IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Criminal Revision No. 205 of 2002. Judgment reserved on : 21.5.2009. Date of decision: June 5, 2009. Nazir …Petitioner. Versus State of Himachal Pradesh ....Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? Yes. For the Petitioner : Mr. G.D.Verma, Senior Advocate with Mr. Pradeep Verma, Advocate. For the Respondent. Mr. Anshul Bansal, Additional Advocate General. __________________________________________________________ Kuldip Singh, Judge This revision is directed against the judgment dated 9.8.2002 passed by Additional Sessions Judge, Mandi in Criminal Appeal No. 12 of 2000 affirming conviction and sentence of petitioner under Section 332 IPC imposed by the trial Court. 2. The prosecution case, in brief, is that PW-7 Jai Singh alongwith PW-1 Bakshi Ram, B.O. Bakshar on 24.9.1997 at about 2.30 p.m. were going in a maruti van bearing No.HP-22-0979 from Mahu Nag to Churag patrolling / inspecting forest. They found barbed fencing removed near forest O.D.-117 Dharmour Alyar. Some Gujjars namely _____________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes 2 Yusuf, Gulzar, Deen Mohd. and Nazir had let their buffaloes, horses and cows to graze in the demarcated forest. The Complainant asked accused Gujjars to take out their cattle from the forest. The aforesaid Gujjars were having dandas in their hands. They threatened the complainant and abused him and thereby deterred the complainant from discharging his official duty. Nazir gave a danda blow on the right lower leg of PW-7, as a result of which he sustained simple injuries. PW-2 Sant Ram and one Man Singh were on the spot. The complainant raised cries and on hearing the cries of the complainant, PW-3 Vir Chand and PW-4 Dalip Singh reached the spot. The written complaint Ex.PW-7/A was given to police by PW-7 on which rukka Ex.PW-12/A was sent and FIR Ex.PW- 12/B was registered. During investigation, site plan Ex.PW-12/C was prepared, recoveries were made. PW-7 was got medically examined and his MLC Ex.PW-7/A was obtained, photographs Ex.P-1 & Ex.P-2 were taken. 3. On completion of investigation, challan was presented and the accused were charged for offence punishable under Sections 332, 353 and 34 IPC to which they pleaded not guilty. The prosecution has examined 12 witnesses to bring home the charge. The statements of accused were recorded under Section 313 Cr.P.C. The accused examined DW-1 Viri and DW-2 Satar Din. The Sub Divisional Judicial Magistrate convicted and sentenced accused Nazir under Sections 332 and 353 IPC on 26.7.2000 and acquitted the other accused. In appeal, the Additional Sessions Judge, has affirmed the conviction and sentence of Nazir under Section 332 IPC and sentenced him to undergo simple imprisonment for one month and to pay a fine of Rs. 500/-. In default of payment of fine, he 3 shall undergo simple imprisonment for 15 days, hence, Nazir has filed the present revision. 4. Heard and perused the record. Mr. G.D.Verma, Senior Advocate appearing on behalf of the petitioner has submitted that the two Courts below have erred in convicting and sentencing the petitioner under Section 332 IPC. The inference drawn by the two Courts below is not possible, the evidence has been mis-construed and mis-interpreted. The prosecution has come forward with specific story that petitioner and others had committed offence, Courts below did not accept the prosecution story and acquitted all accused except Nazir - petitioner. The two Courts below have wrongly convicted the petitioner on the same story. The learned Additional Advocate General has supported the impugned judgment. 5. Ex.PW-7/A is the written complaint dated 24.9.1997 of PW-7 Jai Singh in which he has stated that at about 2.30 p.m. on 24.9.1997 he asked Gujjars to take out their cattle from the forest. On this, Yusuf, Gulzar, Deen Mohd. and Nazir who were holding dandas in their hands threatened and abused him and deterred him from performing his official duty. Nazir gave danda blow on his right leg above ankle. The complainant raised hue and cry and on hearing his cries, Sant Ram and Man Singh reached the spot, who also persuaded Gujjars not to quarrel with the complainant. Vir Chand and Dalip Singh also came on the spot on hearing the cries of the complainant. Ex.PW-1/A is the recovery memo of danda Ex.P-1 from Din Mohd. Ex.PW-1/B is the recovery memo of danda Ex.P-2 from Gulzar. Ex.PW-1/C is the recovery memo of danda Ex.P-3 from Nazir. Ex.PW-1/D is the recovery memo of danda Ex.P-4 from Yusuf. Ex.PW-11/A is the MLC of Jai Singh Chandel, who was 4 examined on 24.9.1997 at 8.00 p.m. Ex.PW-8/A is the monthly diary of Jai Singh Chandel, Forest Ranger, B.O. Karsog for the month of September, 1997 wherein it has been mentioned that Gujjars had attacked Jai Singh Chandel with their lathis and injured his right leg for which case was registered with the police. 6. PW-1 Bakshi Ram has stated that on 24.9.1997 he accompanied Jai Singh Chandel, Range Officer in van HP-22-797 towards Mahu Nag for patrolling the forest. They were returning at about 2.30 p.m. It was found that the Gujjars had let in their cattle in forest No. O.D.117 for grazing. They were asked to take out the cattle from the forest. Gujjars came there and started abusing Range Officer. Nazir Muhammad gave danda blow on the leg of Range Officer and ran away from the place, rest of the Gujjars remained on the spot. Police came on the spot and Range Officer submitted written complaint to the police. 7. PW-2 Sant Ram has stated that Range Officer initially gave danda blow to Deen Mohd. and thereafter witness left the place. He did not support the prosecution and was cross-examined by the prosecution. In cross-examination, he has denied having made various parts of his statement Ex.PW2/A. The prosecution had given up Man Singh witness. PW-3 Vir Chand has stated that on hearing noise, he went to the spot and found that Range Officer Chandel was encircled by Gujjars. Sant Ram and Man Singh were also on the spot. Range Officer had shown his leg that he had been given danda blow by Nazir. B.O. Bakshi was also with Range Officer. He does not know the accused except Yusuf. PW-4 Dalip Singh has stated that near Khil-Kufri there were many persons with Range Officer and the Range Officer was crying. The 5 Range Officer told that he had been given beating by Nazir. He cannot recognize the Gujjars. 8. PW-5 Het Ram is the photographer, who has proved photographs Ex.P-1 and Ex.P-2 and negatives Ex.P-3 and Ex.P-4. PW-6 Hem Kund is a witness of recovery memos Ex.PW-1/A to Ex.PW-1/D and dandas Ex.P-1 to Ex.P-4. In cross-examination, he has stated that he does not know which danda was produced by which accused. PW-7 Jai Singh complainant has stated that on 24.9.1997 at about 2.30 p.m. he and Bakshi Deputy Ranger were going in maruti van HP-22-797 from Mahu Nag to Dharmour. At place Khil-Kufri in DPF O.D./117 Dharmour / Alyar, the Gujjars had let their buffaloes, horses and cows in the forest after removing barbed wire. He asked the accused to take out the animals from the forest, they retorted that the forest is not of his father. Nazir gave danda blow on his ankle. He raised cries, Sant Ram and Man Singh were on the spot. On hearing his cries, Viri Singh and Dalip Singh also came on the spot. The accused deterred him from performing his official duty. He informed the police on phone, police came on the spot and he submitted written complaint Ex.PW-7/A. In cross-examination, he has stated that he did not know the accused before the incident nor he had seen them earlier. The accused disclosed their names to the police themselves. The complaint Ex.PW-7/A was written by him on the arrival of the police on the spot. He does not know which danda was produced by which accused. He has stated that a cross complaint was filed before the Sub Divisional Magistrate of this incident. 9. PW-8 Padam Nabh, Junior Assistant is a witness to the appointment order copy mark ‘X’ and transfer order mark ‘Y’. PW-9 Nanak Chand, Junior Assistant has proved tour diary Ex.PW-8/A of 6 Jai Singh Chandel. PW-10 Onkar Chand is the driver of van HP-22-0797. He has stated that on 24.9.1997 he had driven Range Officer Jai Singh and B.O. Bakshi Ram to Mahu Nag in the van. At about 2.30 p.m. Range Officer at Khil-Kufri on seeing some buffaloes in the forest, asked him to stop the van. He was in the process of parking the van but in the meantime quarrel took place. He was standing on the road. He does not know what happened. He did not support the prosecution and was declared hostile. In cross-examination conducted by the prosecution, he has stated that Range Officer had shown him injury on the leg. In cross- examination conducted by the defence, he has stated that he cannot recognize the accused. He does not know who inflicted injury on Range Officer. PW-11 Ritu Shitak was posted as Medical Officer at C.H.C. Karsog in the year 1997. She examined Jai Singh Chandel on 24.9.1997 and issued MLC Ex.PW-11/A. In cross-examination she has stated that the injury can be caused by fall. PW-12 Nek Ram ASI is the Investigating Officer. 10. PW-7 complaint Jai Singh in his written complaint Ex.PW-7/A has stated that he, PW-1 Bakshi Ram, PW-10 Om Parkash driver of van were on the spot. Yusuf, Gulzar, Deen Mohd. and Nazir were also on the spot. They abused him, Nazir gave danda blow on his right leg above ankle. He cried for help. PW-2 Sant Ram and Man Singh were also on the spot. They saved him and on raising cries, PW-3 Vir Chand and PW-4 Dalip Singh came on the spot and they saved him. Yusuf, Gulzar, Deen Mohd. and Nazir deterred him from performing his official duties. PW-7 Jai Singh complainant in the Court has stated that Bakshi, Deputy Ranger was with him on the spot. He has not stated about presence of the driver of the van. He has stated that Yusuf, Gulzar, Deen 7 Mohd., Nazir and Ali Hussain were on the spot and they were having dandas in their hands. In the Court, he has not stated that the aforesaid persons abused and threatened him. He introduced the name of Ali Hussain in his statement in the Court whereas in his written complaint Ex.PW-7/A he has not stated about the presence of Ali Hussan on the spot. In Ex.PW-7/A, he has stated that Nazir gave danda blow on his right leg above ankle, whereas in his statement in the Court he has stated that blow was given by Nazir on his ankle. He has thus made improvements in the case. In his cross-examination, he has also stated that about the same incident a cross complaint was also filed before the Sub Divisional Magistrate but he has not elaborated about the said cross complaint. 11. PW-1 Bakshi Ram has referred Gujjars in general for abusing Range Officer but he named only Nazir Mohd. for inflicting danda blow on the leg of Range Officer. He has also stated that Nazir after hitting Range Officer with danda ran away from the spot and other Gujjars remained on the spot. He has not stated that driver of the van, Sant Ram, Man Singh, Viri Chand and Dalip Singh were also on the spot. He has also not stated that accused deterred complainant from performing his official duty. He has thus not supported the prosecution story as revealed by PW-7 complainant. PW-7 has stated that accused disclosed their names to the police and thereafter he had submitted complaint Ex.PW-7/A. This part of the statement of the complainant as far as Nazir is concerned has been contradicted by PW-1 Bakshi Ram who has stated that Nazir after hitting Range Officer ran away from the spot, then who disclosed the name of Nazir either to police or to the complainant that has not been explained by the prosecution. PW-7 has stated that he came to know about the accused from the date of occurrence and earlier 8 he had not seen them. He has not stated that he knew the identity and name of Nazir prior to the incident. In Ex.PW-8/A the monthly diary of Jai Singh Chandel there is a reference that on 24th September, 1997 he was attacked by Gujjars and they injured his right leg with lathis and a police case was also registered. This indicates that PW-7 was attacked by more than one person with lathis which is in contradiction to written complaint Ex.PW-7/A of PW-7 complainant as well as his statement in the Court. In Ex.PW-8/A, the complainant has nowhere stated that he was attacked by Nazir and was obstructed or deterred from discharging his official duties. 12. It is the case of the complainant that driver of the van was on the spot and, therefore, it is reasonable to assume that driver of the van must have seen the occurrence. The driver of the van Onkar Chand has appeared as PW-10. He did not support the prosecution and was declared hostile. He has not stated that complainant was obstructed or deterred by Nazir from performing his duties. He has also not stated that any danda blow was given by Nazir to PW-7 complainant. PW-11 Dr. Ritu Shitak has stated that injuries noticed in MLC Ex.PW-11/A of the complainant can be caused by fall. There is no specific evidence on record which danda was produced by which accused during investigation. PW-2 Sant Ram has not supported the prosecution and was declared hostile. He has rather stated that Range Officer had given danda blow to Deen Mohd. and thereafter witness left the place. PW-3 Vir Chand has stated that Range Officer had shown him his leg and told that Nazir gave danda blow on his leg. PW-3 has not stated that PW-4 Dalip Singh was on the spot. He has also not stated that Nazir or any other Gujjar deterred the complainant from discharging his official duty. The statement of PW-3 reveals that he is not an actual eye witness to the alleged danda blow 9 given by Nazir to complainant. PW-4 Dalip Singh has stated that Range Officer told him that Nazir had given him the beatings. He had seen injury on the person of the complainant. This witness has not stated about the presence of Sant Ram, Man Singh, Driver of the van and Bakshi Ram on the spot. This witness is also not an actual eye witness regarding the danda blow given by Nazir to PW-7 complainant. He has also not stated that PW-7 was obstructed by Nazir or any Gujjar from performing his official dities. 13. The learned Additional Sessions Judge has not properly appreciated the material on record in convicting and sentencing the petitioner under Section 332 IPC. In view of the material contradictions, improvements and variations noticed in the prosecution case above, it can be safely held that the prosecution has failed to prove the case against petitioner beyond reasonable doubt. The petitioner is entitled to benefit of doubt. The view taken by the learned Additional Sessions Judge from the evidence on record, is not possible and, therefore, impugned judgment is liable to be set-aside. 14. No other point was urged. 15. The result of the above discussion, the revision is allowed, the impugned judgment dated 9.8.2002 passed by the Additional Sessions Judge Mandi in Criminal Appeal No. 12 of 2000 alongwith judgment dated 26.7.2000 passed by Sub Divisional Judicial Magistrate, Karsog, are set- aside and the petitioner - accused is acquitted of the charge. The fine amount, if any, deposited by him be refunded to him. His bail bonds are discharged. June 5, 2009. ( Kuldip Singh ), (GR) Judge.