State of Himachal Pradesh vs Basant Ram and Others

Deepak Gupta, J.—This appeal by the State is directed against the judgment dated 3rd December, 2003 delivered by the learned Presiding Officer, Additional Sessions Judge, Fast Track Court, Kangra at Dharamshala in Sessions Trial No. 30-P/VII/1999 (RBT No. 35-P/VII/2003), whereby he acquitted the accused persons of having committed offences punishable under Sections 307,147,148 and 149, IPC. Briefly stated the facts of the case are that the Medical Officer, Civil Hospital, Baijnath sent telephonic information to the police station Baijnath which was recorded at serial No. 7 in daily diary on 2.8.1998, (Ex. PW12/A) to the effect that one person Milkhi Ram son of Jhomphi Ram has been brought in an injured condition in the hospital. The police officials went to the hospital and recorded the statement of Smt. Anita Devi wife of the injured. In her statement made to the police, she stated that on 1.6.1998 at about 9.00 P.M., when her husband Milkhi Ram was returning home after work, she saw Sanju son of Basant Ram accused hitting her husband two or three times with some object. Thereafter, the other accused Jaike Ram, Sunil Kumar, Basant Ram, Simro Devi, Shakuntla Devi, Jagdish Chand and Anu came to the spot armed with dandas (sticks) and they also beat her husband with the dandas (sticks). Due to the beatings inflicted, her husband Milkhi Ram suffered injuries all over his body. When she and her brother-in-law went to the spot and raised an alarm, the accused left her husband and ran away. She further stated that this incident was witnessed by her brother-in-law Ghapla Ram and her son Rajesh and daughter Santoshi Devi. She also stated that there was old enemity between two sides and this was the motive for the accused to cause injury on her husband. On the basis of this statement, FIR EX. PW8/B was lodged and the police investigated the matter. Certain recoveries were made at the spot and the accused were challaned for having committed aforesaid offences to which they pleaded not guilty and claimed trial. After trial, they have been acquitted on the grounds that the statements of the complainant, her husband Milkhi Ram and other witnesses are inconsistent and also there was delay in lodging the FIR. Hence, this appeal by the State.

We have heard the learned Deputy Advocate General for the appellant and learned defence counsel for the respondents and gone though the record of the case.

Milkhi Ram, injured, appeared in the witness box as PW3. According to him, at about 9.00 P.M. he met the accused near the rear portion of his house. They questioned him as to why he had stoned their house. He replied that he had not thrown the stones and thereafter, accused Sanju assaulted him with an iron rod (Jhabal). On account of this, he suffered injuries on the head and blood came out and thereafter, he fell unconscious. He further states that accused Sanju assaulted him with an iron rod (Jhabal) who was accompanied by other accused armed with dandas/sticks. He has categorically stated that he could recognize the assailants only from their voice. In cross examination, he admitted that it was a dark night. It was raining and sky was covered with clouds. He states that it was pitch dark and there was no light. He admitted that he had strained relations with accused Basant Ram and earlier cases had been filed against him by accused Simro Devi and in all these complaints, complainant states that Milkhi Ram used to drink and abuse Simro Devi and Basant Ram.

Anita Devi, wife of the complainant appeared as PW4. She stuck to the version which she had given in her statement u/s 154 Cr.P.C. However, there is one material difference. Whereas in her first statement made to the police she was unable to identify the nature of weapon while appearing in court she clearly stated that accused Sanju had assaulted her husband with iron rod. Furthermore, whereas in the statement u/s 154 Cr.P.C, she had only stated that she and her brother-in-law Ghapla had gone to the spot while appearing in Court, she stated that her children had also gone immediately to the spot. According to her, next in the morning they went to the police station at about 7.00 A.M. and lodged the report and thereafter, they went to the Civil Hospital at Baijnath. This does not appear to be correct since, as indicated above the first daily diary report produced by the police, EX. PW12/A, is stated to be entered at 9.30 A.M and at the instance of the Medical Officer of the Civil Hospital, Baijnath. Further more, even in the FIR, it is stated that the information was received at the police station at 9.30 A.M on 2.6.1998 vide daily diary No. 11 and thereafter, the FIR was finally recorded at 11.45 A.M. This clearly indicates that the version of Anita Devi that they first went to the police station and then to the hospital is not correct.

There is virtually no proper explanation as to why, if Anita Devi, her brother-in-law and children had witnessed the occurrence, they did not report the matter to the police immediately. Such information could have been given through neighbourers or telephonically but there is no reason why the family members should have kept quiet till the next morning. Furthermore, whereas according to her husband Milkhi Ram, it was pitch dark and he, who was the closest to the accused could only identify the accused Sanju on hearing his voice, according to Anita Devi, she saw and identified the accused which again appears to be incorrect. Therefore, her statement does not inspire confidence.

Similar is the statement of the daughter PW5 Kumari Santosh and PW10 Nirmala Devi. It would be pertinent to mention that neither the brother-in-law Ghapla Ram nor the son Rajesh were examined. As far as, Kumari Santosh, daughter is concerned, her statement is similar to that of the mother. Again there is no explanation as to how she could identify the accused when it was pitch dark. In the statement recorded in Court, Kumari Santosh states that she was in the courtyard of the house and witnessed the occurrence, which is not in accordance with her earlier. Further more, this witness has come up with a totally different version. Whereas according to Anita Devi when she and Ghapla went to the scene of occurrence and raised an alarm, the accused ran away but according to this witness after the accused Sanju had given two blows and was about to inflict the third blow on Milkhi Ram, she interfered and prevented the third blow. This is a material contradiction and such statement was not made to the police earlier. Thus, there are material improvements in the statement of this witness. As such, no much reliance can be placed on this statement.

As far as PW10 Nirmala Devi is concerned, though Anita Devi in her statement recorded u/s 154 Cr.P.C, had named her brother-in-law son and daughter as the persons who had witnessed the occurrence, she had not named Nirmala Devi as one of the witness to the occurrence. There is a material contradiction in the statement of Nirmala Devi, (PW 10) and Anita Devi (PW4). Whereas, according to Anita Devi (PW4), and Kumari Santosh (PW5), they all witnessed the occurrence from the courtyard. According to PW10 Nirmala Devi, they witnessed the occurrence from the (Bohad) first floor of house. This again is material contradiction. Nirmala Devi, PW10 has also failed to give any explanation how she could recognize or identify the assailants when it was pitch dark. In fact whereas this witness goes to the extent of saying that it was not raining at that time. Therefore, her statement is totally contradictory to that of Milkhi Ram.

Admittedly, this is a case where there were past strained relations and enemity between the parties and there were large number of cases pending between them. In such a case, the prosecution evidence has to be scrutinized with much greater care and caution. The statements of the prosecution witnesses do not inspire confidence and the learned trial Court was therefore, justified in acquitting the accused.

There are two other reasons which cast a shadow of doubt on the prosecution version. The first is that according to the statement of Anita Devi made to the police since she and her brother were alone in the house,they could not take her brother to the hospital at the night. However, in Court the case of the prosecution is that in addition to the brother-in-law, two major children and sister-in-law were also at home and therefore, there was no reason why the injured was not brought to the hospital immediately. Another reason, to doubt the prosecution case is that there is delay in lodging the FIR. Even the time given in the FIR was recorded as 11.45 A.M on 2.6.1998 does not appear to be correct since the endorsement on the FIR shows that it was received by the Magistrate concerned on 5th June after three days. Therefore, there was sufficient opportunity for the prosecution to cook up a false story and we, therefore, find no merit in the appeal, which is accordingly dismissed. Bail bonds are discharged.