CR.A/174/2002 of STATE Vs AJAY KUMAR on 29 December 2008

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Criminal Appeal No.174 of 2002. Reserved on : 22.12.2008. Decided on : 29.12.2008.

State of Himachal Pradesh

…Appellant.

Versus

Ajay Kumar & Ors.

…..Respondents.

Coram

The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting ? Yes.

For the Appellant : Mr. R.M.Bisht, Deputy Advocate General. For the respondents : Mr. Ajay Kumar, Advocate.

__________________________________________________________

Deepak Gupta, Judge.

This appeal is directed against the judgment of the learned Judicial Magistrate, Ist Class, Court No.2, Palampur, District Kangra, H.P. dated 29.11.2001 whereby he has acquitted the accused of having committed offences punishable under Sections 451, 323 and 427 read with Section 34 of I.P.C.

The prosecution case in brief is that the complainant Naresh Kumar runs his shop at Thakurdwara (Alampur). He sells cold drinks and soda etc. from this shop. On 29.5.2000 at about 5.30 p.m. the accused persons entered the shop of the complainant and asked him to give them some cold drinks. He refused to do so and told them that they should first ______________________

1Whether reporters of Local Papers may be allowed to see the Judgment ?

clear the previous accounts and then only he would give them cold drinks. On this, the accused persons got angry. Accused Vikas @ Pinku was armed with a grip and he hit the complainant with the grip. Accused Ajay Kumar was armed with an iron rod (Saria) and hit the complainant with the same. The third accused Shammi Kumar gave kick and fist blows to the complainant. All the accused also broke a number of cold drink bottles. He was saved by his brothers Rakesh Kumar and Joginder Sharma.

On the complaint of the complainant, F.I.R. Ext. PW-1/A was lodged . The police investigated the matter and allegedly recovered the Rod (Saria) Ex.P-2 vide memo Ext. PW-1/C. After the completion of investigation, the police presented the challan and the accused persons were prosecuted. They pleaded not guilty and claimed trial. After trial they have been acquitted. Hence, the present appeal.

Complainant Naresh Kumar appeared as PW-1. He reiterated the version given in the complaint. According to him, the fight lasted for half and hour and was witnessed by a large number of persons including the neighbouring shopkeepers. He admits that there are about 20 shops surrounding his shop. He further states that he was saved by his brother Rakesh Kumar and his cousin Joginder Sharma.

Sh. Rakesh Kumar was not examined by the prosecution for reason best known to it.

Joginder Singh was examined as PW-2 and has supported the prosecution case. However, according to him, he witnessed the fight for about ten minutes and thereafter, Rakesh Kumar came and it is only when Rakesh Kumar came that the accused fled away. He makes no mention of the fact that on his intervention, the accused went away. This witness is also a witness to the memo Ext. PW-1/C whereby the iron rod (Saria) was recovered from the accused Ajay Kumar. As far as Ext.PW-1/C is concerned, no reliance can be placed on this document since it is hit by Section 25 of the Evidence Act. This document does not show that accused got the iron rod recovered pursuant to some statement having been made by him. In fact a bare reading of this statement shows that accused of his own produced the iron rod before the police and also admitted that he had used this iron rod for committing the offence. This is virtually a confessional statement made in custody and therefore, not admissible in evidence. The prosecution has cited a number of other witness as witnesses to the incident. They were given up as having been won over. The learned trial court held that adverse inference should be drawn against the prosecution.

Conclusion

Shri R.M. Bisht, learned Deputy Advocate General submits that the Apex Court in State of Haryana vs. Jinder Singh and others (1997) 4 SCC, 180 has held that non examination of an independent witness on the ground that he has been won over will not prejudice the prosecution. A bare perusal of this judgment shows that this judgment has been given in the peculiar facts of the case. In the present case, two independent witnesses were cited and both were given up as having been won over. The only person who has been examined other than the complainant is his first cousin. The incident or fight definitely took place. However, what is the cause of the fight has not been proved to the hilt. Before Joginder Singh came to the spot, admittedly a number of other witnesses had already come there and witnessed the occurrence. There is no explanation as to why the other shopkeepers in the area were not examined. The Apex Court in State of U.P.

and another Vs. Jaggo alias Jagdish and others, A.I.R. 1971 SC 1586 has held as follows:

“On behalf of the appellant it was said that Ramesh Chand was won over and therefore, the prosecution could not call Ramesh. The High Court rightly said that the mere presentation of an application to the effect that a witness had been won over was not conclusive of the question that the witness has been won over. In such a case Ramesh could have been produced for cross examination by the accused. That would have elicited the correct facts. If Ramesh were an eye- witness the accused were entitled to test his evidence particularly when Lalu was alleged to be talking with Ramesh at the time of the occurrence.”

According to the complainant accused Ajay gave a blow on his head and back. But there are no corresponding injuries found on the person of the compliment by the Doctor who was examined as PW 5. He has only said that one injury could be attributed to the iron rod but this injury is not on the head or the back. The Doctor in cross examination has clearly admitted that there is no injury on the head and back of the injured person. The injured suffered only 4 injuries. Out of the four injuries, three were abrasions and one was a contusion. These injuries were simple in nature. If the complainant was beaten with an iron rod, grip and also given kicks for half an hour he would have suffered more serious injuries. It is thus absolutely clear that the medical evidence does not corroborate the version of the complainant.

In view of the aforesaid facts, I find no merit in the appeal and the same is dismissed. The bail and surety bonds are discharged.

Before parting with the appeal, I must observe that the defence in support of its case examined Murli Ram s/o Sh. Jamba Ram R/o Alampur, Tehsil Jaisingpur, who at the relevant time was Pradhan of Gram Panchayat Alampur. He is a witness to the memos Ex. PW-1/B and Ex.PW1/C. Ex.PW-1/B is the memo whereby the complainant had allegedly produced certain broken bottles before the police and the same were taken into possession by the police during investigation on 30.5.2000. Murli Ram was signatory to this memo. Ex. PW-1/C is the so called memo whereby the accused produced the iron rod (Saria). I have already held that this document being confessional statement could not be used against the accused. Murli Ram was a witness to this document also.

In his statement recorded in Court, he admits that he has signed these documents, but he states that in his presence nothing was produced before the police by the complainant Naresh Kumar or Ajay Kumar accused. He in fact states that when he signed the documents, none of the other persons i.e. Naresh Kumar, Rakesh Kumar, Joginder Singh and Ajay Kumar who are signatories to these documents were present. Here is a person, who is holding the exalted office of Pradhan of a Panchayat. He admits that no pressure was put by the police to sign these documents. Then why did he wrongly sign the same ? He admits that he signed the same after reading the document Ex. PW-1/B and Ex. PW-1/C. A person holding the post of Pradhan, is not expected to sign any document without verifying the contents thereof. The signing of such a document without verifying the facts can lead to total mis-carriage of justice. This is an offence against the administration of justice. Giving or fabricating false evidence with intention to procure conviction is an offence falling under Chaper-11 of the I.P.C. Making a false statement in Court is also an offence.

I am prima facie of the opinion that Murli Ram is liable to be tried for committing an offence either of fabricating a false document or of committing perjury. However, before initiating any action against him, I deem it fit that notice be issued to said witness Murli Ram S/o Sh. Jamba Ram R/o Alampur, Tehsil Jaisinghpur, District Kangra, H.P. to show cause why action be not initiated against him as aforesaid.

The Registry is directed to register the same as a separate petition.

December 29, 2008. (GR)

( Deepak Gupta), Judge