IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 140 of 2004 Date of decision December 20, 2010 __________________________________________________________ State of H.P. ….Appellant Versus Bhajan Singh & Ors ….Respondents ___________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No. For the Appellant : Ms. Shubh Mahajan, Deputy Advocate General. For the Respondents : Mr. Ajay Sharma, Advocate. _______________________________________________________ Dev Darshan Sud, J(oral). The State is aggreived by the judgment of acquittal, passed by learned Sessions Judge, Kangra at Dharamshala, acquitting the respondents herein, for offences under Sections 451, 427, 323, 147 and 506 IPC. All the respondnets were arrayed as accused before the learned Judicial Magistrate 1st Class, Kangra at Dharamshala for having committed offences under Sections 451, 427, 323, 147 and 506 IPC. The prosecution case, in brief, is that at around 11.30 pm, when complainant, his son and wife were sleeping in the house, he heard a noise of a wall collapsing. When he rushed outside, he saw that Bhajan Singh accused alongwith his brother Ranjit Singh accused, one Ashwani Kumar and some other persons were causing damage to his wall. When he asked them to refrain from these activities, they beat him up, as a result of which, he sustatined injuries on his chest and his wife on her 1 Whether reports of Local Papers may be allowed to see the judgment? Yes 2 back. He reported the matter to the police, vide Ext.PW-6/A, on 20.10.2001, which form the basis of the First Information Report Ext.PW- 6/B. Spot map Ext.PW-7/A was prepared and the medical examination of complainant Nek Ram, his wife Nirmal and son Rajeev was conducted and reports were exhibited as Ext.PW-8/A, Ext.PW-8/B and Ext.PW-8/C. The learned Trial Magistrate, on the evidence on record, concluded that the accused persons had formed an unlawfuly assembly in or near the residence of the complainant and used force or violence to demolish the wall and on being restrained from doing so, beat up the complainant, his wife and son. In these circumstances, they were sentenced to various terms of imprisonment under Sections 451, 323 and 147 IPC and acquitted of offences under Sections 427 and 506 IPC. On the question of sentencing, the court granted them the benefit of Probation of Offenders Act and released them, subject to furnishing bonds with one surety in the like amount of `10,000/- each. Compenstion in the sum of `1,000/- was directed to be paid to the complainant. The respondents appealed and the learned Sessions Judge on re-appreciating the evidence on record, acquitted all the accused. In order to arive at this conclusion, learned Court considered in detail the evidence of Nek Ram complinant PW-1, who had named the assailants as Bhajan Singh, Shiv Charan, Ranjit Singh, Madhu, Gita Devi, Mangat Ram and Pritam Singh. The Court holds that this is an improvement over the statement, which has been made before the police and an important improvement which formed the very basis of the case. The Court also considered the evidence of PW-2 Rajeev son of the complainant and PW- 3 Nirmla Devi. PW-4 Kiran had stated that on hearing noise outside the house, she had rushed to the spot and saw that accused were pelting bricks and bottles on the complainant. The Court holds that considering the fact that it was dark night, it could not be stated with particularity as to 3 who was pelting bricks and who was pelting bottles etc. at the complainant. In the First Information Report, which was registered with the police, there is no mention of anyone throwing bottles and bricks on the injured party. This was an important fact which formed the very basis for charging the respondents with the offence.The Court holds that this version never found narration before the police and it was something which was stated for the first time in the Court. In these circumstances, the entire occurene is doubted. Learned Deputy Advocate General urges that the medical certificates Ext.PW-8/A, Ext.PW-8/B and Ext.PW-8/C as also the statement of the complainant, his wife and son and PW-4 Kiran are clear as to the manner in which the injuries were inflicted upon them. She submits that in the middle of the night no independent witness is required and that once the injured had corroborated each other on the manner in which the fight had occurred it became unnecessary to further elborate any details. True that at that time in the night, it would be asking for the impossible to look for an independent witness, but at the same time, what must not be lost sight of is the fact that the incident as narrated must find mention in the First Information Report. What should not be forgotten is that this incident has occurred in the middle of the night and in the absence of any eivdence that there was light it would not be possible to identify all the acused. Most of all factum regarding noise, pelting of bricks and bottles being heard is an improvement neither mentioned in the narration of the occurrence of the incident nor is supported beyond evidence. It seems to be an afterthought and not a true narration of what happened. In the facts and circumstances of the case, I am not persuded to hold that the learned Sessions Judge has taken a view which 4 is perverse and not supported by evidence. Hence, appeal fails, which is accordingly dismissed. Bail bonds furnished by the respondents shall stand discharged. December 20, 2010 (Dev Darshan Sud) (vt) Judge