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Himachal Pradesh High Court · body

2012 DIGILAW 789 (HP)

State of Himachal Pradesh v. Tapinder

2012-11-05

DEEPAK GUPTA, RAJIV SHARMA

body2012
Judgment Rajiv Sharma, J. State has come in appeal against the judgment of the learned Additional Sessions Judge, Shimla rendered in Sessions Trial No. 17-S/7 of 1999 whereby respondents, who were charged with and tried for offences punishable under sections 353, 332 and 395 of the Indian Penal Code, have been acquitted on 21.3.2002. 2. Case of the prosecution, in a nutshell, is that on 27/28.5.1997 at about 10.25 P.M., PW-1 ASI Nek Ram was on patrol duty alongwith constables Ram Lal and Daleep Kumar. He heard some noise from Sangam Dhaba. He found accused persons indulging in hooliganism. ASI Nek Ram asked them not to do so and maintain peace in the area. Thereafter, accused Tapinder caught hold the complainant ASI Nek Ram from his neck and gave beating to him with kicks and fist blows. The shirt of ASI Nek Ram was also torn. His wrist watch was also taken away by the accused. On hearing the cries, witnesses Dila Ram, Subhash Chand and Kirpa Ram came on the spot. Thereafter, the matter was reported to the Station House Officer, Police Station, Chopal. He registered F.I.R. Ex.PW-1/A on the basis of statement of ASI Nek Ram. Nek Ram was medically examined by PW-9 Dr. S.L. Chauhan. He issued M.L.C. Ex. PW-9/A. According to M.L.C. Ex.PW-9/A, scratch mark over the ridge of nose was noticed with oozing of blood about ½ cm size oblique in direction. PW-10 S.I. Bidhi Singh investigated the matter. He prepared site plan Ex.PW-10/C. On the basis of the disclosure statement made by Surinder Singh Ex.PW-4/A, watch Ex.P-4 was also recovered vide recovery memo Ex.PW-1/C. The investigation was completed and thereafter challan was put up before the court after completing all the codal formalities. 3. The prosecution has examined as many as 10 witnesses in all. Statements of accused under section 313 of the Code of Criminal Procedure were recorded. According to them, they have been falsely implicated in the case at the instance of police and they were innocent. The trial court has acquitted the accused on 21.3.2002. It is in these circumstances, the State has filed the present appeal. 4. Mr. Vivek Singh Thakur, learned 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 oral as well as documentary evidence. 5. Mr. It is in these circumstances, the State has filed the present appeal. 4. Mr. Vivek Singh Thakur, learned 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 oral as well as documentary evidence. 5. Mr. Rakesh Dhaulta and Mr. Manoj Pathak have supported the judgment of acquittal. 6. We have heard the learned counsel for the parties and have perused the records carefully. 7. PW-1 ASI Nek Ram has testified that during the night of 27/28.5.1997 at about 10.25 P.M., he was on patrol duty in Chopal Bazar. He was accompanied by constables Ram Lal and Daleep Kumar. He heard the noise coming from Sangam Dhaba. Accused persons were indulging in hooliganism. He asked them to maintain peace. Thereafter, accused Tapinder caught hold of him from his neck and remaining accused stared beating him with kick and fists blows. His watch was also snatched. Dila Ram, Subhash Chand, Kripa Ram came on the spot. He reported the matter to the Station House Officer, who registered F.I.R. Ex.PW-1/A. The Station House Officer recovered watch from the shop of Lokinder Singh at Chopal. In his cross-examination, he has admitted that cricket tournament was going on at Chopal and teams from outside had also come there to participate in the tournament. There were 30-35 teams. The Police Station is also in Bazar. Sangam Dhaba is adjoining the Police Station. In his cross-examination, he has categorically admitted that the accused persons were not known to him prior to incident. He was told about the names of the accused persons by Dila Ram and Subhash. 8. PW-2 Constable Ram Lal testified that he was on patrol duty with PW-1 ASI Nek Ram. Accused persons were indulged in hooliganism near Sangam Hotel. They were asked not to do so. Thereafter, accused Tapinder caught hold PW-1 Nek Ram from his Neck. The watch of PW-1 was also snatched. In his cross-examination, he has admitted that there were about 40-50 people present on the spot. According to him, Dila Ram reached the spot. The Station House Officer also came on the spot. He was in night suite. 9. PW-4 constable Kuldeep Singh has deposed that he was associated during the investigation. The watch of PW-1 was also snatched. In his cross-examination, he has admitted that there were about 40-50 people present on the spot. According to him, Dila Ram reached the spot. The Station House Officer also came on the spot. He was in night suite. 9. PW-4 constable Kuldeep Singh has deposed that he was associated during the investigation. Accused Surinder made disclosure statement during the course of interrogation Ex.PW-4/A. The watch was recovered from the shop of Lokinder Singh. 10. PW-7 Dila Ram has deposed that he was present in the hotel of his brother. On that day cricket match was going on in Chopal. Accused were known to him. They did not assault ASI Nek Ram nor any quarrel took place in his presence. He was declared hostile. 11. PW-8 Hari Chand has deposed that he had gone to the Police Station in connection with licence of gun, which was taken by the police. ASI Nek Ram did not give his uniform shirt to the Investigating Officer in his presence. He was also declared hostile. 12. PW-9 Dr. S.L. Chauhan has medically examined Nek Ram. He has noticed scratch mark over the ridge of nose noticed with oozing of blood about ½ cm size oblique in direction. He has issued MLC Ex.PW-9/A. According to his opinion, the nature of injury was simple caused by blunt weapon and duration of injury was within one hour. 13. The investigation of the case has been carried out by PW-10 Bidhi Singh. He had sent ASI Nek Ram for medical examination to Civil Hospital, Chopal. He visited the spot and prepared site plan Ex.PW-10/C. In his cross-examination, he has admitted that he did not know the names of the accused or their identity, but ASI Nek Ram knew their names. 14. It has come in the statement of PW-1 ASI Nek Ram that he did not know the names of the accused persons. He was disclosed the names by PW-7 Dila Ram. PW-7 Dila Ram has been declared hostile. According to PW-7, the accused have not assaulted Nek Ram nor any quarrel took place in his presence. PW-10 S.I. Bidhi Singh has also deposed in his statement that he did not know the names of the accused persons at the time of lodging of report. 30-35 teams were participating in the tournament. There were 40-50 people present on the spot. PW-10 S.I. Bidhi Singh has also deposed in his statement that he did not know the names of the accused persons at the time of lodging of report. 30-35 teams were participating in the tournament. There were 40-50 people present on the spot. It is thus intriguing that how Nek Ram came to know about the names of assailants by whom he was assaulted at the time of incident on 27/28.5.1997 at night. He has given the complete details in the F.I.R. with the parentage and village of the accused persons. It is not on record that either PW-1 or PW-2 had also made any inquiry regarding the identity of the accused persons. The police should have associated the persons during investigation, who were present at the time of incident to identify the accused persons. The prosecution has not examined another constable Daleep Kumar, who was with ASI Nek Ram on patrol duty. No identification parade has been undertaken by the police to identify the accused persons. The incident has taken place during night. The Police Station was also in the vicinity where the incident has taken place. It is, thus, difficult to believe that accused were involved in assaulting ASI Nek Ram. 15. As far as recovery of watch is concerned, it is also doubtful. The prosecution has not examined Sh. Lokinder Singh of Chopal from whose shop the watch was recovered. The police has also not examined Kirpa Ram independent witness of disclosure statement Ex.PW-4/A and recovery memo. PW-2 constable Ram Lal has also not said even a word about the snatching of watch of ASI Nek Ram. So far as tearing of uniform of ASI Nek Ram is concerned, PW-8 Hari Chand has not supported the case of the prosecution. PW-8 has deposed that ASI Nek Ram has not handed over his uniform shirt to the Investigating Officer in his presence. He was declared hostile. The prosecution has miserably failed to prove its case beyond reasonable doubt. 16. Accordingly, the learned trial court has rightly acquitted the accused and this Court will not interfere with the judgment of the trial court. 17. Consequently, in view of the observations and discussions made hereinabove, there is no merit in the appeal and the same is dismissed. Bail bonds are discharged. No costs.