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Himachal Pradesh High Court · body

2015 DIGILAW 1580 (HP)

State of Himachal Pradesh v. Rajinder Kumar

2015-10-29

RAJIV SHARMA

body2015
JUDGMENT : Rajiv Sharma, J. This appeal is instituted against the judgment dated 29.12.2005 rendered by the Judicial Magistrate 1st Class, Court No.II, Palampur in Crl. Case No.RBT No. 191- II/04/2000, whereby the respondent-accused (hereinafter referred to as the “accused” for convenience sake), who was charged with and tried for offences punishable under sections 451, 323, 506 and 336 IPC has been acquitted. 2. Case of the prosecution, in a nutshell, is that on 6.4.1998 PW-5 Anil Kumar was working in his kitchen garden at 8.30 P.M. Accused came to the spot under the influence of liquor. He started abusing him. His mother and younger brother were in the kitchen. Accused held Anil Kumar and brought him in the courtyard and gave fist blows. On alarm being raised, his mother and younger brother came to the spot. Thereafter, accused fled away from the spot. Statement of Anil Kumar was recorded vide Ex.PW-6/A. FIR Ex.PW-6/B was lodged by the Police of Police Station, Palampur. Investigating Officer visited the spot and prepared site plan Ex.PW-8/A. Medical examination of Anil Kumar was got conducted. MLC Ex.PW-4/A was obtained. Four stones Ex.P-1 to Ex.P-4 were seized by the police on being presented from the spot vide seizure memo Ex.PW-3/A. Statements of witnesses were recorded under section 161 of the Code of Criminal Procedure. 3. Charge was framed against the accused. Accused claimed trial. Prosecution examined as many as eight witnesses to prove the case against the accused. Statement of accused under Section 313 Cr.P.C. was recorded. He denied the incident and claimed innocence. The accused was acquitted by the trial court as noticed hereinabove. Hence, this appeal. 4. Mr. Parmod Thakur, learned Addl. A.G. has vehemently argued that the prosecution has proved its case against the accused. 5. Mr. Ajay Sharma has supported the judgment passed by the trial Court. 6. I have heard the learned counsel for the parties and have gone through the record meticulously. 7. PW-1 Kamlesh Kumari is the mother of Anil Kumar. She has testified that on 6.4.1998 at about 8.30 P.M. when Anil Kumar was working in the kitchen garden, she and her younger son were in the kitchen. They heard noise outside. They went out and saw accused giving fist blows to her son. She, her younger son and other people rescued Anil Kumar. Vikram Singh was present at the spot. They heard noise outside. They went out and saw accused giving fist blows to her son. She, her younger son and other people rescued Anil Kumar. Vikram Singh was present at the spot. Accused threatened them to do away with their lives and also pelted stones on their house. In her cross-examination, she has admitted that Prithu was the father of accused. She has denied that they have illegally encroached upon the land of accused. She has admitted litigation with the family of accused, which was dismissed and expressed ignorance regarding any criminal proceedings. She has admitted that they were not on talking terms with the accused and his family. She has admitted that Vikram Singh resided at about 150 meters away from their house, but at that time lived with them. She has also admitted that Ram Parshad also resided at about 150 meters away from their house. 8. PW-2 Vikram Singh has deposed that he used to live in the house of Anil Kumar and when he heard the calls of Anil Kumar for help, he went out and saw accused holding Anil Kumar by his neck and beating him. He, PW-1 and her son intervened and rescued Anil Kumar. Accused threatened Anil Kumar. In his cross-examination, he has admitted that Bakshi Ram was his father and they have on going land dispute with the accused. 9. PW-3 Ram Parkash has deposed that on 6.4.1998 at about 8.30 P.M. he heard noise. On reaching the spot he saw accused quarreling with Anil Kumar. Accused gave beatings to Anil Kumar with fist blows. Anil Kumar sustained injuries. Stones Ex.P-1 to Ex.P-4 were seized by the police vide memo Ex.PW-3/A. He has admitted that he has on going boundary dispute with the accused. 10. PW-4 Dr. S.K. Bhatia has proved MLC Ex.PW- 4/A. PW-5 Anil Kumar has deposed on 6.4.1998 at about 8.30 P.M. he was working in his kitchen garden. Accused under the influence of liquor came on the spot. He gave him beatings. He raised alarm. His mother and brother came to the spot and rescued him. 11. PW-7 Dilwar Chand has deposed that on 6.4.1998 at about 8.45 A.M., when he was at his house, he heard the noise. He saw that accused was pelting stones on the house of Kamlesh Kumari. Accused was holding a rifle in his hand and was threatening to kill them. 11. PW-7 Dilwar Chand has deposed that on 6.4.1998 at about 8.45 A.M., when he was at his house, he heard the noise. He saw that accused was pelting stones on the house of Kamlesh Kumari. Accused was holding a rifle in his hand and was threatening to kill them. He was associated in the investigation. In his cross-examination, he has admitted that they had land dispute and criminal cases against the accused. 12. PW-8 Sukh Ram was the Investigating Officer. 13. PW-7 Dilwar Chand has testified that accused was holding rifle in his hand. He has made improvements in his statement. According to Ex.PW-3/A, three stones were seized at the spot though it is also mentioned therein that four stones were recovered. PW-7 Dilwar Chand has also testified that only three stones were recovered from the spot. PW-1 Kamlesh Kumari has deposed that she and her younger son alongwith one Vikram Singh had gone to rescue Anil Kumar and the same version is given by PW-2 Vikram Singh. However, PW-5 Anil Kumar did not mention anywhere that Vikram Singh had come to his rescue. It is also not stated in Ex.PW-6/A. His version in Ex.PW-6/A is that his mother and younger brother had rescued him. The distance between the house of Ram Parshad and Kamlesh Kumari is only 150 meters. In the site plan also details of the houses in the neighbourhood have not been given. It has come in the statements of PW-1 Kamlesh Kumari, PW-2 Vikram Singh, PW-3 Ram Parkash and PW-5 Anil Kumar that they have longstanding disputes with the accused. 14. In view of this, the prosecution has failed to prove the charges for offences punishable under sections 451, 323, 506 and 336 IPC against the accused 15. Accordingly, in view of the analysis and discussion made herein above, there is no merit in the appeal and the same is dismissed.