IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 229 of 1998. Date of decision: 8.4.2010. State of H.P. ….. Appellant. Vs. Rajinder Kumar …. Respondent. Coram The Hon’ble Mr. Justice Dev Darshan Sud, Judge. The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the appellant : Mr. P.K.Sharma, Addl. Advocate General with Mrs. Subh Mahajan, Deputy Advocate General. For the Respondent : Mr. Ajay Kumar, Advocate. Dev Darshan Sud, Judge (Oral). The respondent was charged for the offence under Section 307 of the Indian Penal Code. The prosecution story is that on 24.10.1996 PW 1 Arvind Kumar Parbhakar received injury on his head purportedly inflicted with an iron rod by the accused. In order to prove its case, the prosecution produced 12 witnesses. However, for the purpose of this appeal, the statements of PW 1 Arvind Kumar Parbhakar injured and PW 2 Krishan Chand cook at the Dhaba where the trucks were parked and where the fight is supposed to have taken place may be considered. They have stated that they could not identify the respondent/ accused. All that PW 1 Arvind Kumar Whether the reporters of the local papers may be allowed to see the Judgment? …2… Parbhakar says is that when he was returning from the building of one Brij Lal after answering the call of nature, he saw 3-4 trucks parked near the building of Brij Lal and some commotion was going on. When he was passing by the crowd, some- one shouted that a rod be brought and soon a tall man came there with a rod and inflicted a blow on his head. He could not identify the respondent. 2. PW 2 Krishan Chand, a cook employed by Arvind Prabhakar at his Dhaba has stated that when he alongwith Jagat Pal, Chowkidar of the building of Dy. S.P. Brij Lal was going towards the building of Brij Lal, they heard noise of some one shouting for a rod. He also states in his evidence that two trucks bearing registration Nos. HP-24-3091 and HIB-391 or 390 were parked there and several persons had gathered there. When he reached near the site of commotion, he saw Arvind Prabhakar PW 1 lying flat on the ground and he noticed a stocky man mounted on his chest giving him fist blows. He also does not corroborate the story of the prosecution. On the third witness Jagat Pal PW 3, the learned trial court holds that his statement is not worthy of credence as it was dark night and he purportedly saw the incident from a distance of more than 50 yards. 3. We have carefully gone through the record. We cannot persuade ourselves to take a different view from that which has been taken by the learned trial court on proper appreciation of the evidence. It was but natural that the complainant should have identified the assailant. Even PW 2 Krishan Chand, who was employed by the complainant could not identify the respondent and his version is entirely different when he states that he saw somebody …3… sitting on the chest of Arvind Prabhakar and giving him fist blows. On appreciation of evidence of PW 3, no fault can be found with the reasoning given by the learned Sessions Judge that it was a dark night and he could not identify the respondent. Further we also find from the cross-examination of PW 3 Jagat Pal when he states that complainant had fallen down and was being given fist and kick blows for 5-10 minutes. Obviously, these major contradictions could not be reconciled and go to the root of the case. 4. We do not find any merit in this appeal, which is dismissed. The bail bonds furnished by the respondent shall stand discharged. ( Dev Darshan Sud ), Judge. April 8, 2010. ( Kuldip Singh ), (Hem) Judge.