State of Himachal Pradesh Vs. Sunita Sharma and anr. - Court Judgment

Excerpt:
- code of civil procedure, 1908.[c.a. no. 5/1908]. order 14, rule 2 [as amended by amending act of 1976]: [v.k. gupta, cj, deepak gupta & surjit singh, jj] preliminary issue of law and fact court framing all issues both of law and facts together and also tried all the issues together, including the issue relating to jurisdiction of court held, except in situations perceived or warranted under sub-rule (2) of rule 2 of order 14 where a court in fact frames only issues of law in the first instance and postpones settlement of other issues, clearly and explicitly in situations where the court has framed all issues together, both of law as well as facts and has also tried all these issues together, it is not open to the court to adopt the principle of severability and proceed to decide issues of law first, without taking up simultaneously other issues for decision. this course of action is not available to a court because sub-rule (1) does not permit the court to adopt any such principle of severability and to dispose of a suit only on preliminary issues, or what can be termed as issues of law. sub-rule (1) clearly mandates that in a situation contemplated under it, where all the issues have been together and have also been taken up for adjudication during the course of the trial, these must be decided together and the judgment in the suit as a whole must be pronounced by the court covering all the issues framed in the suit.kuldip singh, j.1. the state has come in appeal against judgement dated 28.2.2002 passed by the learned addl. chief judicial magistrate, amb, in case no. 148/ii of 1999 acquitting respondents for the commission of offence, under sections 323, 324 read with section 34 ipc in case fir no. 190/99, which was registered on 22.10.1999 at police station, amb. 2. the prosecution case in brief is that pw 1 asha devi complainant had litigation with shankar dass pertaining to khasra no. 392. the civil court at amb had granted stay about fifteen days prior to the occurrence, which allegedly took place on 21.10.1999. the prosecution case is that on 20.10.1999, shankar dass filled in foundations for construction of a kitchen. on 21.10.1999, shankar whether the reporters of the local papers may be allowed to see the judgment? dass started construction work of kitchen with the aid of mason. pw 1 asha devi at about 2.15 p.m. asked the mason to stop the work, since she had obtained stay from the court. upon this, respondent no. 1 sunita appeared and stated that she would not stop the work nor she cared for stay order. respondent no. 2 vanita went inside the room and brought a danda. respondent no. 1 sunita also came on the scene armed with danda. the respondents hit pw 1 with the aid of danda blows. on raising alarm, prem lata came there and saved pw 1 from the clutches of respondents. pw 1 received injuries on her person, she reported the matter to the police, which was recorded as rapat no. 14 in rojnamcha on 22.10.1999 ex.pm. thereupon, fir ex. pk came to be registered at police station, amb on 22.10.1999. the injured was got medically examined and mlc ex. ph was obtained. the site plan of the occurrence was prepared. the recoveries were also made during investigation. on completion of investigation, challan was presented in the court against the respondents for the commission of offence punishable under sections 323, 324 read with section 34 ipc, both the respondents were accordingly charged. the prosecution has examined ten witnesses in order to prove the charge, the statements of respondents were recorded under section 313 cr.p.c., parkash chand was examined as defence witness. the learned addl. chief judicial magistrate acquitted the respondents, hence this appeal. 3. heard and perused the record. the learned additional advocate general has submitted that the learned additional chief judicial magistrate has erred in acquitting the respondents, the prosecution has proved the case against both the respondents by leading oral and documentary evidence. the learned counsel for the respondents has supported the impugned judgement. ex. pm is the earliest version which was unfolded by pw 1 complainant to the police. in ex. pm, it has been stated that on 20.10.99 shankar dass filled in the foundations on khasra no. 392 for raising construction of kitchen by deploying a mason. on 21.10.1999, shankar dass started construction of kitchen with the help of mason. it has further been stated in ex. pm that the complainant at 2.15 p.m. asked the mason to stop the work as she had obtained stay on said khasra number. the respondent no. 2 vanita devi came there and stated that they would not stop the work on the spot. the complainant again asked them not to raise construction, on this vanita brought danda from her room and sunita also came there alongwith danda, both of them started beating her with the aid of dandas. she raised alarm and prem lata came there, who rescued her. she sustained injuries on her head, chest, both arms and back. 4. pw 1 in the court has stated that sunita gave her beating with danda and vanita gave her beating with `karandi'. she sustained injuries on her back, head, face and arms. she raised alarm and on this sunita and prem came there. the matter was reported to the police on 22nd. in cross-examination, she has stated that they had reached the police station in the morning. she does not know the name of mason and who were the labourers. sunita came first and prem lata came later on. it took about 10-20 minutes for the incident. pw 2 sunita has stated that on 21.10.1999 at about 2.30 p.m., she had seen vanita and sunita accused giving beatings to asha devi. vanita and sunita were having dandas with them with which they gave beatings. in cross examination, she has stated that her statement was recorded nine-ten days after the incident. 5. pw 3 vipin kumar is a witness of recovery. pw 4 jagdish husband of pw 1 has stated that on 21st he was not in the house, he came on 22.10.1999 and on that date his wife disclosed about the incident that respondents had given beatings with lathies. pw 5 rangila ram, radiographer is a formal witness regarding x- rays of asha devi. pw 6 shashi pal mason has stated that in october 1999, he started the construction work of kitchen of respondents. in his presence, no beatings were given by vanita devi and sunita devi to asha devi. he did not support the prosecution and was cross- examined by the prosecution. pw 7 dr. usha dharoch has examined asha devi and issued mlc ex. ph. pw 8 jeet singh, hc has proved fir ex. pk and rapat ex. pm. pw 9 suresh pal is a formal witness. pw 10 suresh kumar is the investigating officer. 6. pw 1 asha devi in her report ex. pm has stated that sunita devi and vanita had given her beatings with dandas and she was rescued by prem lata. in ex. pm, pw 1 has further stated that she raised alarm and then prem lata came on the spot. pw 1 in her statement in the court has stated that sunita accused gave her beatings with danda and vanita accused struck her with `karandi''. this is in contradiction to her stand, which she narrated in rapat ex. pm. pw 1 asha devi in the court has stated that sunita came first and prem lata came later on, but in her statement ex. pm, she has stated that she was rescued by prem lata. in ex. pm, she has not stated that sunita came on the spot. pw 1 in ex. pm has stated that she raised the alarm and thereafter prem lata came on the spot, but pw 2 sunita has nowhere stated that any alarm was raised by pw 1 asha devi. 7. pw 6 shashi pal mason, who was allegedly working on the spot at the time of occurrence did not support the prosecution. mlc ex. ph is of no assistance to the prosecution in absence of reliable evidence that respondents gave beatings to pw 1 asha devi. the incident is of 21.10.1999 at 2.30 p.m., pw 1 has stated that she reached the police station on 22nd morning. pw 1 asha devi reported the matter to the police vide ex. pm at 12.25 p.m. there is no explanation for delay, it appears the matter was reported to the police after deliberations. the court below has rightly appreciated the material on record. there is no infirmity or perversity in the impugned judgement. the prosecution has failed to make out any case for reversal of the impugned judgement. the appeal is liable to be dismissed and is accordingly dismissed. the bail bonds of the respondents are discharged.