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2017 DIGILAW 444 (HP)

State Of Himachal Pradesh v. Deepak Kumar

2017-05-01

SANDEEP SHARMA

body2017
JUDGMENT Sandeep Sharma, J. (Oral)—Instant appeal under Section 378 CrPC has been filed against judgment dated 1.11.2008 passed by learned Chief Judicial Magistrate, District Kinnaur at Rekong Peo, in Criminal Case No. 78-2 of 2007, whereby respondents-accused (''accused'', hereafter) stand acquitted of the charges framed against them under Sections 341, 323, 506/34 IPC. 2. Briefly stated the facts of the case emerging from the record are that on 6.9.2007, at about 8 pm, when Kunta Devi, PW-1, was going to temple along with her brother Des Raj, to participate in Fletch fair, accused restrained them from proceeding further and gave beatings to Kunta Devi with leg and fist blows. She was brought to the hospital and matter was reported to the police. Police obtained MLC of the injured Kunta Devi and after collecting evidence, presented Challan under Sections 341, 323, 506 read with section 34 IPC, against the accused, in the court of Chief Judicial Magistrate, Kinnaur at Rekong Peo. Learned trial Court, being satisfied that prima facie case exists against accused, framed charges under aforesaid provisions, to which the accused pleaded not guilty and claimed trial. Subsequently, trial Court, vide judgment dated 1.11.2008, acquitted the accused of the offences under the charged sections. Hence, this appeal by the State. 3. During the proceedings of the case, this Court had an occasion to peruse the impugned judgment as well as evidence led on record by the prosecution, perusal whereof certainly suggests that prosecution was not able to prove beyond reasonable doubt that the complainant, Smt. Kunta Devi was given beatings by the accused on 6.9.2007, as alleged in the FIR, as such, this Court, sees no illegality or infirmity in the judgment of acquittal passed by the learned trial Court. 4. As per statement of complainant recorded under Section 154 CrPC, Ext. PW-1/A, she along with her brother, namely Des Raj, was going to Fletch fair on 6.9.2007, where accused namely Shashi Bhushan and Deep Ram, who were serving in Home Guards at the relevant time, restrained them and gave beatings to them, but, interestingly, aforesaid Des Raj has not been examined by the prosecution. Otherwise also, record suggests that he was the sole eye witness to the alleged incident and as such, his non-examination by the prosecution has weakened the case of the prosecution. 5. Otherwise also, record suggests that he was the sole eye witness to the alleged incident and as such, his non-examination by the prosecution has weakened the case of the prosecution. 5. It has also come in the statement of Kunta Devi that she, along with her brother, was going to participate in Fletch fair and they were given beatings by the accused. It has further come in the statement of Kunta Devi that after alleged beatings, she became unconscious and thereafter, was taken to hospital by her husband. Though, it has come in her statement that accused also called her ''Chamari'', but there is no evidence worth the name on record, to prove aforesaid allegation. In her cross-examination, she categorically admitted that after crossing Karchham to reach Rekong Peo, there is police post at Karchham and she did not report the matter there. 6. PW-2 Tara Chand stated that at about 5.30-6 pm, Kunta Devi was given beatings by accused Deepak and Shashi Bhushan. He has also stated that when he reached the spot, he saved Kunta from the clutches of accused. He has further stated that accused, while giving beatings to Kunta Devi, called her ''Chamari''. In his cross-examination, he stated that he disclosed to the police that accused gave beatings to him and to the husband of Kunta Devi but, admittedly, aforesaid fact is not recorded in his statement recorded under Section 161 CrPC. He, along with PW-1 also stated that, after Karchham, she came to Rekong Peo and there is police post at Karchham. If statements of aforesaid prosecution witnesses i.e. PW-1 and PW-2, are read collectively, there is material contradiction with regard to the time of the incident. PW-1 stated that at about 8 pm, she along with her brother, Des Raj, was going to temple to participate in Fletch fair where they were given beatings by accused, but PW-2, who claimed that he saved Kunta Devi from the clutches of accused, stated that Kunta Devi was given beatings at about 5.30-6 pm. 7. PW-8 HC Ashok Kumar stated that on 7.9.2007, on receiving telephonic message, he visited Rekong Peo and recorded statement of Kunta Devi, Ext. PW-1/A under Section 154 CrPC, on the basis of which FIR, Ext. PW-8/A was registered against accused. He also admitted in the cross-examination that at that time, around one thousand persons were present in the fair. 7. PW-8 HC Ashok Kumar stated that on 7.9.2007, on receiving telephonic message, he visited Rekong Peo and recorded statement of Kunta Devi, Ext. PW-1/A under Section 154 CrPC, on the basis of which FIR, Ext. PW-8/A was registered against accused. He also admitted in the cross-examination that at that time, around one thousand persons were present in the fair. As per prosecution, accused gave beatings to Kunta Devi on 6.9.2007 at about 8 pm, whereas admittedly, complainant was examined by Dr. Balwant Singh (PW-4) on 7.9.2007 at 12.20 pm. Otherwise also, there is no explanation for delay in lodging the complaint, when admittedly, police post was available at Karchham. 8. True, it is that perusal of medical evidence on record suggests that complainant suffered injury but since prosecution failed to connect the accused with the commission of alleged offence, medical evidence, if any, adduced on record, is of no relevance. 9. This Court, having carefully perused the material adduced on record by prosecution, has no hesitation to conclude that the prosecution was unable to prove, beyond reasonable doubt, that complainant, Kunta Devi was given beatings by accused, as such, there is no illegality or infirmity in the judgment passed by the learned trial Court. 10. In view of aforesaid discussion, the appeal lacks merit and is accordingly dismissed. Pending applications, if any, are disposed of. Bail bonds, if any, furnished by accused, are discharged.