State of H.P. vs Rakesh Kumar and Another

R.B. Misra, J.—The present Criminal Appeal has come for adjudication after the grant of leave to appeal against the impugned judgment dated 6.9.1996 passed by learned Sessions Judge, Una, H.P. in Sessions Case No. 17/1995 (Sessions Trial No. 7/1996) thereby acquitting the alleged accused/Respondents for the offence under Sections 323, 307, 289 read with Section 34 of IPC and under Sections 25 and 29 of Arms Act.

In order to adjudicate the present appeal, it is necessary to give the factual background of the case. The prosecution story which emerges from the evidence, led before the Court is that, PW.1 Prem Chad, complainant is real brother of Daulat Ram accused and real Uncle of Rakesh Kumar accused are four brothers and six sisters and they have divided the land and are cultivating separately. On 24.7.1994 at about 7. p.m. PW.1 Prem Chand was budding the maize crop in his field when Daulat Ram alongwith Rakesh Kumar came to the field alongwith dog and Rakesh Kumar was having a gun. Daulat Ram asked him as to why he was removing the ''Batt'' and was releasing the water towards his fields. He told him that he was not releasing the water towards his fields and was only doing Gudai in his own field. On this, Rakesh Kumar fired at him with the gun which he was having with him and gave a threat to take his life and he turned on one side to save himself from the gun shot and it did not hit him. Thereafter, the he raised an alarm and Daulat Ram released his pet dog towards him which bite him on both his buttocks and the dog has also taken part of the flesh. Rajesh Kumar PW.2 rescued him from the dog by throwing stones upon the dog and Rakesh Kumar accused hit him with ''Butt'' of the gun on his back. Many persons including one Rakesh Pal came to the spot and he was brought to the house of Babu Ram where his son Anil Kumar PW.4 also came there who informed Balwinder Singh PW.3 who informed the police, on telephone, and PW.12 Kishan Chand Additional S.H.O. Police Station, Una, received the telephonic message, recorded the report No. 38 and went to the spot.

PW.12 S.I. Kishan Chand recorded the statement of PW.1 Prem Chand Ex. PA and sent the same for registration of the case, on which FIR was recorded by S.I. Karam Singh, which is Ex. PJ. Recovery of gun and cartridges were made and complainant was examined and investigation was made. After the investigation, challan was submitted and the case was committed for Sessions trial.

In order to prove its case, the prosecution has examined as many as 12 witnesses, and the defence has, however, denied the prosecution case and has adduced DW.1Dharam Dass, Licensing Clerk from the office of S.D.M.

We have examined the prosecution witnesses as well as gone through the material on record, we notice that Dr. Mrs. S. Chauhan (PW.8) on examining the complainant on 25.7.1994 at about 12.30 p.m. has observed as under:

(i) Bruise reddish 6" x 2" on the left side of back.

(ii) Two abrasions of size 1 cm length on medical side of right thigh 3" apart.

(iii) Pea six abrasion on medial side of left thigh.

The injuries were simple caused by blunt weapon probable duration of the injuries was within 24 hours.

On examining the prosecution witnesses, we notice that complainant Prem Chand (PW.1) is an injured witness, whose testimony supports the version of the prosecution version, has stated that when he was removing the water towards his field, both the accused persons came there alongwith their dog and Rakesh Kumar was having double barrel gun. An altercation took place and Rakesh Kumar fired at him and he turned, on one side, to save himself and the gun shot did not hit him. He raised an alarm and Daulat Ram released his pet dog towards him which bite him on both his buttocks. However, Rajesh Kumar had rescued him by throwing stones upon the dog. Accused Rakesh Kumar hit him with the ''Butt'' of the gun which hit him on his back. Many persons were gathered on the spot including Rakesh Pal.

PW.2 Rajesh Kumar said to have been the witness present on the spot and could be said to be direct evidence as the prosecution witness with PW.1 Prem Chand. However, PW.2 in his testimony has stated that he did not see any quarrel took place in between the parties and he did not go to the field of the complainant to rescue him. PW.2 was declared hostile. Therefore, only direct evidence is PW.1 Prem Chand. PW.2 ,however, has also stated that his statement was never recorded by the police. PW.4 Anil Kumar as per complainant PW.1, had come to the Behra of Babu Ram, where Prem Chand was taken after the occurrence. PW.4 Anil Kumar, in his testimony has also added that he also heard the noise of "Mar Dia Mar Dia" and the sound of gun shot.

In his cross-examination, his testimony does not corroborate the prosecution version. PW.4 said to be the son of Prem Chand was not told by the complainant Prem Chand (PW.1) regarding the occurrence and PW.4 Anil Kumar has not seen the occurrence.

As per the opinion of PW.8, the injuries could have been possible with the ''Butt'' of gun and injuries No. 2 and 3 are not possible by dog bite, but are possible in an attempt by the dog to give bite. As per opinion of PW.8, injuries could be possible by a fall.

PW.5 Ram Murti is a witness to the recovery of gun and cartridges etc. vide Memo Ex. PB, who has stated that he joined by the police during investigation of the case. He has further stated that the gun lying in the house of Daulat Ram in his Almirah was taken in possession by the police vide recovery memo Ex. PB which was also signed by him. He has further stated that one sealed packet of round and another having six rounds were also taken in possession, but these were not sealed at the spot but sealed at police station. However, PW.5 was also declared hostile for not supporting the case of the prosecution.

PW.7 Jagdish Lal Reader to District Magistrate has proved the copy of the sanction order of District Magistrate Ex. PE.

PW.10 H.C Raj Kumar had received telephonic message on 24.7.1994 at 9.05 p.m. and he entered report No. 28 the copy of which is Ex. PH.

PW.11 Inspector Garib Dass is stated to have prepared the challan after the investigation.

PW.12 S.I. Kishan Chand had investigated the case, who supported the prosecution version to the extent that he has recovered the gun, one box containing cartridges and prepared site plan of the spot and got the injured examined medically.

PW.6 S.K. Jain an Officer from S.F.S.L. Chandigarh has stated that the sealed parcels were received through constable Gurdial Singh and the tests were conducted and the gun was found to be in working order and he gave his report Ex. PD that the empty cartridges had been fired through the gun in question.

On examination of prosecution witnesses and material on record, we also notice that the FIR was lodged after many hours and the occurrence was said to have been taken place at about 7.00 p.m. on 24.7.1994. PW.3 Balwinder Singh was informed by PW.4 Anil Kumar, son of the complainant, at 9. p.m. and he gave the telephonic information to the police. The copy of the rapat roznamcha Ex. PH shows that the telephonic message was received by the police at 9.05 p.m.

PW.12 S.I. Kishan Chand went to the spot and recorded the statement Ex. PA at 10.30 p.m., on the basis of which FIR was registered at 10.55 p.m. The distance between the Police Station and the spot was two kilometers. PW.3 Balwinder Singh admitted that the distance was about 200 Yards. However, such delay in lodging the FIR cannot be fettled.

PW.1 Prem Chand though a direct evidence, who had sustained injuries, has stated that Rajesh Kumar (PW.2) had rescued him from the dog by throwing the stones over the dog. However, PW.2 in his testimony has not supported the version and has not seen anything and was declared hostile. When many persons came on the spot, then in what circumstances, other witnesses were not named and examined by the prosecution, as from the testimony of PW.1 complainant himself revealed that some of the villagers had also seen the occurrence. We take note of that the occurrence had not taken in a lonely place far away from the Abadi, in Jungle, where no witnesses were present. But it is very emerging that only one eye witness was referred and named out of several other persons, assembled and witnessing the occurrence, and one single witness PW.2 Rajesh Kumar had also not supported the prosecution case.

The injuries were said to have been inflicted on the body of PW.1 Prem Chand, have not corroborated with the medical evidence, the manner it was said to have inflicted, and by the prosecution witnesses. The prosecution witness PW.2 Rajesh Kumar, when was found to be not supported the prosecution case then who else other then PW.1 Prem Chand had seen the dog biting. PW.8 in her report has categorically indicated that injuries 2 and 3 are not possible by dog bite and injuries could be caused by a fall. It may be possible in an attempt by the dog to give bite. This clearly shows that either the teeth of the dog had not touched the body of the injured or by just touching these injuries are possible. Whereas, PW.1 Prem Chand has stated that dog gave a bite deeply on his buttock.

As per testimony of PW.1 Prem Chand, clearly stated that dog gave a bite on both the buttocks and the dog had also taken the part of his flesh which was healed later on. However, medical report by PW.8 does not corroborate such version and has revealed from the cross-examination of PW.1, wherein he has stated that he did not tell the police that dog also took away his flesh from the buttock. Whereas, Paijama was stained with blood and Paijama was not torn with the dog bite as he was not wearing any Paijama and was wearing only underwear and Banian. Whereas, underwear was not blood stained because of dog bite, as he was unable to say if the blood fell on the ground and he lost his consciousness that is why he could not notice the blood falling down. From the attempt of the complainant, it clearly shows that the complainant has rather tried to aggravate the injuries which do not find corroboration from the medical evidence. In case the dog had given a bite, it was quite natural for the complainant to have been given injections, but there is nothing in the statement of the complainant in this regard of the Medical Officer that any such injections were given, and no such proof to that effect was placed by way of record.

On analyzing the testimonies of the prosecution witnesses, it appears that medical evidence does not corroborate the oral testimony of the injuries having been caused by a dog bite. One improbability is being noticed when PW.1 Prem Chand has stated that a gun shot was fired by accused Rakesh Kumar, then how the complainant could save himself just by taking a turn and nothing has been revealed from the testimony of PW.1 Prem Chand that gun was fired aiming at him. If, an accused is holding a loaded double barrel gun and is intending to kill PW.1 Prem Chand, then how and why, what part of the gun was used by him even if for the sake of arguments that gun shot was fired, then subsequently using the ''Butt'' part of the gun cannot be said to be covered u/s 307 of IPC. If ''Butt'' of gun could be used, then why gun shot could not be directly given to PW.1 Prem Chand. From this point of view, even the testimony of PW.1 Prem Chand, an injured witness, does not inspire confidence. More so, when the narrations of the fact and the injuries have not been supported by PW.2 and medical report of PW.8, nothing has revealed from the testimony of PW.1 Prem Chad that how many gun shots were fired. From the testimony of PW.1, it appears that only one gun shot was fired. Whereas, two empty cartridges were said to be recovered from the spot and that too were not said to be recovered from the spot as PW.12 SI Kishan Chand has not revealed to that fact.

The witness of recovery Memo Amar Nath, Member of the Panchayat was said to be won over by the accused. Other witness, who is Up-Pradhan of the Panchayat and, as such, did not support the version of the prosecution with regard to the recovery of the empty cartridges. As such, report of PW.6 S.K. Jain proved in evidence as Ex. PD cannot be read in evidence so as to hold that the gun shots were fired at that time of occurrence by the accused. PW.1 Prem Chand, though injured being a direct prosecution witness has narrated a story, which is full of improbability and contradictions, when other prosecution witnesses including PW.2 said to be declared hostile, had not seen the occurrence and the manner of occurrence and injuries are not supported by the prosecution witnesses including PW.8. On finding full contradictions and improbabilities, learned Sessions Judge has rightly held that prosecution has failed to prove its case beyond all reasonable doubts and we do not find any scope of interference in the decision given by learned Sessions Judge, Una. In view of the aforesaid facts and circumstances, the present criminal appeal being devoid of any merit is dismissed.