State of H.P. vs Om Parkash and Others

Kuldip Singh, J.—This appeal is directed against the judgment dated 16.02.2005 passed by learned Judicial Magistrate Ist Class, Court No. 1, Paonta Sahib, in Criminal Case No. 47/2 of 2000/1999 acquitting the Respondents for offences punishable under Sections 147, 452, 427, 323 , 325 read with Section 149 IPC.

The prosecution case, in brief, is that PW-2 Harpal Singh in the year 1999 was running an electronic shop at Dhaula Kuan. On 22.05.1999 at about 8.30 p.m., when Gurumukh Singh father of PW-2 was sitting in the shop, the Respondents came along with other 50-60 persons in the shop. They were armed with ''lathies'' and axes. The Respondents along with other unidentified persons formed an unlawful assembly with the common object to commit house trespass and other offences in furtherance of their common object.

The Respondents and other persons trespassed into the electronic shop of complainant Gurumukh Singh. The Respondent No. 1 gave stick blows to Gurumukh Singh and other Respondents also started throwing electronic items outside the shop after breaking them. Gurumukh Singh cried for help and in the meantime his son PW-2 Harpal Singh reached the spot, who was also beaten by the Respondents and other persons outside the shop. The complainant and PW-2 sustained various injuries. It has been alleged that the incident was witnessed by Sagar, Sita Ram, Laxmi, Triloka Ram and others. The Respondents after assaulting the complainant and his son left the place causing huge loss to the complainant by breaking electronic items.

Gurumukh Singh lodged report at Police Post, Majra and on that basis F.I.R. Ex. PW10/D came to be registered. The complainant and his son were medically examined and their M.L.C.s were obtained. On completion of investigation, challan was presented against the Respondents and they were charged for commission of offences punishable under Sections 147, 452, 427, 323, 325 read with Section 149 IPC. They pleaded not guilty and claimed trial.

The prosecution has examined 10 witnesses. The statements of Respondents were recorded u/s 313 Code of Criminal Procedure They denied the prosecution case. The Respondents led evidence in defence and examined two witnesses. On conclusion of trial, the learned Magistrate after giving benefit of doubt to the Respondents acquitted all of them, hence present appeal.

I have heard Ms. Ruma Kaushik, Additional Advocate General with Mr. J.S. Rana, Assistant Advocate General and Mr. Abhishek Sood, Advocate, on behalf of the Respondents and I have also gone through the record. It has been submitted on behalf of the Appellant that the learned Magistrate has not properly appreciated the material on record and has erred in acquitting the Respondents. The prosecution has proved the case against the Respondents beyond reasonable doubt. The statement of injured has been corroborated by the medical evidence. The prayer has been made for acceptance of the appeal.

The learned Counsel for the Respondents has submitted that the Respondents have been falsely implicated in the case. The prosecution has miserably failed to prove the case against the Respondents. No independent witness has supported the prosecution case. The self-serving statement of PW-2 is not enough to convict the Respondents. The learned Magistrate has taken a possible view from the material on record. In appeal unless the view taken by learned Magistrate is perverse, acquittal cannot be converted into conviction simply by taking other view. He has prayed for dismissal of the appeal.

In order to appreciate the rival contentions of the learned Counsel for the parties, it is necessary to refer to the evidence which has come on record. PW-1 Adarsh Bhatnagar has proved the X-ray Ex. PW1/A of Gurumukh Singh. PW-2 Harpal Singh has stated Om Parkash gave ''danda'' blow to his father as a result of which his father sustained injury on his chest. He has stated that Sagar, Sita Ram Lachhmi, Triloka Ram had seen the incident. In cross-examination, he has stated that there were 50/60 persons, who broke the items lying in the shop. Two persons were carrying axes. At the time of occurrence, the neighbors were there. PW-3 Sita Ram has stated that he was learning the work in the shop of Harpal. He has stated that Om Parkash gave ''lathi'' blow to Gurumukh. The other accused broke the articles lying in the shop with ''lathies''. Harpal came on the spot after 10 minutes. He was also given ''lathi'' blow by Amarjeet.

PW-4 Trilok has also stated that he was learning work in the shop of Harpal. On 22.05.1999 at about 8.30 p.m., Om Parkash gave ''danda'' blow to Gurumukh Singh and Amarjeet gave ''danda'' blow to Harpal. PW-5 Karam Singh did not support the prosecution case. He was declared hostile and cross-examined by the Prosecutor. PW-6 Dr. Subhash Thakur examined the injured and issued ML Cs Ex. PW6/A and Ex. PW6/B. PW-7 Rajnish is not a material witness. PW-8 Laxmi Chand has stated that on 22.05.1999 at about 8.30 p.m., he was crossing Dhaula Kuan. He has stated that Om Parkash had given ''danda'' blow over the arm of Gurumukh. The accused were taking out articles from the shop. There were many persons on the spot. In cross-examination, he has stated that Gurumukh is his real uncle (Mama).

PW-9 Mohinder Singh has stated that he had been running a tea shop at Dhaula Kuan and shop of Harpal is after 4-5 shops. He has not supported the prosecution case, he was declared hostile and was cross-examined by the Prosecutor. PW-10 Ajay Kumar is the Investigating Officer. He has stated that he prepared the spot map Ex. PW10/B. The Respondents in their statements u/s 313 Code of Criminal Procedure have denied the prosecution case.

DW-1 Data Ram has stated that Gurumukh and Harpal sustained injuries due to fall when they were installing T.V. antenna on their roof. DW-2 Sunil Pal has stated that he is running a meat shop at Dhaula Kuan and nothing happened in his presence.

In rapat No. 15, the complainant has named only Om Parkash, Nek Ram and sons of Baru Ram and 50-60 persons, who entered in his shop. He has stated that they were carrying ''dandas'' and axes, but no axe has been recovered during investigation. It has not been explained by the prosecution that once Gurumukh Singh had given the names of two persons namely Om Parkash and Nek Ram, why he has not named other persons when he lodged the report. No doubt, in ML Cs Ex. PW6/A and Ex. PW6/B some injuries were found on the persons of Gurumukh Singh and Harpal Singh but the question is who has inflicted those injuries.

Ex. PW10/B is the spot map. The perusal of the spot map indicates that near the place of occurrence there are many shops. No person from the locality has supported the prosecution case. PW-3 Sita Ram and PW-4 Trilok Ram have stated that they were learning work in the shop at the time of occurrence but complainant Gurumukh neither in the rapat nor PW-2 Harpal Singh in his statement have stated that Sita Ram and Trilok Ram were learning work in the shop and they were in the shop at the time of occurrence. In these circumstances, the presence of PW-3 and PW-4 at the time of occurrence is doubtful. PW-8 Laxmi Chand has stated that Gurumukh Singh is his real uncle (Mama). Therefore, his statement cannot be relied easily without corroboration from other independent witness.

PW-2 Harpal Singh has stated that Om Parkash gave ''lathi'' blow over the chest of his father, but MLC Ex. PW6/A of Gurumukh Singh nowhere indicates that Gurumukh Singh had sustained any injury on the chest. PW-5 Karam Singh and PW-9 Mohinder Singh were declared hostile. There is nothing in their statements which supports the prosecution case. It is not safe to connect the Respondents on the basis of self-serving statement of PW-2 Harpal Singh without corroboration from independent witness. PW-2 is an interested witness. The learned Magistrate has taken a possible view from the evidence which has come on record. It cannot be said that the view taken by learned Magistrate is perverse. In appeal merely other view is possible is no ground to convert the acquittal into conviction. The Appellant has failed to make out any case for interference.

The result of above discussion, the appeal fails and is accordingly dismissed. The bail bonds discharged.