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2012 DIGILAW 633 (HP)

State of Himachal Pradesh v. Rajesh Kumar

2012-09-26

DHARAM CHAND CHAUDHARY

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JUDGMENT Justice Dharam Chand Chaudhary, J. (Oral): Aggrieved by the judgment dated 3.8.2005 passed by learned Chief Judicial Magistrate, District Kinnaur at Reckong Peo whereby the respondents (hereafter referred to as the ‘accused’) were acquitted of the charges framed under Sections 451, 342, 147, 148, 149, 323 and 506 of the Indian Penal Code, the prosecution has preferred the present appeal before this Court with the prayer for setting aside the same. 2. In order to bring the guilt home to the accused persons, the case set out in the police report and documents annexed therewith in a nutshell, is that on 3.6.2002, there was marriage of Amrit Lal in village Kalpa, District Kinnaur. His brother Jag Mohan, (PW/1) of the same village had also come to attend the marriage with his friends namely Devant Kumar, Mohan Singh and Sudhir Kumar. The accused persons, who belong to village Pangi were also present there. In the marriage, some altercation took place between the complainant party and accused Inder Dev. Although as per the prosecution story, nothing beyond that happened at that time yet as emerges from the trend of the cross-examination of the prosecution witnesses, the defence of the accused persons, both groups scuffled and exchanged beatings to each other in the marriage itself. The prosecution case further reveals that the accused party had dinner thereafter and went to the house of PW/4 Hans Raj who is the uncle of PW Jag Mohan and slept there during that night. The accused party, however, came in the morning at about 6-6.30 P.M and knocked the door. The door was opened by PW/1 Jag Mohan Singh. The accused persons lashed with sticks and belts entered into the room and administered beating to the complainant and his companions sleeping there with sticks, belts, kicks and fist blows. It is PW/4 Hans Raj who came for their rescue. He kicked the door and broke it open. On this the accused party ran away from the scene of occurrence, however, threatened the complainant and his companion to do away with their lives in future as and when they get an opportunity. 3. The Investigating Agency on completion of the investigation had filed the final report in the Trial Court. He kicked the door and broke it open. On this the accused party ran away from the scene of occurrence, however, threatened the complainant and his companion to do away with their lives in future as and when they get an opportunity. 3. The Investigating Agency on completion of the investigation had filed the final report in the Trial Court. Learned Trial Magistrate after having gone through the final report and the evidence collected during the investigation of the case has found that prima facie a case under Sections 147, 148, 149, 342, 323, 452 and 506 read with Section 149 of the Indian Penal Code has been made out against each and every accused. Since they pleaded not guilty to the charges framed against them, therefore, learned Magistrate below has called upon the prosecution to produce evidence in support of the charges so framed against the accused persons. 4. The prosecution, in turn, has examined 12 witnesses in all and placed reliance on the FIR, Ext.PW-1/A, map, Ext.PW-12/A, recovery memos Ext. PW-2/A and Ext.PW-2/B vide which belts Ex.P/5 produced by accused Inder Dev and Ext.P/4 produced by accused Mohan Singh were taken into possession. Recovery memo Ext.PW-3/A vide which stick Ext. P/6 recovery memo, Ext.PW-4/A vide which belt Ext. P/1, blood stained pant Ext. P/4 and shirt Ext. P/6 and memo Ext.PW-9/A vide which RC and insurance cover note of jeep bearing registration No.HP-25-0229 were taken into possession. Reliance has also been placed on Spurdari memo Ext. PW-12/B whereby the jeep was handed over to the accused. The statements of the accused persons under Section 313, Cr.P.C were also recorded. 5. The Court below after taking into consideration the evidence consisting of oral as well as documentary has arrived at a conclusion that the prosecution has failed to bring the guilt home to the accused persons beyond all reasonable doubt and while giving the benefit of doubt, they have been acquitted of the charges framed against each of them vide impugned judgment. 6. The legality and validity of the impugned judgment has been assailed on the ground inter alia that all the witnesses examined by the prosecution have supported the entire case of the prosecution. However, minor contradictions which occurred in their statements were given undue importance while recording the findings of acquittal in favour of the accused persons. 7. 6. The legality and validity of the impugned judgment has been assailed on the ground inter alia that all the witnesses examined by the prosecution have supported the entire case of the prosecution. However, minor contradictions which occurred in their statements were given undue importance while recording the findings of acquittal in favour of the accused persons. 7. Before deciding the fate of this appeal on the basis of evidence available on record, I deem it proper to point out as to what constitute an offence punishable under Sections 147, 148, 149, 150, 452 and 342 of the Indian Penal Code. 8. The combined reading of Sections 147 and 148, IPC reveals that in order to constitute an office thereunder, the accused must be armed with the deadly weapons or any other weapon likely to cause death. In order to constitute an offence punishable under Section 149, IPC, it must establish on record that five or more persons assembled to have meeting of minds to commit an offence to achieve a common object. The presence of each and every accused as a part of such an assembly must also establish on record. 9. Now coming to an offence punishable under Section 452, IPC, the essential ingredients are that there must be some house in the possession of someone and the accused after preparation for causing hurt, assault or to wrongfully restrain the occupier of that house enters into it. Similarly, in order to constitute an offence punishable under Section 342, IPC, there must be evidence available on record suggesting that the accused had wrongfully confined the complainant and prevented him from proceeding in any direction irrespective of having right to proceed. 10. Now, it is to be seen from the evidence on record as to whether the ingredients of the commission of the offence allegedly committed by the accused persons are established or not. 11. If the statements of S/Shri Jag Mohan, PW/1 (complainant), Mohan Singh, PW/2, Sudhir Kumar, PW/3 are seen, they all were present in the marriage. Devant Kumar, PW/5 was also a witness in the case. 11. If the statements of S/Shri Jag Mohan, PW/1 (complainant), Mohan Singh, PW/2, Sudhir Kumar, PW/3 are seen, they all were present in the marriage. Devant Kumar, PW/5 was also a witness in the case. Although as per the FIR, Ext.PW-1/A, the altercation between the complainant and the accused party initially took place in the marriage itself, yet all the three witnesses and for that matter, even their companion PW/5 Devant Kumar had concealed this fact from the court as either of them did not utter even a single word in this behalf in their examination-in-chief while in the witness box. When cross-examined, they admitted that such altercation had taken place between them and the accused party, however, denied that they exchanged beatings to each other in the marriage itself. 12. The prosecution story that the complainant and his other companions went to the house of PW/4 and slept in a room there is not proved beyond reasonable doubt for the reason that no cogent and reliable evidence to suggest that PW/4 Hans Raj was the owner of that house is forthcoming. The prosecution could have easily collected the evidence in the shape of Jamabandi or some contemporaneous record from the concerned Gram Panchayat that PW Hans Raj was the owner of that house if it is believed that the complainant party was sleeping in some house. The bald assertions in the statement of the complainant and in that of PW/2 to PW/5 that the complainant party had slept in the house of PW/4 cannot be accepted as a gospel truth. 13. The prosecution witnesses are not unanimous that it is PW1, who had opened the door when knocked by the accused party and assaulted the complainant and his companions qua this part of the prosecution story it has come in the statement of PW/1 Jag Mohan (complainant) that the door got opened itself from the kick blows given by the accused persons. PW/2 Mohar Singh did not utter even a single word as to who opened the door or how it got opened. PW/3 Sudhir Kumar came with the version that it was 6.00 A.M when the door was knocked and the accused entered into the room. PW/2 Mohar Singh did not utter even a single word as to who opened the door or how it got opened. PW/3 Sudhir Kumar came with the version that it was 6.00 A.M when the door was knocked and the accused entered into the room. He has not stated anything as to who opened the door whereas as per the version of PW/5 Devant Kumar, on being kicked the door by the accused, it is PW/2 Mohar Singh, who had opened the same. Such contradictions in the statements of material prosecution witnesses go to the very root of the prosecution case and render the same highly doubtful. 14. There is again no evidence which can be termed as cogent and reliable to suggest that the door was bolted by the accused from inside as nothing to this effect has come in the statement of the complainant who has stepped in the witness box as PW/1 and in that of PW/2 Mohar Singh and also in that of PW/3 Sudhir Kumar. No doubt, Sh. Devant Kumar has stated in his cross-examination that the door was opened by Hans Raj who came to their rescue. However, he has not stated that when the accused knocked the door or it was opened, they immediately on their entry bolted the same from inside. These contradictions go to the very root of the prosecution case and cannot be overlooked as has been stated by the State in the grounds of appeal. 15. The evidence discussed supra is not at all suggestive of that the house was that of PW/4 Hans Raj and the accused when assaulted the complainant party, the latter were sleeping inside. There was again no cogent, reliable and convincing evidence suggesting that the accused party locked the door from inside and thereby restrained the complainant party wrongfully. There is again no legal and acceptable evidence suggesting that the accused party had common object to assault the complainant party and in furtherance of the common object lashed with deadly weapons trespassed into the so called room of complainant Hans Raj where the complainant and his friends were sleeping and assaulted them with such deadly weapons. There is again no iota of evidence suggesting that the accused persons had assembled in the form of an unlawful assembly with such a common object to assault the complainant party. There is again no iota of evidence suggesting that the accused persons had assembled in the form of an unlawful assembly with such a common object to assault the complainant party. The place where they assembled and where they had the meeting of minds to achieve the common object of such unlawful assembly also remained unexplained. 16. The names of all the members of such unlawful assembly were not mentioned in the FIR. The witnesses examined by the prosecution have also not disclosed the names of all the members of such assembly as in the FIR, the complainant could only disclose the names of only three accused persons, i.e., Inder Dev, Pardeep and Rajesh. Sh. Jag Mohan while in the witness box as PW/1 could disclose the names of only four accused persons. PW/2 and PW/3 had disclosed the name of only one accused person whereas PW/4 Hans Raj who allegedly came to the rescue of the complainant party when appeared in the witness box did not disclose the name of either of the accused persons. The requirement of law is that the name of each and every member of an unlawful assembly must establish on record. On the other hand, it is established from the record that a sudden and free fight took place between the two groups in the marriage and it is in that fight, the members of the complainant party received injuries which were simple in nature. 17. The present is thus a case where it is not proved beyond all reasonable doubt that all the accused first assembled in the form of an unlawful assembly with a common object i.e. to assault the complainant party and thereafter to achieve that object entered into the room where the complainant and his companions were sleeping and after bolting the same from inside not only restrained the complaint party from moving out but also thrashed them with weapons such as sticks and belts they allegedly had carried with them. 18. No doubt, there is medical evidence available on record. The testimony of PW/10 Dr. Puneet Sharma who prepared the MLC Ext. PW10/B has stated that there were injuries on the person of PW/1, however, simple in nature. 18. No doubt, there is medical evidence available on record. The testimony of PW/10 Dr. Puneet Sharma who prepared the MLC Ext. PW10/B has stated that there were injuries on the person of PW/1, however, simple in nature. Since the present is a case of free and sudden fight which took place between two groups, therefore, such injuries are bound to occur on the persons of the members of both groups. Above all, the medical evidence as has come on record could have been used as link evidence to bring guilt home to the accused persons had the prosecution been otherwise able to prove its case against the accused party beyond all reasonable doubts. 19. The testimony of official witnesses PW/8 constable Dharam Sain, PW/9 Sh.Gopal Singh, witnesses to recovery memo Ext.PW PW9/A could have also been used as link evidence had the prosecution been able bring the guilt home to the accused persons. PW/8 had only deposited the case property whereas PW/9 is a witness to the recovery memo Ext.PW9/A whereby the key and RC of the vehicle bearing registration No.HP-25-0229 were taken into possessions. PW/6 and PW/7 also seem to have been associated to prove the occurrence in the manner as claimed by the prosecution in the police report, however, not proved so from their testimonies. The version of PW/12 Sh. Bihari Lal being investigating officer could have also been helpful to the prosecution case had its case been otherwise proved beyond all reasonable doubt against the accused persons. 20. On the other hand, all the accused in their statements recorded under Section 313, Cr.P.C have denied the entire prosecution case being wrong. Their defence as emerges from the trend of the cross examination of the PWs that the altercation between them and the complainant party took place in the marriage and no occurrence took place in the manner as claimed by the prosecution itself seems to be more plausible and nearer to the factual position. 21. The defence witnesses namely Sh.Bhadur Singh, DW/1 and Satpal Singh, DW/2 have stated that on 4.6.2002 at about 6.00 a.m, all the accused were at Pangi. 21. The defence witnesses namely Sh.Bhadur Singh, DW/1 and Satpal Singh, DW/2 have stated that on 4.6.2002 at about 6.00 a.m, all the accused were at Pangi. The evidence so produced by the accused in their defence also rendered the prosecution story as highly improbable and lead to the only conclusion that the prosecution has miserably failed to prove that the accused party had assaulted the complainant and his companions early in the morning at 6/6:30 a.m. in the manner as claimed in the police report. 22. In view of the re-appraisal of the entire evidence available on record, it is crystal clear that the impugned judgment is neither illegal nor suffer from any infirmity. The acquittal of the accused persons of the charges framed against each of them can not be termed to be perverse or the result of misreading the evidence. The prosecution has rather miserably failed to establish its case against the accused persons. Accordingly, I find the present appeal being devoid of any merit. There is no scope of interference with the well reasoned judgment passed by the learned trial Court after appreciating the evidence in its right perspective. Accordingly, the appeal is dismissed. Bail bonds furnished by the accused/respondents are cancelled and the surety(s) discharged.