IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No. 300 of 2001 Date of Decision : 3.3.2008 State of H.P. …Appellant. Versus: Shankar Dass …Respondent. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant: Mr. Vivek Thakur, Additional Advocate General. For the respondent : Mr. Janesh Gupta, Advocate. Sanjay Karol, J (Oral). The present appeal arises out of the judgment dated 21.11.2000 passed by the Judicial Magistrate 1st Class, Court No.2, Dehra, District Kangra, H.P. in Criminal Case No. R.B.T.-91-II/99/94, acquitting the accused of the charged offence. As per the case of the prosecution, on 26.5.1994 at about 10.00 a.m. accused Shankar Dass alongwith minor Raja alias Deepak Verma were plucking mangoes from the mango tree belonging to the complainant Smt. Kesari Devi. When Smt. Kesari Devi objected to the same, the accused alongwith Raja alias Deepak Verma hurled abuses 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 and gave her a blow with danda Ex.P-1, as a result of which, the complainant suffered injuries. Smt. Kesari Devi was rescued by Smt. Sushma Devi (PW-3) and Smt. Ajudhya Devi (PW-4). The matter was reported with the police vide rapat (Ext.PW-2/A) on 27.5.1994, on the basis of which, an F.I.R.No.44/94 dated 31.5.1994 was lodged with the Police Station, Haripur under Section 325/34 I.P.C. The complainant Smt. Kesari Devi was got medically examined by Dr. V.K.Chaudhary (PW-1). After complete medical examination vide his report (Ext.PW-1/A) the doctor opined that the complainant had suffered grievous injury of fracture of shafts with radius of ulna of left forearm. The weapon of offence was recovered vide seizure memo Ext.PW-5/A. With the completion of the investigation, the challan was presented in the court for trial. Since one of the accused was minor, therefore, a separate challan against accused Raja alias Deepak Verma was filed in the Juvenile Court at Una. The charge was put to the accused in the present case under Section 325/34 IPC to which he did not plead guilty and claimed trial. In order to prove its case, the prosecution examined seven witnesses. Statement of accused under Section 313 Cr.P.C. was recorded. However, the accused did not lead any evidence in defence. During trial, the original complainant Smt. Kesari Devi expired and her statement could not be recorded in court. Considering the material on record, the court below came to the conclusion that the prosecution had failed to prove its case beyond reasonable doubt and the accused could not have been alleged to have 3 committed the charged offences for the reason that the prosecution witnesses , who had witnessed the recovery of weapon of offence, were declared hostile and also the prosecution had not examined all of their witnesses including the Investigating Officer, who has investigated the case. I have heard the learned counsel for the parties and perused the record. The statement of Dr. V.K.Chaudhary (PW-1) has undoubtedly proved his MLC (Ext.PW-1/A) and has deposed that he medically examined the complainant Smt. Kesari Devi (now deceased). It is pertinent to point out that the Radiologist whose report was considered by the Doctor to arrive at its conclusion and give his opinion, has not been examined by the prosecution. Be that as it may, in the cross-examination, he has deposed that the possibility of suffering the injuries by falling on the stone cannot be ruled out. The statement of Smt. Kesari Devi (PW-2/A) was recorded by Sh. Jagdish Chand, (PW-2). Sh.Hans Raj (PW-5) and Sh.Hem Raj (PW-6) are the witnesses, who allegedly have signed the seizure memo Ext.PW-5/A. During trial, they were declared hostile and were cross-examined by the Public Prosecutor. Perusal of their statements show that there is nothing which would connect the accused with the commission of crime. ASI Partap Singh (PW-7) is a formal witness, who has prepared the challan and presented the same in the court. 4 Further statements of Smt. Sushma Devi (PW-3) and Smt. Ajudhya Devi (PW-4) need to be examined. Undoubtedly, PW-3 has supported the case of the prosecution. However, the presence of PW-4 at the time and place of occurrence becomes doubtful in view of the first information Ext. PW-2/A given to the police, where she herself has stated that she was not present at the time of occurrence and she reached only after the alleged offence had been committed by the accused. Therefore, in this background statement recorded in the court cannot be relied upon to prove the guilt of the accused beyond reasonable doubt as the statement of PW-4, in my view, cannot be used to corroborate the version of PW-3. She has materially improved her version. She was not present at site, therefore, would not have deposed about the incident. The court below has recorded the fact that inspite of various opportunities granted, the prosecution had failed to examine their witnesses in totality which is quite evident from the record. In view of the fact that PW-5 & PW-6 have been declared hostile, therefore, it cannot be said that the prosecution has been able to prove the recovery of the alleged weapon of offence. There is yet another aspect of the matter. Whereas the incident is alleged to have taken place on 26.5.1994 at about 10.00 A.M., the matter was reported to the police only on 27.5.1994. It has come on record that the police station was at a distance of only two and half kilometers from the place of occurrence of the incident. Why the matter was not reported to the police immediately, has not been explained by PW-4, who is alleged to have taken the complainant to the Police Station for getting her statement recorded. In my view, this renders the prosecution 5 story to be doubtful and the sole testimony of PW-3, cannot be relied upon for convicting the accused for the alleged offence. The complainant died during the trial, prior to her examination, and the exact version of the incident could not be brought on record by the prosecution. The Doctor has already opined that the injury could have been sustained by falling on hard surface. Admittedly, the complainant was an old lady and the possibility of suffering the injury by herself , cannot be ruled out. The accused has had the advantage of having been acquitted by the court below, who has considered the material in its entirety. I see no perversity in the same. The prosecution has failed to prove its case against the accused beyond reasonable doubt. The appeal is accordingly dismissed. The bail bonds are discharged. March 3, 2008(GR). (Sanjay Karol), Judge.