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2017 DIGILAW 164 (HP)

State Of Himachal Pradesh v. Vinod Kumar

2017-03-10

SANJAY KAROL

body2017
JUDGMENT Sanjay Karol, J. (Oral) - Assailing the judgment dated 20.10.2008, passed by Chief Judicial Magistrate, Una, District Una, H.P., in Criminal Case No. 199-I-02/93-II-02, titled as State v. Vinod Kumar and others , whereby respondents-accused stand acquitted, State has filed the present appeal under the provisions of Section 378 of the Code of Criminal Procedure, 1973. 2. The short point which arises for consideration in the present appeal is as to whether the trial Court was right in acquitting all the accused persons in relation to offences punishable under the provisions of Section 324 read with Section 34 of the Indian Penal Code or not. On 6.8.2002 at about 7:45 p.m., complainant Anil Kumar got registered FIR No.442/2002 dated 7.8.2002 (Ex.PW6/A) to the effect that accused Vinod Kumar with two other persons had assaulted him outside his shop. During the course of investigation, Police Official H.C. Khem Singh (PW-6), who conducted the investigation, got the complainant medically examined from Dr. Inder Singh (PW-7) and took into possession other incriminating material including the alleged weapon of offence i.e. "Grip" (sharp edged weapon). With the completion of investigation, Challan was presented in the Court for trial. 3. Accused persons were charged for having committed offences punishable under the provisions of Sections 324 read with Section 34 of the Indian Penal Code, to which they pleaded not guilty and claimed trial. 4. In order to prove its case, in all, prosecution examined eight witnesses and statements of the accused under Section 313 Cr. P.C. were also recorded, in which they took the plea of innocence and false implication. No evidence in defence was led by the accused. 5. The trial Court in terms of the impugned judgment acquitted the accused on the ground that there were discrepancies with regard to the identity of co-accused Davinder Rana and Madan Lal as also the place of occurrence of the incident, rendering the testimonies of material prosecution witnesses to be uninspiring in confidence. Hence the present appeal. 6. Having heard learned counsel for the parties and also perused the record, Court is of the considered view that in the instant case no ground for interference is made out at all. Judgment rendered by the trial Court is well reasoned and is based on complete, correct and proper appreciation of evidence (documentary and ocular) so placed on record. 6. Having heard learned counsel for the parties and also perused the record, Court is of the considered view that in the instant case no ground for interference is made out at all. Judgment rendered by the trial Court is well reasoned and is based on complete, correct and proper appreciation of evidence (documentary and ocular) so placed on record. There is neither any illegality/infirmity nor any perversity with the same, resulting into miscarriage of justice. 7. It is a settled principle of law that acquittal leads to presumption of innocence in favour of an accused. To dislodge the same, onus heavily lies upon the prosecution. Having considered the material on record, I am of the considered view that prosecution has failed to establish essential ingredients so required to constitute the charged offences. 8. Having heard learned counsel for the parties as also perused the record, one finds no reason to interfere with the impugned judgment. The fact that complainant was got medically examined from Dr. Inder Singh (PW-7), who issued MLC (Ex.PW7/A), is not in dispute. Complainant did sustain injuries on the left side of his forehead, which were simple in nature. Also as per the doctor, such injury could have also been caused as a result of fall. 9. Be that as it may, one finds the testimony of complainant Anil Kumar (PW-1) to be contradictory apart from it uninspiring in confidence. In Court, he states that he was known to Davinder Rana and Madan Lal (accused Nos.2 and 3) yet admits not to have disclosed their names to the police at the time of lodging of report, wherein it is recorded that Vinod Kumar with two other persons who had assaulted him by calling him outside his shop. 10. In Court, he does not identify the assailants. He is categorical that one amongst the three, present on the spot, had given him a blow with a "Grip". But then who amongst the accused, was the one who assaulted him, he does not disclose. 10. In Court, he does not identify the assailants. He is categorical that one amongst the three, present on the spot, had given him a blow with a "Grip". But then who amongst the accused, was the one who assaulted him, he does not disclose. His version that alteration took place at 8:00 p.m. and that he remained unconscious for more than half an hour stands contradicted not only by Malkiat Singh (PW-2), according to whom the incident took place at about 6:00 p.m., but also FIR (Ex.PW6/A) which came to be registered at 7:45 p.m. It has come on record that Police Station is at a distance of 4 Kilometer from the place of occurrence of the incident. 11. Further, there is doubt with regard to the date of recovery of weapon of offence. In fact there is contradiction. According to Anil Kumar (PW-1), police recovered the alleged weapon of offence on 7.8.2002, which version stands contradicted by the Investigating Officer, as also recovery memo (Ex.PW1/C), wherein, the date recorded, is 9.8.2002. 12. Presence of Davinder Rana and Madan Lal (accused Nos.2 and 3) came to be recorded by witness Anil Kumar (PW-1) in Court. No supplementary statement of the complainant or the witnesses was recorded. How did police reach to them, suspecting their involvement in the alleged crime is not evident from the record. 13. Having perused the testimonies of prosecution witnesses on record, it cannot be said that prosecution has been able to prove that the accused in furtherance of their common intention voluntarily caused hurt to the complainant by means of "Grip", a dangerous weapon, which when used as a weapon of offence is likely to cause death, by leading clear, cogent, convincing and reliable material on record. It cannot be said that the findings returned by the Court below are not borne out from record, perverse, illegal, and erroneous or arisen out of incomplete appreciation of the prosecution evidence. 14. The accused have had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down by the Apex Court in Prandas v. The State, AIR 1954 SC 36 , since it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice, no interference is warranted in the instant case. Keeping in view the ratio of law laid down by the Apex Court in Prandas v. The State, AIR 1954 SC 36 , since it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice, no interference is warranted in the instant case. For all the aforesaid reasons, present appeal, devoid of merit, is dismissed, so also pending applications, if any. Bail bonds, if any, furnished by the accused are discharged. Records of the Court below be immediately sent back.