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2018 DIGILAW 1115 (HP)

Om Parkash v. State of Himachal Pradesh

2018-06-18

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. The present Criminal Revision Petition maintained under Section 397 read with Section 401 of the Code of Criminal Procedure, is directed against the judgment, dated 15.2.2011, passed by learned Additional Sessions Judge, Mandi, H.P. in Criminal Appeal No. 36, 34 and 35 of 2008, affirming the judgment dated 13.6.2008, passed by the learned Judicial Magistrate 1st Class, Baijnath camp at Tehsil Jogindernagar, District Mandi, H.P. in RBT No.49-II of 2007, whereby the present petitioners (in short ‘accused’) were convicted under Sections 451, 323, 504, 506 read section 34 of the Indian Penal Code and sentenced as under:- Offence Sentence Under Section 451 IPC Simple imprisonment for three months each and to pay fine of Rs.500/- each and in case of default to undergo simple imprisonment for one month each; Under Section 323 IPC Simple imprisonment for three months each and to pay a fine of Rs.500/- each and in case of default further to undergo simple imprisonment for one month each; Under Section 504 IPC Simple imprisonment for one month each and to pay a fine of Rs.100/- each and in case of default further to undergo simple imprisonment for 15 days each; Under Section 506 IPC Simple imprisonment for three months each and to pay a fine of Rs.500/- each and in case of default to further undergo simple imprisonment for one month each. All the sentences shall run concurrently. 2. Briefly stating facts giving rise to the present appeal are that complainant-Subhash Kumar (PW-1) was present in his home on 16.2.2007, at about 9:30 PM, accused persons, namely, Om Prakash, Panna Lal and Ghanshyam, came to his house. They shouted and asked the complainant-Subhash Kumar to get out, when he came out of the room, all accused persons started beatings him with kick and fist blows. They also inquired, as to why, he had brought the wood cut by them. Complainant replied that the wood was lying in the jungle for 10-15 days and in case, the wood belonged to the accused, they should take it away. The accused abused him, when the complainant shouted for help, his mother came at the spot. The accused also gave beatings to her. The matter was reported to the police, on the basis of which, FIR Ex.PW1/A was registered. Statements of witnesses were recorded and site plan was prepared. The accused abused him, when the complainant shouted for help, his mother came at the spot. The accused also gave beatings to her. The matter was reported to the police, on the basis of which, FIR Ex.PW1/A was registered. Statements of witnesses were recorded and site plan was prepared. Thereafter, codal formalities were completed and challan was put up in the Court. 3. The prosecution, in order to prove its case, examined as many as six witnesses. Statement of accused persons were recorded, under Section 313 of the Code of Criminal Procedure, wherein they have denied the prosecution case and claimed innocence. No defence evidence was led by the accused. 4. Ms. Leena Guleria, learned counsel appearing on behalf of the petitioners has vehemently argued that the statement of complainant is not inspiring confidence, as he has improved while appearing in the witness box as PW-1 that there are material improvements from his statement, under Section 154 of the Code of Criminal Procedure, so recorded before the police and in these circumstances, his statement cannot be relied upon to record the conviction against the petitioners. She has further argued that even PW-2 and PW-3, who are independent witnesses, have not supported the prosecution story. On the other hand, Mr. Rajat Chauhan, learned Law Officer has strenuously argued that PW-2 and PW-3 have stated that they had seen the accused persons in the house of complainant and it has come on record that the reason for giving beatings to the complainant that the complainant has taken away the wood cut by the accused persons in the jungle. He has further argued that the prosecution has proved the guilt of the accused conclusively and, therefore, appeal deserves to be dismissed. 5. To appreciate the arguments of learned counsel appearing on behalf of the parties, this Court has gone through the record in detail and minutely scrutinized the statements of the witnesses. 6. In order to prove its case, the prosecution has examined complainant-Subhash Kumar (PW-1), he has deposed that on 16.2.2007, at about 9:30 PM, he was present at his house. In the meantime, all the accused persons came there and started abusing him and further asked him to get out of the room. Accused Om Prakash, inquired from him as to why he took away their wood, which had been kept by them on cutting in the forest. In the meantime, all the accused persons came there and started abusing him and further asked him to get out of the room. Accused Om Prakash, inquired from him as to why he took away their wood, which had been kept by them on cutting in the forest. He replied that he had not brought any wood on which, the accused started beating him. His mother shouted for help. Balwant reached at the spot. He was rescued by Balwant and Sunita etc. He was beaten inside the house. He received injuries on his mouth and teeth part of the body. In his cross-examination, he has denied that he had picked up the wood of the accused from the jungle. He has denied that he had stated that he would return the wood. PW-2, Balwant Singh, deposed that the house of the complainant is located at a distance of 150 meter from his house. On 16.2.2007, at about 9:30 PM, he heard some noise from outside. He came out and found that a quarrel was taking place in the house of the complainant. He could not identify the person. He was declared hostile and admitted that when he shouted for help, Sonu, Arun and Sunita came at the spot. He has admitted that Om Prakash, Panna Lal and Ghanshyam were present at the spot. He has admitted that they had given beatings to the complainant in the courtyard. He has admitted that accused had threatened to kill the complainant. In his cross-examination, he has stated that there are 10-12 houses there. Panna Lal, Om Prakash, Ghanshyam and mother of the complainant etc. were present at the spot. He had not visited the veranda of PW-1, Subhash Chand. He was not aware that the criminal case was maintained against him by the mother of the accused. He has also admitted that it was 16.2.2007, at about 9:30 PM, when the accused persons were present on the spot and were seen by him giving beatings to the complainant. There is nothing in the statement, which could have shown that he is making a false statement to that effect. He has denied that PW-1 received injuries, while bringing wood from the forest, which clearly shows that the accused persons are admitting the presence of injury on the person of the complainant during the relevant time. There is nothing in the statement, which could have shown that he is making a false statement to that effect. He has denied that PW-1 received injuries, while bringing wood from the forest, which clearly shows that the accused persons are admitting the presence of injury on the person of the complainant during the relevant time. He has categorically denied that he neither went to the house of the complainant nor witnessed the incidence. PW-3, Sunita Devi, stated that nothing has happened in her presence. In her cross-examination, she has categorically admitted that she alongwith Sonu and Arun, on hearing noise went to the spot. She has also admitted that at the relevant time, accused persons were present on the spot. She has also admitted the presence of accused persons as well as complainant party on the spot, at the relevant day and time and that she rushed to the same on hearing a noise, but failed to explain, as to what was happening at the spot. She has failed to explain as to what noise was being made by the parties which forced her to rush to the spot alongwith other persons. PW-4, SI, Kapoor Chand, has registered the FIR, Ex.PW1/A, came to be registered on 17.2.2007, at about 10:30 PM. The incidence took place on 16.2.2007, at about 9:30 PM. PW-5, HC Gulab Singh, has investigated the case. He has categorically denied that a false case has been made in connivance with the complainant. PW-6, Dr. Partap Chand, has examined the complainant on 17.2.2007 and issued MLC Ex.PW6/A and found that the complainant had suffered simple injuries, which could have been caused by means of kick and fist blows. He has admitted in his cross-examination that the injuries could have been caused by way of fall in the jungle. 7. Statement of PW-1, Subhash Chand, in the present case is not confidence inspiring, as he has stated before the police, under Section 154 of the Code of Criminal Procedure, he asked the accused that in case, the wood is there, he will return the wood to them, but while appearing in the witness box in the learned Court below, he has not stated so and has improved upon his case, so his statement becomes suspicious. Further, while appearing before the police, he has stated that his mother was also beaten up, but while appearing in the witness box, he has not stated so. Though, Balwant Singh and Sunita Devi were examined, but they had not supported the prosecution case. Statement of PW-1, Subhash Chand, if read in totality doesn’t make out a case against the accused persons. Further, his statement is not trustworthy and remained uncorroborated by independent witnesses. Further, the improvement made by PW-1, in his statement while appearing in the witness box before the learned Court below also makes its statement untrustworthy. The non-examination of other independent witnesses also creates a doubt in the prosecution story. 8. The net result of the above discussion is that the prosecution has failed to prove the guilt of the accused persons conclusively and beyond the shadow of reasonable doubt. So, this Court finds that the findings recorded by the learned Court below convicting and sentencing the accused persons are liable to be set aside. 9. Accordingly, the present Criminal Revision is allowed and the judgment, dated 15.2.2011 passed by the learned Additional Sessions Judge, Mandi, District Mandi, affirming the judgment dated 13.6.2008, passed by the learned Judicial Magistrate 1st Class, Baijnath camp at Jogindernagar, District Mandi, is set aside. 10. In view of the above, the present Criminal Revision is disposed of, so also the pending application (s), if any.