Between vs Gurdev Singh
2021 Latest Caselaw 3995 HP

                                 1

 IN THE HIGH COURT OF HIMACHAL PRADESH AT
                  SHIMLA
             ON THE 18th DAY OF AUGUST, 2021




                                                             .

                            BEFORE
       HON'BLE MR. JUSTICE ANOOP CHITKARA





             CRIMINAL APPEAL No. 235 of 2010
Between:-
STATE OF HIMACHAL PRADESH




                                                         ....APPELLANT
(BY MR. NAND LAL THAKUR, ADDITIONAL
ADVOCATE GENERAL WITH MR. RAM LAL

THAKUR & MR. SUNNY DHATWALIA, ASSISTANT

ADVOCATES GENERAL)
                   AND
1.    GURDEV SINGH S/O SHRI BHAGAT RAM;



2.    USHA DEVI W/O SHRI GURDEV SINGH;




      BOTH R/O WARD NO.6, DAULATPUR,
      TEHSIL AMB, DISTRICT UNA, H.P.





                                                    ...RESPONDENTS.
      (BY SHRI DIVYA RAJ SINGH, ADVOCATE)





      This appeal coming on for orders this day, the Court passed the
following:
                          JUDGMENT

FIR NUMBER 171/06 dated 17.10.2006, Police Station Gagret, Tehsil Amb, District Una under

Section 341, 323, 325, read with Section 34 IPC.

TRIAL COURT Case No.158-1 of 2006/26-II/2009,

.

decided on 18.11.2009, by learned

CASE NO.

Judicial Magistrate First Class, Court No.2, Amb, District Una, H.P.

CHARGES & TRIAL COURT'S VERDICT

Accused Gurdev Sections 341, Both the accused acquitted.

    Singh & Usha     323, 325 read
    Devi             with Section
                    r34 IPC

Challenging the acquittal for the offences of hurt, grievous hurt and wrongful restrain, the State has come up

before this Court.

2. On 13th October 2006, complainant Bholi Devi, (PW-2)

visited the Police post Daulatpur and informed them about the beatings administered to her and her daughter Veena PW-3 by

both the accused persons. The said information was recorded in DDR No.31 dated 13.10.2006 in police Post Daulatpur. The memo containing such extract of DDR form part of the record Ex.PW-7/B.

3. The complainant Smt. Bholi Devi, informed the investigator that in the morning at 6.00 a.m. her daughter Veena Kumari had gone to attend the call of nature towards a creek. At

.

that time her sister-in-law (Devrani) Usha Devi (A-2) caught hold of her and started giving beatings to her. On hearing her

commotion, she rushed towards the spot. She noticed that Usha Devi had caught hold of her daughter and giving beatings to her with fist blows and hands. When she tried to save her daughter

from the clutches of Usha Devi then in the meantime Gurdev Singh A-1, her husband came there. He was having a Bamboo

stick with him. On reaching, he started beating both of them

with Bamboo stick. Gurdev Singh inflicted stick blows on her both arms and also inflicted multiple hits on her daughter.

4. She further stated that Gurdev Singh (A-1) and his wife Usha Devi, (A-2) frequently keep on entering into scuffle with

them and also keep on hurling abuses to them. Both of them are

quarrelsome by nature. She and her family members are under threat of their lives from these persons. When her husband

Tarsem reached the spot, then both of them ran away. She further submitted that this incident was witnessed by number of villagers.

5. This information was sent to Police Station Gagret, where FIR Ex.PW-7/A, mentioned above was registered for

commission of offences punishable under Section 341, 323, 325 read with Section 34 IPC against both the accused. The investigator took both the injured for medical examination,

.

conducted investigation on the spot, obtained Medico Legal Certificate, recovered Danda P-1 used for causing injuries vide

memo Ex.PW-6/A, prepared site plan and after completion of the investigation launched prosecution against the accused for commission of offences punishable under Section 341, 323, 325 read with Section 34 IPC.

6.

r to Learned Judicial Magistrate First Class, vide order dated

27.3.2009, framed charges for commission of offences punishable under Sections 341, 323, 325 read with Section 34 IPC against both the accused. The accused did not plead guilty

and claimed trial.

7. During the trial the prosecution examined both the

injured, PW-1 Tarsem, husband of complainant Bholi, doctors and investigators. However, the prosecution did not examine

Satish Kumar, who was the witness of recovery of Danda and also separated the injured from the clutches of the accused. During the cross-examination of the witnesses the defence put specific suggestions to PW-1 Tarsem, PW-2, complainant Bholi Devi and PW-3 injured Veena, that Veena and Bholi had

inflicted injuries upon Usha. It was further suggested that the DDR was entered to this effect and even Usha A-2 was medically examined. Similar suggestion was put to the

.

investigator.

8. The investigator ASI Prabhat Chand PW-7 had proved

the case of the prosecution and in his examination the defence specifically put suggestions about the cross case. In the cross-

examination, the investigator admitted that on 13.10.2006 Usha Devi had also made a report in Police Chowki that Veena and

Bholi had administered beatings to her. He further admitted that

on 13.10.2006, Usha Devi was in Hospital, where medico-legal certificate was issued and she had received injuries on her person. However, in the statement under Section 313 Cr.P.C.,

the accused did not explain the injury received by the

complainant and PW-3 Veena and denied all the circumstances appearing against them. He further stated that they have been

falsely implicated and they are innocent.

9. Vide the above captioned judgment, learned trial Court did not find the prosecution evidence as credible and dismissed the prosecution, discharged the accused of all offences. Challenging the aforesaid acquittal the State came up before this Court by way of the instant appeal.

10. Mr. Ram Lal Thakur, learned Assistant Advocate General argued that factum of injuries received by PW-2 Bholi, PW-3 Veena has been proved by the doctors. He further stated

.

that it has also been proved that the injuries were received by stick blows. He further stated that the accused did not take the

plea of private defence because in the statement under Section 313 Cr.P.C., their case is of denial simplicitor.

11. Mr. Divya Raj Singh, learned counsel appearing for the accused argued that there are various contradictions in the

statements of the witnesses and independent witness Satish

Kumar was not examined, which effects the credibility of the prosecution and has supported the judgment of acquittal.

ANALYSIS AND REASONINGS.

12. A reference to the statements of injured PW-2 Bholi, PW-3 Veena, proves that they had received injuries. Further the

statements of the doctors PW-5 and PW-8 also established

beyond reasonable doubt that the witnesses had received injuries due to fist blows, hands and stick. The question is whether the accused had voluntarily inflicted such injuries or they themselves were aggressors or the injured had received injuries in the efforts of the accused to save themselves.

13. The earliest version as mentioned in DDR No.31 based on which the police has registered FIR Ex.PW-7/A specifically mentions the following aspects:

.

a) That on 13.10.2006, at about 6.00 a.m. Veena Kumari PW-3, had gone to attend the call of nature.

b) Without any rhyme and reason A-2, Usha Devi started beating her with her hands by giving her fist blows.

c) On hearing commotion, her mother Bholi PW-2,

d) r to reached at the spot and tried to rescue her daughter from the clutches of Usha Devi.

In the meanwhile, Gurdev Singh A-1 came at the

spot and he was carrying a Bamboo stick with him.

e) On reaching the spot A-1 Gurdev Singh started

hitting both Bholi and Veena with Bamboo stick.

f) In the meantime, Tarsem PW-1, husband of Bholi

and father of Veena reached there, then the accused ran

away from the spot.

g) The scuffle was witnessed by number of villagers.

h) The accused persons are quarrelsome by nature and without any rhyme and reason they keep on entering into scuffle with them and hurl abuses to them.

14. In the Court the witnesses PW-2 Bholi reiterated her statement and PW-3 Veena corroborated the same. The only

addition, which Veena Devi made, in her statement, was that her father and Satish Kumar had rescued them from the clutches of the accused. All the three witnesses PW-1 Tarsem, PW-2 Bholi

.

and PW-3 Veena made another improvement that they have dispute with the accused owing to the partition of the property.

15. Even if the improved version of the witnesses in their testimonies is believed to be gospel truth, then their relationship

were not cordial due to some dispute because of the partition, still in the earliest version and even in the testimonies, there is

no reason assigned for giving beatings to Veena by Usha. PW-3

Veena with whom the incident had started explicitly stated in her statement on oath that at 6.00 a.m., she had gone to attend the call of nature. When she was returning home, Usha Devi

suddenly came out of her home on the path and started hurling

abuses to her. She specifically stated that without any rhyme and reason Veena Devi started hurling abuses and when she

asked the reasons, she started giving beatings to her.

16. A reading of the FIR as well as testimonies of witnesses PW-1, PW-2 and PW-3, in Court, does not utter a whisper that they had also caused injuries to Usha Devi A-2 and how did she sustain injuries. In their cross-examination, they denied that she has received injuries. However, the investigator PW-7 admitted

that Usha Devi had sustained injuries in the same scuffle and even her MLC was conducted.

.

17. Given above, the prosecution has conveniently

suppressed the genesis of occurrence. The absence of any evidence about the way A-2 Usha Devi had received injuries,

probablize the defence version in the shape of cross-examination and corroborated by investigator that it was initially Bholi Devi

and Veena Devi, who had caused injuries to Usha Devi A-2. This possibility cannot be ruled out, given the suppression of

initiation of the scuffle.

18. If the complainant PW-2 Bholi and her daughter PW-3 Veena had not inflicted injuries to A-2 Usha, then how did she

receive injuries at the same time in the same scuffle, is highly questionable and points out that these witnesses have not come

to the Court with clean hands.

19. The suppression of injuries and explanation that without

any rhyme and reasons Usha Devi started giving beatings to Veena is improbable. There is no allegation that Usha Devi was mentally challenged or unfit. Thus, the possibility of her retaliating or acting in a private defence cannot be ruled out.

20. The prosecution has failed to discharge its initial burden, which always lies on the prosecution. Because the initial burden never shifted on the accused, as such they were under no legal

.

obligation to discharge the same. Therefore, their non- explanation in the statement under Section 313 Cr.P.C. is

inconsequential.

21. The analysis of the entire evidence does not prove that

on whose instance the quarrel had initiated and who were the aggressors. Thus on the basis of such evidence, the accused

cannot be held guilty and are entitled to benefit of doubt.

22. A perusal of the impugned judgment also calls for no interference. Given above there is no merit in the appeal and the

same is accordingly dismissed.

                                           (Anoop Chitkara)
August 18, 2021(ps)                             Judge