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2012 DIGILAW 516 (HP)

State of Himachal Pradesh v. Chander

2012-09-06

KULDIP SINGH

body2012
JUDGMENT Kuldip Singh, Judge (Oral) This appeal has been directed against judgment dated 1.1.2005 passed by learned Judicial Magistrate Ist Class, Court No.1, Kangra in Criminal File No.82-A-II/1997, acquitting the respondent for offence punishable under Section 353 IPC. 2. The prosecution case in brief is that a rai ding party consisting ASP Ashok Tiwari, Constable Baldev Raj, Charanji Lal, Kashmiri Chand, Kamal Nain and Thakur Singh was at Tarsoo. On 9.8.1996 at about 7.25 p.m. Baldev Raj intercepted accused Chander who was carrying a plastic canny in his hand. Baldev Raj tried to take possession of canny, respondent assaulted Baldev Raj with a knife. Ashok Tiwari ASP and Prem Singh handled the respondent, who ran away from the spot and sustained injuries when fell down on the spot. The respondent deterred Baldev Raj from discharging his official duty as public servant. On the basis of ruka Ex.PW-5/A, FIR Ex.PW-5/B was registered at Police Station, Kangra. The knife Ex.P-1 was recovered vide seizure memo Ex.PW-5/D, the site plan Ex.PW-5/E was prepared. The appointment order of Baldev Raj Ex.PW-5/A was obtained. The respondent was got medically examined and his MLC Ex.PW-2/A was obtained. On completion of investigation, report under Section 173 Cr.P.C. was filed. 3. The notice of accusation was put to respondent for offence punishable under Section 353 IPC. He denied the notice and claimed trial. The prosecution has examined six witnesses and produced some documents. The statement of respondent was recorded under Section 313 Cr.P.C. He denied the prosecution case but led no evidence in defence. On conclusion of trial, learned Judicial Magistrate acquitted the respondent on 1.1.2005. The state has come in appeal against acquittal. 4. Heard and perused the record. The learned Dy. Advocate General has submitted that the Court below has erred in acquitting the respondent. The evidence has been misconstrued and misinterpreted. The prosecution has proved the case against respondent beyond reasonable doubt. The respondent has deterred the public servant from discharging the public duty. He has submitted for acceptance of the appeal. The learned counsel for the respondent has supported the impugned judgment. He has submitted that the Court below has rightly appreciated the evidence on record and no fault can be found with the impugned judgment. In order to appreciate the rival contentions, it is necessary to refer the evidence which has come on record. 5. The learned counsel for the respondent has supported the impugned judgment. He has submitted that the Court below has rightly appreciated the evidence on record and no fault can be found with the impugned judgment. In order to appreciate the rival contentions, it is necessary to refer the evidence which has come on record. 5. PW-1 Thakur Singh has stated that on 9.8.1996, he, Kamaljit, Charanji Lal. Kashmir Singh, Constable Baldev Raj, one ASI and ASP proceeded towards Tarsoo. The respondent was there holding a canny in his hand. The constable moved forward to hold the canny but respondent brandished knife and made an attempt to assault the constable with knife. ASI asked the respondent not to behave in that manner. The respondent fell down. He was overpowered and knife was snatched from him. He identified knife Ex.P-1 which was snatched by the police from the respondent. In cross-examination he has stated that Charanji Lal, Kashmir Singh, Kamal Nain and he himself were salesmen at liquor vend. The respondent did not receive any injury. 6. PW-2 Dr. V.K. Mahajan has stated that on 9.8.1996 he examined Chander and issued MLC Ex.PW-2/A, PW-3 Baldev Raj has stated that in the year 1995 he was posted as constable at Police Station, Kangra. On 9.8.1996 he, ASP Ashok Tiwari, Inspector Prem Singh, Constable Madan Lal were in a raiding party. The raiding party proceeded towards Tarsoo. Chander Kumar had come to the house of his brother-in-law Chamaru Ram. On seeing the raiding party, Chander Kumar took canny in his hand and tried to run away. He (witness) snatched the canny from him. The respondent was holding knife in other hand. He tried to attack him with knife. Inspector Prem Singh from behind caught the respondent and snatched knife from him. The respondent ran towards back side, slipped and sustained injuries. In cross-examination he has stated that canny was not taken into possession by the police. There was no one except four police officials. 7. PW-4 Gurbachan Singh has proved appointment letter Ex.PW-4/A of Baldev Singh. PW-5 Dy.S.P. Prem Singh has stated that on 9.8.1996, he alongwith ASP Ashok Tiwari, Constable Baldev Raj, Constable Charanji Lal, Kashmir Singh, Kamal Nain and Thakur Singh were at Tarsoo. The respondent was holding a canny in his hand. Constable Baldev Raj caught hold the canny. 7. PW-4 Gurbachan Singh has proved appointment letter Ex.PW-4/A of Baldev Singh. PW-5 Dy.S.P. Prem Singh has stated that on 9.8.1996, he alongwith ASP Ashok Tiwari, Constable Baldev Raj, Constable Charanji Lal, Kashmir Singh, Kamal Nain and Thakur Singh were at Tarsoo. The respondent was holding a canny in his hand. Constable Baldev Raj caught hold the canny. The respondent was holding a knife in his hand and tried to attack Constable Baldev Raj. He and ASP stopped the respondent and snatched the knife. The respondent ran away, he slipped and sustained injuries. The respondent brandished knife at constable Baldev and deterred him from performing official duty. The ruka Ex.PW-5/A was sent to police station, Kangra and thereupon FIR Ex.PW-5/B was recorded. In cross-examination he has stated that canny was not taken into possession. 8. PW-6 Ashok Tiwari has stated that in the year 1996 he was posted as ASP, Kangra. On 9.8.1996 he, Inspector/SHO Prem Singh and other police officials were at Tarsoo. Charanji Lal, Kashmir Singh, Kamal Nain and Thakur Singh were also on spot. The respondent was holding a canny. Constable Baldev Raj caught hold the canny, respondent attacked the constable with knife but he and inspector/SHO intervened and stopped the blow. The knife was taken into possession. The respondent ran away, slipped and fell down. He sustained injuries and he was overpowered. The respondent obstructed Baldev Raj from performing his official duty. The canny was taken into possession by the police. He could not say that knife Ex.P-1 is the same which was recovered from the respondent. 9. The respondent in his statement under Section 313 Cr.P.C. has denied the prosecution case. He has stated that he is innocent and the witnesses have deposed against him as they belonged to police department. Ex.PW-5/A is the FIR and Ex.PW-5/A is the ruka. Ex.PW-2/A is the MLC of respondent. In ruka Ex.PW-5/A, it has been stated that respondent attacked the constable Baldev Raj with knife but ASP intervened and snatched the knife from the respondent. It has not been stated that PW Prem Singh also intervened and stopped respondent from attacking constable Baldev Raj It has also been stated that respondent while running, slipped and sustained injuries in right arm. 10. PW-3 Baldev Raj has stated that he, ASP Ashok Tiwari, Inspector Prem Singh, Constable Madan Lal were in the raiding party. It has not been stated that PW Prem Singh also intervened and stopped respondent from attacking constable Baldev Raj It has also been stated that respondent while running, slipped and sustained injuries in right arm. 10. PW-3 Baldev Raj has stated that he, ASP Ashok Tiwari, Inspector Prem Singh, Constable Madan Lal were in the raiding party. He has also stated that when he snatched the canny from the respondent at that time respondent attacked him with knife. He has stated that canny was not taken into possession by the police. PW-6 Ashok Tiwari has stated that canny was taken into possession by the police but no such canny has been produced in the Court. PW-1 Thakur Singh has stated that respondent tried to attack the constable with knife but he has not identified the constable who was attacked by respondent. He has stated that respondent did not receive any injury whereas it is the case of the prosecution that respondent received the injuries when he tired to run away. PW-3 Baldev Raj has not stated that PW-1 Thakur Singh was on the spot. The prosecution case is that Charanji Lal, Kashmir Singh, Kamal Nain were also on the spot but none of them has been examined. PW-6 could not say with certainty that knife Ex.P-1 is the same knife which was recovered from respondent. 11. It is admitted case of the prosecution that no injury was sustained by Constable Baldev Raj. It emerges from the cross-examination of the prosecution witnesses that according to defence, the respondent was gi ven beatings, he sustained injuries and in order to avoid case against the police party the respondent has been falsely implicated in the case. The prosecution case is that the respondent was holding a canny with illicit liquor and he was overpowered but the said canny which was very important piece of evidence has not been produced in the Court nor any explanation has been given where that canny had gone. The trial Court has considered the evidence led by the prosecution and pointed out material contradictions which go to the root of the case. The view taken by the learned trial Court emerges from the evidence on record, it is settled law that merely other view is possible, is no ground to convert the acquittal into conviction in appeal. The trial Court has considered the evidence led by the prosecution and pointed out material contradictions which go to the root of the case. The view taken by the learned trial Court emerges from the evidence on record, it is settled law that merely other view is possible, is no ground to convert the acquittal into conviction in appeal. The prosecution has failed to prove the case against respondent beyond reasonable doubt. No case for interference is made out. There is no merit in the appeal. 12. In view of above discussion, the appeal fails and is accordingly dismissed. The bail bonds of the respondent are discharged.