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2014 DIGILAW 134 (HP)

Jeewan Kumar v. State of Himachal Pradesh

2014-02-28

RAJIV SHARMA

body2014
JUDGMENT Rajiv Sharma, Judge. This revision is directed against the judgment dated 6.4.2013 rendered by the learned Additional Sessions Judge-II, Kangra at Dharamshala in RBT Criminal Appeal No. 100-G/10/08 confirming the conviction passed by the Additional Chief Judicial Magistrate, Dehra for offence punishable under section 224 of the Indian Penal Code. 2. Case of the prosecution, in a nutshell, is that appellant was facing trial before the learned Sessions Judge, Kangra at Dharamshala in FIR No. 38/2003 dated 10.4.2003 under sections 452, 147, 149 and 302 of the Indian Penal Code. Appellant moved an application before the Sessions Judge for withdrawing amount from his R.D. The application was allowed by the Sessions Judge directing the police to take him under proper escort for a day to go to Post Office, Jaswan Kotla and bring him back to jail. Appellant was taken back to Chintpurni after withdrawal of money at about 4.15 P.M. When the bus reached near Tehsil Office, Durgai, appellant informed that he intended to answer the call of nature. He was de-boarded from the bus. He was brought to forest. He threw mud in the eyes of constable, who was standing nearby and thereafter jumped from the hill and escaped. Alarm was raised by the constables but the appellant could not be traced. Local persons also followed the appellant, however, appellant fled away from the spot. The matter was reported by Constable Sudershan Kumar to the Police Post Sansarpur Terrace. The FIR was registered against the appellant in Police Station, Dehra. The matter was investigated. Challan was put up in the court after completing all the codal formalities. 3. Prosecution examined as many as nine witnesses in all to prove the case against the appellant. Statement of the appellant was recorded under section 313 of the Code of Criminal Procedure. Case of the appellant is of simplicitor denial. Learned Additional Chief Judicial Magistrate, Dehra convicted the appellant under section 224 of the Indian Penal Code and sentenced him to undergo simple imprisonment for six months on 29.7.2008. Appellant preferred an appeal against the judgment dated 29.7.2008 before the Additional Sessions Judge-II, Kangra at Dharamshala. He dismissed the same on 6.4.2013. Hence, the present revision. 4. Mr. Vinay Thakur has vehemently argued that the prosecution has failed to prove the case against the appellant. Appellant preferred an appeal against the judgment dated 29.7.2008 before the Additional Sessions Judge-II, Kangra at Dharamshala. He dismissed the same on 6.4.2013. Hence, the present revision. 4. Mr. Vinay Thakur has vehemently argued that the prosecution has failed to prove the case against the appellant. He then contended that there are material contradictions between the statements of PW-3 Kishori Lal and PW-4 Sudershan Kumar. He then contended that eye witness, namely, PW-7 Raj Kumar has not supported the case of prosecution. 5. Mr. Virender Verma, learned Additional Advocate General has supported the judgments passed by both the courts below. 6. I have heard the learned counsel for the parties and have perused the record carefully. 7. PW-1 Karam Chand has testified that on 16.6.2003, two constables, namely, Sudershan Kumar and Kishori Lal had brought the appellant to the Post Office. Appellant had withdrawn a sum of Rs.37,000/- from his fixed deposit (Kisan Vikas Patra). PW-2 Onkar Chand has proved FIR Ex.PW-2/A. 8. PW-3 Kishori Lal has deposed that on 16.6.2003, on the basis of order passed by the learned Sessions Judge, Kangra at Dharamshala, appellant was taken from the jail to Kotla. Appellant withdrew a sum of Rs.37,000/-. When they were escorting the appellant back, he told them that he intended to answer the call of nature. He was de-boarded from the bus. He alongwith PW-4 Sudershan Kumar took the appellant towards jungle. He drank water at the shop. Shopkeepers Raj Kumar and Sanjay asked him about the matter. He told them that appellant was taken to Kotla for withdrawal of money and he was taken towards jungle to answer the call of nature. Appellant ran away after throwing mud in the eyes of PW4 Sudershan Kumar. An alarm was raised by him and PW-4 Sudershan Kumar. The shopkeepers namely, Sanjay and Raj Kumar also reached the spot. They searched for the appellant. However, he succeeded in fleeing. In his cross-examination, PW-3 Kishori Lal has admitted that mud was not thrown in his eyes since he was drinking water and reached the spot lateron. Lot of mud was thrown in the eyes of PW-4 Sudershan Kumar. They searched for the appellant for 2-3 hours alongwith shopkeepers. 9. PW-4 Sudershan Kumar has deposed that appellant was taken on 16.6.2003 to Kotla. The appellant has told him that he has to answer the call of nature. The bus was stopped. Lot of mud was thrown in the eyes of PW-4 Sudershan Kumar. They searched for the appellant for 2-3 hours alongwith shopkeepers. 9. PW-4 Sudershan Kumar has deposed that appellant was taken on 16.6.2003 to Kotla. The appellant has told him that he has to answer the call of nature. The bus was stopped. Thereafter, appellant was de-boarded from the bus. They asked for the water of bottle from the shopkeepers. They told that the bottle was lying in the bushes. He took the appellant to answer the call of nature towards jungle. PW-3 Kishori Lal started drinking water. Kishori Lal also reached the spot after sometime. When the appellant did not come for 3-4 minutes, he went towards him. Appellant immediately picked up mud and threw it towards their eyes. Thereafter, he escaped. He alongwith PW-3 Kishori Lal chased him. They also raised alarm and two shopkeepers reached the spot. He could not be traced. FIR was also registered against the appellant. In his cross-examination, he has deposed that the mud was thrown in their eyes. They have not got their eyes treated. 10. PW-5 Dalip Singh is only an official witness. PW-6 Mast Ram has deposed that constables Kishori Lal and Sudershan were deputed to take the appellant from jail to Post Office vide entry Ex.PW-6/B. PW-7 Raj Kumar has deposed that two constables have alighted from the bus. He did not notice any other person. He has not seen the appellant getting down from the bus. He was declared hostile. PW-8 Dharam Pal has deposed that FIR was registered by him on 16.6.2003. 11. Case of the prosecution, in a nutshell, is that appellant threw mud in the eyes of PW-3 Kishori Lal and PW-4 Sudershan Kumar and thereafter escaped from their lawful custody. PW-3 Kishori Lal has categorically admitted in his cross-examination that no mud was thrown in his eyes. He has mentioned the names of two shopkeepers, Raj Kumar and Sanjay. According to him, shopkeepers had also chased the appellant. PW-7 Raj Kumar has not supported the case of prosecution. He was the only independent witness cited by the prosecution. He was declared hostile. He has not seen the appellant getting down from the bus. Prosecution has not examined other independent witness Sanjay. PW-4 Suderhsan has testified in his examination-in-chief that the appellant had thrown mud in their eyes. PW-7 Raj Kumar has not supported the case of prosecution. He was the only independent witness cited by the prosecution. He was declared hostile. He has not seen the appellant getting down from the bus. Prosecution has not examined other independent witness Sanjay. PW-4 Suderhsan has testified in his examination-in-chief that the appellant had thrown mud in their eyes. This is major contradiction in the statements of PW-3 Kishori Lal and PW-4 Sudershan. PW-3 Kishori Lal has deposed that no mud was thrown in his eyes. However, PW-4 Sudershan has deposed that the mud was thrown by the appellant in their eyes. PW-4 has also deposed that their eyes had swollen but they have not taken any treatment. 12. Accordingly, in view of major contradiction in the statements of material witnesses PW-3 Kishori Lal and PW-4 Sudershan, prosecution has failed to prove the case against the appellant. Independent witness PW-7 has not supported the case of prosecution. Both the courts below have failed to notice the major contradiction in the statements of material witnesses. 13. Accordingly, in view of above analysis and discussion, the revision is allowed. Judgments dated 29.7.2008 passed by the Additional Chief Judicial Magistrate, Dehra and dated 6.4.2013 passed by the Additional Sessions Judge-II, Kangra at Dharamshala are quashed. The appellant is acquitted of the charge under section 224 of the Indian Penal Code. Bail bonds are cancelled.