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2017 DIGILAW 174 (HP)

State of Himachal Pradesh v. Bhagat Ram

2017-03-15

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. The present appeal is maintained by the appellant-State of Himachal Pradesh against the judgment of acquittal of the accused in a case under Section 325 of the Indian Penal Code passed by the learned Chief Judicial Magistrate, Kullu, District Kullu, dated 25.2.2008, in Criminal Case No.2-I/2005/162-II/2007. 2. Briefly stating facts giving rise to the present appeal are that on 10.9.2004, at about 7:00 am, at village Oshan, Tehsil and District Kullu, complainant Nup Ram (PW-1) and Kirat Ram (PW-3) had gone to pluck walnut from tree, in the meantime, accused Bhagat Ram (hereinafter referred to as ‘the accused’) came to the spot and claimed half walnut being co-sharer and claimed that the walnut tree was in joint ownership. Complainant (PW-1) refused to give walnut to the accused, consequently, the accused gave ‘danda’ blow on the face of the complainant. As a result of which, one tooth of the complainant was broken and he sustained injury, thereafter accused went away. Thereafter, complainant (PW-1) reported the matter to the police. Medical examination of the complainant was conducted and FIR was registered. During investigation, police took into possession the ‘danda’ with which accused had hit the complainant. Investigating Officer visited the spot and prepared site plan. 3. The prosecution, in order to prove its case, examined as many as eight witnesses. Statement of the accused was recorded under Section 313 Cr. P.C, wherein he has denied the prosecution case and claimed innocence. No defence evidence was led by the accused. 4. Learned Additional Advocate General while appearing on behalf of the appellant has argued that the accused has committed heinous crime in a broad day light and the prosecution though proved the guilt of the accused beyond all reasonable doubt, but the learned Court below has committed an error in acquitting the accused. He has further argued that the accused may be convicted after setting aside the impugned judgment of acquittal. 5. On the other hand, learned counsel appearing on behalf of the accused has argued that the accused is innocent and falsely implicated in the present case by the complainant due to family dispute, which dispute was related to the walnut tree. He has further argued that the accused may be convicted after setting aside the impugned judgment of acquittal. 5. On the other hand, learned counsel appearing on behalf of the accused has argued that the accused is innocent and falsely implicated in the present case by the complainant due to family dispute, which dispute was related to the walnut tree. He has further argued that no recovery was effected and the alleged ‘danda’ to be used was not recovered at all neither the injuries to the person of the injured can be said to be caused by the accused and he is falsely implicated in the present case. 6. To appreciate the arguments of learned Additional Advocate General and learned counsel for the accused, this Court has gone through the record in detail and minutely scrutinized the statements of the witnesses. 7. PW-1 Nup Ram has deposed that on 10.9.2004 at about 7:00 am, when he alongwith Kirat Ram (PW-3) was about to pluck walnut, accused came there and demanded half of the walnut, when he refused to give him half of the walnut, accused gave him a ‘dada’ blow on his face, as a result of which, his tooth was broken and he also sustained injuries on his arm and wrist. Thereafter, he reported the matter to the police. He has further deposed that his medical examination was got conducted by the police. He has deposed that during investigating, accused has produced ‘danda’ Ex.P-1 before the police, which was taken into possession, vide recovery memo Ex.PW1/B. PW-2 Kewal Ram, father of the complainant also deposed this fact that accused have demanded half of walnut, when his son refused to do so, accused had given him a ‘danda’ blow on his face, as a result of which, one tooth of his son was broken. PW-3 Jagat Ram alias Kirat Ram, who was called by the father of the complainant to pluck the walnut, has deposed that in his presence accused had picked up a quarrel with the complainant and gave ‘danda’ blow to the complainant (PW-1), as a result of which, Nup Ram (PW-1) sustained injury. He has deposed that police has visited the spot and ‘danda’ Ex.P-1 was taken into possession in his presence and recovery memo Ex.PW1/B, was signed by him and Teja Singh (PW-4) as witnesses. He has deposed that police has visited the spot and ‘danda’ Ex.P-1 was taken into possession in his presence and recovery memo Ex.PW1/B, was signed by him and Teja Singh (PW-4) as witnesses. PW-4 Teja Singh has deposed that on 10.9.2004, he was called by Kewal Ram (PW-2) and when he reached the spot, he found Nup Ram (PW-1) has sustained injury, as his one tooth was broken. He has also deposed that accused was also present on the spot with ‘danda’ in his hand. He has also deposed that in his presence ‘danda’ Ex.P-1 was taken into possession by the police, vide recovery memo Ex.PW1/B. Roop Singh (PW-5) has deposed that case FIR Ex.PW5/B, was registered upon the statement of complainant Ex.PW1/A. PW-6 LC Geeta Devi lodged rapat Ex.PW1/A, as per the statement of complainant. She has further deposed that after medical examination of the complainant, ASI Surender Pal (PW-7) has lodged another rapat Ex.PW5/A revealing that complainant has sustained grievous injury, as his tooth was broken. PW-8 Dr. Harsh Mehra, has deposed that on 10.9.2004, he medically examined the complainant Nup Ram (PW-1) vide MLC Ex.PW8/A and found that one tooth of injured was broken and opined that the injury to be grievous in nature, which can be caused by blunt weapon. 8. From the above, it is clear that though complainant Nup Ram (PW-1) has deposed that the area of the land over which the walnut tree was standing was about four bighas, but his father has stated that the area of the land was about two bighas. Similar is the deposition of Jagat Ram (PW-3), who was called to pluck the walnut. There is a huge difference of area as stated by the witnesses, so their presence is suspicious on the spot. As per the evidence of Investigating Officer, ‘danda’ Ex.P-1 was produced by him before the police and the same was taken into possession vide recovery memo Ex.PW1/B. Kewal Ram (PW-2) has deposed that after giving the ‘danda’ blow, accused had thrown ‘danda’ on the spot and the said ‘danda’ was taken by him. He has also deposed that he produced the ‘danda’ before the police. As per the complainant, the police recovered the alleged ‘danda’ from the spot. In these circumstances, the recovery of ‘danda’ became most suspicious. He has also deposed that he produced the ‘danda’ before the police. As per the complainant, the police recovered the alleged ‘danda’ from the spot. In these circumstances, the recovery of ‘danda’ became most suspicious. The injuries could not be connected with the ‘danda’ and the presence of the witnesses at the spot became suspicious. Statement of Teja Singh (PW-4) has stated that when he reached the spot, about two baskets (kiltas) of walnuts were plucked, so these facts were not disclosed by any other witnesses, therefore, his presence on the spot also became suspicious. Complainant (PW-1) has stated that accused has given him ‘danda’ blow, as a result of which his tooth was broken and he sustained injury on his left arm and wrist. He has also deposed that blood oozed out of his mouth and there was swelling on his lips due to which, he could not eat food for 15 days, but Medical Officer (PW-8) did not notice any injury or swelling on the lip of the complainant Nup Ram. Therefore, MLC Ex.PW8/A does not corroborated the version of complainant regarding the injuries sustained by him. The complainant in his cross-examination has categorically deposed that accused did not give any beating to him or his father or Jagat Ram. This specific statement on the part of complainant is sufficient to demolish the prosecution story that accused had given ‘danda’ blow to the complainant and caused injuries to him. 9. 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. 10. 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. 11. The net result of the above discussion is that the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt. There is no illegality and infirmity in the findings, so recorded by the learned trial Court. 12. 11. The net result of the above discussion is that the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt. There is no illegality and infirmity in the findings, so recorded by the learned trial Court. 12. In view of the aforesaid decisions of the Hon’ble Supreme Court and discussion made hereinabove, I find no merit in this appeal and the same is accordingly dismissed. Record of the learned trial Court be sent back forthwith.