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2018 DIGILAW 2282 (HP)

State Of Himachal Pradesh v. Sanjay Kumar @ Sanju

2018-12-21

TARLOK SINGH CHAUHAN

body2018
JUDGMENT Tarlok Singh Chauhan, J. - The State being aggrieved by the judgment of acquittal of accused/respondent passed by the learned Judicial Magistrate Ist Class, Court No.4, Mandi, H.P. on 08.01.2008 has filed the instant appeal. 2. Briefly stated the facts of the case are that on 31.10.2003 at about 10.00 a.m., at village Tanda, the complainant Naresh Kumar went to the house of Chandermani to ask him as to why he had left open his dog, but no one was present in his house. Then, all of a sudden, respondent came on the spot and asked the complainant why he was claiming that he had given beatings to him. When the complainant denied that he had not said anything against him, then the respondent started giving kick and fist blows to him and on listening his hue and cry, mother of the complainant, Sheela Devi, came to rescue him, but the respondent also gave beatings to her and they were rescued from the clutches of the respondent by the villagers. In this incident, simple as well as grievous injuries were caused to the complainant and his mother Sheela Devi. The matter was reported to the police through the rapat upon which an FIR was registered against the respondent. Both the injured persons were got medically examined. The police visited the spot, prepared spot map and recorded the statements of the witnesses under Section 161 Cr.P.C. After completion of investigation, the respondent was challaned under Sections 323 and 325 IPC. 3. Charges were framed against the respondent to which he pleaded not guilty and claimed trial. 4. The prosecution in order to prove its case examined as many as 8 witnesses. After closure of the prosecution evidence, the statement of the respondent under Section 313 Cr.P.C. was recorded in which his plea was of total denial and further pleaded that he had been falsely implicated in this case. However, the respondent did not lead any evidence in his defence. 5. As observed above, the learned trial Court on the basis of evidence available on record acquitted the respondent, constraining the State to file the instant appeal. 6. However, the respondent did not lead any evidence in his defence. 5. As observed above, the learned trial Court on the basis of evidence available on record acquitted the respondent, constraining the State to file the instant appeal. 6. It is vehemently argued by the learned Deputy Advocate General that the findings of acquittal recorded by the learned Court below are vitiated as it has discarded the statements of PW-2, PW-3 and PW-7 merely on the ground of minor contradictions and improvements made by these witnesses, more particularly, when the case of the prosecution was fully corroborated by the medical evidence. 7. On the other hand, Shri G.R.Palsra, learned counsel for the respondent, would argue that since there was no perversity in the findings recorded by the learned Court below, therefore, no interference is warranted in this appeal against acquittal. 8. I have heard the learned counsel for the parties and have also gone through the records of the case. 9. At the outset, it needs to be stated that in an appeal against acquittal, the appellate Court would only interfere where there exists perversity of fact and law. (See: Banna Reddy and others versus State of Karnataka and others , (2018) 5 SCC 790 . Further, the presumption of innocence is further reinforced against the acquitted accused by having judgment in his favour. (See: Rabindra Kumar Pal alias Dara Singh versus Republic of India , (2011) 2 SCC 490 , para 94). 10. Similar reiteration of law can be found in a very recent judgment of the Hon''ble Supreme Court in Criminal Appeal No.1702-1706 of 2014, titled State of Uttar Pradesh versus Wasif Haider etc., decided on 10.12.2018. 11. The complainant Naresh Kumar appeared as PW-2 and deposed that he was given beatings by the respondent with kick and fist blows and was also inflicted a blow by knife, but then admittedly there was no recovery of knife made either from the respondent or from the complainant. It categorically establishes and proves on record that the version put-forth by the complainant was in itself concocted. 12. Notably, the prosecution examined three witnesses, complainant Naresh Kumar as PW-2, his mother Sheela Devi as PW-3 and Prakash Chand as PW-7. It categorically establishes and proves on record that the version put-forth by the complainant was in itself concocted. 12. Notably, the prosecution examined three witnesses, complainant Naresh Kumar as PW-2, his mother Sheela Devi as PW-3 and Prakash Chand as PW-7. But, then only Naresh Kumar and Sheela Devi, who are mother and son supported the case of the prosecution, whereas, PW-7 Prakash Chand was declared hostile for not making the statement in favour of the prosecution. 13. In this background, if the statements of PW-2 and PW-3 are adverted to, it would be noticed that even their statements do not corroborate each other on material facts. On one hand, complainant Naresh Kumar stated that he was rescued by his mother and uncle (Chacha), who is no more in the land of living. On the other hand, his mother Sheela Devi stated that they were rescued by PW-7 Prakash Chand from the clutches of the respondent. PW-3 has made material improvements in her statement from the one recorded by the police under Section 161 Cr.P.C. That apart, according to the complainant, his mother came on the spot after an hour of the incident, but according to Sheela Devi, she came to the spot at once on hearing hue and cry of her son. 14. It needs to be noticed that mother of the complainant was waiting for the bus at the time of the incident and it has specifically come in the statement of the complainant that bus stop cannot be seen from the place of incident. Above all, the complainant has specifically stated that his mother had not seen the respondent while giving beatings to him. 15. In this background, in case the testimony of PW-7 Prakash Chand is perused, he has narrated altogether a new story that the dog of neighbourer Chandermani was running after complainant and his mother Sheela Devi, who sustained injuries because of their running and not on account of alleged beatings given by the respondent. 16. Most importantly, the I.O., who conducted investigation has not been able to place any material on record to show how the complainant sustained injuries. No doubt, PW-1 doctor Rakesh Kumar stated that on 11.12.2003, he had conducted X-ray of Sheela Devi and issued report Ex. PW1/A, according to which, there was compression of vertebrae with fragmentation of anterior superior margin (small fracture in hand). No doubt, PW-1 doctor Rakesh Kumar stated that on 11.12.2003, he had conducted X-ray of Sheela Devi and issued report Ex. PW1/A, according to which, there was compression of vertebrae with fragmentation of anterior superior margin (small fracture in hand). However that in itself cannot be sufficient to conclude that it was on account of the beatings given by the respondent that Sheela Devi sustained said injury because in cross examination this witness i.e. doctor Rakesh Kumar has specifically stated that such type of fracture is also possible by fall or trauma. 17. In view of the aforesaid discussion and for the reasons stated above, I find no merit in this appeal and the same is accordingly dismissed. Pending application, if any, also stands disposed of.