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2013 DIGILAW 676 (HP)

State of H. P. v. Ajay Kumar Garg

2013-07-22

DEV DARSHAN SUD, SANJAY KAROL

body2013
JUDGMENT Dev Darshan Sud, J.(Oral). The State has appealed against the judgment of the learned Addl. Sessions Judge, Fast Track Court, Solan, acquitting the respondent for offences under Sections 307, 325 and 323 of the Indian Penal Code for causing injuries to PW1 Ram Bahadur on 22.1.2009 at around 11.40 p.m. in the area of Nauni School. The injured complainant was working as Beldar and Chowkidar in Dr. Y.S. Parmar University of Horticulture and Forestry, Solan. According to the prosecution, it was stated that he was proceeding to his duty when the accused emerged from the darkness and punched him in his stomach due to which he collapsed on the road side. He shouted for help when PW15 Sh. Hira Singh and daughter-in-law PW2 Smt. Kalawati rushed to the spot and removed him to the hospital with the help of PW3 Sh. Dharmender Singh in Tipper No HP 64-1041 first to District Hospital, Solan and then to I.G.M.C. Shimla. The learned Judge on the evidence holds that the identity of the respondent-accused has not been established and that according to the narration of the incident by the witnesses, it is not established as to where the assault took place including the fact that prior to that assault, the complainant had been assaulted in the house of one Vicky in the presence of 2/3 persons, who have not been produced in evidence. 2. The State challenges the acquittal on a number of grounds that the evidence of the prosecution was not considered in its proper perspective and undue weightage has been given to minor contradictions and discrepancies in the statement of the witnesses which were but natural as the witnesses were deposing after a long gap between the incident and the time when the witnesses came to Court; the medical evidence has been ignored especially that of PW5 Dr. Pranav Kumar Sharma as also the statement of the injured PW1 Sh. Ram Bahadur, who stated in his examination-in-chief that the accused had threatened him that he would beat him up in a manner and it would be difficult for him to sit and stand in a proper manner. It is urged that complaint Ext. PW1/B addressed by the complainant has also not been taken into consideration where the complainant specifically makes out a case of harassment against the accused. In addition, the evidence of PW12 Sh. Virender Kumar and PW15 Sh. It is urged that complaint Ext. PW1/B addressed by the complainant has also not been taken into consideration where the complainant specifically makes out a case of harassment against the accused. In addition, the evidence of PW12 Sh. Virender Kumar and PW15 Sh. Hira Singh has been ignored. 3. We advert to the submission made by the State as also the evidence of the witnesses. Sh. Ram Bahadur appeared as PW1 and stated that he and his wife are working in the University Horticulture and Forestry, Nauni. He was working as Beldar and Chowkidar. He has seven children and all are married. He states that his son Sh. Rajesh Kumar is living with him in village Pajo and he has no connection with his son Sh. Virender Kumar (PW12). On 22.1.2009, he was in the house of his elder son PW15 Sh. Hira Singh. The accused used to threaten him even prior to this date. He (complainant) had also taken a loan of Rs. 5,000/- from the accused which he had returned. He was not aware as to whether PW12 Sh. Virender Kumar had taken a loan from the accused. On the day of the incident when he was sitting in the house of his son PW15 Sh. Hira Singh, the accused came there and demanded money from him and also stated that he would kill him. Upon this, his son responded that he would return the money but the accused should leave his father (complainant) alone. At around 10.45 p.m when he was proceeding towards Nauni, one boy named Sh. Vicky met him on the road side and told him to take tea. He along with Sh. Vicky came to his house (quarter) where two ‘Bihari’ boys also came. He told these persons not to harass Sh. Tikka Ram, Gharwali because he (complainant) and Sh. Tikka Ram were strangers there. Thereafter both boys left the quarter. After this, accused Ajay Kumar came there and started beating him and gave him fist blows on his face and stomach. The accused gave him 5/6 fist blows and told the complainant that he would beat him in a manner which would make it difficult for him to sit and stand. After this accused Ajay Kumar left the place. As a result of the beating he had developed pain in his stomach. The accused gave him 5/6 fist blows and told the complainant that he would beat him in a manner which would make it difficult for him to sit and stand. After this accused Ajay Kumar left the place. As a result of the beating he had developed pain in his stomach. He tried to proceed towards his house but could not do so. He tried to contact his son PW15 Sh. Hira Singh on mobile phone but there was no response. He raised a hue and cry and called out Sh. Hira Singh by name where after PW15 Sh. Hira Singh and his wife PW2 Smt. Kalawati came to the spot and took him to the hospital in the Tipper of PW12 Sh. Virender Kumar @ Raju. He states that his son moved an application to the Police Ext.PW1/A which bears his thumb impression and thereafter he was referred to I.G.M.C. Shimla for treatment where he was treated. One letter Ext.PW1/B was also addressed to the police by him. He states that letter Ext.PW1/B was in his pocket. In this letter he has stated that earlier also the accused used to threaten him. 4. We advert to his cross-examination. He says that the distance between his village Pajo and Nauni is 1 ½ K.M. He then says that on that day he did not go to the room of Sh. Vicky. Sh. Kamlesh and Sh. Harish Chander were residing at Nauni. He then states about standing with Vicky for some time and talking to him casually and again said that he had not gone to the room of Sh.Vicky on that relevant date. He had an altercation with Kamlesh and Harish Chander inside the room of Vicky. He then stated that he had no fight with them outside the room. Thereafter, he went to the room of Vicky and sat there for 4/5 minutes. After about five minutes, Kamlesh and Harish Chander came to Vicky’s room along with the accused. Then he states that he had no fight with Kamlesh and Harish Chander on that relevant day. He did not talk with the accused at the relevant time as he was standing in the room of Vicky, who was sitting on his bed. All three persons according to him came inside the room of the Vicky and quarrelled with him. Then he states that he had no fight with Kamlesh and Harish Chander on that relevant day. He did not talk with the accused at the relevant time as he was standing in the room of Vicky, who was sitting on his bed. All three persons according to him came inside the room of the Vicky and quarrelled with him. Accused beat him up for about three minutes when he gave 15 to 20 fist blows to him. Vicky did not intervene and accompanied him up to the road level. Thereafter he walked on foot to his house up to a distance of 100 to 200 metres. He denies that he had stated before the police that he and Vicky had purchased half bottle of liquor from Nauni and thereafter they consumed it. This portion was recorded by the Police in Mark-A portion A to A. Complaint Ext.PW1/A was written by PW12 Sh. Virender Kumar son of Sh. Man Bahadur, who is not related to him. This complaint was written in the hospital and at the instance of his son PW15 Sh. Hira Singh. His thumb impression was obtained thereon but he does not know what was written in the complaint. He says that whatever he told to PW15 Sh. Hira Singh and PW12 Sh. Virender Kumar, they had got it written in Ext.PW1/A. According to complaint Ext.PW1/A, he was beaten up in the open space and not in the house of Vicky. He was supposed to be duty on that day at around 11 P.M. to 5.30 A.M. His son PW12 Sh. Virender Kumar resides at Solan. He says that the accused threatened him in the presence of his son PW4 Sh. Gambhir Kumar. 5. PW2 Smt. Kalawati, who is wife of PW15 Sh. Hira Singh and daughter-in-law of the complainant. She says that on 22.1.2009 complainant came to her house and she was sitting near the fire place. At around 8 p.m. accused Ajay Kumar came there and demanded money from his father-in-law PW1 Sh. Ram Bahadur and threatened him with dire consequences. She told him that money will be paid to him. Thereafter her father-in-law went to his house as he was on night duty. After taking dinner, she went to sleep when she received a call from her father-in-law and heard him saying that Heeru and Bindu had beaten him. She and her husband PW15 Sh. She told him that money will be paid to him. Thereafter her father-in-law went to his house as he was on night duty. After taking dinner, she went to sleep when she received a call from her father-in-law and heard him saying that Heeru and Bindu had beaten him. She and her husband PW15 Sh. Hira Singh and one Raju went to the path which leads to her house. Raju and PW12 Virender Kumar were her guests on that day. They took the injured PW1 Sh. Ram Bahadur to Solan in a Tipper, who was complaining of pain in his stomach due to beating. After that he was shifted to Indira Gandhi Medical College and Hospital, Shimla. Complaint Ext.PW1/A was handed over to the police on behalf of PW1 Sh. Ram Bahadur which was written by Raju. In cross-examination she says that accused came to her house along with two other persons at around 8 p.m on 22.1.2009. She does not recognize who those two persons were. One her relative Raju and his wife were also there. PW4 Gambhir did not come to her house at that relevant time. She states that she served tea to the accused along with other persons, who sat in the house in peaceful manner and she had talked to them in a cordial manner. Her father-in-law PW1 Sh. Ram Bahadur was also present there when the accused all of a sudden set upon him and threatened to kill him. The accused and her father-in-law were talking about some money transaction whereupon PW1 Sh. Ram Bahadur told the accused that he will pay the amount of Rs. 5,000/- by March, 2009. She states that her Dever (brother-in-law) PW12 Sh. Virender Kumar had also borrowed some money from the accused on loan basis. She then states that except the talk about money transaction, there was no other exchange of words between the accused and her father-in-law. The accused took tea and went away. Before leaving, the accused had also threatened to kill her father-in-law. The accused and other persons were sitting in her house for 5 to 10 minutes. She says that in her presence, the accused did not beat up her father-in-law. 6. Now adverting to the evidence of PW3 Sh. Dharmender Singh Thakur, who says that he along with PW4 Sh. Gambhir had gone to I.G.M.C Shimla. At that time PW1 Sh. The accused and other persons were sitting in her house for 5 to 10 minutes. She says that in her presence, the accused did not beat up her father-in-law. 6. Now adverting to the evidence of PW3 Sh. Dharmender Singh Thakur, who says that he along with PW4 Sh. Gambhir had gone to I.G.M.C Shimla. At that time PW1 Sh. Ram Bahadur was admitted there. One complaint, which was in the pocket of Sh. Ram Bahadur, was handed over to the police by PW15 Sh. Hira Singh and memo Ext. PW3/A was prepared by the police. In cross-examination he says that complaint Ext.PW1/B was not written in his presence. The thumb impression was also not affixed by the complainant in his presence. This complaint was taken out by PW15 Sh. Hira Singh from the pocket of PW1 Sh. Ram Bahadur in the hospital. He does not know from where this complaint was written. 7. PW4 Sh. Gambhir Kumar says that on 22.1.2009 at around 8 p.m. he was in his house when one Sh. Sushil Kumar also came there. Bittu @ Ajay Kumar (accused) also came there and inquired from him as to where his father PW1 Sh. Ram Bahadur. He enquired from Bittu (accused) as to what is the matter but he did not disclose anything. Thereafter he went to the house of PW15 Sh. Hira Singh and came to his house alone. He says that all the brothers are living separately. On the next day, he came to know that his father had been admitted in the hospital in a serious condition. In cross examination, he states that he do not know as to what was the financial dealing between the accused and his father Sh. Ram Bahadur. 8. PW12 Sh. Virender Kumar states that he was driver by profession. On 22.1.2009, he along with his wife had gone to the house of PW15 Sh. Hira Singh who is the son of PW1 Sh. Ram Bahadur. At around 11.30 p.m. PW15 Sh. Hira Singh told him that he received a telephonic call that his father is to be taken to the hospital and asked him to bring his vehicle. Thereafter, he obtained permission on telephone from the owner of the vehicle. He met PW15 Sh. Hira Singh, PW1 Sh. Ram Bahadur and PW3 Smt. Kalawati near Nauni School and took them to Regional Hospital, Solan. Thereafter, he obtained permission on telephone from the owner of the vehicle. He met PW15 Sh. Hira Singh, PW1 Sh. Ram Bahadur and PW3 Smt. Kalawati near Nauni School and took them to Regional Hospital, Solan. The police arrived in the hospital and a complaint was written by him on the direction of PW1 Sh. Ram Bahadur, who is illiterate and he put his thumb marks on this complaint. In cross examination, he says that he is not related to PW1 Sh. Ram Bahadur. He states that he stayed at the residence of PW15 Sh. Hira Singh during that night. He says that PW1 Sh. Ram Bahadur told him that he had been beaten up by Bintu while being taken to the hospital as also in the hospital. He says that he has not seen the occurrence. 9. PW15 Sh. Hira Singh is the son of injured PW1 Sh. Ram Bahadur. He says that on 21.1.2009 he was present to his house along with his wife, family members and guest PW12 Sh. Virender Kumar. He says that his father is living separately and came to his house at around 8.30 P.M., who was followed by accused Ajay Kumar accompanied by Sh. Sushil Kumar. He had told the accused and Sh. Sushil Kumar that whatever amount was borrowed by him could be settled on the next day. The accused had threatened to kill his father since the money had not been returned. He served tea to accused Ajay Kumar and Sh. Susheel Kumar and thereafter both these persons left the residence. After taking dinner, his father PW1 Sh. Ram Bahadur left for his duty. He says that he slept thereafter. He then received a missed call from the mobile number of his father and he heard his father was shouting that accused Ajay Kumar had caused injuries to his father. His father was lying in injured condition on the road. On inquiry his father told him that accused Ajay Kumar had caused injuries to him on the head and stomach when he was punched by the accused. Thereafter, he removed his father to the hospital. He says that his father was lying on the road near a bridge when he heard him shouting. There are residential house in the abadi about 20/25 meters away from the bridge where his father was lying. Thereafter, he removed his father to the hospital. He says that his father was lying on the road near a bridge when he heard him shouting. There are residential house in the abadi about 20/25 meters away from the bridge where his father was lying. He reached there at around 11.30 P.M. His father was alone at that time. Application Ext.PW1/B was got written by his father one day before the incident. He does not know the person who had written the application. Application Ext.PW1/A was written in Civil Hospital, Solan. 10. Before proceeding further, these two applications may be considered. Application Ext.PW1/A dated 23.1.2009 was addressed by PW1 Sh. Ram Bahadur to the Station House Officer, Police Station, Solan. He states that the complainant is working as Chowkidar in Dr. Y.S. Parmar, University, Nauni and at around 11.40 P.M. on the same day, he was proceeding to his duty and when he reached Nauni School, Bintu S/o Sh. Tara Chand suddenly set upon him, beating him up and ran away from the spot. He rang up to PW15 Sh. Hira Singh on his mobile phone, who carried him to Solan hospital in a Tipper. Another application Ext.PW1/B dated 22.1.2009 addressed by the complainant to the Superintendent of Police, Dr. Y.S. Parmar University of Horticulture and Forestry, Nauni. He says that his son PW12 Sh. Virender Kumar is residing separately from him and has borrowed money from accused Ajay Kumar. He says that he has disinherited PW12 Sh. Virender Kumar from his property. He further states that : “Ishleeya mera police staff say yahi prathana hai ki may Ram Bahadur waa meri patani Smt. Sita Devi ko kabhi tang na kiya jaai. Aggar aisay hoaa to awashaik karwai unkay kheelaph kee jaai. Siriman ji ishleeye app say prathana hai ki indda aishee harkat na karay ki hamaray ko koi nukshan na uthana parey”. “Translated: It is, therefore, prayed that I Ram Bahadur and my wife Smt Sita Devi may not be troubled in any manner and if this is so, necessary action be taken against them. Sir, it is therefore prayed that in future no act may be committed which would cause harm to them (complainant).” 11. This is the entirety of the complaint. When we consider Ext.PW1/B it seems more in the nature of a plea that PW12 Virender Kumar son of Sh. Sir, it is therefore prayed that in future no act may be committed which would cause harm to them (complainant).” 11. This is the entirety of the complaint. When we consider Ext.PW1/B it seems more in the nature of a plea that PW12 Virender Kumar son of Sh. Ram Bahadur could also be involved in troubling his father, who has been disinherited from the property. 12. At the out set, we note that it is stated by the complainant that one Vicky and two Bihari boys came along with him to his house (quarter) and thereafter accused Ajay Kumar also came there. The accused started beating him and gave fist blows on his face and stomach. We find that this Vicky and Bihari boys were not produced in evidence. He then states in his cross-examination that he had not gone to the room of Vicky. Though, in his examination-in-chief he says that he had gone to the room of Vicky. He then says that he had some altercation with Kamlesh and Harish Chander inside the room of Vicky. He then says that this altercation took place on the road. He shifts the stand again and says that he sat in the room of Vicky for about 4/5 minutes. He then says that after about five minutes, Kamlesh and Harish Chander came along with accused in the room. He states that he did not fight with Kamlesh and Harish Chander. There was nobody inside the Vicky’s room except these persons. He was confronted with the statement under Section 161 Cr.P.C. mark-‘A’ in which he has stated that he had brought liquor and consumed it with Vicky. PW2 Smt. Kalawati daughter-in-law of the complainant states that at around 8 p.m. accused Ajay Kumar came to her room and demanded money from her father-in-law PW1 Sh. Ram Bahadur and also threatened to kill him. She and her husband PW15 Sh. Hira Singh told the accused that money would be returned to him. Thereafter he left for Nauni. She then states that she had heard her father-in-law PW1 Sh. Ram Bahadur calling out that Heeru and Bindu had beaten him. She admits that nobody had beaten up her father-in-law in her presence. 13. It is urged by the learned Additional Advocate General that the evidence clearly establishes the offences, as pleaded. Thereafter he left for Nauni. She then states that she had heard her father-in-law PW1 Sh. Ram Bahadur calling out that Heeru and Bindu had beaten him. She admits that nobody had beaten up her father-in-law in her presence. 13. It is urged by the learned Additional Advocate General that the evidence clearly establishes the offences, as pleaded. But in order to succeed, the prosecution has to establish that the injury had, in fact, been caused by the accused. On the evidence on record, we find total confusion as to who were the persons, who has assaulted the complainant and the place where he was assaulted. The persons, who have been named in the evidence of the complainant, remain obscure. On the statement as made, we find that it cannot be said that the complainant is sure as to how and by whom and where he was beaten up. In this confused state of affairs, we cannot accept the submission made by the learned Additional Advocate General that the learned trial Court has acted perversely in acquitting the accused. Surely, before criminal liability is fastened, the prosecution should and ought to prove the involvement and culpability of the accused beyond reasonable doubt which is the normal Rule under Section 3 of the Evidence Act. Appeal dismissed. Bail bonds furnished by the respondent shall stand cancelled.