IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 269 of 2003 Date of Decision 19.7.2010 ________________________________________________________ State of H.P. Appellant. Versus Gopal Krishan & another Respondents. Coram: Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting?1 No. For the Petitioner : Mrs. Ruma Kaushal, Addl. Advocate General. For the respondent : None. Dev Darshan Sud, J.(Oral) The prosecution is aggrieved by the order of acquittal passed by the learned Judicial Magistrate, 1st Class (1), Dharmashala acquitting the respondents for offences punishable under Sections 341, 323, 325 and 506 of the Indian Penal Code. 2 The prosecution case in brief is that on 09.01.2003 at about 6:00 p.m. , when the complainant Ami Chand, PW-1 was at Khirdi bus stand to purchase some beedies, the respondent/accused started altercation with the complainant and when accused Gopal tried to assault him with stones, Dharam Singh PW-4, intervened and rescued him. Thereafter, the complainant thought that the matter was amicably resolved and he left for his house and when he reached there, both the accused entered the house of the complainant. The respondent Gopal Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 Krishan assaulted him and bit him up with the danda (stick). When he raised an alarm, his wife PW-2 Leela Devi tried to rescue him, but Gopal Krishan also assaulted him with the stick. It is alleged that he bit Leela Devi on her leg. She raised an alarm and Chain Singh’s brother and his wife Bimla Devi came to the scene and rescued the complainant and his wife from the clutches of the respondents. 3 On the evidence on record, the learned trial Court holds that there are number of contradictions material to the case of the prosecution namely the spot/site, where the incident occurred, the manner and mode of assault, which does not establish the complicity of the respondents/accused and the recovery of the danda (stick), used in the assault. 4 Adverting to the evidence on record, learned trial Court holds that according to the evidence, especially Ex. PW6/B, it has been effort of the prosecution to establish that both the complainant and his wife were assaulted on the road side and not in the house. Whereas, the version of the complainant is that the accused has entered his house and then assaulted them. 5 The trial Court then concludes that in the F.I.R. Ex. PW6/A, the complainant Ami Chand PW-1 and Leela Devi PW-2 were rescued by Chain Singh PW-3, brother of the complainant and his wife Bimla Devi but, PW-2 Leela Devi stated in her cross-examination that her brother-in-law PW-3 came to the spot after the occurrence and not while the assault was taking place. The Court holds that these circumstances are sufficient to establish that the presence of Chain Singh, PW-3 itself was doubtful on the spot. The Court did not turn on the evidence of PW- 1 Ami Chand, where he says that his house is surrounded by 4-5 houses, but none from these houses was examined in the Court. So far 3 as the residence of Chain Singh PW-3 is concerned, it has come in the evidence that he was sharing common house with the complainant Ami Chand. Leela Devi states that house of Chain Singh is at the distance of more than 100 yards away from her residence, whereas Chain Singh says that he was sharing common house with his brother. 6 To the last important point, which the learned trial Court considers has been fatal to the case of the prosecution case, is that the danda (stick) Ex. P-1 has not been shown to have been recovered either from the accused or otherwise. According to the evidence of Chain Singh PW-3, who was one of the attesting witnesses of the seizure memo, he has stated that the danda was produced in the Police Station by Ami Chand and PW-4 Dharam Singh, another attesting witness. In his cross-examination, this witness admits that it was not produced in his presence, whereas, it was lying in the Police Station. The Doctor, PW-5 Mohan Chaudhary did not find any injury on the head of PW-2 Leela Devi, whereas in her examination-in-chief, she states that she was hit by Gopal Krishan with danda on her head. In the totality of the facts and circumstances of the case, the respondents were acquitted. 7 Learned Additional Advocate General has urged that the evidence of the injured witnesses was itself sufficient to have sustain the conviction against the respondents as their narration of the facts was natural and there was no embellishment in the case. 8 After having considered the evidence of the witnesses and circumstances, I cannot persuade myself to hold that the learned trial Court has come to a different conclusion. In these circumstances, I do not find any infirmity in the judgment of the learned trial Court below. 4 This appeal is accordingly dismissed. Bail bonds furnished by the respondent shall stand discharged. July 19, 2010 (Dev Darshan Sud), Judge (K. Attri) 5