IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 618 of 1996 Reserved on.: 4.5.2010 Date of Decision: 18 .6.2010. State of H.P. …Appellant. Versus. Rajesh Thakur and another …Respondents. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for Reporting? No. For the Appellant: Mr. Vivek Singh Thakur, Addl. Advocate General. For the Respondents: Mr. Ramakant Sharma, Advocate. Per Deepak Gupta, J. 1. This appeal by the State is directed against the judgement dated 6.6.1996 delivered by the learned Additional Sessions Judge, Solan in Sessions Trial No. 8- NS/7 of 1994 whereby he acquitted the accused of having committed offences punishable under Sections 307 read with Section 34 IPC. 2. The prosecution story, in brief, is that on 10.4.1993 injured Rajiv Arora was returning to his house alongwith his friend Prakash on the railway track near Solan. On the way, they met accused Narender Kumar alias Nitu. 2 Then Prakash went to his own house and the injured proceeded towards his village Labon through the railway track. He had hardly covered about 100 feet when Nitu accused shouted for him to stop. He was armed with a Danda about 2 feet in length. In the meantime, Rajesh accused also came there. He was carrying an iron rod of 2 feet in length. Both of them asked him to call Prakash. Injured Rajiv Arora refused to do so. On this Rajesh hit him with a rod on the legs and Nitu gave him a Danda blow on the head. Thereafter, he fell down and became unconscious. According to the prosecution, the motive was that Rajesh accused four days ago misbehaved with Swati, a friend of Prakash. A quarrel ensued and Rajesh gave beatings to Prakash. Thereafter, Prakash lodged a complaint with the Railway Police and therefore, Rajesh wanted to settle scores with Prakash. 3. This incident is stated to have been witnessed by Mangla PW-5, who went to the house of Prakash and informed his brother Subhash about the incident. Thereafter, F.I.R. was lodged. The injured was first treated in the hospital at Solan and then at PGI, Chandigarh. After completion of investigation, challan was filed against the accused. After trial, they have been acquitted. Hence this appeal by the State. 3 4. PW-4 injured Rajiv Arora obviously supported the prosecution case. However, PW-5 Mangla did not support the prosecution case. According to her, she had only heard the cries of the injured and after recognizing the injured had gone to the house of Prakash alongwith Ranjit Singh, her tenant. She was declared hostile but stuck to her version in Court and denied that she had seen the accused beating the deceased. 5. As far as the injured himself is concerned, he was confronted with his statement made to the police wherein it is not recorded that he was asked to call Prakash. According to the witness, he may not have stated this since he was slightly disturbed. He also admitted that he was not accompanying Prakash and Swati when the latter was allegedly teased by Rajesh. From his cross- examination, it is apparent that there were numerous complaints by the Principal of the college of eve teasing against the injured. It appears that he has been involved in a number of fights on various occasions. 6. PW-2 Subhash is the brother of Prakash. According to him, Mangla came and told them that Rajiv Arora, friend of Prakash, had been given beatings and thrown on the railway track. Thereafter, he, Prakash Chand and their father went to the spot. On the way they met their 4 neighbour Surender and one Sobha Ram. The injured was lying flat on the railway track and had been badly beaten up. He was immediately shifted to the hospital from where he was taken to PGI, Chandigarh. He is also a witness to the recovery of the iron rod and Danda Ext.P-1 and Ext.P-2. He also stated that Mangla did not disclose the name of assailants. According to him, Rajesh made a disclosure, which led to the recovery of iron rod 10 days after the incident and Nitu made a disclosure about one month after the incident. He stated that on the date when the recovery was to be made he was called to the Police Station alongwith Surender and they were told that the recovery of the weapon has to be made and therefore, they have been associated as witnesses. 7. PW-6 M.C.Dinanath was posted in the Railway Police Post, Solan and has brought the record which shows that on 8.4.1993 a report was lodged by Prakash against the accused Rajesh. In cross-examination, he stated that the Railway Police took no action and asked the complainant to approach the Court or seek redressal with the Panchayat. Prakash Chand appeared as PW-7. According to him, he and injured Rajiv Arora were walking home at night at about 8.00 p.m. and on the way they met 5 accused Nitu. Thereafter, Rajiv Arora said hello to Nitu accused. Then Prakash went to his own house and injured Rajiv proceeded to his house. About five minutes later Mangla PW-5 came and informed them that Rajiv Arora had been beaten up by some one. He clearly stated that even at that time Rajiv Arora did not disclose the name of the assailants. He also gave a similar version about accused having teased Swati. Perusal of the cross-examination of this witness shows that he has admitted that the Principal of their college had complained against him and Rajiv Arora that they indulged in eve-teasing. It is also apparent that he and injured Rajiv Arora were involved in a number of fights. 8. There is no manner of doubt that the injuries on the person of the injured were grievous injuries and could have even resulted in the death. The only question is whether the prosecution has successfully connected the accused with the commission of the offence. As far as the motive is concerned, it is a very weak one. In fact, the grouse of the accused, if any, was with Prakash and not with the injured Rajiv Arora. Even on the date of the incident, according to the prosecution, Rajiv Arora met both Prakash and Nitu just five minutes prior to the incident. If there was so much animosity between the 6 two sides they would not have said hello to each other. Swati, who was an important witness, has not been examined. Even the report with the police about the alleged factum of Prakash Chand being beaten by the accused was lodged on 8th. If the incident occurred on 6th it is not understood why the complaint was lodged on 8th. The possibility cannot be ruled out that it was lodged at a later stage just to create evidence in the case. 9. The medical evidence also does not support the prosecution version. According to the doctor the iron rod is so heavy that if it had been used with some force the injury would have been much serious. Similarly, according to the doctor, the injuries on the face could not be caused in case the injured was hit from behind. Even the diameter of the injuries is different from the weapons Ext.P-1 and P-2. No doubt, the injured Rajiv Arora has named the accused. However, keeping in view their past animosity the possibility of the accused being falsely implicated cannot be ruled out especially when PW-5 Mangla, PW-7 Prakash and PW-2 Subhash, respectively, have clearly stated that Mangla did not see the actual incident and did not know who attacked Rajiv Arora. The medical evidence also does not corroborate the prosecution version. There are various contradictions and 7 improvements in the statement of PW-2, PW-4, PW-5 and PW-7. The name of the accused was entered in the F.I.R at the instance of PW-2 and PW-7. According to them, the incident was witnessed by PW-5. However, in Court PW-5 had denied that she had seen the incident. Therefore, the prosecution has failed to explain how the accused were named in the case even before the statement of the injured was recorded by the police. In these circumstances, the learned trial Court was fully justified in acquitting the accused. We find no reason to differ with the judgement of the learned trial Court. The appeal is accordingly dismissed. The bail bonds furnished by the accused are ordered to be discharged. ( Deepak Gupta ) Judge. June 18 , 2010 ( Rajiv Sharma ) (TM) Judge.