IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 88 of 2004. Date of Decision: 23.12.2010. _______________________________________________ State of H.P. ….Appellant. Versus. Krishan Kumar and others. ….Respondents. Coram: Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting1? No. For the appellant :Ms.Shubh Mahajan, Deputy Advocate General. For Respondent. :Mr.K.S.Kanwar, Advocate. Dev Darshan Sud, J.(Oral). The State is aggrieved by the judgment passed by the learned Judicial Magistrate, Ist Class, Shimla acquitting all the respondents for offences under Sections 147, 323, 325, 341, 506 of the Indian Penal Code. 2. The prosecution case in brief is that complainant PW1 Ranjit Singh with PW2 Mohinder Singh were traveling in a bus on 19.8.1997. When at around 6.30 p.m. the bus reached near Sankat Mochan Temple Shimla, the accused persons organized unlawful assembly proceeded to assault the complainant etc. causing them injuries. Whether reporters of the Local papers are allowed to see the judgment? Yes. 2 3. In order to prove its case, the prosecution examined PW1 complainant Ranjit Singh, PW2 Mohinder Singh, PW4 Rajesh, PW6 Randheer and PW8 Ashwani Kumar. The last three witnesses were the eye witnesses of the incident. When considered against the First Information Report which is Ext.PW7/A, the case of the prosecution is that PW1 Ranjit Singh informed the police that he is an employee of Sola Estate Pvt. Ltd. Solan. On the day, when the assault took place it was a holiday and at around 6.30 p.m., he boarded bus No.HP.07-3072 and was traveling to Shimla with his younger brother PW2 Mohinder Singh. When the bus reached near Sankat Mochan, it was stopped by the driver and at that time, one red colour Gypsy bearing No. HIS-561 reached the spot and parked in front of the bus. 7/8 young people alighted there, boarded the bus and beat up the complainant and his brother with fist cuffs and stones as a result of which he and his brother sustained injuries. The expression used is “Binawaja” (without any reason). The narration proceeds that these people had earlier beaten up the complainant and his brother near Kandaghat also. In this scuffle, the complainant lost his wrist watch and his younger brother lost his identity card. This is the narration of the incident before the police. 4. When looked at in this background, none of the witnesses of the prosecution including both the complainants corroborated the case. Rather, when they stepped into the witness box, a new story is concocted and that both the 3 complainant and his brother intervened when these assailants were teasing/intimidating a woman passenger who was sitting in the bus. The respondents did not like this upon which they stopped the bus and beat them up. One other important point which requires to be noticed is that at the time when the assault took place, the complainant or his brother did not recognize any of the persons and described them as strangers. 5. The conductor of the bus PW8 Ashwani Kumar does not support the prosecution version. He was declared hostile and cross examined but there was nothing which could be elicited in his evidence which would implicate the accused. This witness states that he never saw any of these boys mis- behaving/teasing/intimidating the lady passenger who was traveling in the bus. He states that 10/15 people boarded the bus near Sankat Mochan. The other three witnesses relied upon, purportedly corroborated the incident about teasing. 6. Learned Deputy Advocate General submits that the statement of the victim as corroborated by the other three witnesses is sufficient to bring home the guilt of the accused. She submits that the injured being best witness and other being disinterested witnesses, there was no reason to implicate the accused falsely. I cannot accept this submission made on behalf of the State. 7. It is true that the First Information Report cannot be used as substantive evidence but at the same time it can be used for testing the veracity of the version as narrated by 4 the prosecution witnesses. If the entire genesis of the incident was rooted in the fact of misbehaving/teasing some lady passengers in the bus, nothing stopped the complainant from narrating this fact to the police. It was possibly introduced in the evidence to introduce a motive for the assault. However, by doing so, the prosecution has demolished its entire case. There is no evidence as to who this lady was with whom they misbehaved. One important fact which is un-explained is that the purported assault has taken place at two places, namely, one at Kandaghat and one at Shimla. Why the case was not reported to the police at Kandaghat is not clear. Further, it is also not clear that in case these assailants were sitting in the bus, what was the occasion to have left the bus at Kandaghat and then boarded a Gypsy with which they blocked the path of the bus at Sankat Mochan Shimla. The learned trial Court also holds that no test identification parade was held and the assailants being strangers as narrated by the complainant, it was but natural that the identity should have been ascertained at the earliest. 8. I am in agreement with the judgment passed by the learned trial Court. I do not find any perversity in the appreciation of the evidence rather I find the prosecution lacking in establishing the fact that the complainant and his younger brother were assaulted in the manner as alleged. It is also by now well settled that if two views of the evidence are possible in a judgment against acquittal, one favouring the accused and the other favouring the State, the view in 5 favour of acquittal should be preferred unless there are compelling reasons to hold otherwise. I find no merit in this appeal which is accordingly dismissed. Bail bonds furnished by the respondents shall stand discharged. (Dev Darshan Sud), Judge. December 23, 2010(R)