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2010 DIGILAW 970 (HP)

State Of H. P. v. Bir Singh

2010-07-21

DEV DARSHAN SUD

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JUDGMENT : Dev Darshan Sud, J. The State has challenged the order passed by the Judicial Magistrate Ist Clas (1), Dharamshala acquitting the respondents for offences under Sections 451, 427 and 323 read with Section 34 of the Indian Penal Code. 2. The prosecution case, in brief, is that on the evening of 9.5.2002 around 7.30 P.M. to 8 P.M. when son of the complainant Rakesh Kumar was engaged in repair work of T.V. Deck etc. in his shop at Ladwara the accused-respondents in furtherance of their common intention committed trespass, illegally entered the shop and beat up his son with fist blows and kicks. They also destroyed electronic equipment and T.V. sets etc. which was lying in the shop. Ravi Kumar, brother of PW 2, was also present in the shop and when the incident took place, he alongwith PW 2 fled away from the spot. Complainant PW 1 Achhari Devi, mother of Ravi Kumar, went to the spot where she found her both sons missing and after sometime Ravi Kumar, complainant as also their maternal uncle PW 4 also reached the spot. PW 1 Acchari Devi mother of complainant lodged a complaint Ext. PW 1/A with the police on which Rapat No. 14 dated 10.5.2002 Ext. PW 8/B was recorded and on the basis of said Rapat, the First Information Report Ext. PW 8/C was registered against the respondents. 3. The learned Court, on the evidence on record, acquitted the respondents/accused holding that the incident as alleged has not been proved. To arrive at this conclusion, the learned Court has considered the evidence of PW 1 Acchari Devi who is the complainant, PW 2 Rakesh Kumar who was injured, PW 3 Banti eye witness, PW 4 Suresh Kumar maternal uncle of the injured. 4. It is significant to note that in her evidence PW 1 Achhari Devi stated that when she reached the spot accused were not present there and admits that there are number of shops adjoining the shop of her son and about 100-150 people were present at the spot. PW 2 Rakesh Kumar has contradicted the star witness of the prosecution with respect to the occurrence. At one time, he states that entire incident took place inside the shop and then in cross examination, he says that this incident took place outside the shop. PW 2 Rakesh Kumar has contradicted the star witness of the prosecution with respect to the occurrence. At one time, he states that entire incident took place inside the shop and then in cross examination, he says that this incident took place outside the shop. PW 3 Banti stated that the accused had beaten PW 2 Rakesh Kumar, damaged his counter and goods on which both PW 2 and his brother Ravi Kumar ran away from the spot. PW 4 is the maternal uncle of both the brothers and stated that on 9.5.2002 at around 8 P.M. Ravi Kumar came to his house and disclosed that accused had damaged his shop and beaten up his brother PW 3 Rakesh Kumar. He states that the accused were not present on the spot when he reached there and articles were lying in damaged condition in the shop. But in cross examination, he admits that Ravi Kumar came to his house around 4/5 p.m. and informed him that a scuffle had taken place in a function and names of persons who were involved in the scuffle/fight were not known to him. He also says that when he reached the spot around 150-200 persons were present at that time and accused had fled away from the scene of occurrence. The learned trial Court, after considering the evidence of all witnesses, holds that Achhari Devi has stated in her cross examination that she found the accused present on the spot, whereas PW 4 Suresh Kumar stated that when he reached the spot nobody was present. On the evidence of Banti, the Court notes that he states that when the respondents-accused started beating up PW 2 Rakesh, he ran away from the spot but Ravi Kumar remained in the shop, which is in direct contradiction to the statements made by other three witnesses examined by the prosecution to establish this fact. The medical evidence has not been relied upon because the medical examination was not carried out immediately after the so called assault but the same has been done after a lapse of more than 22 hours. The Court also notes that there is enmity between the complainants son Rakesh Kumar as also accused because of some kind of marriage relationship. The medical evidence has not been relied upon because the medical examination was not carried out immediately after the so called assault but the same has been done after a lapse of more than 22 hours. The Court also notes that there is enmity between the complainants son Rakesh Kumar as also accused because of some kind of marriage relationship. The testimony of injured PW 2 Rakesh Kumar was clear that the so called scuffle had taken place on the road and therefore the offence u/s 451 of the Indian Penal Code had not been proved on record of the case. 5. After having considered the evidence in detail and findings of the trial Court, I cannot persuade myself to come to a different conclusion than even reached by the trial Court. The evidence of other witnesses contradicts not only the others with respect to the material particulars of the assault but also to the fact that brother of injured PW 2 had himself disclosed to PW 4 Suresh Kumar that he was not aware that who were the assailants. In these circumstances, merely the statement of PW 2 Achhari Devi that the assault took place cannot be relied upon. The delay in medical examination also creates a serious doubt that he sustained injuries in the fight. 6. In these circumstances, I do not find that the learned Court below has committed any mistake in arriving at the conclusion that the prosecution had not been able to prove the case against the respondents. This appeal is accordingly dismissed. Bail bonds furnished by the respondents shall stand discharged.