IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 501 of 2001 Date of Decision : May 4, 2011 State of H.P. Appellant Versus Munish Bansal and others Respondents Coram: The Hon’ble Mr. Justice R. B. Misra, Judge The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the appellant : Mr. R. K. Sharma, Senior Addl. Advocate General for the appellant-State. For the respondents : Mr. Naresh Kumar Thakur, Advocate, for the respondents. Justice Sanjay Karol, J. (Oral) For an offence, which is alleged to have been committed on 14.3.1997, accused were put to trial. In terms of judgment dated 29.3.2001, passed by the learned Sessions Judge, Una, H.P. in Sessions Case No. 5 of 1998, titled as State of Himachal Pradesh versus Munish Bansal and others, accused persons stand acquitted of the charged offences. 2. It is the case of the prosecution that on 14.3.1997, at about 8.30 p.m. complainant Sh. Gulzari Lal (PW-1), after parking his truck Whether reports of Local Papers may be allowed to see the judgment? 2 in front of the shop of a Halwai was going home. When he reached the shop of one Sh. Kaku in the market at Amb, he was called by accused Munish Bansal to the van which was parked at a distance of ten yards. When the complainant went there, accused Munish Bansal dragged him into the van bearing No. HP-02-2393 in which co-accused Naveen Kumar and Ajay were already sitting. Accused Munish started driving the vehicle towards Una side and also started abusing the complainant. On way to Una, when the vehicle reached near the shop of Prem Welding, complainant asked the accused as to why he was being abused. At that accused Naveen and Ajay started giving blows with legs and fist to him. Complainant Sh. Gulzari Lal was thrown out of the moving van. However before that accused Munish Bansal hit the complainant on his head with a tyre rod as a result of which he became unconscious. The incident of kidnapping was witnessed by Sh. Tilak Raj (PW-9). Sh. Gulzari Lal remained unconscious lying on the road and regained consciousness only the following morning and that too in the hospital where his statement (Ext. PA) was recorded by the police. On the basis of his statement, F.I.R. No. 48 of 1997 (Ext. PN), dated 15.3.1997, under Sections 364, 307, 323 read with Section 34 I.P.C. was registered with police station, Amb. Police investigated the matter by collecting incriminating articles from the spot. Statements of the relevant witnesses were recorded. Recovery of tyre rod, van and the blood stained clothes of the complainant was effected. Medical record Ext. PH, Ext. PT, Ext. PU, Ext. PR, Ext. PR/1 was also taken by the police. 3 With the completion of investigation challan was presented in the Court for trial. 3. Accused Ajay Kumar, Naveen Kumar and Munish Bansal were charged for having committed offences punishable under Sections 307 and 364 both read with Section 34 I.P.C. to which they did not plead guilty and claimed trial. Additionally accused Munish Bansal was charged for having committed offences punishable under Section 196 of the Motor Vehicle Act, 1988 to which he did not plead guilty and claimed trial. 4. In order to prove its case prosecution examined twenty witnesses and the statements of accused under Section 313 Cr. P.C. were also recorded. 5. In terms of Judgment dated 29.3.2001 passed by the learned Sessions Judge, Una, H.P., in Sessions Case No. 5 of 1998 all the accused stand acquitted of the charged offences. Hence the present appeal. 6. At the very outset it may be pointed out that there is no iota of evidence with regard to the offence alleged to have been committed by accused Munish Bansal under Section 196 of the Motor Vehicle Act, 1988. It seems that the prosecution failed to take notice of the fact that the accused was charged of the said offence. 7. With regard to the remaining offences, in our considered view, no infirmity can be found with the findings returned by the Court below. Out of twenty prosecution witnesses, persons who were witnesses to the incident and also recovery of incriminating articles, 4 i.e. Sh. Amar Nath (PW-2), Sh. Jiwan Kumar (PW-3), Sh. Ashok Kumar (PW-4), Sh. Sanjeev Kumar (PW-6), Sh. Rajeev Kumar (PW- 7) and Sh. Tilak Raj (PW-9) turned hostile. They have not supported the case of the prosecution inspite of their examination by the Public Prosecutor. From their statements nothing could be shown that they have either deposed falsely or that they have been able to even remotely link the accused to the charged offences. 8. From the testimony of Dr. Parkash Daroch (PW-10) Medical Officer, PHC Amb it is quite apparent that complainant Sh. Gulzari Lal was admitted in the hospital at Amb and was given medical treatment. No doubt he suffered various injuries on his body but however this fact alone would not be sufficient to link the accused to the charged offences. Suspicion cannot be basis for convicting the accused. It is a settled position of law that the prosecution has to prove the guilt of the accused by leading convincing, cogent and reliable evidence. The testimony of the witnesses must also inspire confidence. The guilt has to be proved beyond reasonable doubt. 9. Apart from Sh. Gulzari Lal (PW-1) all other witnesses are either police officials or their testimonies are formal in nature. 10. Insofar as the statement of complainant Sh. Gulzari Lal (PW- 1) is concerned we find that it does not inspire confidence. There are material contradictions and improbabilities in his statement. According to the complaint (Ext. PA) recorded by the police on 15.3.1997 at about 9.35 a.m. complainant Sh. Gulzari Lal (PW-1) could identify only accused Munish Bansal and Ajay Kumar. From his 5 testimony (Ext. PA) it is clear that he did not know accused Naveen Kumar from before. Admittedly no test identification parade was got done by the police before filing the challan. Now if this were so, then how did the police knew about the identity of the third person sitting in the van who also had given beatings to the complainant and link it to accused Naveen Kumar. 11. That apart, both in the complaint as also in the deposition there is nothing to show as to who brought the complainant to the hospital. Admittedly the incident took place on 14.3.1997 at about 8.30 p.m. Did the complainant remain lying on the road for more than 12 hours? Who brought the complainant to the hospital? These are questions which remain un-answered by the prosecution. That apart, in the complaint (Ext. PA) complainant does not mention the fact that the accused gave beatings with an intent to kill him. We also find that in his deposition in Court complainant mentions that he raised hue and cry. However, this fact is missing in the complaint (Ext. PA) with which he was confronted. Thus there is material improvement. The incident is alleged to have taken place at a time when shops were open. Even in his statement complainant admits that shops of one Halwai and Welder were open yet none came forward to intervene, save the complainant or inform the incident to the police. Further complainant admits that there is prior animosity between him and accused Munish Bansal. He also admits that a criminal case was pending trial against him. This was as a result of a complaint lodged by accused Munish Bansal. Hence the possibility 6 of false implication cannot be ruled out. This witness has not come out with the whole truth. 12. For all the aforesaid reasons we find that the testimony of the complainant does not inspire confidence. We find that the prosecution has not been able to prove its case beyond reasonable doubt. 13. The accused have had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down in Mohammed Ankoos and others versus Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the persons has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. (Justice R. B. Misra), Judge. (Justice Sanjay Karol), Judge. May 4, 2011 (PK)