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2010 DIGILAW 316 (HP)

STATE OF HIMACHAL PRADESH v. KAMAL DEV

2010-02-22

V.K.AHUJA

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JUDGMENT V.K. Ahuja, J.(Oral)-This is an appeal filed by the State of Himachal Pradesh under Section 378 of the Cr.P.C. against the judgment of the court of learned Additional Chief Judicial Magistrate, Amb, District Una, H.P., dated 24.8.1999, vide which the respondents were acquitted of the charge framed against them under Sections 323 and 324 read with Section 34 of the Indian Penal Code. 2. Briefly stated the facts of the case are that on 27.5.1998 at about 6.20 p.m., a rapat was lodged with the police by Smt.Champa Devi in which she alleged that the respondents came to her field alongwith some persons to take measurement of the land. The complainant asked those persons not to take the measurement since her husband was away, but they did not stop and the accused persons gave beatings to her with legs and fists. One of the accused persons was also having a drati. The complainant alleged that she was rescued by her daughter Sushma Devi. On this rapat, a case was registered by the police. The complainant was medically examined and after investigation, the challan was filed as against all the respondents before the learned trial Court , who tried the respondents, as detailed above, leading to their acquittal. 3. I have heard the learned counsel for the parties and have gone through the record of the case. 4. On appraisal of the judgment passed by the learned trial Court, it is clear that the learned trial Court has not discussed the evidence of all the eye witnesses in detail, namely, Champa Devi, Sushma Devi and Mehar Singh, PW-1 to PW-3, respectively. The learned trial Court has not referred to any infirmity in their testimonies but has only concluded that there are many houses in the nearby area and none has been joined by the Investigating Officer from those houses during investigation as eye witness. It was observed by the learned trial Court in its judgment that the statement of PW-5 Sanjeev Kumar under Section 161 Cr.P.C. was recorded at shop, but it has been stated by this witness that his statement was recorded in the office of an Advocate. It was observed by the learned trial Court in its judgment that the statement of PW-5 Sanjeev Kumar under Section 161 Cr.P.C. was recorded at shop, but it has been stated by this witness that his statement was recorded in the office of an Advocate. Another reason given by the learned trial Court was that medical examination of the injured was done at 9.15 p.m. though the report has been lodged at 6.20 p.m. This was no major contradiction in the eye of law and rather there had been no proper examination of oral as well as medical evidence led by the prosecution. However, I am not inclined to remand back the case for rehearing to the learned trial Court since the case was decided almost 11 years back by the learned trial Court. Therefore, I have appreciated the evidence of my own. 5. On a perusal of the statement of the complainant PW-1 Champa Devi, it is clear that she had not alleged in the rapat lodged by her with the police that she was given any drati blow. It is only when she appeared in the witness box in the court that she stated that Urmila Devi gave her a blow with drati on her left hand. She had only mentioned in the rapat lodged by her with which she was confronted that Urmila was having a drati but there was no mention of giving any blow with the drati. Moreover, a perusal of the statement of the complainant shows that she had not named eye witness Mehar Singh having witnessed the occurrence. She only named her daughter Sushma Devi, who was examined as PW-2, who stated about the presence of Mehar Singh, but his presence was not stated by the complainant. It has come in the statement of PW-2 Sushma Devi, daughter of the complainant PW-1, that 10-12 persons were present at the spot and this fact was also stated by PW-3 Mehar Singh. However, none has been cited as a witness. Since these persons were present at the spot, as stated by PW-2 and PW-3, therefore, non-joining of these persons goes to the root of the prosecution case. 6. However, none has been cited as a witness. Since these persons were present at the spot, as stated by PW-2 and PW-3, therefore, non-joining of these persons goes to the root of the prosecution case. 6. The prosecution case solely rests upon the testimonies of the complainant PW-1, Sushma Devi PW-2 and to some extent on the statement of PW-3 Mehar Singh, who was not named by the complainant being present at the spot. PW-3 Mehar Singh has admitted his close relationship with the complainant party. Both the eye witnesses, namely, PW-1 Champa Devi and PW-2 Sushma Devi have also admitted that there are number of cases going on in between both the parties. In such circumstances, the possibility of false implication of the respondents cannot be ruled out, particularly, when other independent witnesses were present but they were not associated during investigation and examined in the court. 7. A perusal of the statement of the complainant also shows that she has made major improvements in her statement in the court as compared to the rapat lodged by her with the police with which she was confronted. By making these improvements, she has tried to rope in the other accused persons and also tried to assign particular acts to each of the accused persons. 8. Keeping in view the above infirmities in the prosecution case and contradictions in the statements of the witnesses, the final findings recorded by the learned trial Court cannot be said to be perverse calling for an interference by this Court. 9. In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the appellant which is dismissed accordingly. The bail bonds furnished by the respondents shall stand discharged.