IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.A.No.220/2002. Date of Decision: 20.4.2009. _____________________________________ State of H.P. …Appellant. Versus Rakesh Kumar and another. Respondent. Coram: Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? No. For the appellant : Sh. J.S.Guleria, Assistant Advocate General. For respondent : Mr.Vishal Panwar, Advocate. ___________________________________ Surinder Singh,J(Oral). The State has challenged the acquittal of the respondents passed by the learned trial Court in Criminal Case No. 71-2 of 2000 decided on 27.8.2001 under Sections 379, 341, 323, 506 read with Section 34 of the Indian Penal Code, on the grounds that the learned trial Court did not appreciate the evidence of the prosecution in the right perspective and the reasons for acquittal are not borne out from the record. I have heard learned counsel for the parties and have carefully re-appraised the evidence on record. Precisely, the case of the prosecution is that on 7.8.2000 at about 5 p.m., PW2 Raj Kumar driver of the Mini Whether reporters of the Local papers are allowed to see the judgment? Yes. 2 bus parked his bus at the main bus stand and came out. The respondents-accused met him there and demanded money to take wine. On this PW2 Raj Kumar driver of the bus refused to pay any money to them on this he was threatened. Thereafter the driver of the bus as per the scheduled time drove of his bus to Sanjauli but when the bus reached “Ghora Hospital” it was stopped because of the traffic jam. In the meantime, the respondents came with 8-10 boys and restrained PW2 from driving his bus. Respondent-Rakesh Kumar @ Jagira pulled down the driver (PW2) of the bus and another accused Balwinder Kumar @ Balu gave him beatings with fist and kicks blows with the result he sustained injuries on his left eye. It is alleged that when the cash bag of the owner-cum-conductor-Rajeev Gupta (PW1) fell down both the accused persons decamped with it. Thereafter PW1 Rajeev Gupta lodged the report with the police. After lodging the F.I.R. PW2 Raj Kumar was medically examined. During the course of the investigation the police took into possession the currency notes and the bag of the conductor vide memo Ext.PW1/A from accused-Rakesh Kumar @ Jagira. After recording the statement of the witnesses including PW4 Hem Raj Gupta father of PW-1 who was also travelling in the same bas, the Police presented the challan in the Court for trial of the respondents for the aforesaid offences. 3 Finding a prima facie case against the respondents, charge sheet under Sections 379, 341, 323, 506 read with Section 34 of the Indian Penal Code was framed to which they pleaded not guilty and claimed trial. To prove its case, the prosecution examined its witnesses and also examined respondents under Section 313 Cr.P.C. The case of the respondents was denial simplicitor and no specific defence was raised and no evidence in defence was led. At the end of the trial, the learned trial Court acquitted the respondents on the ground of contradictions and the fact that there were 10-12 persons who had also participated in the quarrel against whom no F.I.R. was lodged and further that PW7 and PW8 who were travelling in the said bus, did not support the case of the prosecution. I have re-examined and re-appraised the evidence on record. But I find that the learned trial Court had wrongly acquitted the respondents-accused persons for the offences punishable under Sections 341 and 323 read with Section 34 of the Indian Penal Code. In fact Rajeev Gupta (PW1) who was the owner-cum-conductor of the bus at the relevant time clearly stated that the respondents had been demanding money from PW2 Raj Kumar the driver of his bus to take wine. Due to the traffic jam the bus got stuck near ‘Ghora Hospital’, PW2 Raj Kumar was taken out by the respondents from the bus and was beaten by them with the 4 result he sustained simple injuries on his person and this fact has been corroborated unequivocally by PW1 Rajeev Gupta and also PW4 Hem Raj Gupta with any material contradiction. Although the prosecution evidence qua the theft of the currency notes and the allegation of criminal intimidation is quite conflicting and contradictory. Thus the said offences are not made out because PW1 stated that Rakesh Kumar @ Jagira had taken the cash bag (Ext.P-1) and later on it was recovered by the police along with currency notes but PW2 did not state so. Even PW4 Hem Raj Gupta simply stated that the conductor of the bus (PW1) was having cash-bag with him which fell down and it was not known who had taken the same. In these circumstances, the learned trial Court rightly acquitted the respondents-accused for the offences punishable under Sections 379 and 506 read with Section 34 of the Indian Penal Code. However for the reasons aforesaid while upholding the judgment of acquittal for the offences under Sections 379 and 506 read with Section 34 I.P.C., the acquittal of the respondents under Sections 341 and 323 read with Section 34 of the Indian Penal Code is set aside being wrong and perverse. The respondents are accordingly held guilty for the offences punishable under Sections 341 and 323 read with Section 34 of the Indian Penal Code. I have heard the learned counsel for the respondents on the point of sentence. It is submitted that the 5 convict-respondents are in the prime of their youth and are first offenders. There is no criminal history to their credit. He has also argued that keeping in view their ages, character and antecedents and also the fact that the incident had taken place in the year 2000 i.e. more than eight years ago, a lenient view may be taken. I have given my thoughtful consideration to the submission so made. Keeping in view the facts and circumstances of this case and also the fact that it is their first offence and the incident had taken place about eight years back, instead of sentencing the respondents, I feel that an opportunity to reform is required to be given to them. Thus, both the respondents are ordered to be admonished by giving them the benefit of Section 3 of the Probation of Offenders Act. Since the case property has not been claimed by the respondents, therefore, the order with respect to its return to the complainant passed by the learned trial Court is affirmed. The appeal is partly allowed and stands disposed of. (Surinder Singh), Judge. April 20, 2009(R)