State of H.P. vs Asha Ram

Surinder Singh, J.—The Respondent was acquitted for the offence punishable u/s 324 of the Indian Penal Code, which has been assailed in the present appeal by the State.

In short, the prosecution case against the Respondent as emerges from the evidence on record can be stated thus. It is alleged that on 28th April, 1996, the complainant, who was working as a driver in NJPC had come on leave to his village Chaklu. At about 2 p.m., the complainant was present in his house alongwith his wife Gita Devi, brother Rajiv and his wife Champa Devi. In the meantime, his father i.e. Respondent came there, he was about to enter the room with shoes in his feet where the complainant was sitting. The complainant told him to put off the shoes outside the room. Feeling offended by this remark, he left the place, but came again and called the complainant and his wife to come out of the room. His mother came out followed by him, the Respondent took out his muzzle loaded gun and fired a shot on the leg of the complainant which hit him just above the ankle and fell down. His wife Gita Devi, brother Rajiv and sister-in-law Champa Devi rescued the complainant. Tara Wati aunt of the complainant accompanied by one Sanjay Chauhan also came to the spot. Thereafter, injured was taken to the dispensary at Kunihar and on the basis of his Rapat, FIR Ex.PW14/A was recorded by the police.

PW3 Dr. Udit Kumar, who was posted at Primary Health Centre (PHC) Kunihar issued MLC Ex.PW3/A. The Injured was referred to the Indira Gandhi Medical College and Hospital, Shimla for expert opinion and management of the injury, where he was attended upon by Dr. M.L. Dhiman.

Police took into possession the muzzle loading gun Ex.P1 belonging to the Respondent vide memo Ex.PW1/A, pant of the complainant, blood stained soil from the courtyard and also prepared the site plan Ex.PW15/A. The pallets which were found on the spot were taken into possession vide memo Ex.PW6/A. Photographs Exts.PW8/A to F of the place of incident were also taken. The pallets alleged to have been extracted from the wound and the gun Ex.P1 were sent for the ballistic opinion to Central Forensic Science Laboratory, Chandigarh, but his report was not tendered in evidence.

After the completion of the investigation, the challan was presented in the Court for the trial of the Respondent. At the end of trial, Respondent was acquitted, on the grounds that there has been material deviation in the statement of the complainant when examined in the Court than that of the FIR. Secondly, the treatment summary prepared by Dr. M.L. Dhiman, was not proved and further that the pallets alleged to have been recovered from the leg of the complainant were not proved to have been so extracted and taken into possession. Further, Sanjay Chauhan, the alleged independent witness has not been examined. PW 5 Kanta Devi and PW7 Jagdish were declared hostile as they did not support the case of the prosecution.

Shri J.S. Rana, learned Assistant Advocate General vehemently argued that merely by changing the place of presence of complainant by the prosecution could not have been fatal to the prosecution case. Further the gun was proved to have been fired through, as a result of which complainant had sustained the pallets injuries in his leg. The Respondent did not offer any plausible explanation as to how the pallet injuries from his gun were sustained by the complainant. Therefore, there are grounds to convert the acquittal of the Respondent into conviction.

Shri Amit Sharma, learned Counsel for the Respondent was appointed as legal aid Counsel vide order dated 4.10.2010 by the Court as the Respondent is in jail in another case and was unable to engage any lawyer to defend him. He supported the impugned judgment of acquittal and forcefully argued that the complainant has suppressed the real nexus of the prosecution story giving rise to a doubt with respect to the version initially given by him. He has further argued that the evidence on record proves the old enmity inter se the parties. He further pointed out that the Respondent was undergoing sentence for the alleged rape of his daughter which also proves the extent of acrimony inter se the parties. According to him, the findings of the acquittal in the instant case are borne out from the record.

I have given my thoughtful consideration to the contentions raised by the respective parties and have carefully gone through the evidence on record.

The initial story, projected by the complainant in daily diary Ex.PW12/A, which culminated into FIR Ex.PW14/A has been that at the time of alleged occurrence, the complainant was sitting in the courtyard of his house, the Respondent was also present there. He told the Respondent that he should not enter his room with his shoes. On this, Respondent got annoyed, picked up his gun, on seeing this, the complainant had tried to run away, but the Respondent fired at him from back side and the pallets hit the ankle of his left foot, but when examined in the court, he stated entirely different from that of the initial report, which was also made the basis for submitting report u/s 173 of the Code of Criminal Procedure by the police. As PW1, complainant stated that at the relevant time, he was sitting in the room alongwith his wife Gita Devi, brother Rajiv and his wife Champa Devi, which fact did not find mentioned in the FIR or the police report. He further stated that when the Respondent had almost entered into the room wearing his shoes, he asked him to put off his shoes outside and thereafter to enter his room. After a short while, the Respondent called his wife (mother of the complainant) outside the house. Alongwith her, the complainant also came out and it was then the Respondent fired a shot at his leg.

As already stated above, this story is not in conformity with the initial story set out by him at the time of lodging the complaint to the police, for the best reasons known to him and it was also not got clarified during his statement in the court for making a different version. Further, in the FIR the Respondent is alleged to have fired on the complainant from the backside, but this fact has also not been substantiated when examined in the Court. Even the treatment summary prepared by Dr. M.L. Dhiman (since dead) was not got proved from any other evidence in order to find out whether the pallets were recovered from the leg of the complainant. It is also not clear which of the pallets i.e. recovered from the spot or taken out from the injuries were sent for the forensic examination. There is no record to prove that the pallets which were allegedly extracted from the leg were also taken into possession vide any recovery memo.

Further, PW3 Dr. Udit Kumar gave his opinion based upon the treatment summary made by Dr. M.L. Dhiman, which is merely a secondary evidence. Also the report of the Central Forensic Science Laboratory, Chandigarh was not tendered into evidence. PWs 5 and 7 namely Kanta Devi and Jagdish respectively who allegedly reached the spot after the occurrence and to whom the alleged incident was also narrated by the complainant, did not support the prosecution.

Against the aforesaid factual background when the prosecution has travelled beyond the pivot of the actual story initially set against the Respondent, which has given a reasonable doubt with respect to its authenticity.

On the critical examination of the witnesses, I do find that the findings of the acquittal recorded by the learned trial Court are borne out from the record, as such, no interference is called in the acquittal of the Respondent. The appeal merits dismissal and is accordingly dismissed.

Send down the records.