State of H.P. vs Bipan Kumar

Kuldip Singh, J.—This appeal has been directed against the judgment dated 30th April, 2004, passed by the learned Judicial Magistrate Ist Class, Kangra in Criminal Case No. 115-II/99 acquitting the Respondent u/s 325 IPC.

The prosecution case, in brief, is that on 26.5.1998 at about 6.45 pm at village Kot Kawala, the Respondent attacked PW-3 Roop Lal complainant with darat as a result of which the complainant received injuries on right side of the head, right shoulder. The Respondent gave blow on the mouth of the complainant as a result of which four teeth were broken. On hearing the cries of the complainant, PW-2 Smt. Geeta Devi and one Kashmir Singh came to the spot and save the complainant. The report was lodged with the police and FIR Ext. PW-8/B came to be registered on the basis of rapat Ext.PW-6/A. Darat Ext.P-1 was recovered during investigation. The complainant was got medically examined.

On completion of investigation, challan was presented against the Respondent and charge for an offence punishable u/s 325 IPC was framed against the Respondent. He pleaded not guilty and claimed trial. The prosecution has examined nine witnesses. The statement of Respondent was recorded u/s 313 Code of Criminal Procedure He denied the prosecution case, but led no evidence in defence. On conclusion, the trial Magistrate acquitted the Respondent hence, this appeal.

I have heard learned Counsel for the parties and have also gone through the record. The complainant Roop Lal has appeared as PW-3 and has stated that the Respondent attacked him with darat on the right arm and gave blow on his head. He has also stated that the Respondent gave blow on his mouth as a result of which his four teeth were broken. He raised cries and for help his wife PW-2 Geeta Devi and one old man came to the spot. He has stated that his teeth were taken into possession in presence of Sher Singh and Kashmir Singh. He has also stated that his wife came on the spot 10 minutes later. Police took into possession darat on 27th May, 1998.

PW-2 Smt. Geeta Devi is the wife of complainant PW-3. She has stated that she reached the spot, but by that time her husband had already received the injuries. There were 10-11 persons on the spot. She has stated that the police had kept new darat Ext.P-1 and the darat with which her husband was attacked was not there. PW-4 Sher Singh has not supported the prosecution story, he was cross-examined by the prosecution but nothing material supporting the prosecution was extracted in the cross-examination.

The prosecution has examined PW-5 Dr. Sushil Sharma, who has issued MLC Ext.PW-5/A and PW-9 Dr. N.K. Behl. Both the doctors have contradicted each other on material point in asmuchas PW-5 has stated that he did not notice any external injury on the upper or inner side of the lips whereas, PW-9 has stated that he found lacerated wound in inner side of the upper lips. On account of this contradiction, the suspicion is caused in the prosecution case. Kashmir Singh the other witness alleged to be on the spot by the complainant has not been examined.

PW-3 has stated that teeth were taken into possession in presence of Sher Singh and Kashmir Singh, but Kashmir Singh has not been examined and PW-4 Sher Singh has not supported the prosecution case. In these circumstances, it cannot be said that the recovery of four teeth has been proved. It has come on record that 10-11 persons were present on the spot but no independent witness has been associated and examined in the Court by the prosecution to prove the case. Darat Ext.P-1 is not the same weapon which was allegedly used by the Respondent as per PW-2 Smt. Geeta Devi.

The learned Magistrate has appreciated the material on record correctly and the view taken by her emerges from the evidence on record. It has not been pointed out that the findings recorded by the learned trial Court are perverse. There is no merit in the appeal and the same is dismissed. Bail bonds discharged.