STATE OF HIMACHAL PRADESH Vs. AJAY KUMAR GARG

JUDGEMENT

(1.) THE State has appealed against the judgment of the learned Addl. Sessions Judge, Fast Track Court Solan, acquitting the respondent for offences under Sections 307, 325 and 323 of the Indian Penal Code for causing injuries to PW1 Ram Bahadur on 22.1.2009 at around 11.40 p.m. in the area of Nauni School. The injured complainant was working as Beldar and Chowkidar in Dr. Y.S. Parmar University of Horticulture and Forestry, Solan. According to the prosecution, it was stated that he was proceeding to his duty when the accused emerged from the darkness and punched him in his stomach due to which he collapsed on the road side. He shouted for help when PW15 Sh. Hira Singh and daughter -in -law PW2 Smt. Kalawati rushed to the spot and removed him to the hospital with the help of PW3 Sh. Dharmender Singh in Tipper No HP 64 -1041 first to District Hospital, Solan and then to I.G.M.C. Shimla, The learned Judge on the evidence holds that the identity of the respondent accused has not been established and that according to the narration of the incident by the witnesses, it is not established as to where the assault took place including the fact that prior to that assault, the complainant had been assaulted in the house of one Vicky in the presence of 2/3 persons, who have not been produced in evidence. The State challenges the acquittal on a number of grounds that the evidence of the prosecution was not considered in its proper perspective and undue weightage has been given to minor contradictions and discrepancies in the statement of the witnesses which were but natural as the witnesses were deposing after a long gap between the incident and the time when the witnesses came to Court; the medical evidence has been ignored especially that of PW5 Dr. Pranav Kumar Sharma as also the statement of the injured PW1 Sh. Ram Bahadur, who stated in his examination -in -chief that the accused had threatened him that he would beat him up in a manner and it would be difficult for him to sit and stand in a proper manner. It is urged that complaint Ext. PW1/B addressed by the complainant has also not been taken into consideration where the complainant specifically makes out a case of harassment against the accused. In addition, the evidence of PW12 Sh. Virender Kumar and PW15 Sh. Hira Singh has been ignored.

(2.) WE advert to the submission made by the State as also the evidence of the witnesses. Sh. Ram Bahadur appeared as PW1 and stated that he and his wife are working in the University Horticulture and Forestry, Nauru. He was working as Beldar and Chowkidar. He has seven children and all are married. He states that his son Sh. Rajesh Kumar is living with him in village Pajo and he has no connection with his son Sh. Virender Kumar (PW12). On 22.1.2009, he was in the house of his elder son PW15 Sh. Hira Singh. The accused used to threaten him even prior to this -date. He (complainant) had also taken a loan of Rs. 5,000/ - from the accused which he had returned. He was not aware as to whether PW12 Sh. Virender Kumar had taken a loan from the accused. On the day of the incident when he was sitting in the house of his son PW15 Sh. Hira Singh, the accused came there and demanded money from him and also stated that he would kill him. Upon this, his son responded that he would return the money but the accused should leave his father (complainant) alone. At around 10.45 p.m. when he was proceeding towards Nauru, one boy named Sh. Vicky met him on the road side and told him to take tea. He along with Sh. Vicky came to his house (quarter) where two 'Bihari' boys also came. He told these persons not to harass Sh. Tikka Ram, Gharwali because he (complainant) and Sh. Tikka Ram were strangers there. Thereafter both boys left the quarter. After this, accused Ajay Kumar came there and started beating him and gave him fist blows on his face and stomach. The accused gave him 5/6 fist blows and told the complainant that he would beat him in a manner which would make it difficult for him to sit and stand. After this accused Ajay Kumar left the place. As a result of the beating he had developed pain in his stomach. He tried to proceed. towards his house but could not do so. He tried to contact his son PW15 Sh. Hira Singh on mobile phone but there was no response. He raised a hue and cry and called out Sh. Hira Singh by name where after PW15 Sh. Hira Singh and his wife PW2 Smt. Kalawati came to the spot and took him to the hospital in the Tipper of PW12 Sh. Virender Kumar @ Raju. He states that his son moved an application to the Police Ext. PW1/A which bears his thumb impression and thereafter he was referred to I.G.M.C. Shimla for treatment where he was treated. One letter Ext. PW1/B was also addressed to the police by him. He states that letter Ext. PW1/B was in his pocket. In this letter he has stated that earlier also the accused used to threaten him.

(3.) PW 2 Smt. Kalawati, who is wife of PW15 Sh. Hira Singh and daughter -in -law of the complainant. She says that on 22.1.2009 complainant came to her house and she was sitting near the fire place. At around 8 p.m. accused Ajay Kumar came there and demanded money from his father -in -law PW1 Sh. Ram Bahadur and threatened him with dire consequences. She told him that money will be paid to him. Thereafter her father -in -law went to his house as he was on night duty. After taking dinner, she went to sleep when she received a call from her father -in -law and heard him saying that Heeru and Bindu had beaten him. She and her husband PW15 Sh. Hira Singh and one Raju went to the path which leads to her house. Raju and PW12 Virender Kumar were her guests on that day. They took the injured PW1 Sh. Ram Bahadur to Solan in a Tipper, who was complaining of pain in his stomach due to beating. After that he was shifted to Indira Gandhi Medical College and Hospital, Shimla. Complaint Ext. PW1/A was handed over to the police on behalf of PW1 Sh. Ram Bahadur which was written by Raju. In cross -examination she says that accused came to her house along with two other persons at around 8 p.m on 22.1.2009. She does not recognize who those two persons were. One her relative Raju and his wife were also there. PW4 Gambhir did not come to her house at that relevant time. She states that she served tea to the accused along with other persons, who sat in the house in peaceful manner and she had talked to them in a cordial manner. Her father -in -law PW1 Sh. Ram Bahadur was also present there when the accused all of a sudden set upon him and threatened to kill him. The accused and her father -in -law were talking about some money transaction whereupon PW1 Sh. Ram Bahadur told the accused that he will pay the amount of Rs. 5,000/ - by March, 2009. She states that her Dever (brother -in -law) PW12 Sh. Virender Kumar had also borrowed some money from the accused on loan basis. She then states that except the talk about money transaction, there was no other exchange of words between the accused and her father -in -law. The accused took tea and went away. Before leaving, the accused had also threatened to kill her father -in -law. The accused and other persons were sitting in her house for 5 to 10 minutes. She says that in her presence, the accused did not beat up her father -in -law.