IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.A. No. 233 of 1998. Decided on: 23.4.2010. ___________________________________________________________ State of H.P. … Appellant. Versus Neeraj Sareen and others … Respondents. ___________________________________________________________ Coram: Hon’ble Mr. Justice Surjit Singh, Judge. Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 Yes. For the appellant : Mr. Ramesh Thakur, Assistant Advocate General. For Respondents No.1, 2 & 4: Ms Nidhi Chawla, Advocate, vice Mr. B.R. Negi, Advocate. For Respondent No.3 : Mr. Virender Rathore, Advocate. ___________________________________________________________ V.K. Sharma, Judge.(Oral) The State is in appeal against the judgment of acquittal dated 21.1.1998, handed out by the learned Additional Sessions Judge (II), Kangra at Dharamshala, whereby, the respondents who were tried for commission of the offences under Sections 147, 148, 149, 342, 353, 332 and 333 IPC, were acquitted. 2. Briefly stated the prosecution case is that in the year 1993 PW-2 Inspector Harbant Singh, was posted as in- charge, State CID Unit, Dharamshala. On 14.10.1993, at about 10.30 PM, he was on election duty at Kachehri Adda, Dharamshala and was accompanied by SI Parkash Chand (PW- 10), SI Prem Singh (PW-11) and HC Manjit Singh (not examined). 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 There, as per allegations two servants of hotel Down Town while talking to SI Parkash Chand got enraged, started abusing and beating him with fist blows. When Inspector Harbant Singh, SI Prem Singh, HC Manjit Singh intervened, the respondents are said to have led an attack on them. They were armed with iron rods and ‘khoncha’. It is alleged that the respondents gave beatings to the members of the complainant party outside the hotel near the petrol pump on the road. Thereafter, they dragged them inside the hotel and confined them in a room, where they were given further beatings. 3. It was against the aforesaid backdrop that a secret telephonic information was received by the then SI/SHO Pritam Singh, now Dy.S.P (PW-13) from the spot that 3-4 persons of the said hotel had been beating two persons and that he should come to the spot at once. Accordingly, he proceeded to the spot and recorded statement of Inspector Harbant Singh (complainant) under Section 154 Cr.P.C, Ex.PW-2/A, on the basis of which formal FIR Ex.PW-7/A was registered. 4. The Investigating Officer, PW-13, Dy. S.P Pritam Singh, carried out investigation on the spot. Both the injured were sent for medical examination. The following injuries were found on their persons by PW-3, Dr. B.B. Sharma:- PW-2 Inspector Harbant Singh 1. Black eye formation with swelling of both eye-lids of left side. Conjunctive is quite congested. Vision is hazy. 2. Superfecial bruises were present over the left orbital region. 3. Tenderness over the left lower chest was there. 3 On X-ray examination injury No.3 was opined to be grievous on account of fracture of 7th and 8th rib of the left side of the chest. The remaining injuries were simple in nature. PW-10 SI Parkash Chand 1. A lacerated wound in the middle of upper lip, with swelling. Clotted blood was present. Tenderness was also present. 2. A lacerated wound 1 cm x .5 cm, was present at bregma with fresh oozing. Tenderness was present. 3. A lacerated wound on the scalp (Vertex region) ½ cm x ½ cm with fresh oozing of blood. Clotted blood was present in the area. Tenderness was present in the region. 4. Multiple laceratious bruises on the back. 5. Bruises on the dorsam of right hand. All these injuries were simple in nature. 5. On completion of investigation charge-sheet was laid against the respondents, who pleaded not guilty and claimed trial. In order to bring home guilt against the respondents, the prosecution examined 13 witnesses in all. 6. On close of the prosecution evidence the respondents were examined under Section 313 Cr. P.C. Precisely, their case in defence was as stated by respondent No.1 Neeraj Sareen in answer to the last question put to him in his statement under Section 313 Cr.P.C, which is to the following effect:- “I am innocent. I have been falsely implicated. Down Town restaurant was being run by me. By 8.30 p.m I would close the restaurant. On the alleged date of occurrence, after closing restaurant, I went to my place of residence at Shamnagar, whereas, servants employed in restaurant 4 continued to stay there in connection with work to be done on the next day. I am told that Harbant Singh and Parkash Chand about whose identity, I came to know subsequently, came to restaurant after 10.30 p.m and got it opened and ordered the servants that they be served with food. After the plates were laid down for service, they asked my servants that they be served with chicken. Then servants told them that chicken is not available. They started dashing the plates to the ground. I was further told that my servants when tried to protect or prevent them from doing so, they attacked and this led to a scuffle between them. Both these persons were in plain clothes. Much of the scuffle they had with Nagamada Sethi and one Mani Ram. The servants present there assumed that the complainants are terrorists. Nagmada Sethi and others fled out of that restaurant. One out of them, went to lodge report to the police. On the arrival of police, it was discovered that both these persons are police officials. At the place of instituting some proceedings against the complainant party the police framed the servants in a false case. I was then present in my residence in Shamnagar and was called by the police. On my arrival to the police station, when I learnt of the occurrence, I expressed my displeasure to the investigation officer for this conduct exhibited by the complainant party. The police falsely framed against me, my brother Dhiraj Sareen, who followed to P.S. so as to know what has happened was also falsely implicated.” 7. In defence the respondents examined one witness, namely, DW-1 Kartar Singh. 8. We have heard the learned Assistant Advocate General for the appellant-State and learned counsel for the respondents and perused the record. 9. What emerges on appraisal of the depositions made by the two most material injured witnesses examined by the prosecution, 5 namely, PW-2 Inspector Harbant Singh and PW-10 SI Parkash Chand, is that the improbabilities and inconsistencies in the prosecution evidence renders the prosecution case doubtful, leading to the inference that the occurrence, if any, had not taken place in the manner as suggested. The reasons to arrive at this inference at the very outset are enumerated hereinafter. 10. The complainant, PW-2 Inspector Harbant Singh, has nowhere stated in chief examination about the manner in which the respondents had allegedly caused injuries to him and PW-10, SI Parkash Chand. While appearing as PW-2, he has stated that on hearing hue and cry raised by PW-10 SI Parkash Chand, he was attracted to the spot scene. There he had seen 6/7 persons quarreling with him. They were armed with iron rods and ‘khoncha’. In the opening lines of cross examination, he has stated that when the respondents had attacked PW-10 SI Parkash Chand, he was at a distance of about 25 meters from the place of occurrence. However, according to PW-10, SI Parkash Chand, the entire CID staff including the complainant, PW-2 Inspector Harbant Singh, were already with him there at that time. This is a material contraction and cannot be lightly over looked. 11. In statement Ex.PW-2/A, under Section 154 Cr.P.C, PW-2 Inspector Harbant Singh, had stated that respondent Dheeraj Sareen had dragged him from his hair. PW-10 SI Parkash Chand, has also stated during cross examination at page 23 in the beginning that the distance between the place of occurrence and Down Town restaurant is about 150 yards and PW-2 Harbant Singh, was dragged through out that distance. However, no injury suggesting that he was so dragged was found on his person during his medical examination. Still further 6 strangely enough he has stated during cross examination at page 18 in the beginning that in fact he was not dragged on the surface, but was forcibly taken to the restaurant by catching hold of his ‘Jura’. 12. He has also stated that he had not mentioned the names of respondents Raju and Nagmada Sethi to the Investigating Officer. However, when confronted with statement Ex.PW-2/A, their names find due mention therein. This aspect of the matter also casts doubt on the prosecution case in relation to the identity of the respondents, who were not subjected to any test identification parade. The docket with which the injured were sent for medical examination during the night of occurrence itself, was a very material piece of evidence to disclose the identity of the accused. However, the same has not been brought on record by the prosecution. This fact coupled with the law laid down in the authorities reported as Devinder v. State of Haryana AIR 1997 Supreme Court 454 and Rehmat v. State of Haryana 1996 (3) R.C.R (Supreme Court) 588, noticed by the learned trial court in paras 21 and 22 of the impugned judgment dated 21.1.1998, further creates a grave doubt as to the identity of the respondents being the persons responsible for the alleged occurrence. In such situation, it also appears that statement Ex.PW-2/A of PW-2 Inspector Harbant Singh might not to have been recorded by PW-13 Dy. S.P Pritam Singh, at the suggested time. Therefore, possibility can also not be ruled out that such statement disclosing the names of the respondents was recorded subsequently much later after the alleged occurrence after due deliberations and confabulations. 13. Strangely enough, none of other members of the complainant party, namely, PW-1 Inspector Prem Singh and the aforesaid HC Manjit Singh, had suffered any injury albeit the fact that they were said 7 to have grappled with the respondents in order to rescue the members of the complaint party while they were allegedly being taken/dragged from the place of occurrence to the aforesaid hotel. Even PW-4 Shri Joginder Singh, who at the relevant time was deployed as a Home Guard and is said to be an eye witness to the occurrence has not supported the prosecution story at all and was declared hostile. It can also not be believed that none out of the members of the complainant party made any effort to inform the police about the alleged occurrence despite the fact that except two of them others were neither injured nor were made captive inside the aforesaid hotel. 14. It is also in evidence that about 60/70 persons had gathered on the spot. However, only two of them, namely PW-9 Naresh Kumar, Shop Keeper and PW-12 Parkash Chand, Salesman of the liquor vend, were examined, but, both of them did not support the prosecution story and were as such declared hostile. 15. The act and conduct of PW-11 Inspector Prem Singh, who has stated that he did not try to rescue Sub Inspector Parkash Chand and Inspector Harbant Singh, while they were allegedly being forcibly dragged/taken inside the hotel by the respondents, speaks volumes for itself, and such a cowardly behaviour was not expected out of a police officer of his rank and position and more so when he himself was posted as Sub Inspector in that very CID Unit at Dharamshala. Further more, he also did not make any attempt or took steps to free the aforesaid two police officers, who had allegedly been confined in a room of the hotel. He also did not seek any help from the members of the public numbering 60/70 said to have been gathered on the spot. According to him, in such an eventuality, he would also have been beaten by the respondents. Thus, he remained a mute spectator 8 to the entire occurrence of the dimensions and serious ramifications, as suggested by the prosecution. The further statement made by him that neither he himself informed the police nor detailed constable Manjit Singh for this purpose, would lead to the inference that neither he was present on the spot at the suggested time nor he had witnessed the alleged occurrence. 16. Taking into consideration the above aspects, the only inescapable conclusion that can be derived is that the acquittal of the respondents vide the impugned judgment dated 21.1.1998, does not require any interference at the hands of this court. It being so, we are satisfied that the appeal is without any merit and is accordingly dismissed. (Surjit Singh) Judge. (V.K. Sharma) Judge. April 23, 2010. (lsp)