IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. A.No.306 of 2003. Date of Decision: 16.7.2010. _______________________________________________ State of H.P. ….Petitioner. Versus Pawan Kuma and others. ….Respondents. Coram: Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting1?No. For the appellant : Ms. Ruma Kaushik, Addl. Advocate General. For Respondent. : Mr. Rakesh Jaswal, Advocate. Dev Darshan Sud, J.(Oral). The State is aggrieved by the judgment of the acquittal passed by the learned Sub Divisional Judicial Magistrate, Theog, acquitting the respondents for offences under Sections 147, 148, 324, 325, 506 read with Section 149 of the Indian Penal Code. The prosecution case in brief is that on 14.5.1995 at about 7 a.m. Moti Ram (PW3) accompanied by his sons Pardeep Kumar (PW1), Parmod Kumar (PW2) and Krishan Kumar (PW4) and one Vinod Kumar were busy in spraying work their apple orchard. At this juncture, the respondents- accused who were armed with ‘dandas’ entered the orchard and started beating up complainant Parmod Kumar (PW2). In Whether reporters of the Local papers are allowed to see the judgment?yes. 2 which fight, Pawan Kumar is stated to have struck a blow with sword as a result of which the complainant sustained injuries on his left leg. In order to save, Parmod Kumar (PW2) raised a hue and cry which attracted his father and brothers to the scene of occurrence. When they tried to rescue him, they were also beaten up with kicks and fist blows. At this juncture, all the persons cried for help which attracted Partap Singh, Parkash Chand and Mohi Ram (PW6) to the scene of occurrence and they rescued Parmod Kumar (PW2) and his father from the clutches of the accused. At this, the accused persons ran away from the spot and threatening the complainant that they would kill them. The genesis of the dispute seems to have been the act of the complainant taking water from the orchard of PW3 Moti Ram. Parmod Kumar PW2 was brought to the Civil Hospital, Kotkhai where his statement was recorded under Section 154 of the Code of Criminal Procedure (hereinafter referred to as the ‘Code’) by Head Constable Vijay Kumar who sent it to Police Station, Kotkhai for registration of formal First Information Report. During the investigation, the police prepared site plan and took into possession the blood stained clothes belonging to Parmod Kumar (PW2) and also seized a ‘darat’ an iron rod and two ‘dandas’ which were purportedly recovered from the scene of the occurrence. The statements of the witnesses were recorded under Section 161 of the ‘Code’. One of the accused Deepak Bahadur did not put in 3 appearance despite service and was declared proclaimed offender. In order to appreciate the occurrence, the learned trial Court has relied upon the statement of the injured persons, namely, PW1 Pawan Kumar, PW2 Parmod Kumar, PW3 Moti Ram, PW4 Krishan Kumar, PW6 Mohi Ram and PW7 Hari Parkash . On the evidence of the first four witnesses, the court records that there are a number of contradictions which are material and go the root of the case. But before adverting to that, the evidence of PW6 Mohi Ram and PW7 Hari Parkash, who were the independent witnesses, may be considered. The learned trial court holds that these witnesses though independent and whose presence was admitted at the scene of crime have not supported the case of the prosecution. These witnesses were declared hostile but in cross-examination nothing material has been elicited. Mohi Ram (PW6) is a teacher teaching in Primary School at Dumehr. When he appeared in the witness box, he simply stated that he knows nothing about the incident. He was declared hostile and on cross-examination, nothing material could be extracted from his statement. He supported to one of those persons who were present in the scene of occurrence. PW7 Hari Parkash has also stated that he knows nothing about the incident. He is also one of the other independent witnesses. His statement is that on the day of occurrence, he was never there. True that the evidence of 4 witness who has turned hostile can be used for the purposes of determining as to whether a particular offence has been committed or not as the principle is improved falsus in uno falsus in omnibus is not attracted to criminal proceedings in India. The Court has to sift through the evidence to find out as to whether there is any truth in what has been stated by the witness in his/her evidence. Reading of the evidence of these two witnesses shows that there is total denial of the incident and there is nothing on the record to establish that they had actually witnessed the incident. When the evidence of other witnesses is considered, the learned trial court, while considering the evidence of PW2 Parmod Kumar holds that Vinod Kumar has not been cited as a witness or examined by the prosecution through the case of the complainant is that he was the person who had lodged the First Information Report. It also notes that initially the witnesses have stated that the accused party had come armed with sticks but later on they have changed the statement to say that they were armed with darat, iron rod and sticks. It is not clear as to how this important improvement was made. Perhaps it was to explain the injuries on the person of Parmod Kumar. The fact as to who gave the blow with the iron rod/danda also remains unclear. The learned trial Court notes and rightly so that PW3 Moti Ram and PW4 Krishan Kumar have denied the statement given to the police and wherein it was stated that the blow was given with a ‘darat’. One important aspect has 5 emerged in this case. All the prosecution witnesses have admitted in one voice that the accused persons had also lodged a report against them arising out of the same incident for which they are facing trial. The prosecution in its challan, has no where mentioned this fact nor has any attempt been made to place on record anything to show as to what was the fate of that case. When considering the statement of the injured, the learned trial Court holds that it is not safe to rely on this testimony. The factum that the complainant was injured is established from the medical evidence but who caused the injuries, the manner in which they were caused is something which is not established on the record and the mere inference from the statements is insufficient to implicate the respondents. Learned Additional Advocate General submits that in this case, the injured are the best witnesses who testified as to the manner in which the incident occurred. They cannot be treated as interested witnesses because an injured person is the best witness to state with respect to the incident. This proposition cannot be disputed. But when the evidence of these witnesses is considered in its totality and is found that there are major contradictions, the nature of the so called proceedings, the fact that another First Information Report has been registered against them which is under trial, two of the independent witnesses totally denying the incident though 6 it is alleged to have taken in place in their presence, it is not safe to reliable the testimony of these witnesses. I concur with the findings of the learned trial Court. Thus, there is no merit in this appeal which is accordingly dismissed. Bail bonds furnished by the respondents are discharged. (Dev Darshan Sud), Judge. July 16,2010(R)