There is no reason to disbelieve his testimony. Learned Counsel submits that Bhagwan Dass had not been examined. The submission has been noticed only to be rejected. The prosecution had been proving in the Trial Court the charge against the respondent and not the presence of the independent witnesses on the spot. Bishan Dass witness is not shown to be interested in the injured in any manner nor does he have any axe to grind by making a false statement against the respondents. Therefore, there was hardly any need for the .prosecution to have examined Bhagwan Dass or some other witness to seek corroboration to the testimony of the injured and the Bishan Dass that Bishan Dass was present on the spot on the relevant date and at the relevant time. 8. Therefore, there was hardly any need for the .prosecution to have examined Bhagwan Dass or some other witness to seek corroboration to the testimony of the injured and the Bishan Dass that Bishan Dass was present on the spot on the relevant date and at the relevant time. 8. No doubt, the injured and the respondents are not on good terms for the last several years as admitted by the injured themselves in their cross-examination and even a civil litigation had been going on between them for the last about two years when they were examined in the trial Court, but that by itself is no ground for disbelieving the testimony of the injured, especially when it is corroborated by the testimony of Bishan Dass and the medico legal evidence. 9. Of-course, there are few contradictions but those are not very material. The contradictions pointed out during the course of arguments and also noticed by the learned Trial Magistrate pertain to the state of the clothes of injured Reshmi Devi, viz. whether they got torn or not as a result of incident, whether any bleeding injury was sustained etc. etc. These so called contradictions are nothing but exaggerations and slight improvements over the earliest version. These exaggerations and improvements however, do not weaken the testimony of the injured and the eye-witness with regard to the fact of causing of the injuries by the respondents. 10. In view of what has been stated above, I do not have any doubt that the learned Trial Magistrate has committed serious error in returning the finding that the charge against the respondents does not stand proved beyond reasonable doubt. The evidence on record, however, proves the charge of voluntarily causing hurt only. It does not prove the house trespass, punishable under Section 451 of the Indian Penal Code. 11. As a result of the above discussion, appeal is accepted. Judgment of the Trial Magistrate is set-aside and both the respondents are convicted of the offence under Section 323 read with Section 34 of the Indian Penal Code. Looking to the fact that the incident had taken place about ten years back, I feel that ends of justice would be met if leniency is shown in the matter of awarding punishment. Consequently, both the respondents are sentenced to pay a fine of Rs. 500/- each. Looking to the fact that the incident had taken place about ten years back, I feel that ends of justice would be met if leniency is shown in the matter of awarding punishment. Consequently, both the respondents are sentenced to pay a fine of Rs. 500/- each. In default of the payment of fine, they shall undergo simple imprisonment for a period of fifteen days each. Appeal allowed.