State Of Himachal Pradesh vs Joginder Pal

Vivek Singh Thakur, J

Present appeal has been preferred by the State against the judgment dated 29.12.2008, passed by learned Sessions Judge, Una, H.P., in Criminal Appeal No. 16 of 2006, titled as Joginder Pal vs. State of Himachal Pradesh, whereby respondent has been acquitted after reversing the judgment/order dated 20.06.2006/05.08.2006, passed by learned Judicial Magistrate 1st Class, Court No.1, Amb, District Una, H.P., in Case No.242-1 of 2004/18-II/2004, titled as State of H.P. vs. Joginder Pal, in FIR No.90 of 2004 dated 01.05.2004, registered in Police Station, Amb, District Una, H.P., under Sections 451, 323, 325 and 382 of the Indian Penal Code ( in short 'IPC'), whereby respondent was convicted and sentenced to undergo simple imprisonment for one year and to pay fine of Rs. 1000/- and in default thereof, further to undergo simple imprisonment for one month for commission of offence punishable under Section 451 IPC and also sentenced to undergo rigorous imprisonment for two years for commission of offence punishable under Section 325 IPC and to pay fine of Rs. 4000/- and in default thereof, further to undergo simple imprisonment for three months.

Prosecution case is that on 01.05.2004 at about 5.15 p.m., respondent Joginder Pal had come on his Scooter bearing No.PB-13C -8833 and after parking his Scooter in front of shop of complainant PW.1 Shiv Ram, entered inside the shop of complainant Shiv Ram and after hitting his head, snatched the sale proceed from him, which was being counted by PW.1 Shiv Ram at that time and he attempted to run away from the spot. However, PW.1 Shiv Ram had raised hue and cry and hold leg of respondent Joginder Pal and by that time PW.2 Pradeep Kumar, PW.4 Sanjay Kumar, Ashwani Kumar (not examined) and Jawahar (not examined) alongwith other persons reached the spot, who were adjoining shopkeepers and they caught respondent Joginder Pal on the spot and by that time respondent Joginder Pal had thrown the currency notes of Rs. 700/- in the shop itself. Thereafter, complainant had reported the matter to the police and made statement (Ex.PW.1/A), which was recorded under Section 154 of the Code Criminal Procedure (in short 'Cr.P.C.') and the same was sent to the Police Station as a Rukka, on the basis of which FIR (Ex.PW.9/C) was registered against respondent Joginder Pal.

On the basis of challan presented in the Court, charge against the accused was framed under Sections 451, 323, 325 and 379 read with Section 511 of IPC. On pleading not guilty, respondent-accused was subjected to trial. On conclusion of trial, respondent-accused was convicted by the trial Court for commission of offences under Sections 451, 323 and 325 of IPC and acquitted for commission of offence under Section 379 read with Section 511 of IPC, whereas learned Sessions Judge has acquitted him in all offences.

Prosecution has examined as many as ten witnesses to substantiate its case. Whereas, after recording statement under Section 313 Cr.P.C., respondent-accused, has examined one witness in his defence.

PW.1 Shiv Ram is the complainant. In his statement he has reiterated the version narrated by him in his statement (Ex.PW.1/A). PW.2 Pradeep Kumar and PW.4 Sanjay Kumar have been examined as spot witnesses. From the trend of examination of prosecution witnesses as well as defence evidence, it is apparent that presence of respondent Joginder Pal on the spot and occurrence of some incident has not been denied. However, genesis of prosecution story as alleged by PW.1 Shiv Ram has been disputed. It is claim of the respondent that he had been inquiring about supply of water which had been stopped at the instance of PW.1 Shiv Ram alleging nonpayment of electricity bill and at that time, PW.1 Shiv Ram, had attacked respondent whereupon he had also lodged FIR No.107 of 2004 which has been placed on record as Ex.DW.1/A by examining witness DW.1 HC Ramesh Chand. Neither HC Ramesh Chand has been cross-examined nor any evidence to rebut the fact regarding lodging of FIR (Ex.DW.1/A) against PW.1 Shiv Ram, has been disputed. Rather PW.1 Shiv Ram, in his cross-examination, has admitted that at his instance water supply of habitation of respondent was stopped and further though, he has expressed his ignorance about complaint against him in the office of Deputy Commissioner regarding stopping of water supply, but in the next line, he has admitted that the said application which was filed against him, had been forwarded for inquiry, thereafter again he has evaded to reply to suggestion that he had explained cause of stopping of supply of the water was defect in gate valve whereupon respondent had replaced the same. PW.1 has also stated that he did not know that even thereafter he had not supplied the water to the habitation of the respondent. He has also neither admitted nor denied but expressed ignorance about suggestions that on filing complaint by the respondent in the office of Junior Engineer for non-supply of water, he had visited the office of Junior Engineer at 7.30 a.m. and the said Junior Engineer had asked respondent to come in his office at 3.30 p.m. for resolution of the dispute and respondent had visited the office of Junior Engineer who had asked respondent Joginder Pal to come at the shop of Shiv Ram on his Scooter and, therefore, respondent Joginder Pal had followed Junior Engineer on his Scooter and when respondent Joginder Pal reached there, complainant had asked respondent to come in his shop. Though, allegation of assault on respondent by the complainant has been denied, however, it has come in the evidence of PW.9 ASI Amar Chand that accused had also suffered injuries and he was medically examined, and it is admitted by PW.9 that he had not placed the said MLC of respondent Joginder Pal on record deliberately. It has also come in evidence of PW.4 Sanjay Kumar that two sons of Shiv Ram were also working in the shop and one servant namely Vicky was also serving in the shop of PW.1 Shiv Ram. Neither they have been cited as witnesses nor they have been examined and even persons, who were cited as witnesses to the incident except PW.2 Pradeep Kumar and PW.4 Sanjay Kumar (Rajan) have been examined.

Admissions of PW.1 Shiv Ram, PW.4 Sanjay Kumar as well as PW.9 ASI Amar Chand, Investigating Officer, create doubt about the real genesis of the incident and it appears that real genesis of the quarrel between PW.1 Shiv Ram and respondent Joginder Pal has not been brought on record and true version of the manner in which occurrence took place has not been disclosed, which creates doubt about truthfulness of the prosecution story. Had the prosecution been fair, MLC of respondent Joginder Pal with explanation to injuries caused to him would have been brought on record. In the statement under Section 154 of Cr.P.C. (Ex.PW.1/A) as well as in the deposition in Court, PW.1 Shiv Ram also, is completely silent about cause and manner in which respondent Joginder Pal had received injuries. PW.2 Pradeep Kumar and PW.4 Sanjay Kumar are also silent in that regard and PW.9 ASI Amar Chand, Investigating Officer, as referred supra, has categorically admitted that he had withheld said piece of evidence deliberately. It depects that real incident is something else.

It is cardinal principle of criminal jurisprudence that, where two views are possible, benefit of doubt is to be extended to the accused, therefore, extending benefit of doubt, respondent Joginder Pal is also entitled for acquittal and thus, learned Sessions Judge has not committed any mistake, irregularity or illegality in acquitting the accused. Evidence on record has been appreciated by him completely, correctly and in right perspective and it cannot be said that view taken by him while acquitting the accused, is not a possible view.

For the aforesaid discussion, I find no merit in the appeal and the same is dismissed, so also pending application(s), if any. Bail bonds furnished by the accused are discharged.

Record of the trial Court be sent back.