IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 106 of 2002 Date of decision: 21.6.2011 __________________________________________________________ State of H.P. .....Appellant. Vs. Ramesh Kumar @ Maheshi and anr. .....Respondents. Coram The Hon'ble Mr. Justice R.B. Misra, J. The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? For the appellant : Mr. R.K. Sharma, Sr. Addl. Advocate General. For the respondents : Mr. Himmat Negi, Advocate vice Mr. Ajay Sharma, Advocate. Justice R.B. Misra, J (Oral) The present criminal appeal has come up for consideration after leave to appeal has been granted, under Section 378 (3) Cr.P.C., in reference to the impugned judgment, dated 1.11.2001, passed by the Sessions Judge, Una in Sessions Trial No. 13 of 2001, acquitting the respondent-accused for the alleged involvement for the offences, under Section 307 IPC read with Section 34 IPC, Sections 41 and 42 of the Indian Forest Act, Section 3 of the Prevention of Damage to the Public Property Act, 1984 and Section 11-20 of the HPFT Act, in reference to FIR No. 500 of 2000, dated 2.9.2000. 2. The prosecution case is that SI Surinder Sharma (PW-14), Incharge of Police Post, Mehatpur, conducted Naka along with other police officials on 1.9.2000 at 11.30 p.m. at Bhatoli Chowk. It so happened that at about 4.15 a.m on 2.9.2000, accused-Ramesh Kumar while driving gypsy No. HP-34-2523 from Mehatpur side towards Nangal along with Onkar Singh was given a signal by HC Sunil Mohammad to stop the same, but he did not stop it and instead speed was increased 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 and an attempt was made to run over SI Surinder Sharma (PW-14) and HC Ranjit Singh (PW-8), however, thereafter, gypsy hit Constable Mohinder Singh (PW-9), who was injured. When the police party made an endeavour to stop and apprehend zipsy, accused-Onkar Singh threw one log of Khair wood Ext. P-5 on the road creating hindrance to the police party. The gypsy broke the pipe of the Excise Barrier at Bhatoli and fled away towards Nangal in Punjab State and it could not be intercepted. FIR Ext. PO was registered by SI Harnam Singh. Site plan was prepared by S.I Surinder Sharma (PW-14) and he moved an application Ext. PK/1 to Dr. N.K. Angra, Medical Officer, PHC Basdehra for medical examination of Constable Mohinder Singh (PW-9) and Dr. N.K. Angara found lacerated wound on the right elbow of Constable Mohinder Singh (PW-9). Gypsy NO. HP-34-2523 was taken in possession on 5.9.2000 along with its RC Ext. P6 and driving licence Ext. P7 vide memo Ext. PD. Accused persons were arrested and after investigation, they were charged for the aforesaid offences. 3. In order to prove its case, prosecution examined as many as fourteen witnesses, whereas, the accused through their statements under Section 313 Cr.P.C. denied the prosecution case. 4. On analysis of prosecution witnesses and materials on record, we noticed that Pardeep Raj, Excise Inspector has stated that he did not know abut the person who was driving the gypsy at the relevant time. PW-2 Budhi Singh, Peon of Excise Barrier, has stated that he signalled the driver of the gypsy, but despite signal, he did not stop and fled away towards Nangal side by breaking pipe of the barrier. PW-2 further stated that he was supposed to be on duty at the barrier 24 hours and there was no arrangement of electricity light or any other light system 3 at the barrier. 5. PW-3 Sarvan Kumar was asked by the police officials to give lift on his scooter up to Bhatoli barrier, which he provided, however, nothing has happened in his presence, as stated by him. He did not support the prosecution version. PW-4 Yashpal Singh owner of the gypsy in question has stated that accused-Ramesh Kumar was driver of the gypsy in the month of September, 2000, which was taken in possession by the police, however, in cross-examination, he has stated that gypsy had no dent etc. at that time. PW-5 Bhupinder Singh was the formal witness of taking gypsy in possession by the police. 6. PW-6 Ganesh Dass, Ex-Pradhan of Gram Panchayat, Charatgarh has stated that he joined the investigation at the police post. Accused-Onkar Singh made the disclosure statement Ext. PF to the effect that the accused persons were carrying ‘Khair’ wood to Nangal after loading them from Jalgran which they had concealed in the bushes on Nangal-Mojowal road and he could get the same recovered after giving Nishandehi of the police. In cross-examination, PW-6 has made different statements. On the one hand, PW-6 has stated that he could identify the accused persons but on the other, stated that he could not identify them. PW-7 Heera Lal has stated that no logs of ‘Khair’ wood were recovered in his presence. PW-8 HC Ranjit Singh, accompanied SI Surinder Sharma with a Naka party, has stated that gypsy in question came being driven at the relevant time from Bhatoli Morbar side but despite endeavour to stop at the police singal, gypsy broke excise barrier despite giving torch signal by SI Sunil Mohammad and the driver did not stop and one log of ‘khair’ wood was thrown on the road to stop the policy party while chasing the gypsy and Mohinder Singh (PW-9) was hit by 4 gypsy resulting in injury. PW-8 has, however, stated in cross- examination that there was electricity light available at that time. In contradiction to the version of PW-2 Budhi Singh, who was on 24 hour’s duty had very categorically stated that no light was available at the relevant time. PW-9 Constable Mohinder Singh has corroborated the testimony of HC Ranjit Singh (PW-8). PW-10 Dr. N.K. Angra had conducted the medical examination of C. Mohinder Singh and issued MLC Ext. PK, however, he was never associated in the investigation. In cross-examination, PW-9 has stated that electricity light was available at the barrier at that time. 7. PW-12 Ram Murti had given Nishandehi of Khasra No. 987 in village Up-Mohal Rakkar colony and gave the report Ext. PM/2 to the effect that two ‘Khair’ trees had been cut from Khasra No. 987. PW-13 HC Karnail Singh took photographs of broken excise barrier. PW-14 SI Surinder Sharma has stated that gypsy in question came from Mehatpur side heading towards Nangal but did not stop despite giving a torch signal, however, after breaking excise barrier, the accused persons fled away. PW-14 has also stated that there was electricity available at the excise barrier at the relevant time. 8. On analysis of prosecution evidence and materials on record, we noticed that when PW-2 Budhi Singh, Peon posted at the excise barrier has very categorically stated that there was no arrangement of electricity light available at the relevant time but the official witnesses PW8 Ranjit Singh and PW-9 Mohinder Singh have stated that electricity light was available at the barrier at that time. The alleged Naka was conducted at 4.15 a.m. when it was admittedly dark and as such in the absence of electricity, nobody could have noticed the 5 number of gypsy and the driver who was driving the vehicle. No doubt HC PW-8 Ranjit Singh, PW-9 Mohinder Singh and PW-14 SI Surinder Sharma had stated that there was electricity light at the barrier, however, such version is contradicted by PW-2. In view of testimony of Yashpal (PW-4), HC Ranjit Singh (PW-8) that Ramesh Kumar was driving the vehicle at the relevant time and the electricity light was available, the possibility of vehicle being driven by somebody else cannot be ruled out. Surprisingly no dent was noticed on gypsy even after recovery by the police department. In an endeavour to stop the gypsy, if the accused had been driving the vehicle with high speed and if the intention of the driver of gypsy in question was to cause injury to the persons obstructing the same, in such condition, Mohinder Singh could have been suffered severely instead of simple injury. 9. On analysis of prosecution witnesses and materials on record, we find that there is no scope of any interference in the impugned judgment of the learned Sessions Judge who has rightly arrived at the conclusion that the prosecution has failed to prove its case beyond reasonable doubt. We are of our considered view that the prosecution has not been able to bring home the guilt to the accused, therefore, the appeal being devoid of any merit, is dismissed. Bail bonds furnished by the accused are discharged. (R.B. Misra) Judge (V.K. Sharma) Judge June 21, 2011 (cr)