IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA: Cr.A.No. 177/2001. Date of Decision :2nd April, 2008. State of H.P. …Appellant. Versus: Onkar Singh and others. …Respondents. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for judgment?1 For the appellant: Mr.Vivek Thakur, Addl. Advocate General. . For Respondent. Mr.S.D.Vasudeva, Advocate. Sanjay Karol, J(Oral). The present appeal arises out of the judgment dated 22nd December, 2000 passed by Judicial Magistrate, Ist Class-II, Dharamsala, District Kangra in Criminal Case No. RBT No. 68/11/2/99 titled as State of H.P. Vs. Onkar Singh and others acquitting the accused persons of the charged offence. Rattni Devi (PW-1) filed a written complaint Ext.PW-1/A before the learned Chief Judicial Magistrate, Dharamshala which was forwarded to the Station House Officer, Dharamshala for registration of the case. Based on the same, F.I.R. No.245 dated 14th October, 1999 (Ext.PW-7/B) was registered with Police Station, Dharamsala under Sections 323, 452 and 506 I.P.C. The matter was investigated by ASI Sh. Krishan Lal (PW-7). 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 As per the case of the prosecution, on 2nd October, 1999 Shri Man Singh (PW-4) son of Smt.Rattni Devi (PW-1) visited the bazaar at village Sakoh to purchase his medicine, the accused persons snatched Rs.200/- from him and also gave beatings and broke his stick. On 3rd October, 1999 PW-1 along with her daughter-in- law Smt. Raj Kumari (PW-3) visited the shop of the accused and inquired as to why they had beaten PW-4 when the accused persons threw a bottle of liquor on the nose of the complainant and also gave beatings to PW-1 and PW-3 in the night of 4th October, 1999 the accused persons also visited the complainant’s house and threw stones, loudly knocked the door and abused the complainant. The complainant lodged the report to the Police on 5th October, 1999, but, however, the case was not registered and consequently a written complaint dated 17th October, 1999 was filed before the Magistrate. She was medically examined by Dr. R.K.Mahajan (PW-9) in terms of M.L.R. Ext.PW-9/A. With the completion of the investigation, the challan was presented in the Court for trial. The notice of accusation was put to the accused under Sections 332,341, 451, 506 read with Section 34 I.P.C. to which the accused persons did not plead guilty and claimed trial. In order to prove its case, the prosecution examined nine witnesses and the statements of the accused persons under Section 313 Cr.P.C. were also recorded. Considering the material on record, the court below acquitted the accused of the charged offence for the reason that two of the spot witnesses had not supported the case of the prosecution and the remaining spot witnesses being family members had contradicted themselves and their statements were not believable. It was held that 3 the prosecution had failed to prove its case beyond its reasonable doubt and consequently the accused was acquitted of the charged offence. I have heard learned counsel for the parties and also perused the record. Rattani Devi (PW-1), Raj Kumari (PW-3), Man Singh (PW-4) are admittedly members of the same family. PW-4 and PW-3 are son and daughter-in-law of PW-1. As per their version, they had been beaten by the accused persons in the shop of PW-2 who along with PW-5 witnessed the occurrence of the incident. Sarwan Sharma (PW-2) and Rishu Raj (PW-5) are the independent spot witnesses. Perusal of the statements of these two witnesses i.e. PW-2 and PW-5 would further show that in spite of being declared hostile and cross examined by the Public Prosecutor they have not supported the case of the prosecution at all. From their testimonies, it cannot be said that the accused persons committed the charged offence but in fact it renders the prosecution story to be doubtful. Dr. R.K.Mahajan (PW-9) no doubt has examined Rattni Devi (PW-1) and proved the medical record Ext. PW-9/A to Ext. PW- 9/C from which it is clear that the complainant had received simple injury. But, however, that fact would not be enough to prove the guilt of the accused. Vijay Kumar (PW-6), Krishal Lal (PW-7) and Jagdish Chand (PW-8) are the police officials who have been associated during the various stages of the investigation and their testimonies being formal in nature do not prove the guilt of the accused of the charged offence. 4 In this background, the statements of PW-1, PW-3 and PW-4 needs to be examined. PW-1 and PW-4 both have stated that on 2nd October, 1999 the accused had broken the stick and thrown the same. PW-1, PW-3 and PW-4 have supported the prosecution but, however, their statements cannot be relied upon to prove the guilt of the accused beyond reasonable doubt for the reason that they have contradicted the record, rendering the prosecution version to be doubtful. In para-3 of the complaint Ext.PW-1/A, it is so mentioned by PW-1 that the accused had snatched Rs.200/- from PW-4, but, however, this was not so stated by PW-4. Again para-5 of the said complaint records that on 30th October, 1999 she reached the Police Station at 10 P.M. and thereafter the police officials got her medically examined in the hospital which fact stands contradicted by M.L.R. Ext.PW-9/A which shows that she was examined at 9. 45 P.M. Thus, she had been medically examined prior to her lodging the complaint. Rapat Ext.PW-6/A, however, reflects different picture as according to this document the complaint was lodged at 8.30 P.M.The variation of timing in the lodging of the report and the medical examination casts a serious doubt about the prosecution story. PW-1 and PW-3 have deposed that they were beaten up by the accused persons which fact, however, was not recorded in the written complaint Ext.PW-1/A and also rapat Ext.PW-6/A. Further in the complaint Ext.PW-6/A the complainant mentioned that the accused gave beatings to her with Danda and fist blows due to which the blood started oozing from her nose whereas as per her sworn testimony in the Court she deposed that accused No.2 threw a bottle on her face as a result of which she sustained injuries. 5 Importantly, neither bottle nor the stick, which has been mentioned by the witnesses, has been recovered by the Police. Even with regard to the stick allegedly carried by PW-4 on 2nd October1999, there is no consistency and there is variation in the statement of the witnesses. PW-1 has referred to the same as hockey and PW-4 has referred to it as stick. The variation in the statements and the record, replete with contradictions, in my view is fatal, casting a serious doubt about the prosecution story and rendering the prosecution witnesses to be unreliable and unbelievable. The complainant has not given the true and complete narration of events in the complaint. An attempt to improve the version has been made by the witnesses. Further why the incidents of 2nd or 3rd October, 1999 were not reported to the police immediately is not clear. The injured was got medically examined on 5th October, 1999. The delay in lodging the complaint, in the circumstance is fatal to the prosecution case. For the aforesaid reasons it cannot be said that the statements of the witnesses, who are members of the same family, in the absence of the corroboration could be relied upon to prove the guilt of the accused beyond reasonable doubt. The accused has the advantage of having been acquitted by the court below. The matter has been considered by the court in its entirety. I see no perversity in the same. The appeal is accordingly dismissed. Bail bonds are discharged. (Sanjay Karol), Judge. April 2, 2008(R) 6