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2012 DIGILAW 351 (HP)

State Of Himachal Pradesh v. Swarup Singh

2012-06-22

R.B.MISRA, RAJIV SHARMA

body2012
JUDGMENT : Rajiv Sharma, J. State has come in appeal against the judgment of the learned Judicial Magistrate 1st Class, Court No. 1, Paonta Sahib, District Sirmaur in Criminal case No. 47/2 of 2001/2000 whereby respondents, who were charged with and tried for offences punishable under sections 323, 324, 326 and 506 read with section 34 of the Indian Penal Code, have been acquitted on 20.5.2005. 2. Case of the prosecution, in a nutshell, is that the complainant is resident of Bhagani. He noted that accused Swarup Singh was obstructing passage leading to his fields on 13.2.2000. Complainant asked accused Swarup Singh why he was blocking the passage. Accused Swarup Singh became furious and his sons Paramjeet, Chatter Singh and one younger son and daughter came on the spot and a fight took place. It is further case of the prosecution that the wife of Swarup Singh brought a sword from the house and handed over the same to accused Paramjeet. He gave a sword blow on the left arm of the complainant. Accused Swarup Singh gave stick blow to the complainant. Thereafter, sons of the complainant came on the spot to rescue him, who too, were assaulted. Complainant, his wife and his sons were rescued by one Tapender Singh from the clutches of accused persons. He came to Police Post Singhpura and lodged report No. 11. Thereafter, an F.I.R. was registered against the accused persons in Police Station, Paonta Sahib. Injured were medically examined. The Investigating Officer visited the spot and prepared spot map and recorded the statements of the witnesses. The M.L.Cs of all the injured were collected and the complainant was subjected to X-ray. It was opined by the Medical Officer that the injury on his arm was grievous caused with sharp edged weapon. Accused Paramjeet made a disclosure statement, which led to recovery of sword. Similarly, accused Swarup Singh also made a disclosure statement regarding the stick. The same was got recovered by the Investigating Officer. Investigation was completed and challan was put up for offences punishable under sections 326, 324, 323, 506 read with section 34 of the Indian Penal Code. 3. The prosecution has examined 11 witnesses in all. Statements of accused persons under section 313 were recorded. According to them, they were falsely implicated. The same was got recovered by the Investigating Officer. Investigation was completed and challan was put up for offences punishable under sections 326, 324, 323, 506 read with section 34 of the Indian Penal Code. 3. The prosecution has examined 11 witnesses in all. Statements of accused persons under section 313 were recorded. According to them, they were falsely implicated. According to them, complainant party has firstly uprooted the fence raised by them to protect their field and thereafter assaulted accused persons. Learned trial court acquitted the accused on 20.5.2005. Hence, this appeal against the judgment dated 20.5.2005. 4. Mr. R.K. Sharma, learned Senior Additional Advocate General has vehemently argued that the prosecution has proved its case against the accused. According to him, the trial court has not correctly appreciated the evidence. 5. Mrs. Jyotsna Rewal Dua has supported the judgment of acquittal. 6. We have heard the learned counsel for the parties and have perused the records carefully. 7. PW-2 Himmat Singh is the son of complainant. He heard the cries of complainant. He went to the spot. He was assaulted by the accused. 8. PW-3 is Inder Pal Singh. He also heard noise and reached the spot on 13.2.2000 at about 6.30 P.M. He noticed that accused Swarup, Paramjeet Chatter Singh and Tarun Kaur assaulting his father by giving him stick blows. According to him, accused Paramjeet gave a sword blow on his arm and Taran Kaur assaulted them with sticks. He also stated that one Tapender Singh and Ajmer, came on the spot and rescued them from the accused persons. 9. PW-4 is Ajmer Singh. According to him, he also heard the noise. He reached the spot. He has testified that accused Swarup gave a stick blow to Himmat Singh and Taran Kaur brought the sword and handed over the same to accused Paramjeet, who thereafter, gave blows of the same to the complainant and his wife. 10. PW-5 Naranjan Singh has testified that accused persons blocked the passage by fencing the same by putting the barbed wire. He went to the spot. He was assaulted by accused Paramjeet, Manjit and Swarup. According to him also, accused Taran Kaur brought the sword and handed over the same to Paramjeet. Paramjeet gave blow of the sword on his arm and also to Smt. Gudo Devi. He lodged report Ex.PW- 1/A. 11. Smt. Gudo Devi has appeared as PW-6. He went to the spot. He was assaulted by accused Paramjeet, Manjit and Swarup. According to him also, accused Taran Kaur brought the sword and handed over the same to Paramjeet. Paramjeet gave blow of the sword on his arm and also to Smt. Gudo Devi. He lodged report Ex.PW- 1/A. 11. Smt. Gudo Devi has appeared as PW-6. According to her, when she reached the spot, Paramjeet, Taran Kaur, Swarup Singh and Manjit were assaulting her husband. According to her, these persons had blocked the passage by placing barbed wires on the same. According to her, Taran Kaur brought sword and handed over the same to Paramjeet, who thereafter, assaulted her and her husband on their arms. According to her, her son Inderpal (PW-3) was also injured by accused Manjit by causing teeth injury on his thumb. She also stated that one Sh. Chattar Singh gave a stick blow on the head of her son Himmat Singh. 12. Gurnam Singh and Abdul Sattar are the witnesses, who were associated in the recovery of sword and stick. These two witnesses have not supported the case of prosecution. 13. The matter was investigated by PW-8 ASI Hira Singh. According to him, he got the injured persons medically examined and prepared the site plan Ex.PW- 8/A. 14. Dr. S.M. Ali has examined all the injured persons. He has appeared as PW-9. He has proved M.L.Cs Ex.PW-9/A to Ex.PW-9/D. 15. PW-10 Dr. Dinesh Kapila has stated about the medical examination of Naranjan Singh. He has proved his report Ex.PW-10/A. 16. PW-11 S.I. Mukesh Kumar has partly investigated the case and recovered sword and stick vide memos Ex. PW-7/A and Ex. PW-7/B. He has recorded the disclosure statements of accused Paramjeet and Swarup Singh as Ex.PW-11/A and Ex.PW-11/B. PW-8 A.S.I. Hira Singh has prepared the spot map Ex.PW-8/A. 17. According to the prospection, the complainant has objected to the fence raised by the accused persons and thereafter the fight ensued. There is no mention of barbed wire/fence in Ex.PW-8/A. There are material contradictions the manner in which the alleged sword was brought on the spot. Case of the prosecution is that Taran Kaur went back to her house and brought the sword, which was handed over by her to her son Paramjeet. Himmat Singh has not testified about this fact. There is no mention of barbed wire/fence in Ex.PW-8/A. There are material contradictions the manner in which the alleged sword was brought on the spot. Case of the prosecution is that Taran Kaur went back to her house and brought the sword, which was handed over by her to her son Paramjeet. Himmat Singh has not testified about this fact. PW-3 Inder Pal has stated that accused Paramjeet brought the sword from the house in his presence. PW-4 Ajmer Singh has also testified that the mother of Paramjeet brought the sword from the house and handed over the same. To similar effect is the statement of PW-5 Naranjan Singh. Smt. Gudo Devi has stated that Taran Kaur has brought the sword and handed over the same to Paramjeet. There are material contradictions in the statements of Inder Pal (PW-3), Naranjan Singh (PW-5) and Gudo Devi (PW-6) with regard as to who has brought the sword on spot. There are further material contradictions in the statements made by the witnesses as to who firstly went on the spot. According to PW-2 Himmat Singh, his mother, i.e. PW-6 and thereafter Inderjeet and lastly he went to the spot. However, PW-3 Inder Pal has deposed that firstly he went to the spot and thereafter his mother and Himmat Singh came on the spot. There is also contradiction regarding the number of sticks used by the accused persons in the commission of offence. According to PW-2 Himmat Singh, the stick was in the hand of Swarup Singh. His brother contradicts that accused Swarup Singh, Paramjeet Singh, Taran Kaur and Chatter Singh were having sticks in their hands and they assaulted the complainant party. PW-5 Naranjan has referred to one stick in the hand of Swarup Singh. PW-4 Ajmer Singh has also deposed that accused Swarup Singh had a stick and one Chatter Singh has also used the stick in the assault. 18. Case of the prosecution is that accused Paramjeet was having sword in his hand. PW-7 and PW-8 have not supported the prosecution case with regard to recovery of sword and sticks. Gurnam Singh has resiled from his previous statement. He has denied that the sword and sticks were handed over to the police by the accused persons. Abdul Sattar has also not supported the prosecution case. He has denied the evidence of recovery. Ajmer Singh has reached the spot after 15-20 minutes. Gurnam Singh has resiled from his previous statement. He has denied that the sword and sticks were handed over to the police by the accused persons. Abdul Sattar has also not supported the prosecution case. He has denied the evidence of recovery. Ajmer Singh has reached the spot after 15-20 minutes. Thus, he could not see who has brought the sword. The witnesses have reached the spot not at the same time but at different time. Thus, they could not state how the fight ensued. Case of the prosecution is that the accused gave beatings to the complainant and his family members with sword, kicks and fists for half an hour. However, nature of injuries to all the injured except PW-5 Naranjan are not grievous. In case the complainant party was beaten up for half an hour, there had to be serious injuries, particularly when according to them the sword and sticks were used in assault. 19. As far as injured Gudo Devi was concerned that she has received injury on the right forearm, this was something serious and ought to have been disclosed in the F.I.R. It has also come that the injuries were inflicted by one Chattar Singh. Chattar Singh is not the accused in the case. 20. Since there are material contradictions how the sword was brought, it cannot be said that the same was used in the commission of offence. The recovery of sword is also doubtful since both the witnesses of recovery have not supported the prosecution case. According to the prosecution, Tapender Singh has saved the complainant party from the accused. The prosecution has not examined Tapender Singh. According to the prosecution he was not material witness. In view of this, adverse inference is to be drawn against the prosecution for withholding the material witness. 21. Accordingly, in view of the observations and discussions made herein above, there is no merit in the appeal and the same is dismissed. Bail bonds are cancelled. No costs.