IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.728 of 2002. Decided on: July 06, 2009. State of H.P. …Appellant. VERSUS Desh Raj & Ors. ….Respondents. Coram The Hon’ble Mr.Justice R.B.Misra, Judge. Whether approved for reporting?1 For the Appellant: Mr P.K.Sharma, Addl.A.G. For the respondents: Mr.Avneesh Bhardwaj vice Mr.Ajay Kumar, Advocate. R.B.Misra, Judge (Oral): Heard Mr.P.K.Sharma, learned Additional Advocate General for the appellant / State and Mr.Avneesh Bhardwaj, learned vice counsel for the respondents. 2. The present criminal appeal has arisen by virtue of granting leave to appeal under Section 378(3) of the Code of Criminal Procedure in reference to the judgment dated 10.6.2002, passed by learned Judicial Magistrate 1st Class, Dehra, District Kangra, in Criminal Case No.170-II/2000/99 granting acquittal in reference of involvement of alleged Whether the reporters of the local papers maybe allowed to see the judgment? …2… accused / respondents for the alleged offence punishable under Sections 324/506/34 IPC. 3. In order to adjudicate the present criminal appeal, it is necessary to elaborate the prosecution case in brief. On 29.6.1998, at about 5 P.M., the complainant, Baldev Singh, was going to plough his maize field when he noticed that accused Desh Raj, owner of the adjoining Khasra No.334, had removed fence of his land. On asking from Desh Raj about the removal of the fence, the alleged accused Desh Raj started abusing him. In the meantime, accused Puran Chand gave one blow of ‘Drat’ on the left ear of the complainant. According to the complainant, alleged accused Desh Raj, Swaran Singh and Raksha Devi had given beatings to him with kicks and fist blows. On raising the alarm, complainant was rescued by Sushila Devi, wife of complainant and one Hans Raj. On reporting the matter to the police in reference to F.I.R. No.101/98, the matter was investigated. Spot map was prepared and ‘Drat’ was recovered from accused Puran Chand and blood stained Pajama was recovered on 7.7.1998 in the presence of Hans Raj and Shakti Chand. SHO Police Station, Jawalamukhi has found that the alleged accused / respondents had committed the offences punishable under Sections 324/506/34 IPC and presented the challan. In order to …3… prove the case, the prosecution has examined as many as nine witnesses whereas the alleged accused persons had totally denied the prosecution case in their statement under Section 313 Cr.P.C. 4. On the basis of material on record, the following questions were framed for determination. The first question was answered in negative and in reference to second question, all alleged accused / respondents were acquitted for the alleged offences:- i) Whether the prosecution has proved that on 29.6.1968 at about 5 p.m. at place Dodhu Rajputan the accused persons in furtherance of their common intention have removed the fence from the field of complainant Baldev Singh and caused simple hurt to him with sharp edged drat and also threatened him with dire consequences, as alleged? ii) Final order. 5. As noted by the learned trial Court that the F.I.R. Ext.PW-2/B was drawn on the basis of Rapat dated 29.6.1998, however, there was no Rapat dated 29.6.1998 on the record. However, in reference to testimony of PW-5 HC Bhup Singh, learned trial Court has rightly arrived at a …4… conclusion that the F.I.R. Ext.PW-2/B is not drawn on the basis of Rapat Ext.PW-2/A. As has been noted by the learned trial Court that the main dispute was removal of fence from the field of complainant. However, no prosecution witness has been noticed to have stated regarding location and removal of the fence. PW-9, Investigating Officer, Partap Singh has too not taken into possession any article of the removed fence. No spot map was prepared, therefore, removal of fence from the field was not said to be proved. The alleged accused / respondents have pleaded their false implication on the ground of previous enmity and even complainant Baldev Singh through his cross examination has admitted that one case under Section 354 IPC was pending adjudication before the Court of Additional Chief Judicial Magistrate, Dehra and PW-6 Sushila Devi, wife of complainant, too has admitted frankly that the complainant was not having cordial relations with the accused persons. PW-6 has also admitted about the pending cases amongst the complainant and the accused side. Therefore, learned trial Court, in reference to the testimony of complainant (PW-2) and Sushila Devi PW-6, has correctly inferred that there was existence of previous enmity. On raising alarm by the complainant, he was said to have been rescued by Hans Raj PW-3 and his wife, …5… Sushila Devi PW-6. However, as per the prosecution story, PW-3 Hans Raj, PW-4 Sudesh, PW-6 Sushila Devi and PW-7 Shakti Chand are stated to be the eye-witnesses of the occurrence. It is worth mentioning that at the time of lodging the F.I.R. the complainant had not disclosed the name of Sudesh Kumari and Shakti Chand as eye-witnesses. As per testimony of PW-3 Hans Raj, on 29.6.1998 at about 5 P.M. while he was coming from village Hadol, he saw that one person was lying on the ground and two women were standing and on inquiry, they said that the accused persons had given beatings to complainant. PW-3 Hans Raj has nowhere stated in his examination-in-chief that he had ever rescued the complainant from the clutches of the accused / respondents. PW-3 has also not stated that he had seen the occurrence. There are apparent contradictions that can be noticed from the testimony of PW-3, PW-4, PW-6, PW-7 and other prosecution witnesses in respect of observing the occurrence inflicting the injuries. Many contradictions and inconsistencies have been emanating from the testimonies of the prosecution witnesses. I am of the considered view that the prosecution has not been able to establish the case against the alleged accused / respondents beyond reasonable doubt and there are apparent contradictions and inconsistencies in the testimony of the prosecution …6… witnesses, as being noticed above. As such, I have no occasion to interfere in the conclusion and verdict arrived at by the learned Judicial Magistrate 1st Class, Dehra, District Kangra, vide judgment dated 10.6.2002, passed by in Criminal Case No.170-II/2000/99 giving benefit of doubt to the accused / respondents. 6. The result of the above discussion / analysis is that the criminal appeal, being devoid of any merit, is dismissed. Bail bonds furnished by the accused / respondents are hereby discharged. July 06, 2009. ( R.B.Misra ) (soni) Judge