HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No.: 108 of 2002 Decided on: 6.1.2009 State of Himachal Pradesh ………Appellant. Versus Kishan Chand and others ………Respondents. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the appellant: Ms.Shubh Mahajan, Deputy Advocate General. For the respondents: Mr.Anuj Nag, Advocate. V.K. Ahuja, J (Oral): This is an appeal filed by the State of H.P. under Section 378 of the Cr.P.C. against the judgment of the court of learned Additional Chief Judicial Magistrate, Nurpur, dated 1.11.2000, vide which the respondents were acquitted of the charges framed against them under Sections 457, 323 read with Section 34 of the Indian Penal Code. Briefly stated the facts of the case are that on 24.5.1996, at 11.15 a.m., a report was lodged with the police by complainant Maya Devi accompanied by her sons Desh Raj and Ranjit Kumar alleging therein that on the intervening night of 23/24.5.1996, at about 12.00 night, she was sleeping in her room and her sons were sleeping in their own rooms. She further stated that the door of her room was open at that time and suddenly Kishan Chand respondent entered the room by opening the door and she got up. Kishan Chand demanded the keys and when she refused, he gave a danda blow over her body and it hit over _______ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - her head. The blood started oozing out. She raised an alarm and her sons Ranjit Kumar and Desh Raj came out of there rooms to the Verandah where other respondents were standing with dandas in their hands and one Sanjay Kumar was having an iron chain. She further stated that those persons quarreled with her sons Desh Raj and Ranjit Kumar and Desh Raj also suffered injuries on his head and other parts of his body and when she tried to rescue him from the clutches of the accused, she was also given beatings due to which she suffered injuries on other parts of her body. She raised an alarm and many persons came there, who saw the respondents running from that place. On this rapat, a case was registered subsequently and after investigation, the challan was filed as against the respondents, who were tried by the learned trial Court leading to their acquittal. I have heard the learned counsel for the parties and have gone through the record of the case. On appraisal of evidence led by the prosecution, it is clear that the prosecution had examined 9 witnesses to substantiate their case. The statement of three witnesses, including that of the complainant, can be said to be material. PW-1 Maya Devi complainant has stated that she heard a noise and she got up and saw Kishan Chand respondent standing in her room, who demanded the keys. She raised an alarm chor-chor and the accused gave a blow on her face near her ear with a danda. However, in her report lodged to the police Ext.PW-9/A, she had mentioned that the blow was given over her head and the blood had started oozing out. On hearing her noise, her sons Ranjit Kumar and Desh Raj came there and other persons were standing there. However, she has not stated that any blows were given on the person of her sons Desh Raj and Ranjit Kumar by the respondents in her presence. She further stated that they - 3 - may have quarreled with her sons and her sons were not having anything in their hands though the accused persons were having dandas with them. She raised an alarm and the respondent ran away from the spot and then she lodged the report with the police. Thus, regarding the injuries on her person, she has stated that it was inflicted on her face with danda and she has not stated anything about injuries, if any, inflicted upon her sons by the respondents. In cross examination, she was confronted with her earlier statement and she had made some improvements in her statement, as has come up in her cross examination. In cross examination, she admitted that when she raised an alarm, persons came from the nearby houses, but she has not named any of them. She admitted that it was a dark night at that time and in the courtyard also, it was sufficiently dark and she could not identify as to who was standing in the courtyard, meaning thereby that she has ruled out the possibility that the other accused persons were identified by her at that time. PW-2 Ranjit, son of the complainant PW-1 Maya Devi, has stated that he heard the noise of his mother, came out and they were attacked by the respondents. He also stated that accused Sanjay was having a chain in his hand, but said Sanjay has not been impleaded as an accused. He further stated that he raised an alarm chor-chor. The respondents started giving them beatings and on hearing their noise, many persons came there and accused ran away. He did not state specifically in regard to the injuries inflicted upon his person or that of his brother Desh Raj by any of the accused. Moreover, a perusal of the charge shows that the respondents have not been charged under Section 323 read with Section 34 of the IPC for giving blows on the person of this witness Ranjit or his brother Desh Raj. In cross examination, he admitted that on hearing their noise, many persons had gathered there and some of them have been named by him - 4 - also. However, none has been associated or produced by the prosecution during the course of trial of the case, though the statement of this witness suggests that several persons had come to the spot on hearing noise. In cross examination, he further admitted that it was sufficiently dark in the verandah as well as in the courtyard at that time and the possibility that the respondents were not identified at that time cannot be ruled out. Apart from the above, the other brother of PW-2 Ranjit, namely, Desh Raj, who was a material witness and had also, allegedly, suffered injuries, as per the prosecution story, was given up by the persecution being of repetitive nature for the reasons best known to them, though he was a material witness to unfold the prosecution story. PW-4 Prithi Singh has only stated that he had seen Kishan Singh and two other persons going from the place where the occurrence took place. However, his statement does not establish that they had participated in any quarrel that took place in the house of Smt.Maya Devi, complainant. He has come up with the plea that it was a moonlit night and it was not dark, which is contrary to the versions of PW-1 Maya Devi and her sons PW-2 Ranjit Kumar. His statement, therefore, does not corroborate the statements of the complainant or her son. From the above discussion, it is clear that the complainant herself had not stated in regard to the assertions made in the complaint lodged with the police and she does not find corroboration from the statement of PW-2 Ranjit Kumar, her son, who was examined and other son was not examined by the prosecution. The evidence led by the prosecution was not such to hold that the prosecution has been able to prove the guilt of the respondents beyond any reasonable doubt. Therefore, the findings recorded by the learned trial Court - 5 - holding that the prosecution has failed to prove their case beyond any reasonable doubt cannot be termed as perverse calling for an interference by this Court. In view of above discussion, I hold that there is no merit in the appeal filed by the State of H.P. and the same is dismissed accordingly. The Bail bonds furnished by the respondents shall stand discharged. January 6, 2009. (V.K. Ahuja), (TILAK) Judge.