IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.589 of 2004. Date of Decision: 27th July, 2011. ____________________________________________________ State of H.P. ….Appellant. Versus Subash Chand and others …..Respondents. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? For the appellant : Mr. A.K. Bansal, Additional Advocate General. For the respondents : Mr. Deepak Kaushal, Advocate. ____________________________________________________ SURINDER SINGH, J (Oral). The acquittal of the respondents passed by the learned trial Court in Cr. Case No.54/2 of 2004/03, decided on 16.10.2003, for the offences punishable under Sections 353 and 332 read with Section 34 of the Indian Penal Code, has been challenged by the State in the present appeal. 2. Heard and gone through the evidence on record. 3. Precisely, the case of the prosecution can be stated thus. PW3 Constable Mohinder Singh was posted at Post-Police, Kala-Amb, District Sirmaur. On 25/26.1.2003, during the intervening night around 12.30 a.m. Bolero vehicle bearing registration No.HR- 29K-0093 came after blowing ‘Siren’ from the side of Whether reporters of the Local papers are allowed to see the judgment? - 2 - Haryana and entered in District Sirmaur at Kala-Amb, where there was police barrier. It was stopped by Constable Mohinder Singh aforesaid and he told the driver of the Bolero that he intended to check the vehicle, but persons sitting therein raised their protest, rather proclaimed that they are the relatives of the Superintendent of Police and the Governor of Himachal Pradesh. It is alleged that on suspicion the driver of the vehicle was asked to get down, but the respondents alleged to be under the influence of liquor. They started misbehaving with the Constable. Thereafter the respondents alighted from the vehicle and fisticuffed Constable aforesaid. On hearing commotion, PW1 Roshan Lal Sankhyan, Excise Inspector alongwith his Peon PW5 Rajesh Kumar and some other persons, namely Jai Singh and Bachan Rana, who were present at the toll-tax-barrier, came and intervened. Constable Mohinder Singh was relieved from the clutches of the respondents. He sustained the injuries on various parts of his body. The message was passed-on to Police-Post, Kala-Amb on telephone. 4. PW4 HC Vinoj Kumar came to the spot with the police-party and recorded the statement of Constable Mohinder Singh under Section 154 of the - 3 - Code of Criminal Procedure, which culminated into FIR Ext.PW4/A. 5. PW7 Additional S.P. Sunder Lal took up investigation. During investigation, he prepared the site plan and also took into possession shirt and ‘Jarassi’ of the complainant alongwith the vehicle in question. Further, he also collected the appointment order etc. of the complainant from the office of Superintendent of Police. Finding involvement of the respondents in aforesaid offences, Challan was presented in the Court for their trial. 6. The respondents were accordingly charge- sheeted, tried and at the end of trial they were acquitted on the ground that PW3 complainant Mohinder Singh in process of dragging the respondents got injured. Further that PW5 testified that he did not see the occurrence as to how it had taken place, whereas PW1 Roshan Lal Sankhyan stated having not seen the occurrence. The learned trial Court also observed that the respondent-driver was not challaned under the Motor Vehicles Act and otherwise also there was nothing on record to show that the complainant was deterred while in discharge his official duty. - 4 - 7. PW1 Roshan Lal Sankhyan though stated that the vehicle in question came from Haryana high blowing Siren and entered into the boundaries of Himachal Pradesh in high speed. Constable on duty stopped it and he requested the driver to get his vehicle entered in the register, whereas the initial story is that the said Constable intended to check the vehicle which was resisted and the persons sitting in the vehicle told him that they are the relatives of the Governor of Himachal Pradesh and one of them told that he was relative of the Superintendent of Police. In cross- examination he stated that only Constable Mohinder Singh was on duty at the said check-post. He also stated that the respondents abused the complainant and further that he had called the other Constables from the Police-Post and they were also roughed-up. But neither the complainant nor any other witness corroborates his version that other Constables were also present there nor any of them has been examined as a witness to lend strength to his version. 8. PW2 Yashpal Sharma stated that when he reached the spot, the other police officials had already reached the spot. In cross-examination he frankly conceded that he did not see the respondents - 5 - beating the Constable, but only they were exchanging hot words. 9. PW3 is the complainant. He substantiated his case that he intended to check the vehicle which was not allowed by the respondents and was beaten- up. In the cross-examination he admitted that the said vehicle had stopped at the toll-tax-barrier and got entered their vehicle and while crossing the police- barrier he stopped it. At that time, many vehicles were standing in front of the police-barrier. Further according to him, the driver of the said vehicle had shown all the papers of the vehicle to him. He further stated that from the place where he was checking the documents the officials sitting in the excise-barrier could not see them because of the wall in between. He denied that he dragged the passengers sitting in the said vehicle by catching them from the neck and in that process one of them fell down on the spot and sustained injuries. Further, he admitted that the driver of the said vehicle was not challaned under the Motor Vehicles Act. Further according to him, he intended to check the vehicle in question which was resisted by the respondents. Pertinently, the prosecution did not produce any evidence to show - 6 - that it was the duty of the said Constable to check and conduct the search of the vehicle. 10. PW4 HC Vinoj Kumar was not a witness to the incident. Rather he reached the spot on getting the information. PW5 Rajesh Kumar, an official of the excise-barrier stated that he did not witness the incident in question. He also stated that it is none of the duty of the police to check at the toll-tax barrier. It is important to note that he stated that Constable Mohinder Singh told him that when he was dragging the passengers of the vehicle forcibly, he skidded on the grit on the road and sustained injuries. Further, the investigation of the case was conducted by the Additional Superintendent of Police, but he admitted that he did not notice any Siren in the vehicle in question. Therefore, there was no question to blow the Siren by the driver of the said vehicle. He also admitted that the driver of the vehicle had shown all the papers to him. He testified that the road at the place of incident was not in good condition. He expressed his inability to say that the police had been given beatings to the occupants of the vehicle mercilessly. 11. On the critical examination of the aforesaid evidence, it can not be established by the - 7 - prosecution that the Constable (PW3) was authorized to check or conduct the search of the vehicle under any authority. His duty was only to get the vehicle entered into the register meant at the police-check- post. He was also not at all justified to drag any of the passengers from the vehicle in question as it is none of the part of his duty. If he has exceeded his duty under the colour of his office, the offences charged cannot be said to have been made out. Further, the official witnesses have contradicted each others on the material particulars giving rise two views. Thus, the view which favours the accused has to be accepted. The evidence on record gives rise to the possibility of sustaining the injuries by the complainant on account of fall cannot be ruled out. Therefore, in view of the contradictory evidence, which is not inspiring confidence the acquittal of the respondents cannot be interfered with. Thus the appeal is without merit, therefore, the same is dismissed. 12. The respondents are discharged of their bail bonds entered upon by them at any stage during the proceedings of this case. July 27, 2011. (Surinder Singh), (rc) Judge.