Himachal Pradesh High Court
Lal Chand vs State Of Hp on 28 November, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Revision No. 193 of 2010.
Date of Decision: 28.11.2016.
.
___________________________________________________________
[
Lal Chand .........Petitioner
Versus
State of HP .......Respondent
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
of
Whether approved for reporting1? Yes
For the petitioner: Mr. Vijay Chaudhary, Advocate.
For the respondent:
rt Mr. Ramesh Thakur, Deputy Advocate
General.
________________________________________________________
Sandeep Sharma, J. (Oral)
The present criminal revision petition filed under Sections 397/ 401 of the Cr.PC, is directed against the judgment dated 18.8.2010, passed by the learned Sessions Judge, Hamirpur, HP, in Criminal Appeal No. 30 of 2010, affirming the judgment/order of conviction and sentence dated 31.5.2010 and 2.6.2010, passed by the learned Judicial Magistrate, Ist Class, Barsar, District Hamirpur, HP, in Criminal Case No. 19-II-2008/2007, whereby present petitioner has been sentenced as under:-
"Section 341 of IPC To pay fine of Rs. 500/- and in default of payment of fine, simple imprisonment for one month;
Whether reporters of the Local papers are allowed to see the judgment? Yes.::: Downloaded on - 15/04/2017 21:38:10 :::HCHP -2-
Section 323 of IPC To undergo six months rigorous imprisonment and pay fine of Rs. 500/- and in default, two months simple imprisonment;
.
Section 326 of IPC To undergo three years rigorous imprisonment and to pay fine of Rs. 3500/- under Section 326 of the IPC and in default of payment of fine, simple imprisonment for one year;
Section 504 of IPC To undergo six months rigorous imprisonment;
Section 506 IPC of To undergo six months rigorous imprisonment."
2. Briefly stated facts as emerged from the record are that during the intervening night of July 19/20, 2007, at about 10:40 pm, rt Police Post, Deothsidh received telephonic call from the Medical Officer, PHC, Bijhar that one Ram Chand and Urmila Devi had been brought to the hospital in injured condition. On the basis of aforesaid information, police entered rapat Ext.PW11/B and immediately, recorded statement Ext.PW1/A of the complainant namely Ram Chand, wherein the complainant stated that he is resident of Village Mangnoti and has three sons. He further disclosed to the police that they are residing outside due to employment and he is a handicap person and tailor by profession. He further stated that he and his wife have been residing together in the house. On 19.7.2007, after taking meals, when they were sleeping in their house, Anita Devi, wife of Lal Chand (accused) knocked at their door and told that Lal Chand (accused for the sake of brevity) was beating her and asked for help.
::: Downloaded on - 15/04/2017 21:38:10 :::HCHP -3-The complainant suggested her to call respectable persons of the village but she insisted them to accompany her. When they .
accompanied her towards her house, the accused came there and started hurling abuses to them. The complainant and his wife asked him not to abuse, upon the same, the accused came in anger and assaulted his wife with "Danda" on her head. The complainant turned of back out and wanted to run, but the accused assaulted him with a "Darat" on his left wrist causing grievous injury on his person. When he raised alarm, Sapna Devi, Ram Kishan, Baldev and other villagers came rt there and the accused ran away from there by threatening them. On the basis of aforesaid statement, police registered formal FIR Ext.PW14/A and conducted investigation. Police prepared the site plan Ext.PW16/B. As per story of prosecution, accused made a disclosure statement Ext.PW15/A, stating therein that he had concealed one "Darat" in his house about which he knows and that he can get the same recovered. Accordingly, "darat" Ext.P6 and Danda Ext.P5 were taken into possession vide memo Ext.PW7/A. Khaka of "Darat" Ext.PW15/E and map of the spot Ext.PW15/F, were also prepared. Police also recorded statement of witnesses under Section 161 and thereafter, presented challan under Sections 341,323, 326, 504 and 506 of IPC, before the competent Court of law.
::: Downloaded on - 15/04/2017 21:38:10 :::HCHP -4-3. Learned Judicial Magistrate, Ist Class, Barsar, District Hamirpur, HP, on being satisfied that prima facie case exists against the .
accused put a notice of accusation to him under Sections 341,323, 326, 504 and 506 IPC, to which he pleaded not guilty and claimed trial.
Learned trial Court on the basis of evidence adduced on record, held the accused guilty of having committed offence under the aforesaid of Sections and accordingly convicted and sentenced him as per description already given above.
4. Being aggrieved and dis-satisfied with the judgment of rt conviction passed by the learned trial Court, the petitioner-accused filed appeal under Section 374 of Cr.PC before the Court of learned Sessions Judge, Hamirpur, HP, who vide judgment dated 18.8.2010, dismissed the appeal preferred by the petitioner accused. Hence, this criminal revision petition before this Court.
5. At this stage, it may be noticed that sequel to order dated 30.9.2016, Registry issued notice to the petitioner, who has come present in the Court. Petitioner namely Lal Chand, submitted that he is not in a position to engage the lawyer and as such, he may be given service of legal aid counsel. Accordingly, in view of the aforesaid request, this Court requested Mr. Vijay Chaudhary, Advocate, to conduct his case, who readily agreed for the same. Mr. Vijay Chaudhary, Advocate, representing the petitioner-accused ::: Downloaded on - 15/04/2017 21:38:10 :::HCHP -5- vehemently argued that the impugned judgments of conviction and sentence recorded by the Courts below are not sustainable as the .
same are not based upon the correct appreciation of evidence available on record and as such, same deserve to be quashed and set-aside. Mr. Chaudhary, while referring to the judgments passed by the Courts below further contended that courts below have not read of the evidence in its right perspective, rather judgments are based upon the conjectures and surmises, as a result of which great prejudice has been caused to the petitioner, who is an innocent person rt Mr. Chaudhary, further stated that the courts below have not taken into consideration that no explanation worth the name was rendered by the prosecution for delay in lodging the FIR because PW2 admittedly admitted that incident took place on 17.9.2007, whereas it was reported to the police on the intervening night of 19/20.9.2007 and as such, story put forth by the prosecution could not be accepted while recording conviction of the petitioner accused that too on the flimsy grounds. While referring to the statements made by the prosecution witnesses, Mr. Chaudhary, forcefully contended that none of the independent witness has supported the case of the prosecution, rather turned hostile, but despite that courts below merely on the statement of the complainant and his wife, recorded conviction of the petitioner accused. Mr. Chaudhary, further argued that both the courts below ::: Downloaded on - 15/04/2017 21:38:10 :::HCHP -6- miserably failed to appreciate that the complainant had made an attempt to outrage the modesty of wife of the petitioner accused, .
which fact stands duly proved with the statement made by PW4 Sapna Devi, who in her cross examination specifically stated that the complainant had made complaint with regard to the alleged attempt to outrage the modesty of wife of the petitioner accused. While of concluding his arguments, Mr. Chaudhary strenuously argued that the complainant himself admitted in his cross examination that there is a litigation pending between them, which clearly suggests that the rt complainant had motive to falsely implicate the accused, whereas court below despite noticing the factum qua litigation pending between the parties, wrongly came to conclusion that such defence is a double edged weapon and it has to be appreciated in the light of the facts of the each case and wrongly recorded the conviction of the petitioner accused. In the aforesaid background, Mr. Chaudhary, prayed that present petitioner accused may be acquitted of the charges framed against him after setting aside the judgment of conviction recorded by the courts below, which are not based upon the true facts.
6. On the other hand, Mr. Ramesh Thakur, learned Deputy Advocate General, representing the respondent-state supported the impugned judgments passed by the courts below. Mr. Thakur ::: Downloaded on - 15/04/2017 21:38:10 :::HCHP -7- strenuously argued that the judgments passed by the courts below are based upon the correct appreciation of the evidence available on .
record and as such, in the given facts and circumstances of the case, no interference, whatsoever, of this Court, is warranted, especially in view of the fact that courts below have dealt with each and every aspect of the matter very meticulously. With a view to refute the of contention put forth by Mr. Chaudhary, he also invited attention of this Court to the statement of PWs to demonstrate that there are no inconsistencies in the statements made by the PW1 and PW2, who in rt unequivocal terms have stated that they were given beatings by the petitioner-accused. Mr. Thakur further stated that though Independent witnesses turned hostile but if their statements are read in its entirety, it suggests that on that day, the complainant and his wife Urmila were given beatings by the petitioner accused and as such, there is no illegality and infirmity in the judgments passed by the courts below. He also invited attention of this Court to the medical evidence adduced on record by the prosecution to suggest that bare reading of MLC Ext.
PW13/A and Ext.PW13/B suggests that the complainant as well as his wife suffered grievous injuries, which were admittedly caused by the petitioner accused and as such, he does not deserve any leniency and he has been rightly convicted by the courts below. While concluding his arguments, Mr. Thakur, reminded this Court that it has very limited ::: Downloaded on - 15/04/2017 21:38:10 :::HCHP -8- powers while exercising its revisionary powers under Section 397 of the Cr.PC as far as re-appreciation of the evidence is concerned. In this .
regard, he placed reliance upon the judgment passed by Hon'ble Apex Court in case State of Kerala Vs. Puttumana Illath Jathavedan Namboodiri (1999)2 Supreme Court Cases 452, wherein it has been held as under:-
"In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any of finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re-appreciate the rt evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice."
7. I have heard learned counsel for the parties as well carefully gone through the record.
8. True, it is that this Court has very limited powers under Section 397 Cr.PC while exercising its revisionary jurisdiction but in the instant case, where accused has been convicted and sentenced, it would be apt and in the interest of justice to critically examine the statements of the prosecution witnesses solely with a view to ascertain that the judgments passed by learned courts below are not perverse and same are based on correct appreciation of the evidence on record.
::: Downloaded on - 15/04/2017 21:38:10 :::HCHP -9-9. As far as scope of power of this Court while exercising revisionary jurisdiction under Section 397 is concerned, the Hon'ble .
Apex Court in Krishnan and another Versus Krishnaveni and another, (1997) 4 Supreme Court Case 241; has held that in case Court notices that there is a failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is salutary duty of the of High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior criminal court in its judicial process or illegality of sentence or order. The rt relevant para of the judgment is reproduced as under:-
8. The object of Section 483 and the purpose behind conferring the revisional power under Section 397 read with Section 401, upon the High Court is to invest continuous supervisory jurisdiction so as to prevent miscarriage of justice or to correct irregularity of the procedure or to mete out justice. In addition, the inherent power of the High Court is preserved by Section 482. The power of the High Court, therefore, is very wide. However, the High Court must exercise such power sparingly and cautiously when the Sessions Judge has simultaneously exercised revisional power under Section 397(1). However, when the High Court notices that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/ incorrectness committed by inferior criminal court in its judicial process or illegality of sentence or order."
10. During proceedings of the case, this Court had an occasion to peruse the judgments passed by both the Courts below as well as evidence adduced on record by the respective parties, perusal whereof suggests that on 19th July, 2007, the complainant Ram Chand and his wife Urmila received injuries on the arm and head respectively.
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Petitioner accused in his statement recorded under Section 313 denied the case of the prosecution in toto and produced DW1 as defence .
witness, who stated that Ram Chand and his wife resides at Chandigarh. He also stated that the petitioner accused had no quarrel with Ram Chan and Urmila Devi and false case has been prepared against the petitioner. He also stated that there is an illicit relation of of Ram Chand with the wife of the accused i.e. Anita. In his cross-
examination, he admitted that Lal Chand is his younger brother.
11. Perusal of judgments passed by the courts below suggests rt that aforesaid version put forth by DW1 Amar Nath was altogether dis-
believed on the ground that he was younger brother of the petitioner accused Lal Chand. Careful perusal of the record especially, statement of PW1 i.e. Ram Chand suggests that parties were in litigation for last 18-19 years with each other. PW1 specifically admitted in his cross-examination that his mother had litigation with father of the accused for the last 18-19 years. But it appears that court below brushed aside the aforesaid factum of having litigation between the parties by concluding that plea of litigation and enmity is a double edged weapon and it has to be appreciated in the light of facts of each case.
12. True, it is that plea of litigation and enmity is to be appreciated in the light of the facts of each case and it is a double ::: Downloaded on - 15/04/2017 21:38:10 :::HCHP
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edge weapon and courts while examining correctness and genuineness of such plea/defence taken by either of the party needs .
to carefully examine the evidence in its entirety vis-à-vis other material available on record.
13. After carefully examining the entire evidence available on record, especially, where all the material PWs have turned hostile, this of Court has no hesitation to conclude that courts below have gravely erred in brushing aside the aforesaid plea of pendency of litigation and enmity between the parties by the petitioner-accused. Similarly, if the rt judgment passed by the courts below are read in its entirety, it also compels this Court to observe that court below while discarding the evidence adduced on record by the petitioner accused in the shape of DW1 Amar Nath, applied different yardsticks because apparently, version put forth by DW1 in his defence statement was discarded by the court below on the ground that he is a younger brother of the petitioner accused Lal Chand. But judgments passed by the courts below suggest that conviction of the petitioner has been only recorded on the statements of PW1 and PW2, who are admittedly husband and wife and none of the independent witness has corroborated the versions put forth by PW1 and PW2 and as such, it is not understood that when court below discarded the statement of DW1 on the ground that he is an interested witness, and then how conviction of petitioner could ::: Downloaded on - 15/04/2017 21:38:10 :::HCHP
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be based merely on the statements of PW1 and PW2, who are admittedly related to each other.
.
14. After observing the aforesaid discrepancies in the judgments passed by the courts below, this Court proceeded to critically examine the entire evidence led on record by the prosecution to ascertain the genuineness and correctness of the submissions having of been made on behalf of petitioner accused and to ensure that impugned judgments are not perverse and same are based upon the correct appreciation of the evidence as submitted by the learned rt Deputy Advocate General appearing for the respondent State.
15. PW1 the complainant Ram Chand, stated that he and his wife were sleeping in their house when Anita (wife of the accused) knocked their door and informed that her husband was beating her.
PW1 further stated that he advised her to call the respectable persons of the village but later on, on her asking, they went there, where petitioner accused started hurling abuses on them. He asked him not to abuse him but he snatched the 'danda' and inflicted a blow of the same on the head of his wife. He further stated that he tried to escape but accused also inflicted a sickle blow on his arm, as a result of which, blood started oozing out. He further stated that he raised alarm, upon which, Anil, Baldev, Sapna, Ram Kishan and other person of the village came at the spot. But in the meantime, accused fled away from the ::: Downloaded on - 15/04/2017 21:38:10 :::HCHP
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spot threatening him to kill him in future. He further stated that he was brought to the hospital in the Jeep of Papu and there, he got recorded .
statement, Ext.PW1/A, to the police and after discharge from the hospital, he took shelter in the house of Amar Nath DW1. He also stated that blood stained shirt Ext.P2, trouser Ext.P3 and wife's Dupatta Ext.P4 were handed over to the police, which were sealed in a parcel with of seal "J" and taken into possession vide memo Ext.PW1/B. He further stated that he was medically examined vide MLC Ext.PW1/C. He also identified stick Ext.P5 as weapon of offence with which his wife was rt beaten. He also identified sickle Ext.P6 as the weapon of offence.
16. In his cross-examination, PW1 admitted that houses of Laxmi Ram and Anant Ram are at a height from their house and at the time of occurrence, nobody except his wife was present in the spot.
He also admitted that ward member Sapna Devi had reached the spot. He also admitted that stick Ext.P5 belonged to him but self stated that it was snatched by the accused. He denied the suggestion put to him that accused had not given beatings to his wife with danda.
Similarly, he stated that he did not disclose to the police that accused had snatched danda from his hand. Similarly, in cross examination, he feigned ignorance that he has signed Ext.PW1/B. Most importantly, in his cross examination, he admitted that litigation is pending between his mother and father of the accused for the last 18-19 years. He further ::: Downloaded on - 15/04/2017 21:38:10 :::HCHP
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denied the suggestion put to him by the defence that on 19.7.2007, he manhandled accused's wife Anita and attempted to outrage her .
modesty. He also denied that he had earlier tried to ravish Anita and matter was reported to ward member.
17. PW2 Urmila Devi corroborated the version put forth by her husband. She also identified the stick Ext.P5 as weapon of offence with of which accused allegedly inflicted blow on her head. She also identified the sickle Ext.P6 with which her husband received injury on his arm. She also identified the accused in the Court.
rt In her cross examination, she admitted that police recorded their statement on 17.7.2007, when she was confronted with her statement where she disclosed to the police that Anita had asked them to call village Panchayat, she feigned ignorance. She was also confronted with her statement made to police that she became unconscious and re-
gained consciousness on hearing cries of her husband. She denied the suggestion put to her that stick and sickle were produced to the police by her husband. She also admitted that stick Ext.P5 belongs to her husband, but denied that sickle Ext.P7 also belongs to them. She also admitted that Anita Devi, Sapna Devi along with other villagers reached the spot. She also denied the allegation that accused had ravished the accused's wife Anita.
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18. Conjoint reading of aforesaid PWs, who were present at the spot at the time of occurrence, though suggests that on 19.7.2007, .
they on insistence of Anita Devi, went to her house, whereupon they were given beatings by the petitioner but if their statements are read in its entirety, there are material contradictions with regard to weapon allegedly used by the petitioner accused for giving beatings to the of complainant and his wife. PW1 specifically stated in his statement that accused snatched "danda" from his hand and then gave blow on the head of his wife. On the other hand, both the PWs made an attempt rt to prove on record that at the time of alleged occurrence, petitioner accused was carrying sickle in his hand. It is not understood that if petitioner accused was carrying sickle in his hand, where was the occasion for him to snatch the "danda" from the petitioner accused.
Similarly, it is not understood that why at that time, petitioner complainant Ram Chand was carrying danda in his hand. It is admitted case of the prosecution that the complainant Ram Chand and his wife went to the house of Anita (wife of the accused) on her asking, meaning thereby, wife of the petitioner accused was known to the complainant and his wife. As per PW1, after alleged incident of inflicting injury on his arm, he raised alarm upon which Baldev, Subhash, Ram Kishan and other villagers came to the spot for his rescue and thereafter, he was brought to the hospital in Papu's Jeep. But PW1 in ::: Downloaded on - 15/04/2017 21:38:10 :::HCHP
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his cross examination feigned ignorance whether the statement of Papu was recorded by the police or not.
.
19. PW3, Anil Kumar while making statement before the Court stated that he is owner of Taxi No. HP-02-8718. He further stated that on the alleged day at about 10/11:00 pm, he heard noise and he went to the roof of his house to see the incident. He further stated that he saw of that Ram Chand had sustained injury on his arm and wife of Ram Chand namely Urmila and Anita, wife of the accused, were also present on the spot. He further stated that he was told by the public to rt take injured to the hospital but he nowhere stated in his statement that, who gave injuries to Ram Chand and his wife. Aforesaid witness was declared hostile by the prosecution but in his cross examination by the prosecution, he admitted that alleged occurrence occurred on 19.7.2007. He denied that Ram Chand had disclosed him that he was given beating by Lal Chand. He admitted that he along with Ram Kishan and Baldev brought the complainant Ram Chand and his wife to Bijari Hospital. In his cross examination, he admitted that Ram Chand is his uncle.
20. PW4 Sapna Devi Ward Member also not supported the case of the proseuciton and accordingly, was declared hostile. In her cross-
examination by prosecution, she denied that she resiled from her earlier statement. She further in her cross examination by defence admitted ::: Downloaded on - 15/04/2017 21:38:10 :::HCHP
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that accused and his wife had complained to her that Ram Chand had ravished Anita. She further stated that Sulochna and Biasan Devi .
also supported such allegation of the accused. She specifically stated that aforesaid complaint was made to her in the month of July. She further admitted that accused had not caused any hurt to the complainant and his wife. She further admitted that the complainant of Ram Chand had illicit relations with the wife of the accused. It has also come in his cross examination that weapon of offence was produced to the police by Ram Chand and she had not taken any action on the rt complaint of the accused, rather tried conciliation.
21. PW5 Baldev Raj stated that on 20.7.2007, he came out of his house on hearing noise and noticed bleeding wound on the arm of the complainant Ram Chand. He also stated that accused was present on the spot. He further stated that he witnessed injury on the person of Ram Chand and his wife and both of them disclosed to him that accused had beaten them. He further stated that on 21.7.2007, police took into possession the cloths Exts.P.2 to P.4 vide memo Ext.PW1/B but in his cross examination, while admitting that the clothes were sealed by the police in his presence, he feigned ignorance that dupatta Ext.P1, was produced by the police by Sapna Devi. He denied that he has deposed, falsely against the accused due to enmity.
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22. Similarly, PW6 Ram Kishan stated that on 19.7.2007, he visited the accused at around 8:00 pm and then he returned back to .
his house. He stated that at about 9:45 pm, he heard noise and came to spot where he saw injuries on the person of Ram Chand and his wife.
He further stated that there was injury on the hand of Ram Chand and on the head of his wife. When he inquired from them, they disclosed of that the accused gave beatings to them. He stated that he brought them to the hospital. Ram Chand had produced clothes Ext.P.2 to P4 to the police vide memo Ext.PW1/B. He also Identified the accused rt person in the Court. But in his cross-examination, he admitted that PW5 Baldev had not reached the spot but met them on the way.
23. Close scrutiny of aforesaid alleged independent witnesses, nowhere proves the case of the prosecution, rather all the prosecution witnesses, especially, PW3 and PW4 have turned hostile because they have specifically denied that petitioner accused gave beatings to the complainant and his wife. PW3 though in his examination in chief stated that the complainant Ram Chand had disclosed him that they have been beaten by the petitioner accused, but in his cross examination; he denied that Ram Chand had disclosed him that he has been beaten by the accused Lal Chand.
24. Similarly, PW4 Sapna specifically denied that petitioner accused gave beating to the complainant and his wife, rather, in her ::: Downloaded on - 15/04/2017 21:38:10 :::HCHP
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cross examination by the prosecution, she categorically admitted that accused had not caused any hurt to the complainant and his wife. She .
further stated that the complainant had illicit relation with the wife of the accused and weapon of the offence were produced by the Ram Chand.
25. Similarly, if statements of other independent witnesses of Baldev PW5 and PW6 Ram Kishan are also read in juxtaposing each other, there are material contradictions qua the timing and date of incident. Similarly, both the PWs have contradicted each other with rt regard to their presence on the spot of incident at that relevant time.
PW5 stated on 20.7.2007, he came out of his house on hearing noise and noticed bleeding wound on the arm of Ram Chand but the statement of PW6 suggests that he brought them to the hospital and he in his cross-examination admitted that Baldev had not reached the spot but met on the way, which clearly belies the statement of PW5 Baldev Raj, who claimed that he was present at the spot immediately after the alleged incident. Similarly, there are contradiction with regard to the production of Duppata Ext.P1 to the police by Sapna Devi. PW5 feigned ignorance that Dupatta was produced to the police by Sapna Devi, whereas Sapna Devi nowhere stated that Dupatta Ext.P1 was taken into custody by the police in her presence.
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26. PW9 Suresh Kumar also not supported the case of prosecution. During his cross-examination by prosecution, he admitted .
his signatures on Mark-Z but he disowned the contents of the same, rather stated that he had signed the memo in good faith. He also denied that the accused made any disclosure statement in his presence. He also disowned portion A to A of statement Mark-Z of recorded by the police.
27. PW7 Pritam Chand also not supported the prosecution case. In his statement, he stated that accused made disclosure rt statement in his presence. He also like PW9 Suresh, admitted his signature on Mark-Z but disowned the contents of the same. He also disowned portion A to A of the statement of Mark Z recorded by the Police. PW7 stated that on 25.7.2007, the accused led them towards the room of his house, from where he got recovered one sickle and stick to the police vide memo Ext.PW7/A. In his cross examination, he disclosed that he is resident of village Barla, which is 2 ½ k.m. away from the spot of recovery. He also admitted that he is a frequent witness for the police. He admitted in his cross examination that ASI Chhota Ram called him to the spot telephonically.
28. Perusal of the aforesaid PWs 7, 8 and 9, nowhere proves the recovery, if any, of weapon allegedly used by the petitioner accused for inflicting injury on the arm of the complainant and head of ::: Downloaded on - 15/04/2017 21:38:10 :::HCHP
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his wife Urmila Devi. None of the aforesaid witnesses supported the prosecution case, rather all these PWs before whom, police had .
allegedly recovered weapon denied that accused made disclosure statement in their presence. Moreover, no prayer, if any, could be made on the statement of PW7, who himself stated that on 25.7.2007, accused Lal Chand led them towards the room of his house from of where he got recoverd one sickle and stick. He himself stated that he is a frequent witness to the police and came to the spot on asking of ASI Chhota Ram, who called him to come to the spot telephonically.
rt
29. HC Jagdish Kumar who had conducted some part of the investigation appeared as PW16 and denied that the Sapna Devi had disclosed to him that no such occurrence ever took place. He further denied that Sapna had disclosed about the illicit relation of Ram Chand with the wife of the accused.
30. PW15 ASI Chhota Ram deposed that on July, 24, 2007, the case file was handed over to him for further investigation. He stated that accused Lal Chand had recorded his statement Ext.PW15/A, under Section 27 of the Indian Evidence Act in the presence of witnesses Jagtar Singh and Suresh. He also recorded statements Ext.PW15/B of Suresh Kumar and Ext.PW15/C of Jagtar Singh and thereafter they went to village Mangnoti where in the presence of Pradhan Pritam Chand and Up-Pradhan Mahinder Singh, accused ::: Downloaded on - 15/04/2017 21:38:10 :::HCHP
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identified his house. He further stated that he made khakha of Darat Ext.PW15/E and map of the spot Ext.PW15/F and handed over the case .
file to ASI Subhash Chand due to his transfer. In his cross examination, he denied that accused had not made any disclosure statement. It is also denied that he had recorded statements of Jagtar Singh and Suresh on his own.
of
31. Perusal of statement of PW9 Suresh, PW 7 Pritam Chand and PW15 ASI Chhota Ram, leaves no doubt in the mind of this Court that prosecution was not able to prove the recovery of weapon rt allegedly used by the petitioner accused while inflicting injury on the arm and head of the complainant and his wife. Aforesaid witnesses especially, PWs 7 and 9 nowhere supported the claim of PW15 that the petitioner made disclosure statement before aforesaid prosecution witnesses and as such, version put forth by PW15 could not be accepted in the absence of corroboration if any, from aforesaid witnesses, who allegedly signed the disclosure statement.
32. PW13 Dr. Shashi Dutt Sharma, who medically examined the complainant and his wife Urmila Devi, stated that he issued MLC Ext.13/A and injury was simple in nature, which could be caused by blow of danda. Similarly, he issued MLC Ext.PW13/B and after going through the X-ray he opined that the complainant Ram Chand had ::: Downloaded on - 15/04/2017 21:38:10 :::HCHP
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sustained grievous injury caused with sharp weapon possibly with sickle Ext.P6.
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33. In his cross examination, he specifically denied that possibility of injury on the person of Urmila was, when a person falls from stairs and when person runs and strikes his-her fore-head with some object. He denied that possibility of injury on the person of the of accused Ram Chand by way of fall or when a running person strikes with an object or when arm of a running person is pressed under its weight or if heavy material falls on the arm of a person. He further rt stated that object will not have enough force to cause such type of injury.
34. In the instant case, though medical evidence on record suggests that complainant and his wife sustained injuries but same was not sufficient to record conviction against the accused because prosecution remained unsuccessful in proving that injuries on the head and arm of PW1 and his wife was in fact caused by accused. None of independent witness associated by the prosecution supported the case of the prosecution, rather all the material witnesses have resiled.
Even in the cross-examination, prosecution has not been able to extract anything contrary to what they stated in their examination in chief. Similarly, prosecution has not been able to prove the recovery of alleged weapon allegedly used for inflicting injury on the person of the ::: Downloaded on - 15/04/2017 21:38:10 :::HCHP
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complainant and his wife. Apart from above, as has been observed, in the earlier part of the judgment, courts below failed to apply same .
yardstick while weighing the evidence of prosecution as well as defence because evidence led on record by the defence in the shape of DW1 was solely discarded by the courts below on the ground that DW1 was related to the petitioner accused It is ample clear from the of perusal of the judgment passed by the courts below that conviction of the petitioner accused has been recorded solely on the statement of PW1 and PW2, who are admittedly husband and wife.
rt
35. This Court after examining the entire prosecution evidence available on record, has no hesitation to conclude that there was no sufficient evidence adduced on record by the prosecution to prove its case beyond reasonable doubt and both the courts below wrongly placed reliance upon the statement of PW1 and 2, who were the sole witnesses to alleged incident and recorded conviction of the petitioner accused, who successfully proved on record that families of the complainant as well as petitioner accused had litigation pending in court for the last 18-19 years. As noticed above this Court, noticed material contradiction in the statement of PWs and as such, same could not be relied upon while recording conviction of the petitioner accused, hence, judgments passed by the courts below deserve to be quashed and set aside.
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36. Consequently, in view of the detailed discussion made herein above, present petition is allowed and judgments passed by the .
courts below are quashed and set-aside. Petitioner accused is acquitted of the charges framed against him. Interim order, if any, vacated. Bail bonds of the accused are discharged. Needles to say, Mr. Chaudhary, shall be entitled to fee as is admissible to the legal aid of counsel as per law. Pending application, if any also stands disposed of.
28th November, 2016 (Sandeep Sharma),
manjit
rt Judge.
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