IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No. 337 of 2002. Judgment reserved on 20.4.2009 Date of decision: 28.4.2009 -__________________________________________________ State of H.P. …….Appellant Vs. Smt. Veena Devi & others .. Respondents ______________________________________________________ Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellant : Mr. Anshul Bansal, Additional Advocate General. For the Respondents : Mr. K.S. Banyal, Advocate. Kuldip Singh, Judge The State has come in appeal against the judgment of acquittal of respondents recorded by learned Chief Judicial Magistrate, Hamirpur on 1.8.2001 in Criminal Case No.133-II of 1996 for offence punishable under Sections 147, 149, 323, 325 and 504 IPC. 2. The prosecution case in brief is that PW-7 Nikka Ram, lodged FIR Ex.PW-4/A on 9.6.1996. The allegations against respondents are that on 9.6.1996 at about 4 p.m. at place Chuhani, they constituted an unlawful assembly armed with deadly weapons such as darat etc., the common object of which was to commit rioting and to cause annoyance to complainant Nikka Ram and his family members, besides giving them beatings. Whether the reporters of the local papers may be allowed to see the Judgment?Yes 2 3. Further case of the prosecution is that complainant party was constructing their residential house and they had engaged one PW- 6 Dalipu as mason and PW-2 Dharmu as labourer. The respondents turned up on the spot and started giving beatings to complainant party. The injured were rescued by PW-6 Dalipu and PW-2 Dharmu. On the statement of complainant, rapat Ex.PW-4/B was recorded and thereupon FIR Ex.PW-4/A was registered. The danda and bharota were taken into possession vide memo Ex.PW-2/A, site plan Ex.PW-8/A was prepared. The injured Kansi Ram, Madan Lal and Nikka Ram were got medically examined vide MLCs Ex.PW-1/A, Ex.PW-1/B and Ex.PW-1/C. On completion of investigation challan was presented against the respondents and they were charged for offence punishable under Sections 147, 149, 323, 325 and 504 IPC. The prosecution has examined nine witnesses and placed on record some documents to prove the case. The statements of respondents were recorded under section 313 Cr.P.C., they denied the prosecution case. The respondents did not lead any evidence in defence. The learned Chief Judicial Magistrate has acquitted the respondent, hence appeal by the State. 4. I have heard Mr. Anshul Bansal, learned Addl. Advocate General for the appellant and Mr. K.S. Banyal, Advocate, learned counsel for the respondents and have also gone through the record. The learned Addl. Advocate General has submitted that the learned Court below has not properly appreciated the evidence on record. The prosecution has proved the case against all the respondents by examining witnesses and placing on record documentary evidence. The learned Chief Judicial Magistrate has misconstrued and 3 misinterpreted the evidence. The acquittal recorded by the learned Court below is not sustainable. The learned counsel for the respondents has supported the impugned judgment and has submitted that the acquittal of the respondents emerges from the evidence on record and in these circumstances he has prayed for dismissal of the appeal. 5. PW-1 Dr. R.K. Kanwar has stated that on 9.6.1996 he had examined Kansi Ram and issued MLC Ex.PW-1/A, on the same date he examined Madan Lal and issued MLC Ex.PW-1/B. Thereafter, on 9.6.1996, he examined Nikka Ram and issued MLC Ex.PW-1/C. In all the MLCs he has stated that probable duration of injuries inflicted within 24 hours and weapon used blunt. He has also stated that injuries shown in Ex.PW-1/A can be caused by fist blows and danda. injuries shown in MLCs Ex.PW-1/B, Ex.PW-1/C can be caused by danda Ex.P-1 and Phortha Ex.P-2. In cross-examination he has stated that on the same day he had examined Ram Piari wife of Milkhi Ram and found various injuries on her person, Ram Piari for injury No.2 was admitted in female surgical ward for the opinion of surgeon. The injuries were inflicted within 24 hours and weapon used blunt. He had brought the original MLC No.209/96 dated 9.6.1996 of Ram Piari. She was brought in District Hospital by constable Ishwar Dass No.191. 6. PW-2 Diwan Chand has stated that Ex.P-1 and Ex.P-2 were recovered vide memo Ex.PW-2/A. In cross-examination he has stated that when Ex.PW-2/A was written, except him no body was present on the spot. PW-3 Suresh Kumar has proved X-ray films Ex.PW-2/A, Ex.PW-2/B and Ex.PW-2/C and is a formal witness. PW-4 ASI Ramesh Chand has proved rapat roznamcha Ex.PW-4/B and has 4 stated that on that basis FIR Ex.PW-4/A was registered. PW-5 Kansi Ram has stated that the construction of his house was started in the year 1996. Som Nath, Madan Lal, Rinku , Milkhi and Veena Devi came on the spot. They started abusing, he asked them confine to their boundary. On this, the accused gave him beatings with the handle of bharota. He sustained injuries on the arm. Nikka Ram came for his rescue but he was also given beatings. Som Nath was holding bharota, Madan was having danda. Thereafter his daughters -in-law and mason came. Madan sustained injuries on the head. The accused ran away from the spot. Bharota was thrown by the accused on the spot. In cross-examination he has stated that his daughters-in-law Asha and Urmila came on the spot, Dalipu mason and Dharmu also came on the spot. The witness Dharam Singh is his son-in-law. He has denied that on 9.6.1996 the complainant party gave beatings to Ram Piari. They had boundary dispute. 7. PW-6 Dalipu Ram has stated that in the year 1996 the construction work of the house of Kansi Ram was in progress. Dharmu was working with him as labourer and he was working as mason. The parties had fight in which Kansi, Milkhi Ram, and Somu were involved. Somu gave bharota blow to Nikey. The arm of Nikka Ram was broken. On hearing alarm, villagers came on the spot, Dharam Singh was also on the spot. In cross-examination he has denied that Nikka Ram had given beatings to Ram Piari. He has stated rather Ram Piari had given beatings to Nikka Ram. 8. PW-7 Nikka Ram has stated that accused quarreled in his courtyard, his right arm was broken by Som Nath with bharota blows. In the quarrel Rinku, Madan Lal, wife of Som Nath and Milkhi were 5 present. In cross-examination he has stated that bharota was not shown to him in the Court. Dalipu witness is his uncle (mama). He has admitted that Ram Piari had lodged report against him in the police. He has stated that the land of the accused is adjacent to their house which is in dispute. Volunteered, that land is to be taken by them. 9. PW-8 Krishan Kumar has proved site plan Ex.PW-8/A. He has also proved danda Ex.P-1 and bharota Ex.P-2 which were taken into possession vide memo Ex.PW-2/A. In cross-examination he has stated that accused party had also reported regarding the beatings given to Ram Piari. Dharam Singh has been shown as PW-2 instead of PW-9. He has stated that Kansi Ram is his father-in-law, about four years ago, Soma, Madhi, Rinku, Milkhi and wife of Soma had quarreled. His father –in-law intervened. Nikka was hit but he does not know whether he was hit by Soma or Madhi. He was hit by bharota on the arm. His father-in- law sustained injuries on his face and right hand. In cross-examination he has stated that quarrel had taken place before he reached the spot. He was working as labourer on the house of Kansi Ram. The respondents in their statements under Section 313 Cr.P.C. have denied the prosecution case. 10. PW-9 Dharam Singh is the son-in-law of Kansi Ram. PW-6 Dalipu allegedly worked with Kansi Ram. The statements of PW-6 and PW-9 are to be examined with extra care. The injured Madan Lal son of Kansi Ram was not examined by the prosecution. PW-9 Dharam Singh has stated that beatings were given to Nikka Ram and father-in-law of the witness. He has stated nothing, regarding the beatings given to Madan Lal. He has thus contradicted the prosecution case that Kansi Ram, Nikka Ram and Madan Lal were given beatings. 6 PW-9 in cross-examination has stated that no villagers were present on the spot whereas PW-6 Dalipu Ram has stated that many villagers had gathered on the spot. PW-6 has also stated that Som Nath had given bharota blows to Nikka Ram. He has not stated that Kansi Ram and Madan Lal were given beatings on the spot. He has not named Veena Devi, Naveen alias Rinku and Madan Lal. PW-7 Nikka Ram has also not stated that Kansi Ram and Madan Lal were given beatings. The weapon of offence Ex.P-1 and Ex.P-2 were not shown to PW-5 Kansi Ram and to PW-7 Nikka Ram, whether those were the same which were used by the accused. PW-7 has stated that dispute took place with respect to land which is adjacent to their house. He has also categorically stated that the complainant party wanted to take that land. PW-9 Dharam Singh has stated that quarrel took place before he reached the spot. It has come in the statement of PW-1 Dr. R.K. Kanwar that on 9.6.1996 at about 9.15 p.m. he examined Ram Piari wife of Milkhi Ram who is none else but the wife of respondent No.2. He found injuries on her person. The prosecution has not explained the injuries on the person of Ram Piari. The prosecution thus has not come forward with true story. The prosecution has not examined independent witnesses. It has not been explained why independent witnesses were not associated during investigation or examined in Court when such witnesses were available. 11. Learned Chief Judicial Magistrate has examined the statements of the witnesses and other material on record rightly. The view taken by learned Chief Judicial Magistrate emerges from the evidence on record. There is no perversity in the impugned judgment. The prosecution has miserably failed to bring home the charge against 7 the respondents. No case for interference is made out. Resultantly, appeal fails and is accordingly dismissed. Bail bonds discharged. ( Kuldip Singh) Judge April 28, 2009 (sks)