CR.A/170/2002 of STATE Vs DILWAROO on 26 December 2008

1. Whether reporters of Local papers may be allowed to see the judgment? Yes.

Briefly stated the facts of the case are that a report was lodged with the police by complainant Ishwar Dass on 13.6.1999 at about 8.30 a.m. He alleged in the said report that on the previous day i.e. on 12.6.1999, he was working in the fields alongwith his son Naresh Kumar. At about 1.00 p.m., the respondents came there, started quarrelling with them and giving abuses to them. It was also alleged that Dev Raj gave a blow of axe and broke his plough. The remaining respondents gave beatings to him as well as to his son and they suffered injuries on the hand, back and other parts of the body. It was alleged that this land had been given to them by their Bua (aunt)Neem Dasi and the respondents are not permitting them to take possession, for which they quarreled with them and the case is also pending in the court of Sub Judge, Ani. The complainant also alleged that this occurrence was witnessed by Budh Ram and his son Chuni Lal, who were present at the post apart from the other villagers. The report was registered. The complainant and his son were got medically examined and on completion of the investigation, the challan was filed as against the respondents who were tried by the learned trial leading to their conviction and sentence, which was set aside by the learned Sessions Judge on appeal.

I have heard the learned counsel for the parties and have gone through the record of the case.

The most material witnesses can be said to be the complainant, his son and two labourers who were examined and were present on the spot. Coming to the statement of the complainant PW-2 Ishwar Dass, he has stated that they were working in the field and his oxen were released by the respondents. Fulan Devi respondent gave a blow on his hand with drat. He further stated that thereafter another accused, named by him, gave a drat blow and accused

Dilwaroo Devi gave a drat blow over his head and when his son Naresh Kumar came to rescue him, he was also given blows and he suffered injuries on his hand and his son suffered injuries on his hands and fingers. He further stated that the accused persons had also given a threat and they were rescued by Budh Ram. He had not named the other witness Chuni Lal being present there or having rescued them. He admitted that a civil case is going on in between the parties for this very land and the proceedings are also going on before the Tehsildar, Nirmand. He denied the suggestion that the accused persons have not admitted his possession so far. He admitted that the respondents are the daughter-in-law and grand son of Neem Dasi from whom he claims to have got the possession of the land. His statement does not attribute the particular role of each of the accused persons or the part played by them in inflicting the injuries upon his person or that of his son except attributing one or two injuries to Smt.Fulan Devi and one other accused, whose name is not clear from his statement.

PW-3 Naresh Kumar, son of the complainant, has corroborated the testimony of his father. He also stated that the blow was given by Fulan Devi with drat and thereafter he was inflicted blows by Fulan and Sauja. He was caught hold of by Fulan and Sauja and blow was inflicted by Bimla. He also stated that he suffered injuries with a drat on his head. He further stated that the respondent Narottam Dass had inflicted a blow with drat on his left hand and he suffered a fracture. He further stated that he was also given blows with legs and fists, which was not so stated by PW-2 Ishwar Dass. He has not mentioned the names of both the witnesses, namely, Budh Ram and Chunni Lal having rescued them.

PW-4 Budh Ram, an eye witness, has partly corroborated the testimony of the complainant and his son when he stated that Dilwaroo Devi gave a blow on the person of the complainant and Naresh Kumar was also given beatings. He denied the suggestion in his cross examination that the quarrel was started by Ishwar Dass.

PW-6 Chuni Lal is the another eye witness who has stated that Sauja Devi gave a blow with drat on the person of Ishwar Dass and his son Naresh was also given beatings and he rescued them. He did not attribute the specific part played by each of the accused persons in giving blows on the person of the complainant and his son.

The learned Sessions Judge, while appreciating the evidence, has rightly observed that since there was a dispute in regard to the possession of the land and both the parties, who are related to one another, are claiming possession from Neem Dasi. It was necessary for the prosecution to have produced the copies of the jamabandi on record which could have proved as to which of the party was in possession of the said land on the day of occurrence. The statement of PW-2 suggests that he has stated that the other party is not allowing them to take possession meaning thereby that they were out of possession and when they tried to take the possession forcibly, the same was resisted by the respondents, for this reason the quarrel may have taken place.

A perusal of the statement of the Investigating Officer PW-7 ASI Chander Singh shows that he has admitted that a cross case was registered prior to the registration of this FIR, but there is nothing in his statement as to the fate of the said case, as to whether any case was filed against the complainant party or not or any cancellation report was filed in regard to the said occurrence. This clearly suggests that the accused party had firstly lodged the complaint against the complainant party but there is nothing to suggest as to the fate of the said case. The copy of the FIR should have been proved on record by the accused persons to show as to what were the contents of the complaint lodged by them. It is also in evidence that the Investigating Officer had gone to the spot after more than one month of the occurrence, which clearly shows that no proper steps were taken by the Investigating Officer to record the statements of the witnesses immediately but they proceeded with the case in a slow manner and registered the case subsequently without taking into possession the copies of the revenue record which were very much relevant. The weapon of offence i.e. Ext.P-1 scythe and Ext.P-2 a danda were produced by the complainant himself and these were not recovered at the instance of the accused persons.

The statement of the Medical Officer was also discussed by the learned Sessions Judge and a perusal of the same shows that the complainant had suffered simple injuries and injury No.1 was allegedly caused with sharp/blunt weapon while injuries No.2 to 4 were caused with blunt weapon. The injuries on the person of Naresh Kumar PW-3 were simple in nature caused with blunt weapon. There is nothing on record to show that the weapon of offence was shown to the Medical Officer at any time to take his opinion as to whether these injuries are possible with the weapon allegedly produced by the complainant or not.

From the above discussion, it is clear that the final findings recorded by the learned Sessions Judge holding that the prosecution had failed to prove their case beyond any reasonable doubt cannot be said to be perverse, in view of the evidence of the prosecution witnesses which did not prove the particular part played by each of the respondents in causing the injuries on the person of the complainant and his son Naresh Kumar, which also do not find corroboration from the medical evidence in regard to the fact whether these were possible with the weapon produced by the complainant during the course of investigation.

In view of the above discussion, I hold that there is no merit in the appeal filed by the State of H.P. and the same is dismissed accordingly. The bail bonds furnished by the respondents shall stand discharged.

December 26, 2008.(TILAK)

(V.K. Ahuja), Judge.