IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Criminal Appeal No. 287 of 2001 Date of Decision: 28th February, 2008 State of H.P. Appellant Versus Surinder Kumar and others Respondents Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? No. For the appellant: Mr.Rajesh Mandhotra, Dy. Advocate General. For the respondent: Mr. Ajay Sharma, Advocate, for respondents No.1,3 and 4. Name of respondent No.2 deleted, since died. Sanjay Karol, J. (Oral) The present appeal arises out of the judgment dated 28th June, 2000 passed by Addl. Chief Judicial Magistrate, Amb, District Una, H.P., in Case No. 53-II-1999, titled as State of H.P. vs. Surinder Kumar and others, acquitting the accused of the charged offence. As per the case of the prosecution on 31.1.1994 at about 4 a.m. accused persons (Surinder Kumar accused No.1, Pirthi Chand accused No.2, Rama Devi, accused No.3 and Satish Kumar accused No. 4) started demolishing the pillars of the construction raised by the complainant Suman Lata (PW-3) in her village Lohara, Una, H.P. On Whether the reporters of Local Papers are allowed to see the Judgment? 2 hearing the noise caused by demolition, the complainant along with her son Shiv Kumar (PW-2) and Dev Raj (PW-1) tried to intervene and stop the accused persons for demolishing the same. At that time accused Rama Devi lifted a wooden plank (Ext.PM-1) and hit Shiv Kumar (PW- 2), as a result of which he sustained injuries on his body. Accused persons also threw stones and bricks on PW-1 and PW-3 as a result of which even they received injuries. On hearing the noise, their neighbour Smt. Kamlesh Kumari (PW-4) alongwith Sudesh, Shoba and Harbans Lal reached at the spot and rescued the complainant party. PW-1 and PW-2 travelled to the nearest Police Station i.e. Amb and got the Complaint (Ext.PW-1/A) registered. Based on the said complaint an FIR (Ext.PW- 6/C) was registered with Police Station Amb, under Sections 325, 323, 427, 506 and 34, IPC. PW-1 and PW-2 were got medically examined through Dr. K.K.Sharma (PW-8) and MLCs (Ext.PW-8/A and Ext.PW- 8/C) were obtained by the police. During investigation PW-3 produced the wooden plank (Ext.PM-1) the weapon with which the accused No.3 had hit PW-2. Site Plan (Ext.PW-7/A) was prepared. The matter was investigated and after completion of investigation Challan was presented in the Court for trial. The accused was charged for an offence under Sections 325, 323, 427, 506 read with Section 34, IPC. They did not plead guilty and claimed trial. In order to prove its case, the prosecution examined eight witnesses and the statements of accused under Section 313, Cr.P.C. were also recorded and no evidence was led except for filing of two documents Ext.DA and Ext.DB. In defence, however, the plea taken is that the 3 accused persons have been falsely implicated due to strained relations between the parties and the brother of the complainant is a police official. The Court below, after considering the material in its entirety acquitted the accused of the charged offence on the ground that prosecution had failed to prove its case beyond reasonable doubt and the statements of the spot witnesses could not be relied upon as admittedly there was prior litigation and animosity between the parties. No independent witness was associated during trial. I have heard learned counsel for the parties and perused the record. In all, prosecution has examined 8 witnesses. Dr. K.K.Sharma (PW-8) medically examined Dev Raj (PW-1) and Shiv Kumar (PW-2). Ranglia Ram (PW-5), Radiologist, produced the medical record pertaining to the said witnesses. From the statements of these two witnesses and also the documentary evidence proved by them, it is clear that PW-1 and PW-2 sustained injuries. That fact, however, would not be sufficient to prove the guilt of the accused in the commission of the crime. Doctor has opined that injuries suffered by the witnesses could also be caused due to falling on hard surface and bricks. Mehar Chand (PW-6) and Suresh Kumar (PW-7) are police officials, who have carried out the investigation. They have testified to the effect that Ext.PM-1 the weapon of offence being the wooden plank was seized after the same was produced by PW-3. No bricks, stones or any other object was found at the site during investigation. It has been proved on record that the accused persons and the complainant party are close relatives. It has also come on record that 4 land on which the construction was being raised by Suman Lata jointly belonged to accused Pirthi Chand, Dev Raj (PW-1) and Daulat Ram who are real brothers. The land continuous to be joint since the time of their forefathers.. That there is animosity between the two families/ parties and prior litigation pending between them is also undisputed and clearly borne out from the record. This is evident from the statements of Dev Raj (PW-2) and Shiv Kumar (PW-3), Suman Lata (PW-3). A careful perusal of the statements of these witnesses would also show that brother of PW-3 is an employee with the Police department of Government of Himachal Pradesh. It has not been specifically denied by PW-3 that he was posted as ASI in the office of Superintendent of Police, Una, at the relevant time. It has also come on record, through their statements that Shiv Kumar (PW-2) was not got medically examined at the nearest Hospital but in fact was got examined at Primary Health Centre, Amlehar, where one of the relatives of PW-3 was posted. PW-3 has admitted the fact that she was having strained relations with her husband who has been living separately at a distant place and whenever he visits the village he stays with the accused Pirthi Chand. It is in this background that the statement of said witness needs to be examined. No doubt PW-1, PW-2 and PW-3 have stated that the pillars built by them on the previous day had been demolished by the accused party who had also assaulted them and damaged their property but, however, their statements do not inspire confidence. The alleged incident is stated to have taken place in the night of 30/31.1.1998 at about 4 a.m. It is common knowledge that during winter season there is no natural light and it is not the case of the witnesses that there was light in 5 the area at the time of incident. How these witnesses could identify the accused persons demolishing pillars and also give blows is beyond comprehension. The version of the prosecution appears to be doubtful. As per version of PW-1 the fight continued for about 4 to 4 ½ hours and as per version of PW-3 it was half an hour but PW-4 has yet given another version and according to him the parties were fighting for only about 15-20 minutes. PW-3 has stated that the distance between the houses of Smt. Sobha etc., who were not examined in the Court before at a distance of 100 mts., whereas as per PW-4 the distance was just about 10 mts. Even with regard to labourers, who had been engaged by PW-3 to construct the pillars there is a contradiction between the statements of PW-1, PW-2 and PW-3. As per the version of PW-1, local labourers were employed, but as per the version of PW-3 labourers who had come from Bihar had been engaged for the construction and PW-2 does not even remember as to show had carried out the construction. PW-3 has categorically admitted that Kamlesh Kumari (PW-4) is her neighbour. The version of PW-4 is not independent and statements of the witnesses cannot be said to be corroborated by any independent witness. Perusal of site plan (Ext.PW-7/A) would in any case show that place of occurrence was no where visible from the house of PW-4. There is a road in between the place of occurrence and her house. In absolute darkness she could not have seen and identified the accused persons. Her statement, therefore, does not inspire confidence. She is the neighbour of complainant party and her testimony cannot be said to be that of an independent person. 6 PW-1 has categorically stated that wooden planks similar to the one (Ext.PM-1) seized by the police are easily available every where. As per the prosecution the same was having four nails. However, medical report of PW-2 does not indicate any injury caused by the said nails on the plank. The recovery is not from the accused persons but was produced by PW-3 to the police, who came to investigate the matter at the spot after 3 days. This is evident from the statement of PW-1. The aforesaid spot witnesses have categorically referred to presence of Sudesh, Shoba and Harbans Lal at the time and place of incident. It has been alleged that these three persons also got the complainant party rescued from the clutches of the accused persons. These persons ought to have been examined by the prosecution during trial. They were independent witnesses who could have given true account of the events, which would have taken place at the time and place of occurrence of the alleged incident. The relations between the parties are strained and there is litigation inter se between them with regard to land. PW-4 has in fact stated that she did not see any of the accused persons holding any weapon in their hands. Perusal of the statements of the spot witnesses would show that none has attributed anything towards accused Surinder Singh. Obviously, his implication in the present case is due to animosity between the parties. Further, there is contradiction in the statements of spot witnesses. The statement of PW-4 even otherwise does not inspire confidence as he has categorically denied the fact that the relations of 7 PW-3 and her husband are strained. However, this fact clearly stands admitted by PW-3. His version, therefore, is totally unreliable and cannot be considered to prove the guilt of the accused beyond reasonable doubt. It has come on record, and has not been denied by PW-3 and PW-1 that prior to lodging of the complaint by PW-1, the accused had already lodged a complaint against the complainant party with the police. This was with respect to the illegal acts committed by the complainant party on the accused persons. The trial Court has already taken into consideration the fact that the police has failed to take cognizance of the case. It appears to be a cross-case and the police ought to have investigated the case in its entirety. The fact that the brother of the complainant is in police department and may have influenced the registration and investigation of the case, cannot be ruled out. Even with regard to mischief and wrongful loss caused due to demolition of pillars, there is no evidence on record. No evidence whatsoever has been led to show as to what threats were given by the accused to the complainant party. In my view, the trial Court has considered the record in its entirety and there is no perversity in appreciating the same. In my view, the prosecution has failed to prove its case beyond reasonable doubt. The appeal is accordingly dismissed. Bail bonds stand discharged. 28th February, 2008 (Sanjay Karol) (C) Judge.