HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.243 of 2000 Decided on: November 16, 2010. State of H.P. …Appellant. VERSUS Naresh Kumar & ors ….Respondents. Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 For the Appellant: Mr.R.K. Sharma, Sr. Additional Advocate General For the respondent: Mr. A.K. Vashisht, Advocate. R.B.Misra, Judge (Oral) The present criminal appeal has come up for consideration after the leave to appeal has been granted under Section 378(3) of the Code of Criminal Procedure, in reference to judgment dated 20.8.1996, passed by learned Additional Chief Judicial Magistrate, Ghumarwin, District Bilaspur, HP. in case No. 405/1 of 1996, thereby acquitting the respondents/ accused for offences under Sections 382,325,341,323,506 read with Section 34 IPC. Whether the reporters of the local papers maybe allowed to see the judgment? …2… 2. The prosecution case is that on 22.6.1996 at about 9.30 P.M, complainant (PW-1) Amin Chand, was coming from Una to his house. He alighted the bus at Bharari and when he was going towards his house near village Jholag, three persons were sitting on the road. One of those persons asked him to give match box. He lighted the match box and at that time accused persons started slapping him. The stick of the match box was extinguished by the accused person, he identified the accused Naresh Kumar on the spot and two other accused persons Karam Chand and Rajinder Kumar were identified later on. After beating him, accused Naresh Kumar closed his eyes and took away Rs.500/- from his pocket. Accused persons warned the complainant not to disclose about the incident to anybody and put the knife on the back of complainant. Accused persons also administered oath to him and also threatened him that if he disclosed the incident to anyone, they will kill his handicapped son. The accused persons also threatened him with dire consequences. PW-1, however, had sustained injuries on his ear and on coming home, he disclosed this fact to his wife and Vice President. FIR Ex PW-1/A was registered and he …3… was medically examined and after investigation, accused/ respondents were charged of the aforesaid offences. 3. In order to prove its case, prosecution has examined as many as nine witnesses, whereas, the respondents/accused, through their statements under Section 313 Cr.P.C. have denied the charges and prosecution case. 4. PW-1, Amin Chand, complainant has stated in cross examination that at the time of incident, no other person, except the accused persons and he himself was present on the post. However, one wine contractor told him about the identity of two other accused persons, who accompanied accused Naresh Kumar on the date of occurrence. PW-2 Geeta Devi, wife of the complainant was narrated about the incident by PW-1. PW-3 Rajinder Singh has stated that he visited the house of the complainant on 22.6.1996 at about 11 PM, where, he was apprized of the said incident. PW-4 Prem Lal has stated that accused Naresh Kumar had told in police station that he was having money in his pocket. However, PW-3 has stated in the cross examination that nothing was recovered in his presence from the pocket of Naresh Kumar accused. PW-5 Dr. D.P. …4… Handa has stated that he medically examined Amin Chand PW-1. PW-6 Jai Chand has stated that nothing was recovered by the police in his presence. PW-6, however, was declared hostile. PW-7 Dr. T.S. Chandel, has stated that on 23.6.1996, he medically examined Amin Chand and in his opinion, injury No.1 was simple and injury No.2 was grievous. PW-8 has stated that he remained associated by the police during the course of investigation and he knows accused Naresh Kumar accused. However, Naresh Kumar accused did not give identification of his house to the police in his presence. 5. PW-8, in his cross examination stated that he visited the police station when accused was arrested and in his presence police had told that the accused could be released on bail only if he will give ` 500/- and accordingly this amount was given to the police. As per statement of PW-8, no recovery was effected from the accused in his presence. 6. PW-9 SI/SHO Anant Ram has stated that while being posted as SHO in the Police Station, Bharari in the year 1995-96, FIR was lodged on 23.6.1996 and he visited the spot and arrested …5… the accused and ` 500/- was recovered from the possession of the accused. 7. On analysis of the prosecution witnesses and materials on record, we notice that PW-1, Amin Chand was the only person when the incident took place and no witness had seen that PW-1 was beaten and ` 500/- was taken from his pocket. PW-3 has stated in his cross examination that he does not know that from where the police recovered the money from the accused. However, he denied that the money was recovered in his presence. PW-4 Prem Lal has also stated in cross examination that no recovery was effected by the parties in his presence. 8. In view of the contradictory statements having been made by PW-3 and PW-4, recovery of ` 500/- is not proved, therefore, in these circumstances, charge of theft under section 382 of IPC against the accused is not proved. In view of the testimony of PW-1, it appears that he could not recognize two accused other than Naresh Kumar, on the spot. In view of the testimony of PW-2 Geeta Devi three accused persons had assaulted her husband. She further stated that there was swelling in the ear of her husband when he reached his house. In dark night, PW-1 was …6… able to recognize Naresh Kumar when he demanded match box and could not recognize the other two accused and after closing his eye, however, ` 500/- was recovered from his pocket. However, definitely, he could not say that who had beaten when Naresh Kumar had closed his eyes and took out money from his pocket. The statement of PW-1 also is not very definite. No identification parade was conducted. The testimony of PW-1 is, in the facts and circumstances, is not inspiring confidence so far as slapping by the accused and taking out sum of ` 500/- from his pocket as well as the place and time of taking the incident is concerned. In lack of support by any of the independent witnesses, the testimony of PW-1 so far proving the offence against the accused cannot be made out. 9. On an analysis of the prosecution witnesses and materials on record, learned trial court has rightly arrived at finding that the prosecution has failed to prove its case beyond reasonable doubt. In our considered view also, the prosecution has failed to bring home the guilt to the accused and there is no scope for interference in the impugned judgment and the …7… criminal appeal, being devoid of any merit, is accordingly dismissed. 10. Bail bonds, furnished by the respondent, are hereby discharged. (R.B.Misra), J. November 16, 2010 (Sanjay Karol),J. (sl)