IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No.121 of 2001 Date of Decision : 14.3.2008 State of H.P. …Appellant. Versus: Bhagat Ram and another …respondents Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes For the appellant: Mr. Vivek Thakur, Additional A. G. with Ms. Shubh Mahajan, Dy. A.G.. For the respondents : Mr. Vinay Thakur, Advocate. Sanjay Karol, J. (Oral). The present appeal arises out of the judgment dated 15.5.2000 passed by the Judicial Magistrate Ist Class, Baijnath, Distt. Kangra, H. P. in Cr. case No. 79-II/99/95, acquitting the accused of the charged offence. Complainant Saroj Kumari (PW-1) got her statement u/s 154 Cr.PC recorded with the Police Station, Baijnath, District Kangra, H.P. that she is resident of Malghota, Police Station Baijnath and in the morning of 31.1.1995 at about 11.15 a.m., after cleaning her house she threw the garbage on 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 the side. Accused Bhagat Ram who was feeding his live stocks, started abusing her and inquired as to why she had thrown the garbage to which she replied that she had thrown the same at the very same place where she has been throwing earlier. At that the accused got enraged and hit her with “Pachar” (a long piece of fire wood) due to which she received injuries on her nose, right eye and head. When she raised hue and cry, her father Sant Ram came to rescue her to whom the said accused also gave a blow with ‘Farua’ (sharp agricultural implement of iron) as a result of which even he received injuries on his leg. Upon hearing the cries accused No.2 Smt. Subhadra Devi came with “Darat” (sickle) and threatened her of dire consequences. Hearing the cries, complainant’s mother Smt. Malkan Devi and sister Pinki Devi also came at the spot and rescued them from the clutches of the accused persons. Based on the same FIR No. 16/95 was registered with Police Station Baijnath under Sections 323, 325, 348 & 506 IPC. The complainant was got medically examined and the medical report was taken by the police. The weapons of the offence ‘farua’ Ext.P1 and “Pachar” Ext.P2 were taken into possession vide seizure memo Ext.PW-1/A. With the completion of the investigation, the challan was presented in the Court for trial. The accused was charged for the offences under Sections 324, 325 & 506 read with Section 34 IPC to which they did not plead guilty and claimed trial. 3 In order to prove its case, the prosecution examined eleven witnesses and the statements of the accused under Section 313 Cr.PC were also recorded. The defence of the accused is that the witnesses are of the same family and they have been falsely implicated. The scuffle, however, has been admitted. From the line of cross examination what emerges is that the complainant was the aggressor party who had entered the court yard of accused No.1 and had caused injuries to them. Considering the material on record, the Court below acquitted the accused of the charged offence for the reasons that the version set out by the prosecution was not borne out from the record and the statements of the witnesses being contradictory could not be relied upon to prove the case of the prosecution beyond reasonable doubt. I have considered the material on record and also heard the learned counsel for the parties. It is pertinent to notice that inspite of various opportunities granted by the Court below, the prosecution failed to examine all of the cited witnesses. Further, the police has failed to prove and exhibit the statement of the complainant recorded under Section 154 Cr.PC , copy of the FIR, copy of the MLC of Shri Sant Ram (PW-2) - father of the complainant (PW- 1). It is also pertinent to point out that as per the version of the prosecution the offence took place in the morning of 31.1.1995 4 in broad day light at about 9.00 a.m., but however, the FIR was recorded on 1.2.1995 and that too at 5.20 p.m. Out of 11 witnesses examined by the prosecution Smt. Saroj Kumari (PW-1), Shri Sant Ram (PW-2), Smt. Malkan Devi (PW-3) and Smt. Sushila Devi (PW-4), are the alleged spot witnesses. They are members of the same family as the PW-1 and PW-4 are daughters of PW-2 and PW-3 is the wife of PW-2. Shri Jaishree (PW-7) & Shri O. P. Ram Deo (PW-8) are the doctors who have examined Smt. Saroj Kumari (PW-1). They have proved the MLC Ext.PW-7/A. From the statements, it is clear that PW-1 did receive injuries on her body but however, PW-7 has categorically stated that injury No.1, which is grievous in nature could not have been caused by “pachar” Ext.P-2. According to this witness, the injuries are possible by kicks and fist blows which is not the case of the prosecution. The version of PW-8 does not adverse the case of the prosecution as he has not examined the injured. Shri Pritam Dass (PW-9) is the Radiographer and his testimony also does not advance the case of the prosecution. Shri Prem Singh (PW-10) is the police official who has simply presented the challan in the Court for trial and Shri Onkar Singh (PW-11) is the Investigating Officer who has carried out the investigation. According to him, the weapons of offence Ext.P-1 and Ext.P-2 were handed over to him by accused Bhagat Ram which were seized vide seizure memo Ext.PW-1/A. 5 From the statements of the witnesses, it cannot be said that the prosecution has been able to prove its case beyond reasonable doubt. Further, the statements of the spot witnesses being PW-1, PW-2, PW-3 & PW-4 need to be examined. Careful examination of the deposition of PW-1 would show that there is a major improvement from her earlier version recorded by the police whereas in her statement u/s 154 Cr.PC, she has stated that she had gone to throw the garbage due to which the altercation took place but in the Court she is absolutely silent about the same and has in fact come out with a new version and has stated that while she was sweeping the floor of her court yard, the accused came and started abusing her. That apart she has admitted that the accused is her real uncle and there is animosity between the two families. Her statement, in my view, cannot be relied upon as this witness does not appear to be trustworthy. According to her, the weapons of offence Ext.P-1 & P-2 were recovered from her compound and she had witnessed the seizure memo Ext.PW-1/A. According to her, she had lifted them and handed over to the police. Her version stands contradicted by the version of Investigating Officer. PW-2, PW-5 and PW-11 who have stated that the weapons of offence were handed over by accused Bhagat Ram and they were recovered from his court yard. She has further deposed that after accused Bhagat Ram 6 gave her the first blow, with “pachar”, she became unconscious and regained consciousness only in the hospital. In this background, her remaining statement, narrating the subsequent events to the effect that accused No.1 gave a blow to PW-2 with “farua” and PW-2 came with a sickle and threatened her with dire consequences and that the accused persons pelted stones cannot be believed and relied upon. Obviously, she could not have witnessed any such events. Further, it is her own case that she was alone at the time when accused had given her the first blow. Additionally, her statement also stands contradicted by the record. According to her, after giving blows both to PW-1 and her father PW-2, the accused pelted stones on them as a result of which she sustained further injuries and the stones were also handed over to the police. This, however, is not the case of the prosecution and also there is no recovery of stones. Additionally, the MLC of her father PW-2 has not been placed on record by the prosecution which also falsifies her version. The version of PW-2 that even he sustained injuries is not supported by the record. Neither the doctor who medically examined and treated him nor any MLC report pertaining to the alleged injuries sustained by him has been placed on record. In this background, his statement also cannot be relied upon to hold the guilt of the accused beyond reasonable doubt. He has admitted that there are civil litigations pending between him and the accused. It is the case of the prosecution and also PW-1 that 7 she was alone when she was hit by the accused. Obviously, PW- 2 has not witnessed the occurrence of the accident. PW-3 wife of PW-2 has yet come out with a new version. Her testimony being casual does not inspire confidence. She appears to be confused. According to her, on one hand she has stated that the blow was given to the complainant by accused No.2 Subhadra Devi but in the very next breath she has stated that she does not know as to who had given the blows to the complainant and her statement that the accused had given the blows to Sant Ram is not proved on record. According to her, the accused No.2 was carrying “pachar” in her hand but in the very next breath she has stated that it was a sickle. Smt. Sushila Devi (PW-4) has yet given another version and has stated that Krishna Devi and Ralli Devi were giving beatings with “farua” and sickle to the complainant party. This fact is not corroborated by any of the spot witnesses and in any case is not the case of the prosecution. The said ladies are not the accused person. Her statement cannot be relied upon also for the reason that according to her stone and sickle were also taken into possession by the police along with other weapons of offence, namely, “farua” and “pachar”. This is totally contradictory to the record and the case of the prosecution. 8 Statements of PW-5 & PW-6 are of not much significance as none have deposed from where the weapons of offence were recovered. Further, both of them have contradicted themselves as according to PW-5, accused Bhagat Ram had produced Ext.P-1 & Ext.P-2 whereas as per PW-6, he had been told by PW-1 that the same were handed over by her to the police. The statements of the witnesses, in my view, are totally false, contradictory, uncorroborated and unreliable and cannot be relied upon to prove the guilt of the accused beyond reasonable doubt. It is the defence of the accused is that there is a prior dispute between the parties and as a result of animosity the complainant was the aggressor party and has actually assaulted them. The Court below has considered the matter in its entirety. Keeping in view the ratio of law laid down by the Apex Court in Barati v. State of U.P. (1974 (4) SCC 258) & Ramji Surja Padvi and another v. State of Maharashtra (1983(3) SCC 629), the present appeal merits no interference and the appeal is accordingly dismissed. The bail bonds are discharged. On the request of the Court, Shri Vinay Thakur, Advocate assisted the Court. The assistance rendered by the counsel is appreciated. (Sanjay Karol), Judge. March 14, 2008 (rana).