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2018 DIGILAW 988 (HP)

State of Himachal Pradesh v. Rajinder Singh

2018-05-25

VIVEK SINGH THAKUR

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JUDGMENT : Vivek Singh Thakur, J. Present appeal has been preferred by State against the acquittal of respondents vide judgment, dated 18th September, 2008 passed by the learned Additional Chief Judicial Magistrate, Dehra, District Kangra, in Criminal Case No. 25II/ 2003, in case FIR No. 40 of 2002, dated 19th April, 2002, registered under Sections 341, 323, 325 and 506 read with Section 34 of the Indian Penal Code (for short “IPC”) in Police Station Dehra, District Kangra. 2. Prosecution case, in brief, is that on 19th April, 2002, at about 9.00 a.m., PW1 Desh Raj (complainant) was going to Bharwain for labour work. When he reached near Chalali, respondents-Rajinder Singh, Swaran Singh and Khushal Singh restrained him on the road near Chalali and objected his deposition as a witness in favour of Master Prakash and threatened to kill him and beat him on the spot causing injuries to him and respondent-Rajinder Singh had hit him with kadaa (iron wrist ring) causing injury below his left eye. On raising cries by complainant PW1 Desh Raj, PW Bishan (not examined) and PW5 Rajinder Kumar arrived on the spot whereupon the respondents fled from the spot in truck TATA 709, bearing registration No. HP363988, owned by respondent-Khushal Singh. 3. Thereafter, complainant PW1 Desh Raj reported the matter to the police vide rapat No. 14, dated 19th April, 2002 (Ex. PW8/ A) recorded in Police Station Dehra by PW8 ASI Bishamber Dass at 2.20 p.m. In pursuance thereto, FIR Ex. PW1/ A was registered by PW9 ASI Geeta Parkash, Investigating Officer whereafter he carried out the investigation, got the complainant medically examined from PW3 Dr. Anita Mahajan, who had issued MLC Ex. PW3/ A. Complainant was also xrayed by PW7 Rakshpal Guleria, Radiographer and as per opinion given by PW6 Dr. Suman Dhiman, Radiologist, fracture of nasal bone of the complainant was detected. Spot map Ex. PW9/ A was also prepared. During investigation, shirt of complainant was taken into possession vide memo Ex. PW1/ B and the iron wrist ring (kadaa), produced by accused-Rajender, was also taken into possession on 17th September, 2002 vide memo Ex. PW1/ C in presence of witnesses, PW4 Girdhari Lal and PW10 HC Onkar Singh. 4. On completion of investigation, finding prima facie complicity of the respondents in commission of alleged offences, challan was presented in the Court. PW1/ B and the iron wrist ring (kadaa), produced by accused-Rajender, was also taken into possession on 17th September, 2002 vide memo Ex. PW1/ C in presence of witnesses, PW4 Girdhari Lal and PW10 HC Onkar Singh. 4. On completion of investigation, finding prima facie complicity of the respondents in commission of alleged offences, challan was presented in the Court. On conclusion of trial, respondents have been acquitted by the trial Court. Hence, the present appeal. 5. I have heard learned counsel for the parties and have also gone through the record. 6. Prosecution has examined as many as ten witnesses to prove its case. As per prosecution story, in the beginning, only PW1 Desh Raj (complainant) was present alone on the spot and on hearing his cries, PW5 Rajinder Kumar and PW Bishan Dass (not examined) had arrived on the spot whereupon the respondents had left the spot. PW Bishan Dass has not been examined by the prosecution for the reasons best known to it. 7. PW1 Desh Raj (complainant), in his statement before the police recorded under Section 154 CrPC, had deposed that he was wrongfully restrained and beaten by respondent for appearing as a witness in favour of Master Prakash whereas in the Court, he has deposed that he was wrongfully restrained and beaten by the respondents when he had asserted for his appearance as a witness in favour of Master Prakash in future, for which respondents were asking not to appear. In his deposition in the Court, he has categorically stated that he had replied that he will be deposing in favour of Prakash Chand in future whereas, as per FIR, his case was that he was punished for appearing as a witness for Master Prakash Chand. In his crossexamination, upon asking to explain as to which of his statement was correct, he has stated that both the statements were true and again reiterated that what he has stated in the Court was also correct. This part of his statement, which goes to the root of the genesis of the prosecution story, is irreconcilable. 8. Further, according to PW1 Desh Raj (complainant), PW Bishan Dass and Rajinder Kumar had reached on the spot whereupon the respondents had spared him. Rajinder Kumar appeared in the Court as PW5. This part of his statement, which goes to the root of the genesis of the prosecution story, is irreconcilable. 8. Further, according to PW1 Desh Raj (complainant), PW Bishan Dass and Rajinder Kumar had reached on the spot whereupon the respondents had spared him. Rajinder Kumar appeared in the Court as PW5. In his deposition, he has stated that he had not seen any quarrel taking place between the parties, but, PW1 Desh Raj had informed him that he was beaten by Rajender Singh and one-two other persons were also accompanying him, who had fled in the vehicle. 9. Another prominent witness, Bishan Dass, who happened to be the brother of the complainant, despite having been cited as a witness in the list of witnesses, has not been examined without assigning any reason by the prosecution. It again creates doubt about the prosecution case for the reason that when the brother of complainant is not coming forward to depose in his favour, there must be some reason for the same. Either the said witness was not, in fact, present on the spot or he was not ready to depose as desired by the complainant. 10. Be that as it may, fact remains that a material witness of the spot has been withheld by the prosecution. His deposition was also important for the reason that except PW1 Desh Raj, no other witness, claiming to have seen the occurrence, has been examined. Examination of PW Bishan Dass was also necessary, particularly, keeping in view the fact that PW5 Rajinder Kumar, in his crossexamination, contradicting his statement made in examination-in-chief that the respondents were threatening the complainant while leaving the spot, has stated that he had not seen the quarrel taking place between the parties. 11. Though, it has been claimed that statement of PW1 Desh Raj (complainant) with regard to beatings given by the respondents has been duly corroborated by the medical evidence rendered in the statements of PW3 Dr. Anita Mahajan, PW6 Dr. Suman Dhiman and PW7 Rakshpal Guleria, but, the said statements would have been of any help to the prosecution in case the statement of PW1 Desh Raj, i.e. the complainant, would have been found to be reliable. 12. Anita Mahajan, PW6 Dr. Suman Dhiman and PW7 Rakshpal Guleria, but, the said statements would have been of any help to the prosecution in case the statement of PW1 Desh Raj, i.e. the complainant, would have been found to be reliable. 12. Leaving apart the fact that no other witness has been examined by the prosecution as witness to the spot or it may be considered that no one was present at the time of the incident on the spot, in such eventuality, it cannot be supposed that prosecution would be able to examine independent witnesses and, therefore, in such a situation, the cogent, reliable and trustworthy statement of complainant, corroborated by the medical evidence, would have been sufficient to convict the respondents, but, here, in present case, as discussed above, there is a shift in the deposition of complainant at the time of deposition in the Court with regard to the cause of the incident rendering his statement doubtful and untrustworthy. Therefore, on the basis of his statement, respondents cannot be held guilty of having committed the offence. 13. So far as medical evidence is concerned, the same has corroborated only the injuries received by the complainant, but, not the cause of the injuries, as in the cross-examination, PW3 Dr. Anita Mahajan has admitted that these injuries could have also been caused by fall. She has also admitted that all the injuries were on the face of the complainant. No doubt, there might be cases where complainant/injured might have received injuries only on the face, but, keeping in view the fact that statement of complainant has not been found trustworthy, the possibility of receiving the injuries otherwise than, as alleged in the complaint, cannot be ruled out. 14. It is the prosecution case that the iron wrist ring (kadaa) was produced by respondent-Rajender on 17th September, 2002. The occurrence had taken place on 19th April, 2002. Meaning thereby, the said kadaa was allegedly recovered after about five months of the incident. Further, PW9 ASI Geeta Prakash (Investigating Officer), in his cross-examination, stated that he had not sealed the iron wrist ring (kadaa) after taking the same into possession. Not only this, the said alleged weapon of offence was not shown to PW3 Dr. Meaning thereby, the said kadaa was allegedly recovered after about five months of the incident. Further, PW9 ASI Geeta Prakash (Investigating Officer), in his cross-examination, stated that he had not sealed the iron wrist ring (kadaa) after taking the same into possession. Not only this, the said alleged weapon of offence was not shown to PW3 Dr. Anita Mahajan, who, in her crossexamination, has stated that in absence of weapon of offence, it was difficult for her to opine that the injuries to the complainant-injured were caused by the same. All this creates doubt about the fair investigation having been conducted by the investigating agency. 15. It is undisputed that there was enmity between the parties. Also, it is settled that enmity is a double edged weapon. It can be a corroborative evidence for proving the motive of the respondents to beat the complainant, but, at the same time, it can also be a reason for falsely implicating the respondents in the present case. Had the statement of PW1 Desh Raj (complainant) been creditworthy, it would have been a circumstance to establish the motive of the respondents to assault the complainant, but, for the reason that his statement is under cloud, this fact also goes against the prosecution case. 16. It is also settled law that when two views are possible, the view beneficial to the accused is to be preferred, particularly, when the accused have been acquitted by the trial Court by giving a reasoned judgment. 17. As the statements of complainant and other prosecution spot witnesses are not inspiring confidence, therefore, evidence of other witnesses, who were associated during investigation for its completion, are not relevant and there is no necessity to discuss their evidence on record. 18. In view of the above discussions, I am of the opinion that the prosecution has failed to prove its case beyond reasonable doubt by leading cogent, reliable, trustworthy and convincing evidence, which can be made basis to convict the respondents. 19. Respondents also have advantage of being acquitted by the trial Court fortifying the presumption of their innocence which stands unrebutted for want of pointing out any cogent, reliable, convincing and trustworthy evidence against the respondents. The trial Court has appreciated the evidence on record completely and correctly and it cannot be said that acquittal of respondents has resulted into travesty of justice or has caused miscarriage of justice. The trial Court has appreciated the evidence on record completely and correctly and it cannot be said that acquittal of respondents has resulted into travesty of justice or has caused miscarriage of justice. Therefore, no case for interference is made out. 20. Viewed thus, the appeal is dismissed. Bail bonds furnished by the respondents and their respective sureties are discharged. Record be sent back to the learned trial Court.