IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No. 60 of 2002. Judgement reserved on : 26.2.2009 Date of decision: 6.3.2009 State of H.P. …….Appellant Vs. Ramji Dass ….. Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellant : Mr. A.K. Bansal, Additional Advocate General. For the Respondent : Mr. G.D. Verma, Sr. Advocate with Mr. Romesh Verma, Advocate. Kuldip Singh, Judge This appeal has been directed against the judgment dated 30.7.2001 passed by learned Sub Divisional Judicial Magistrate, Nalagarh in Criminal Case No.156/2 of 1998, acquitting the respondent for offence punishable under Sections 325, 323, 341 and 506 IPC. 2. The prosecution case in brief is that Gram Panchayat, Kripalpur had constructed a path and some payment was to be made to the labourers. PW-1 Durga Singh was the Pradhan of the said Panchayat. He asked Panchayat Secretary Ramji Dass to release the payment but he delayed the payment on one ground or the other. On 1.6.1998 PW-1 told Ramji Dass on telephone for withdrawal of the Whether the reporters of the local papers may be allowed to see the Judgment? Yes 2 money from the Bank, on this Ramji Dass asked PW-1 to come to Nalagarh, accordingly, PW-1 came to Nalagrah. Ramji Dass withdrew Rs.13,000/- from Jogindra Central Co-operative Bank and thereafter PW-1 and Ramji Dass came to bazar. PW-1 asked Ramji Dass to make the payment or hand over the money to him, so that the payment could be made but Ramji Dass did not hand over the amount to PW-1. In the evening Ramji Dass offered to hand over Rs.5000-6000 to PW-1 but PW-1 declined to receive saying that with this amount payment could not be made to the labourers. Ramji Dass started arguments with PW-1 and went towards liquor vend and returned in a state of intoxication and met PW-1. Ramji Dass paid Rs.11,000/- to PW-1. When PW-1 was returning at about 8/8.15 and reached Nalagarh, Ramji Dass caught him and started abusing him. He gave kick and fist blows. Sucha Singh, Roop Chand and Teja Singh etc. came on the spot. The police also intervened and rescued PW-1 from Ramji Dass. He was taken to hospital where he made statement Ex.P-1 which was sent to Police Station and FIR Ex.P-4 was registered. 3. The investigation was conducted by PW-5 Jai Gopal who prepared site plan Ex.P-5. Durga Singh was medically examined and a fracture of right fibula was detected. The report Ex.P-2 showing the fracture was issued by Radiologist and in MLC Ex.P-7 injuries were shown as simple and grievous. On completion of investigation challan was presented in the Court. The accused was charged for offences punishable under Sections 325, 323, 341 and 506 IPC to which he pleaded not guilty and claimed to be tried. The prosecution has examined 7 witnesses and produced documents. The statement of 3 respondent was recorded under section 313 Cr.P.C. in which he denied the prosecution case. He has also examined DW-1 Amarjit Singh in his defence. The learned Sub Divisional Judicial Magistrate has acquitted the respondent on 30.7.2001 after giving him benefit of doubt, hence this appeal. 4. I have heard Mr. A.K. Bansal, learned Addl. Advocate General for the State and Mr. G.D. Verma, Senior Advocate for the respondent and gone through the record. The learned Addl. Advocate General has submitted that the prosecution has proved the case against respondent beyond reasonable doubt by leading oral and documentary evidence. The learned Sub Divisional Judicial Magistrate has erred in not believing the prosecution case more particularly the statements of PW-1 Durga Singh and other eye witnesses. Mr. G.D. Verma, learned Senior Advocate appearing on behalf of the respondent has supported the impugned judgment and has submitted that learned Sub Divisional Judicial Magistrate has very closely looked into the evidence and high lighted in the impugned judgment various infirmities in the prosecution case. He has submitted that the impugned judgment is just and reasonable and prayed for dismissal of the appeal. 5. PW-1 Durga Singh complainant has stated that on 2.6.1998 he was President of the Panchayat, some work was got done and the payment of the labourers was to be made. He asked Secretary Ramji Dass on telephone to reach Jogindra Bank, a sum of Rs.13,000/- was withdrawn for payment. He was offering him Rs,5,000/- but he refused to accept the payment on the ground that either pay the whole amount to him or make the payment of the 4 labourers himself. On this Ramji Dass proceeded towards liquor vend and returned after one hour. He paid him Rs.11,000/- and when he was going to his home with money at 8 PM. Ramji Dass met him near post office, he hit him from the back side and broken his ankle. He also gave fist and kick blows, he received injuries on his eye. Sucha, Lachhi and Teja villagers rescued him from the Ramji Dass. Ramji Dass continued to extend threats to him. The police recorded his statement Ex.P-1 which bears his signatures. In cross- examination he has denied his signatures on mark D-1 but volunteered that Rs.11,000/- were paid in the shop of Amarjit Singh in presence of Amarjit Singh. He denied that payment was made to him at 11 AM. He did not report the matter to the police on that date. He feigned his ignorance whether the report was lodged on the same day or the next day. He however has stated that he was medically examined same day. He admitted that Teja Singh is his nephew in relation. 6. PW-2 Roop Singh has stated that on the 4th day of the 6th month at about 5-6 PM Ramji Dass and Durga Singh were quarreling. Ramji Dass was giving beatings to Durga Singh. The police came on the spot and thereafter he left the place. Durga Singh had received injuries on his ankle. Ramji Dass did not give any threat in his presence. Pardhan had told that a case under sections 107/150 Cr.P.C. has been registered. Durga Singh is his brother-in-law. Blood fell on the clothes of Pardhan. PW-3 Teja Singh has stated that he had come to Nalagarh for his own work in June, 1998. Ramji Dass and Durga Singh Pardhan were quarreling near post office, Nalagarh. Ramji Dass gave kick and fist blows to Durga Singh. The police reached the spot. In cross-examination he has stated that the 5 occurrence took place at about 8 PM. He has stated that he does not know why they were quarrelling. PW-4 Dr. M.R. Verma, Radiologist has stated that on 1.6.1998 Durga Singh was referred to him by Dr. Sharat Gargiya for his radiological examination. X-ray Ex.P-1 was taken under his supervision and he issued report Ex.P-2. PW-5 Jai Gopal has stated that on 2.6.1998 he was sent by SHO to RH, Nalagarh where complainant was admitted. He recorded his statement Ex.P-1 which was sent to Police Station for registration of FIR Ex.P-4. He recorded the statements of the witnesses. In cross- examination he has stated that admit card of Durga Singh was not taken into possession. The place of occurrence is about 400-500 yards from the Police Station. On first, case under sections 107/150 was processed against Ramji Dass. On second no quarrel took place but only statements were recorded. PW-6 Sucha Singh has stated that occurrence took place at about 8 PM. The accused gave beatings to Pardhan. Roop Chand and Teja Singh were present on the spot. Police came and took Ramji Dass to Police Station. He took Durga Singh during night to Police Station and lodged the report and thereafter took him to his home. Durga Singh is not his real uncle but he is in his relation. PW-7 Dr. Sharat Gargiya has stated that on 1.6.1998 at about 10.10.PM he examined Durga Singh and issued MLC Ex.P-7. As per report Ex.P-2 injuries were grievous as there was a fracture of lower end of fibula. In cross-examination he has stated that injuries No.1,2 could be caused by fall. 7. DW-1 Amarjit Singh was examined in defence and has stated that on 1.6.1998 at about 11 AM Ramji Dass had paid Rs.11,000/- to Durga Singh who issued receipt which was written by 6 Ramji Dass and was signed by him as well as Pardhan in his presence and the same is Ex.D-1. 8. The prosecution case is that occurrence took place at about 8 PM and was witnessed by PW-2 Roop Singh, PW-3 Teja Singh and PW-6 Sucha Singh, defence version is of denial. It has come in evidence that Rs.11,000/- were paid by Ramji Dass to Durga Singh at about 11 AM on 1.6.1998 which has been established by receipt Ex.D-1 dated 1.6.1998 proved by DW-1 Amarjit Singh. The receipt Ex.D-1 is signed by Pardhan Durga Singh as well as by Amarjit Singh who under his signature had even put the time 11 AM. PW-1 admitted the payment of Rs.11,000/- to him but denied his signature on mark D-1 which was later on exhibited as Ex.D-1 but admitted that payment of Rs.11,000/- was made in the shop of Amarjit Singh and Amarjit Singh was present in the shop at that time. There is no reason to disbelieve Amarjit Singh that the payment of Rs.11,000/- was made to Durga Singh at 11 AM on 1.6.1998. In these circumstances it can be safely held that Durga Singh received Rs.11,000/- from respondent on 1.6.1998 at about 11 AM. 9. The further prosecution case is that respondent at about 8 PM gave beatings to PW-1 Durga Singh while he was returning to his home along with the money. It has also come in the statement of PW- 5 Jai Gopal and PW-6 Sucha Singh that some report was lodged by Durga Singh after the occurrence at Police Station and as per PW-5 Jai Gopal even a case under Section 107/150 Cr.P.C. was registered against Ramji Dass. The said report allegedly made by Ramji Dass to the police after the occurrence has not been placed on record. FIR Ex.P4 is dated 2.6.1998 and was registered at about 11.15 AM but 7 date and time of occurrence in the FIR has been given 1.6.1998. MLC Ex.P-7 is dated 1.6.1998 and the injured was examined at 10.10 PM and the Police docket No.303415 dated 1.6.1998 is mentioned on MLC Ex.P-7. It means some report came before the police before 10.10.PM on 1.6.1998 and thereafter Durga Singh was medically examined on 1.6.1998 at 10.10.PM. In other words, the police came into motion not on the basis of FIR Ex.P-4 but on the basis of some other report which came before the police but has not been placed on record. This creates suspicion in addition to the fact that FIR Ex.P-4 is highly belated and therefore it is not safe to rely on the said FIR. The prosecution case in these circumstances becomes doubtful. PW-2 Roop Singh in his statement has stated that Durga Singh is his brother- in-law. He claims that he rescued Durga Singh but PW-1 Durga Singh has not named Roop Singh in his statement. PW-1 has admitted that Teja Singh is his relative, Sucha Singh has also stated that Durga Singh is his uncle in relation. It has come on record that many persons had gathered on the spot but surprisingly independent witnesses were not associated during investigation. The alleged eye witnesses of the occurrence are relatives of complainant PW-1 Durga Singh. It has not been explained by prosecution when Ramji Dass had made payment of Rs.11,000/- to Durga Singh on 1.6.1998 at about 11 AM then for what purpose both of them almost remained together from 11 AM to 8 P.M. on that date. The learned Sub Divisional Judicial Magistrate has rightly appreciated the material on record and has given benefit of doubt for acquitting the respondent. The prosecution has failed to make out any case of interference. 8 10. The result of the above discussion, appeal fails and is accordingly dismissed. Bail bonds discharged. ( Kuldip Singh) Judge March 6, 2009 (sks)