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2016 DIGILAW 546 (HP)

State of Himachal Pradesh v. Rakesh Kumar

2016-04-25

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. The present appeal is maintained by the State of Himachal Pradesh against the judgment of acquittal dated 1.2.2007 passed by learned Chief Judicial Magistrate, Una, District Una, H.P. in case No.95-1 of 1999 under Sections 341, 147, 149, 279, 336, 290, 510, 506 of Indian Penal Code and under Section 185 of Motor Vehicles Act. 2. Briefly stating the facts giving rise to the present appeal are that the trial in the court below commenced on the basis FIR No. 96 of 1998 dated 28.7.1998 under Sections 341, 147, 149, 279, 336, 290, 510, 506 of Indian Penal Code and under Section 185 of Motor Vehicles Act. The prosecution story is that owner of tempo No. HP-20-5959, Shri Naresh Kumar, was using his tempo for transporting vegetables from Hoshiarpur. On 28.7.1998, Shri Naresh Kumar alongwith his brother Rajan were transporting vegetables on the said tempo and when they reached near Nalwari, at about 6.15 PM, a van No. DL-3FC-6295 was parked there and some persons were consuming liquor. One person signaled Naresh Kumar to stop the tempo, but when he did not stop the tempo, the accused followed him in the said van and after overtaking the tempo, stopped the van just ahead of the tempo. The accused started hurling abuses and used force against Naresh Kumar. In the meantime, tempo No. HP-20-1314 being driven by Pankaj came from behind and on seeing the act of the accused, Pankaj informed the police. The police intercepted the van and arrested all the accused. All the accused were taken to Primary Health Centre, Thana Kalan and the doctor opined that accused had consumed alcohol. 3. The prosecution in order to prove its case, examined eight witnesses. I have heard learned Mr. Pushpinder Singh Jaswal, Dy. Advocate General for the State and Shri Ramesh Sharma, learned counsel for the accused. Learned Dy. Advocate General has vehemently argued that the Court below has passed the findings on surmises and conjectures and without appreciating the evidence in its true perspective. The prosecution has proved the guilt of the accused beyond reasonable doubt and accused were required to be convicted. 4. Learned Dy. Advocate General has vehemently argued that the Court below has passed the findings on surmises and conjectures and without appreciating the evidence in its true perspective. The prosecution has proved the guilt of the accused beyond reasonable doubt and accused were required to be convicted. 4. Shri Ramesh Sharma, learned counsel for the accused, on the other hand, has argued that the prosecution has miserably failed to establish the case against respondent and none of the witness can identify the accused and otherwise also, the prosecution story is full of doubts and appeal be dismissed. 5. To appreciate the arguments of learned Dy. Advocate General and learned counsel for the respondents, I have gone through the record in detail. 6. PW-1, Shri Naresh Kumar, has stated that on 28.7.1998, he alongwith his brother Rajan was coming in the tempo from Hoshiarpur to Bangana with vegetables. At about 6 to 6.15 PM, near Nalwari Baawari, a van No. DL-3CF-2695 was parked and three persons were inside the van and three persons were standing outside and they were in drunken condition. One of them tried to stop his tempo, but he did not stop, but when he reached near Dumakhar Bridge, a van came from behind and after overtaking his tempo, the van stopped ahead of the tempo and the persons came down from the van and started abusing him. Naresh Kumar stated that he locked his vehicle and they started beating the door of the tempo with their hands. In the meantime, Pankaj came from behind in tempo No. HP-20-1314 and he gave telephonic call at Bharat Medical Store, where van was tried to be stopped, but the accused did not stop the van then telephone call made at Police Station. Shri Naresh Kumar has stated in cross-examination that he was not knowing the names of the accused persons and their names were mentioned in the FIR by the SHO. 7. PW-4, Ashok Kumar, and PW-8, Pankaj Sharma, have been declared hostile by the prosecution. PW-5, Surinder Kumar, has stated that he received a telephonic message in his shop from Naresh Kumar, complainant, that a van No. DL-3FC-6295 after committing incident, coming towards Bangana and when they tried to stop it, the accused did not stop the van and, as such, the police was informed. He could not tell the names of the accused persons. PW-6, Dr. He could not tell the names of the accused persons. PW-6, Dr. J.P. Singh, has stated that on 28.7.1998, at about 10 PM, on the application of the police, he examined Yogesh Kumar accused and found that he has consumed alcohol. He also examined Rakesh Kumar, Pawan Kumar, Dalip Kumar, Ramesh Chand, Tejinder Singh and found that they had consumed alcohol. However, only Yogesh Kumar and Rakesh Kumar were found to be intoxicated. He admitted in the cross-examination that in the application made by the police to him, two lines were entered later on by the police. PW-7, Inspector Harnam Singh, has stated that occupants of the car were in drunken condition. He has proved FIR as Ex.PW-1/A. 8. From this, it is clear that Naresh Kumar (complainant) was not knowing the names of the accused persons. PW-2 has, though, informed on inquiry their names as Ramesh Kumar and Pramod Kumar. PW-3, however, disclosed the names of the accused as Rakesh etc. and stated that 5-6 persons were sitting in the van. As per PW-5, 6-7 persons were sitting in the van and PW-5 could not tell the names of the accused persons. PW-6 neither tells the names of the accused nor recognizes them. 9. In these circumstances, when the identify of the accused persons is not established, the findings of the Court below cannot be said to be perverse and against law. Pankaj, PW-8, has not supported the prosecution case and he was declared hostile. The Doctor has stated that two lines were later on added by the police in different ink in the application for medical examination of the accused. The Doctor has not taken blood and urine samples of the accused persons. From the above facts, it is clear that the prosecution story is doubtful and so the findings of acquittal arrived at by the Court below do not call for any interference by this Court. 10. In view of my above findings, the trial Court had rightly dealt with the evidence and found the same to be not worthy of credence. Thus, I find no merit and substance to interfere with the judgment, passed by learned Chief Judicial Magistrate, Una, District Una, H.P., and the appeal is accordingly dismissed.