State of Himachal Pradesh vs Vinay Kumar

Justice Sanjay Karol, J.—For an offence, which is alleged to have been committed on 2/3-05-2001 accused was put to trial. In terms of judgment dated 8.9.2004, passed by the ld. Chief Judicial Magistrate, Sirmaur Distt. at Nahan, H.P. in Cr. Case No. 111/2 of 2002,, titled as State of H.P. versus Vinay Kumar, accused stands acquitted of the charged offences. It is the case of prosecution that on 2.5.2001, complainant Sh. Balbir Singh (PW-1) resident of village Kanheri, who was working as a mason, had gone to attend wedding of his cousin in a different village. On his way back, while he was crossing the bridge at Balsar, accused Vinay Kumar along with two other persons restrained him from proceeding towards his village. He was also given beatings by them. Accused Vinay Kumar gave a blow with a knife on his leg as a result of which he fell down. Accused also gave beatings with a danda and stones. They also robbed him of Rs. 1000/- and a ladies wrist watch. After he received injuries he became unconscious and kept on lying on the spot. Next morning, i.e. 3.5.2001 at about 7 - 7.30 a.m. his mother Smt. Tulsan Devi (PW-6) found him lying in an unconscious position. She loudly shouted for help. Complainant gained consciousness and asked her to save his life. She immediately went home and informed her other sons namely Sh. Lekh Raj, Sh. Ram Swarup and Sh. Ved Prakash who also arrived at the spot. Police was informed about the incident. Police officials, Sh. Raghubir Singh (PW-7) and Sh. Ranbir Singh (PW-3) were associated but investigation was conducted only by PW-7. F.I.R. No. 79 of 2001 (Ext. PW 4/A), dated 3.5.2001, under Sections 341, 323, 356/34 IPC was registered at Police Station, Nahan on the basis of statement (Ext. PW 1/A) of the complainant recorded u/s 154 Cr.P.C. During investigation, complainant was got medically examined from Dr. Manoj Kapoor (PW-8) who issued Medico Legal Certificate (Ext. PW 8/B & 8/B-1). His clothes were taken into possession vide recovery memo (Ext. PW 5/A). Police prepared rough sketch plan of the spot (Ext. PW 7/A). They also recovered currency notes vide memo (Ext. PW 3/A), ladies wrist watch vide memo (Ext. PW 1/B) and knife vide memo (Ext. PW 1/C). Statements of relevant witnesses were recorded. With the completion of investigation challan was presented in the Court for trial.

Accused was charged for having committed offences punishable under Sections 341, 323, 326 and 356 IPC to which he did not plead guilty and claimed trial.

In order to prove its case, in all prosecution examined eight witnesses and statement of the accused u/s 313 Cr.P.C. was also recorded.

Court below acquitted the accused of the charged offences, hence the present appeal.

In order to establish its case, prosecution has to prove, beyond reasonable doubt, by leading clear, cogent, convincing and reliable piece of evidence that accused voluntarily obstructed and prevented the complainant from proceeding in the direction of his house and thereby wrongfully restrained him, also accused gave blows with a knife with an intention of causing hurt/grievous injury to the complainant and used criminal force with the purpose of committing theft of the property which the complainant was possessing at the time of alleged incident.

To establish the charges our attention has been invited to testimonies of material prosecution witnesses i.e. Sh. Balbir Singh (PW-1 - complainant and injured), his brother Sh. Dhanbir Singh (PW-5), his mother Smt. Tulsan Devi (PW-6) and an independent witness Sh. Dev Dutt (PW-2) who allegedly witnessed occurrence of the incident. Also independent witness Sh. Ranbir Singh (PW-3) who was associated by the police during investigation.

Having closely scrutinized testimonies of the relevant prosecution witnesses, we find that genesis of the prosecution story, as stated by the complainant himself, appears to be untrue if not false. In our view, testimony of PW-1 himself is full of contradictions, improvements, exaggerations and embellishments. Hypothesis of prosecution story does not appear to be convincing at all. In our considered view Sh. Dev Dutt (PW-2) has not witnessed occurrence of the incident. He appears to be a planted witness.

PW-1 admits that there was a prior dispute with the accused. It pertained to money. He admits that this money pertains to the work executed by his father and that too about 25 years ago. Significantly complainant was a minor at that time. He states that at the relevant time three persons were present at the spot but could only identify the accused. This version of his stands belied by PW-7, who states that during investigation he did not find involvement of any other person in the alleged incident. That apart, he improves his version in Court by stating that he was able to identify the other persons in the moonlight. Significantly Investigating Officer has in no uncertain terms stated that his investigation revealed, that at the time and place of incident there was no light and in fact it was pitch dark. It is not the case of prosecution that complainant was carrying a torch with himself. In fact his mother categorically states that neither was she aware as to whether her son was carrying a torch with him nor did she find the same when she saw him. Further he states that before blow was given to him, heated exchange of words took place between him and the accused. Now this is not his case as originally stated to the police. He was confronted with his previous statement. Further he states that companions of the accused had hit him with stones and danda, which evidence was not recovered during investigation. Why so? has not been explained. Significantly in Court he admits that within one - two minutes of receiving blow with the knife, he became unconscious and as such could not state whether the accused had robbed him of his currency notes and the wrist watch. Now this totally shatters the prosecution case rendering its genesis to be doubtful. Further this witness states that he had left the place where celebrations were going on at about 10.00 p.m. His house was just at a distance of two - three kilometers which could easily be covered in just about half an hour. Now this witness states that he was attacked by the accused at about 1.30 a.m. in the night intervening 2.5.2001 and 3.5.2001. Had he left the place at about 10.00 p.m. as was so got recorded by him in his statement u/s 154 Cr.P.C. or even at about 12 - 12.30 p.m., as he has deposed in Court, even then what took him so long to reach the place of incident has not been explained by him. Who all were with him? Where all did he go? Whom all did he meet? His testimony on these aspects is absolutely silent. Hence we do not find testimony of this witness to be inspiring confidence at all.

To corroborate his version, prosecution has examined Sh. Dev Dutt (PW-2) who states that at about 12.00 p.m. he saw the accused and the complainant arguing with each other. He witnessed the accused giving beatings to the complainant. Now this witness admits not to have intervened. Why so? has not been explained. Conduct of this witness is quite unnatural. He did not inform about the incident to anyone and allowed the complainant to remain unattended and in an unconscious state on the spot throughout the night. Also prosecution has not sufficiently explained presence of this witness on the spot.

Complainant''s brother Sh. Dhanbir Singh (PW-5), is not a witness to the incident. He states that it was his brother Sh. Ram Swarup who informed him about the incident. Now Sh. Ram Swarup has not been examined in Court. Why so? has not been explained. His testimony is thus of not much use.

Mother of the complainant admits that both accused and the complainant were harbouring animosity against each other. She states that two months prior to the incident accused had given beatings to the complainant. Now there is nothing on record to prove this fact. She did not witness occurrence of the incident. Significantly she was the first one to have met the complainant after the incident. Complainant did not narrate the incident to her. She simply states that complainant uttered the words "mother save me". He could have conveniently narrated the entire incident to her. It is not that he was unconscious at that time. After all he himself got his statement recorded with the police.

Having perused testimonies of material prosecution witnesses on record we find that no case for interference is made out. It cannot be said that prosecution has been able to prove its case, beyond reasonable doubt, by leading clear, cogent, convincing and reliable material on record. The accused have had advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down by the Apex Court in Md. Ankoos and Others Vs. The Public Prosecutor, High Court of A.P., , it cannot be said that the Court below has incorrectly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice. No ground for interference is called for. Present appeal is thus dismissed. Bail bonds, if any, furnished by the accused are discharged.