Research › Search › Judgment

Himachal Pradesh High Court · body

2016 DIGILAW 1515 (HP)

State of Himachal Pradesh v. Dharam Singh

2016-07-28

CHANDER BHUSAN BAROWALIA

body2016
JUDGMENT : Chander Bhusan Barowalia, J. The present appeal is maintained by the appellant-State of Himachal Pradesh against the judgment of acquittal of accused persons in a case under Sections 341, 325, 323 read with section 34 of the Indian Penal Code passed by the learned Judicial Magistrate 1st Class, Nadaun, District Hamirpur, H.P, dated 24.9.2007, in Criminal Case No.86-II-2003, RBT No.119-II-2003. 2. Briefly stating the facts giving rise to the present appeal are that on 26.4.2004 at about 3:00 pm, complainant had to irrigate his onion field, he alongwith his wife went to water tank in order to carry water to their field, but accused Dharam Singh was already there and was irrigating the fields of other persons of the village. The complainant told the accused that he would carry water to his field, as it was his turn. On this, accused Dharam Singh gave a push to the complainant, as a result of which he fell down and when the complainant was trying to stand up, accused Dharam Singh caused injuries on his head by means of ‘plas and chabi’ (tools used to tighten and loose the screws) and blood started oozing out therefrom. The complainant also received injuries on his head with ‘plas’ and ‘chabi’ (screw driver), when he tried to save him from the clutches of accused. On hearing cries of the complainant, his wife Smt. Suman Devi alongwith Smt. Sunita Devi and Smt. Vanita Devi came to the spot and saved him. In the meanwhile, accused Rinku @ Rakesh Singh son of accused Dharam Singh came to the spot and also gave beatings to the complainant with fist and kick blows. Thereafter, the complainant alongwith his wife came to Police Station, Nadaun and lodged FIR Ex.PW9/A. Complainant was got medically examined at CHC Nadaun, vide MLC Ex.PW8/A. He was also subject to X-ray examination regarding the injury suffered on his right thumb and was found to have suffered fracture of 3rd metacarpal of the right side, vide X-ray report Ex.PW7/A. SI Ram Dayal, visited the spot and prepared site plan Ex.PW6/A. He also took into possession blood stained clothes of the complainant, vide memo Ex.PW1/A in the presence of Smt. Vanita Devi and Smt. Sunita Devi. Investigating Officer also took into possession ‘chabi’ and ‘plas’ (screw driver) Ex.P-3 and Ex.P-4, vide memo Ex.PW1/B, which were identified as weapons of offence by the complainant. Investigating Officer also took into possession ‘chabi’ and ‘plas’ (screw driver) Ex.P-3 and Ex.P-4, vide memo Ex.PW1/B, which were identified as weapons of offence by the complainant. After completion of the investigation the challan was presented in the Court. 3. The prosecution, in order to prove its case, examined as many as 09 witnesses. Statement of accused persons were recorded under Section 313 Cr.P.C, wherein they have denied the prosecution case and claimed innocence. Accused examined one DW, namely, Shri Rumel Singh, Pump Operator, in their defence. 4. Learned Additional Advocate General appearing on behalf of the appellant has argued that the appeal is required to be allowed and accused persons are liable to be convicted, as the prosecution has proved the guilt of accused beyond the shadow of reasonable doubt. 5. On the other hand, learned counsel appearing on behalf of accused persons argued that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt and giving the benefit of doubt and accused are rightly acquitted. 6. To appreciate the arguments of learned Additional Advocate General and learned defence counsel, this Court has gone through the record in detail and minutely scrutinized the statements of the witnesses. 7. In order to prove its case, the prosecution has examined PW-1, complainant Shri Battan Singh, PW-2 Smt. Vanita Devi, PW-4 Smt. Suman Devi and PW-5 Smt. Shakuntla Devi, as eye witnesses. PW-6 SI Ram Dayal, Investigating Officer, PW-7 Dr. P.C. Verma, Radiologist in Zonal Hospital, Hamirpur, PW-8 Dr. Kranti Thakur and PW-9 Hari Pal, Station House Officer, who prepared the challan. 8. As per the prosecution story, accused Dharam Singh had obstructed the complainant, while he was going to carry water to his fields. In site plan Ex.PW6/A, the occurrence have taken place at point ‘A’ which is depicted as water tank. Complainant PW-1 has testified that when he was going to carry water to his fields, accused Dharam Singh obstructed him and pushed him on the ground, but he has testified that he was obstructed by the accused from where he had right to proceed, rather his aforesaid version is pointing towards the fact that the complainant was not permitted by the accused to carry water to his fields. Moreover, the wife of the complainant/PW-4 has testified that on 26.4.2003 around 3:00 pm, her husband went to carry water to their fields, but the accused did not allow him to take water and pushed him, as a result of which he fell down on the ground. It is apparent from the evidence of the complainant and his wife that accused Dharam Singh has not obstructed the complainant from proceeding further and the occurrence has taken place at point ‘A’ when the complainant was trying to carry water from the tank to his fields for irrigation purpose. So far as PW-2 and PW-5, are concerned they have not uttered a single word in their statement in this regard. Thus, the evidence on record is nowhere revealing the commission of offence of wrongful restraint by the accused persons. 9. The complainant deposed that on the fateful day on 26.4.2003, he was going to carry water to his fields, accused Dharam Singh obstructed him to do so and pushed him on the ground, when he tried to stand up, accused caused injuries on his head by means of ‘plas’ and ‘chabi’ (screw driver). He has also deposed that accused gave him beatings with fist blows. As per FIR Ex.PW9/A, accused Dharam Singh is alleged to have given beatings to the complainant by means of ‘plas’ and ‘chabi’ only, whereas accused Rinku is alleged to have given beatings to the complainant with fist and kick blows. The complainant has contradicted his first version contained in FIR Ex.PW9/A by testifying that accused Dharam Singh has also given him beatings with fist and kick blows. The evidence of the complainant and his wife regarding giving of beatings to the complainant by accused Dharam Singh with fist and kick blows as well by accused Rinku, has been completely belied by PW-2 and PW-5 who have not uttered a single word regarding giving of beatings to the complainant by the accused persons with fist and kick blows, though they have deposed about giving of beatings to the complainant by accused Dharam Singh by means of ‘plas’ and ‘chabi’ (screw driver). The aforesaid contradiction goes to suggest that the complainant party has not proved the occurrence before the police, as such they are not worthy of credence. It has come on record that many persons have gathered on the spot. 10. The aforesaid contradiction goes to suggest that the complainant party has not proved the occurrence before the police, as such they are not worthy of credence. It has come on record that many persons have gathered on the spot. 10. The aforesaid eye witnesses have not deposed about any injury being suffered by the complainant on his right hand, though they have deposed about giving of beating to the complainant on his head by the accused. The complainant could not depose in his cross-examination, as to how many injury he had received in the occurrence on his person. He has deposed that he has suffered injuries on his chest, but he did not utter a single word regarding any injury on his hand. It is admitted by the wife of the complainant (PW-4) in her cross-examination that accused has not irrigated his fields on the day of occurrence. She has testified contrary to FIR Ex.PW9/A that she had gone to the field around 2:00 pm and was waiting for her turn there by the side of the field. No doubt, accused persons have not put any suggestion to PW-2 that accused Dharam Singh has not given any beatings to the complainant in her presence, but it is the duty of prosecution to prove its case and it cannot be permitted to take the benefit of the weaknesses of the defence. Thus, the aforesaid eye witnesses have given doubtful version regarding the occurrence. 11. PW-3 Dr. Kranti Thakur has observed five injuries on the person of the complainant, vide MLC Ex.PW8/A. Three injuries are simple in nature have been observed on the head of the complainant, whereas one injury of grievous in nature was found on the right hand of the complainant. Fifth injury was merely a complaint of chest pain and no external injury was visible on the chest. The injuries mentioned in MLC Ex.PW8/A are possible with ‘plas’ and ‘chabi’ (screw driver) Ex.P-3 and Ex.P-4. The statement of complainant and his wife who have deposed that the complainant was also given beatings by accused persons with fist and kick blows. As already discussed above, the independent witnesses have only deposed about giving of beatings on the head of the complainant by means of ‘plas’ and ‘chabi’ (screw driver) and have nowhere deposed that accused had also given beatings to the complainant on his hand and chest with Ex.P-3 Ex.P-4. As already discussed above, the independent witnesses have only deposed about giving of beatings on the head of the complainant by means of ‘plas’ and ‘chabi’ (screw driver) and have nowhere deposed that accused had also given beatings to the complainant on his hand and chest with Ex.P-3 Ex.P-4. The complainant has not deposed that he was given beatings by the accused on his right hand and chest. Thus, the medical evidence is not in conformity with the ocular version on one hand and on the other hand, the ocular version which came on record is full of contradictions and cannot be relied upon in order to fasten the criminal liability upon the accused persons. There is no doubt that accused persons have tried to prove through the mouth of DW-1 Shri Rumel Singh, Pump Operator that water irrigation scheme was not functioning w.e.f. 23.4.2003 to 29.4.2003, but it is apparent on record that the water irrigation scheme was functioning on the day of occurrence. It is immaterial that the evidence adduced on record by the prosecution is found insufficient to connect the accused persons with the commission of the offence. 12. It has been held in K. Prakashan vs. P.K. Surenderan (2008) 1 SCC 258 , that when two views are possible, appellate Court should not reverse the judgment of acquittal merely because the other view was possible. When judgment of trial Court was neither perverse, nor suffered from any legal infirmity or non consideration/mis-appreciation of evidence on record, reversal thereof by High Court was not justified. 13. The Hon’ble Supreme Court in T. Subramanian vs. State of Tamil Nadu (2006) 1 SCC 401 , has held that where two views are reasonably possible from the very same evidence, prosecution cannot be said to have proved its case beyond reasonable doubt. 14. So, in my considered view the prosecution story is uncorroborated by witnesses and taking into consideration the evidence which has come on record, this Court finds that the prosecution has failed to prove the guilt of accused persons conclusively and beyond reasonable doubt. 15. In view of the aforesaid decisions of the Hon’ble Supreme Court and discussion made above, I find no merit in this appeal and the same is accordingly dismissed. Bail bonds of accused are discharged.