IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. A No. 142/2003 Date of decision: 17. 3. 2010 State of H.P. …..Petitioner Versus Kamlesh Chand and another ……Respondents Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 . For the Appellant: Mr. Anshul Bansal, Addl. Advocate General with Mr. J.S. Rana, Assistant Advocate General. For the respondents : Mr. Himat Negi, vice counsel ,for Mr. Ajay Sharma, Advocate Surinder Singh (Oral) Respondents were acquitted by the learned trial Court for the offences punishable under Sections 452,323,506 read with Section 34 Indian Penal Code, which has been challenged by the State in this appeal. Heard and gone through the record. In short prosecution case is that on 25.7.1998 at about 7.30 p.m/8 p.m. Vipan Kumar, grand son of Tulsi Ram (PW2) had gone to the shop of Rulia Ram to purchase vegetables. He found respondents taking liquor nearby. On seeing him, they started hurling abuses. When he objected 1 Whether the reporters of Local Papers may be allowed to see the judgment ? - 2 - to it, they fisticuffed and kicked him. Vipan Kumar came back to the house and narrated the entire incident to his maternal grand father PW2 Tulsi Ram. It is alleged that at 8 p.m., respondents came to the house of the complainant Tulsi Ram and gave beatings to his grand son Vipan Kumar. When Suresh Kumar intervened, he was threatened with dire consequences and was also hit with danda. Thereafter, his daughter Satya Devi (PW3) and Kailasha were given beatings, when they intervened. On 26.7.1998, Tulsi Ram contacted his Advocate and an application Ext. PW8/A was drafted and handed over to S.H.O Jawalamukhi, on the basis of which FIR No. 124 of 1998 was registered. PW2 Tulsi Ram and PW4 Suresh Kumar were got medically examined. Police visited the spot, recorded the statements of witnesses and recovered danda Ext.P2. After completing the investigation, challan was presented in the court for the trial of the respondents. Respondents were charge sheeted for the offences aforesaid. They pleaded not guilty and claimed trial. To prove its case, prosecution examined its witnesses and also examined respondents under Section 313 of the Code of Criminal Procedure. They denied the circumstances which were found attendant upon them and alleged their false implication. No evidence in defense was led by them. - 3 - Shri A.K. Bansal, learned Additional Advocate General vehemently argued that the learned trial court did not appreciate the evidence of the prosecution in the right perspective. If the evidence is reappraised dispassionately, there are grounds to convert the acquittal into conviction. Contra, learned counsel for the respondents supported the impugned judgment of acquittal. It is an admitted fact that the FIR in this case was lodged after two days and thereafter Suresh Kumar and Tulsi Ram were got medically examined. On the medical examination of Suresh Kumar a haematoma was noticed on his wrist and also on the knuckle which clearly indicates that he also participated in the fight. The stand taken by the respondents in the cross examination of the witnesses corroborates this version. The respondents had also reported the matter to the Pradhan PW6 Jagdish Chand. Admittedly PW6 Jagdish Chand had sent Chowkidar to call the complainant party but by then they had already left to lodge the report. But the facts on record show that on very day, no report was lodged. Only written complaint was sent to the Police Station wherein they have alleged that the incident in question had taken place at 7.30/8 p.m. whereas in the statement of PW3 Satya Devi, the incident took place around 12 p.m. and PW2 Tulsi Ram did not give any time and date of the incident, as alleged in the prosecution case. Vipan Kumar is alleged to have ignited the quarrel between the parties but it is pertinent to note that he being material witness to unfold the story of the prosecution, was not - 4 - examined. Therefore, an adverse inference against the prosecution has to be drawn. Further, in the complaint also, there is a reference that Suresh Kumar was given a danda blow by respondent Raj Kumar on his hand. But PW4 Suresh Kumar did not say specifically about it but stated that it was Vipan Kumar who was beaten by the respondents. He also gave different time of incident that it had taken place at 9.30 p.m. Thus, there is material contradiction in respect of the incident in question as to how and in what manner it had taken place. It is also in evidence that the parties were already locked in litigation. This fact is clearly admitted by PW5 Kamla Devi. In cross examination, she admitted that the dispute with the respondents is with respect to destroying of the crops for the last about 8/9 years. PW6 Jagdish Chand was Pradhan of the Gram Panchayat. He is a witness to the recoveries but did not fully support the case of the prosecution. He categorically stated that the application, which was handed over to him by the respondents with respect to the incident in question against the complainant party, that was handed over by him to the police, next day. Surprisingly that application was also not placed on record by the prosecution in order to find out the truth in the matter as to who was the aggressor. The name of Kailasha Devi did find mention in the initial report, who is alleged to have witnessed the incident but she was not examined. But PW9 H.C. Parma Nand has denied her presence on the spot. - 5 - In view of this contradictory evidence and also looking to the previous enmity and the pendency of the case between the parties, in my opinion, prosecution has failed to prove the case against the respondents beyond reasonable doubt. Contradictions pointed out above assume importance on above factual background. Therefore, respondents were rightly acquitted by the learned trial Court by giving them benefit of doubt. Therefore, the appeal filed by the State is without any merit, hence dismissed. Send down the record. March 17, 2010 (Surinder Singh), (cm) Judge