HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No. : 403 of 2002 Decided on: 24.2.2010 State of Himachal Pradesh ……… Appellant. Versus Raj Kumar and another ………Respondents. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the Appellant: Mr.Vikas Rathour, Deputy Advocate General. For the respondents: Mr.Rajesh Verma, Advocate. V.K. Ahuja, J.(Oral): This is an appeal filed by the State of Himachal Pradesh under Section 378 of the Cr.P.C. against the judgment of the court of learned Additional Chief Judicial Magistrate, Hamirpur, H.P., dated 29.11.2001, vide which the respondents were acquitted of the charge framed against them under Sections 341, 323 and 325 read with Section 34 of the Indian Penal Code. Briefly stated the facts of the case are that on 17.12.1997, the statement of the complainant Piar Chand was recorded by the police in which he alleged that he was going towards his house and at about 7.00 p.m., when he was going to see his vehicle, respondent Pawan Kumar came there and stopped his way. Respondent Raj Kumar also came there, ___________________________________________ Whether reporters of local newspapers may be allowed to see the judgment? Yes. - 2 - who gave him blows numbering 5 to 7 with iron rod on his head. He alleged that there were other persons also present on the spot but due to darkness, he could not identify them. He also alleged that he had a dispute with Relu Ram in regard to fencing which had taken place several times. He further alleged that after giving the blows, Raj Kumar and Pawan Kumar ran away from the spot. He further alleged that he started proceeding further and on the turning, his vehicle met him alongwith driver in which his brothers Vidya Dhar, Dile Ram etc. were sitting who took him to the District Hospital, Hamirpur. He was admitted in the hospital and the statement was made by him on the next day of occurrence since the occurrence had taken place on 16.12.1997. FIR Ext.PW-1/E was registered on the basis of which the case was investigated and after investigation, the challan was filed before the learned trial Court, who tried the respondents and one Relu Ram (since deceased), leading to their acquittal. I have heard the learned counsel for the parties and have gone through the record of the case. On appraisal of the report lodged by the complainant, it is clear that he had specifically named two persons involved in the commission of the offence, namely, Pawan Kumar, who stopped him on the way, and Raj Kumar, who gave him blows with an iron rod. There was no mention of the presence of Relu Ram at that time in the statement of the complainant, though he alleged his enmity with Relu Ram in the report lodged with the police. However, when the complainant Piar Chand appeared in the witness as PW-1, he specifically stated that both the accused persons were - 3 - accompanied by Relu Ram also. It was not his case that he cold not identify Relu Ram at that time, but he named Relu Ram when he appeared in the witness box and added his name as an accused. The complainant nowhere alleged in his statement that he was rescued by one tractor driver and there was no mention of the presence of any tractor driver at that time. However, when the complainant appeared in the witness box, he came up with the plea that one tractor driver was coming there, who rescued him, but he did not even name the said tractor driver who rescued him as per his statement made in the court. This is, therefore, clear that he has introduced the presence of the tractor driver to substantiate his case. The said tractor driver Pritam Chand has been examined as PW-3, who stated that when he was going back at about 6.00 p.m., he saw that three boys encircled Piar Chand and he identified Raj Kumar and Pawan Kumar out of them. He further stated about the blow given by Raj Kumar on the head of the complainant with an iron rod. He also stated that he had rescued the complainant which was never alleged by the complainant in his report. He further admitted that he had told the police that the occurrence was firstly seen by Durga Dass, who reached the spot earlier and thereafter he reached the spot. In view of the statement of the complainant, the presence of this witness at the spot becomes doubtful and, therefore, his statement cannot be relied upon. Moreover, he has stated that PW-4 Durga Dass reached earlier and saw the occurrence and he reached at the spot subsequently. Therefore, the possibility of his having witnessed the occurrence appears to be remote. - 4 - The said Durga Dass has been examined as PW-4 who has stated that there was a quarrel in between the sons of Relu Ram and Piar Chand was given blows by Raj Kumar over his head but he did not state that it was given with an iron rod. In cross examination, he also stated that Piar Chand was giving blows with fists to Relu Ram, which was never stated by the complainant or PW-3 Pritam Chand. Thus, he has given a different sequence of events and, therefore, his presence at the spot becomes doubtful. Apart from the above, the prosecution had examined PW-2 Vidya Dhar, who took the injured in the Jeep, but he had not seen the occurrence. In his report to the police, the complainant had alleged about 3-4 blows having been inflicted with iron rod over his head. However, the Medical Officer PW-6 Dr.Anil Kaushal has found 6 injuries on the person of the injured which were also lacerated wounds including injury No.5, which was a fracture. These injuries were on scalp and forehead and it was mentioned by the Medical Officer that the injured complained of pain in right shoulder and chest, though the complainant in his statement nowhere stated about any of the injuries were inflicted upon his right shoulder or chest. The Medical Officer opined about injury No.5 being grievous and has not stated that other injuries were possible with iron rod. Medical evidence does not corroborate in regard to the number of injuries as stated by the complainant and, therefore, the uncorroborated statement of the complainant/injured cannot be made the basis of conviction of the respondents. Therefore, findings recorded by the learned trial Court cannot be said to be - 5 - perverse in view of the contradictions and infirmities in the prosecution case. In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the appellant which is dismissed accordingly. The bail bonds furnished by both the respondents shall stand discharged. February 24, 2010. (V.K. Ahuja), (TILAK) Judge