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2014 DIGILAW 2013 (HP)

State Of Himachal Pradesh v. Sarla Devi

2014-12-24

SANJAY KAROL

body2014
JUDGMENT : Sanjay Karol, J. Assailing the judgment dated 31.8.2005, passed by the learned Judicial Magistrate 1st Class, Nadaun, District Hamirpur, Himachal Pradesh, in Criminal Case No.16-11-2002, titled as State v. Sarla Devi and others, whereby respondents-accused Sarla Devi, Asha and Biasan Devi (hereinafter referred to as the accused) stand acquitted, State has filed the present appeal under the provisions of Section 378 of the Code of Criminal Procedure, 1973. 2. It is the case of prosecution that on 20.12.2011, at about 5.30 p.m., all the accused persons, in furtherance of their common intention, gave beatings to complainant Smt. Manorma Devi (PW-1). Accused Biasan Devi gave blow with a sickle (Ex.P-1), accused Sarla Devi gave blow with a danda (Ex.P-2), whereas accused Asha Devi gave fist blows on the body of the complainant, as a result of which she sustained grievous injuries. Also, with common intention, accused persons hurled abuses on the complainant. Matter was reported to the police, on the basis of which FIR No.11/02, dated 8.1.2002 (Ex. PW-7/A), under the provisions of Sections 325, 323, 504, 34 of the Indian Penal Code, was registered at Police Station, Nadaun, District Hamirpur. Complainant was got medically examined from Dr. Kranti Thakur (PW-4), who issued MLC (Ex. PW-4/A), based on Xray reports (Ex. PW-5/A and 5/B), so proved by Dr. P.C. Verma (PW-5). The matter was investigated by HC Chiranji Lal (PW-8), who conducted investigation on the spot. With the completion of investigation, which revealed complicity of the accused in the alleged crime, challan was presented in the Court for trial. 3. Accused were charged for having committed an offence punishable under the provisions of Sections 323, 325 & 504, all read with Section 34 of the Indian Penal Code, to which they did not plead guilty and claimed trial. 4. In order to establish its case, prosecution examined as many as eight witnesses. Statements of the accused persons, under the provisions of Section 313 of the Code of Criminal Procedure, were also recorded, in which they pleaded innocence and false implication. They also examined one witness in their defence. 5. Based on the testimonies of witnesses and the material on record, trial Court acquitted all the accused persons of the charged offence. Hence, the present appeal by the State. 6. I have heard learned counsel for the parties as also perused the record. 7. They also examined one witness in their defence. 5. Based on the testimonies of witnesses and the material on record, trial Court acquitted all the accused persons of the charged offence. Hence, the present appeal by the State. 6. I have heard learned counsel for the parties as also perused the record. 7. In the instant case, one finds that dispute arose on the issue of lopping of a tree. Both the parties, respectively, claimed ownership thereof. When complainant started lopping the tree, accused objected to the same. Demarcation, which was got conducted, was not adhered to by the complainant. 8. Be that as it may, the fact of the matter is that the incident took place on 20.12.2001 at about 5.30 p.m., whereas complaint was lodged with the police only on 21.12.2001 and that too at 3.50 p.m. Now, from the testimony of the complainant (PW-1), as also her husband Shri Chuni Lal (PW-2), it is safely inferred that this delay remains unexplained. After all, incident took place in the village and Police Station was not far off from that place. It was just at a distance of 16 kms, adjacent to the National Highway, on which also, house of the complainant is situated. 9. Shri Ashok Kumar (DW-1), who is a Ward Panch, has come to depose that no incident took place in his presence. Also, none from the village, including the complainant or her husband, lodged any report with him. If the complainant could not approach the police, then at least matter could have been reported to the Panchayat. It was not done in this case. Also, no villager witnessed the incident. 10. We find that Shri Mast Ram (PW-6), through whom prosecution has tried to corroborate the testimony of the complainant and her husband, has not supported the prosecution case at all. He was declared hostile and extensively cross-examined, yet nothing fruitful could be elicited from his testimony. In fact, it has come on record, through his un-controverted testimony that adjacent to the spot, there are 10-15 houses, which fact is also admitted by the complainant and her husband, yet none from the neighbourhood came forward to save them or witness the incident in question. This only renders the testimony of complainant to be doubtful, for it is not her case that none were available in the village at that point in time. 11. This only renders the testimony of complainant to be doubtful, for it is not her case that none were available in the village at that point in time. 11. Be that as it may, trial Court rightly observed that there are material contradictions, embellishments and variations in the testimonies of the complainant as also her husband. Paras-11 & 12 of the impugned judgment squarely deal with this aspect of the matter. Perusal of her testimony only confirms such findings to be born out from the record. From the version of the husband of the complainant, it appears that he was not a witness to the incident and only reached the spot subsequently, thus belying the testimony of the complainant. 12. Also, recovery of the incriminating articles, i.e. danda and sickle, cannot be said to have been proved by the prosecution beyond reasonable doubt. Why did the police not associate any independent witness, while effecting recovery, has not been explained. Pradhan and other persons could have been associated while effecting such recovery, which was not so done. 13. Record does not reveal common intention of the accused to have committed the crime. Recovery of incriminating articles, i.e. weapons of offence, is also not established to have been effected from the accused. 14. Consequently, it cannot be said that prosecution has been able to prove its case, beyond reasonable doubt, by leading clear, cogent, creditworthy, reliable and independent piece of evidence. 15. The accused have had the advantage of having been acquitted by the trial Court. Keeping in view the ratio of law laid down by the Apex Court in Mohammed Ankoos and others v. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad (2010) 1 SCC 94 , it cannot be said that the trial Court has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice. 16. As such, the appeal, being without any merit, is dismissed, so also pending application(s), if any.