1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 415 of 2002 Decided on July 20, 2011 __________________________________________________________ State of H.P. …Appellant. Versus Mulakh Raj ...Respondent. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice V.K. Ahuja, Judge. ¹Whether approved for reporting? For the appellant: Mr. R.K.Sharma, Senior Additional Advocate General with Mr.Rajinder Dogra, Additional Advocate General, For the respondent : Mr. Rajiv Jiwan, Advocate. Justice R.B. Misra,J. (Oral) The present Criminal Appeal has come up for adjudication after the grant of leave to appeal under Section 378 (3) of the Code of Criminal Procedure in reference to judgment dated 2.2.2002, passed by Learned Additional Sessions Judge-II, Kangra at Dharamshala, H.P., in Sessions Case No. 11-N/2000, , in reference to case FIR No. 231 of 1999, acquitting the alleged accused/respondent for the offence under Section 307 of the Indian Penal Code. 2. The prosecution case is that the accused- respondent was tried for having committed an offence 2 punishable under Section 307 of the Indian Penal Code, for having allegedly assaulting from behind the victim / injured, namely, Kartar Singh, by Darat. FIR (Ex.PW.2/A) was lodged at the instance of victim / injured, Kartar Singh, who in his statement (Ex.PW.2/B), under Section 154 Cr.P.C., stated that he is resident of Tundi Thana Chowari, Tehsil Bhatiath, District Chamba and for the past last 11-12 years, he had been running a Bakery products shop at bazar along with his younger brother Karnail Singh. Usually, he was going to his shop at 8.00 A.M., however, on the fateful day i.e. on 17.10.1999, at about 9.45 A.M., taking his bakery products when he reached Simbli, and started taking water from a pitcher, suddenly he was attacked on his neck with a Darat by the accused from behind, whose name was revealed to him by someone, however, victim was saved by Padu Ram and Bakshish and was taken to Nurpur hospital. 3. After investigation, the accused was arrested and charged for the aforesaid offence. In order to prove its case, the prosecution has examined as many as 13 prosecution witnesses, whereas, the accused through his statement under Section 313 of Cr.P.C., has denied the prosecution case. 4. PW.1 Dr.R.K.Chaudhary, Medical Officer examined victim / injured, Kartar Singh, and noted the 3 following injuries on his person:- “There was horizontal linear spindle shaped incised wound on the back of middle part of the neck, extended to the lateral side of the neck. The incised wound was full of clotted blood with cutting of underlying muscle of the back of the neck and other soft tissues. The size of the wound of 6” x 1/2” x bone deep”. Dr.R.K.Chaudhary (PW.1) also found incised wound on neck with fracture C six spinous process. Date of admission 17.10.1999. Date of discharge 22.10.1999. Registered No.1492/99.2000. Doctor Dinesh Gupta Neurosurgeon MCH. Patient admitted with bleeding profusely from wound on the neck with pallor B.P. 130/70 pulse rate 124 per minutes. 5. H.C. Deep Chand (PW.2) has stated that on the basis of rukka (Ex.PW.2/B), he lodged FIR (Ex.PW.2/A). PW.3 Constable Baldev Singh has stated that he received four sealed parcels for taking the same to FSL Junga, for chemical examination. PW.4 LHC Hari Ram recorded the statement (Ex.PW.2/C) of victim / injured, Kartar Singh. 6. Sh.Kartar Singh (PW.5), victim / injured, has stated that he was working as driver while making the statement. PW.5 has further stated that before this, he was running a bakery shop at Nurpur with his younger brother Karnail Singh. PW.5 has further stated that he used to take the bakery products for sale in the villages Khajan, 4 Sadhwan, Simbli etc. on cycle every morning. However, in the morning of 17.10.1999, while he was going for sale of bakery products at about 9.45 A.M. and had reached the shop of Padu Ram and Bakshish, at that time, they were ploughing the fields at a distance of 10-15 feet away from the shop. PW.5 called Padu Ram to receive the products. Som Raj, the brother of Bakshish Singh was also in the fields. At that time, accused was on the road. After calling Padu Ram, PW.5 when was taking water from the pitcher kept out side the shop, accused came from behind and gave a Darat blow on his neck. Kartar Singh (PW.5) got perplexed after receiving the blow. Padu Ram, Bakshish and Som Raj came running and saved victim / injured (PW.5). Kartar Singh / (PW.5) has further stated that name of the accused was disclosed to him by Padu Ram and Bakshish. 7. We have carefully gone through the contents of (Ex.PW.2/B), from which it appears that victim / injured, Kartar Singh, through his statement under Section 154 Cr.P.C., has divulged that when he reached Simbli by cycle for supplying bakery products, and was taking water, suddenly someone (whose name was not known earlier to him subsequently known as Mulakh Raj), assaulted him on his neck by Darat from behind. 5 In cross-examination, Kartar Singh (PW.5), has stated that he did not state the police that Padu Ram and Bakshish were ploughing their fields. PW.5 also did not tell the police about calling Padu Ram to the shop and receive the products. PW.5 also did not tell the police about the presence of Som Raj in the fields and also did not tell that accused was roaming on the road. PW.5 also did not tell the police that he was taking water from the pitcher. In cross-examination, PW.5, also did not tell the doctor about the cause of injury, as the doctor did not enquire from him. PW.5, Kartar Singh, has further stated when he reached Amritsar at about 6.00 P.M same day, the doctor asked him about the cause of injury, at that time also PW.5, told the doctor that he had fallen from the roof and sustained injury from the tin-sheet, however, self-stated that if actual thing was narrated to the doctor, he could not have been admitted in the hospital. 8. Sh.Bakshish Singh / (PW.6) has stated that he knew the accused as the victim / injured used to supply the bakery products for his shop, however, in the year, 1999, at about 9.30 / 10.00 A.M., (month is not known), while PW.6, Padu Ram, his uncle and Som Raj were working in the fields adjoining to the shop, accused was on the road. PW.6 further stated that he did not know that what had happened, but when accused gave blow of Darat to victim / 6 Kartar Singh, on his cry they came running to the shop and victim, Kartar Singh, was brought to Nurpur Hospital. In cross-examination, PW.6, has stated that when he reached at the spot, victim / injured had fallen down and accused ran away after causing injury to him. PW.6 has further stated that he did not see the accused giving blow of Darat to victim. PW.6 has further stated that they had started coming from the fields on the call of victim. PW.6 also heard the cries of victim. Bakshish Singh (PW.6) has further categorically stated that he did not see the accused behind Kartar Singh. Testimony of PW.6 revealed that, it was he, who told the victim about the name of the accused, however, PW.6 himself stated that he did not see the accused behind Kartar Singh (PW.5) and had not seen the accused giving blow of Darat to Kartar Singh, as such, has not named him as an assailant. In his statement / (Ex.PW.2/B), the victim has very categorically stated that someone has assaulted him from behind on his neck by Darat. However, subsequently, he came to know the name of the accused. 9. In the above facts and circumstances, there is lack of identity of accused. PW.5 / victim himself had not seen the accused assaulting him from behind. PW.6 i.e. the most important prosecution witness has also not seen the accused while giving darat blow. In the facts and 7 circumstances, the accused cannot be said to be assailant and cannot be held guilty for assaulting with Darat on the neck of the victim. 10. On analysis of the prosecution witnesses and materials on record, learned Additional Sessions Judge has rightly arrived at the conclusion that the prosecution has failed to prove its case beyond reasonable doubt. In our considered view also, the prosecution has failed to bring home the guilt to the accused and there is no scope of interference in the finding given by learned Additional Sessions Judge. Accordingly, the present criminal appeal, being devoid of any merit, is dismissed. 11. The bail bond furnished by the accused/respondent is hereby discharged. (R.B. Misra) Judge July 20, 2011 (V.K. Ahuja) (Purohit) Judge