IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Criminal Appeal No. 305 of 2000 Date of Decision: 26th November, 2010 __________________________________________________________ State of H.P. ….Appellant. Versus Rajneesh Lal & others ….Respondents. ___________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 ___________________________________________________________ For the Appellant: Mr. P.K. Sharma, Additional Advocate General with Ms. Shubh Mahajan, Deputy Advocate General. For the Respondent: Mr. Himmat Negi, Advocate vice Mr. Ajay Sharma, Advocate. __________________________________________________________ Dev Darshan Sud, J (oral). The State challenges the acquittal of the respondents who had been arraigned for offences under Sections 147, 149, 448, 458, 427, 379, 324, 325, 440 and 460 of the Indian Penal Code. The prosecution case in brief is that all eleven accused had assaulted complainant PW1 Shri Jai Chand, PW2 Vipin Kumar and PW5 Raj Rani. The incident is supposed to have occurred on 4.2.1994 at around 9 P.M. at night. The prosecution case is that all the accused formed an unlawful assembly, proceeded to the house of complainant and thereafter 1 Whether Reporters of Local Papers may be allowed to see the judgment? 2 assaulted them and beat them up mercilessly as a result of which they sustained grievous injuries etc. The genesis of the dispute is land regarding which there is litigation between the parties to which the complainant was also a party. The case urged is that it has been proved on record that there are civil litigations between the parties in which an interim order was passed. On the vacation of such order on that day, complainant Jai Chand started raising construction of the wall etc. which resulted in a brawl in which sticks and fists were used openly. So far as the injuries are concerned, they are not disputed since the same have been proved by the Doctor. The point for the determination before the trial Court was as to whether the respondents were responsible for inflicting these injuries. 2. On the evidence on record, the learned trial Court acquitted all the accused. The State is now in appeal. Learned Additional Advocate General urges that the learned trial Court was in error in disbelieving the evidence of PW2 Vipan Kumar and PW5 Raj Rani who is the daughter-in-law of the complainant. He submits that the injured being the best witnesses, their testimonies could not be discarded only on the ground of relationship if it was corroborated on all material particulars with respect to the factum of assault and injuries sustained. 3. I have been taken through the entire evidence. The undisputed fact is that the so called fight occurred at night around 10 P.M. There was no electricity on the spot and it was dark moonless night. These facts are undisputed and proved on record by evidence of the prosecution itself and it is in this background that the testimony of these three witnesses has to be considered. 4. PW1 Jai Chand states that he was set upon by about 11 people and in cross examination, he admits that there were 30-35 3 persons. The number of persons as 11 is corroborated by PW2 Vipin Kumar. In other words, the case made out is one of mob violence. The prosecution has failed to explain as to how in the dark night without electricity and moon light, the accused persons could be identified, more especially when there was a mob which had assembled at the spot to carry out their nefarious designs. True that the Doctor corroborated the injuries on the complainant but that fact by itself is not sufficient to attribute criminality to the respondents herein who were charged for offences. The learned trial Court holds and rightly so that merely material contradictions in the statements of these witnesses with respect to the nature of assault as also the number of persons assembled and when considered in the scenario/back drop of the conditions prevailing namely a pitch dark night, it is not possible to identify the accused and to convict them for offences. This peculiar situation requires no re-adjudication. 5. What I find from the evidence of PW1 Jai Chand is that he has been beaten by the respondents with sticks and he became unconscious. Had that been so, this fact must have been mentioned in the First Information Report because according to the testimony of complainant, he was thrashed out with sticks and sickle etc. but the same had not been taken into possession by the police. The prosecution must stand on its own legs in order to prove the element of criminality. 6 The second fact which prompts me to dismissed the appeal is that there has been a long standing litigation between the complainant and his family as also the respondents. In these circumstances, it is in this backdrop that some kind of corroboration for credibility was required. I find none on record. 7. Learned counsel appearing for the respondents also submits that there are two independent witnesses namely Roshan Lal and 4 Vidhi Chand, who have not been produced by the prosecution and in these circumstances, the case should and ought to be dismissed on this ground. This submission cannot be accepted for the reason that the Court found that both the witnesses had expired and could not have been produced in evidence. In these facts and circumstances of the case and the evidence as discussed above, I find that prosecution has not been able to prove its case beyond reasonable doubts. This appeal is accordingly dismissed. Bail bonds furnished by the respondents are discharged. (Dev Darshan Sud) Judge November 26th, 2010(ms)