IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.A. No. 160 of 2004. Decided on: 15.6.2010. ________________________________________________________ State of H.P. … Appellant. Versus Suresh Kumar … Respondent. ________________________________________________________ Coram: Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 Yes. For the appellant : Mr. Anil Jaswal, Dy. Advocate General. For the Respondent : Mr. Rakesh Jaswal, Advocate. ______________________________________________________ V.K. Sharma, J. (Oral). The accused (respondent herein), Suresh Kumar was tried by the learned Chief Judicial Magistrate, Bilaspur, H.P. for the offences under Sections 452, 354, 323 and 506 IPC. The trial ended in acquittal. It is how that the appellant-State is in appeal before this Court under Section 378 (3) of the Code of Criminal Procedure, 1973 (the Code). 2. Shorn of details the prosecution case is that on 9.6.2001 at about 6.00 p.m. the complainant, PW-1 Smt. Jamna Devi was present at her house in village Bhajun and was working in the kitchen. At that time, her husband, PW-4 Shri Jagat Ram had gone to Namhol to bring tomato seeds. In the meanwhile, the accused entered the kitchen and enquired about her husband. On being told that he had gone to Namhol, the accused is said to have caught hold of the complainant from her ‘Kamiz’ and tore the same 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 from the neck and thereafter, gave tooth bites on her face and neck. In the meantime her husband returned from Namhol and tried to rescue her. However, the accused gave kick blow to her as a result of which she fell down and became unconscious. When she regained consciousness, she noticed that blood was oozing from the head and nose of her husband. The matter was reported to the police on the basis of which F.I.R. Ext. PW-1/A was registered. 3. Both the complainant and her husband were sent for medical examination and medico legal reports Ext. PW-6/A and Ext. PW-6/B were obtained. ‘Kamiz’ Ext. P1 and ‘Danda’ Ext. P2, with which the accused had allegedly given beatings to the husband of the complainant, were also taken into possession, vide memo Ext. PW-3/A. 4. On completion of investigation, the accused was sent up to face trial. On being charged, he pleaded not guilty and claimed to be tried. The prosecution evidence followed. It has examined 7 witnesses in all. 5. On close of the prosecution evidence, the accused was examined under Section 313 Cr.P.C., wherein his defence was that of denial simpliciter, innocence and false implication in connivance with the police, particularly the Investigating Officer, PW-7 S.I. (Retd.) Ranjha Ram, who is stated to be related to the complainant and her husband. 6. On conclusion of the trial, the accused was acquitted, as already noticed. 3 7. I have heard the learned Deputy Advocate General for the appellant-State and the learned counsel for the respondent- accused and perused the record. 8. The accused has been acquitted by the learned trial Court mainly on the grounds that there was variance between the initial version stated by the complainant to the police while lodging the F.I.R. Ext. PW-1/A and as stated by her in the Court while deposing as PW-1. The only independent witness to the alleged occurrence PW-2 Shri Lekh Ram, who is also recovery witness, did not support the prosecution version and was declared hostile. There was pre-existing enmity between the parties for the last about 3-4 years. Apart from that PW-4 Shri Jagat Ram, the husband of the complainant, was also found to have improved upon the initial version stated by him to the police in his statement, under Section 161 Cr.P.C. vis-à-vis his testimony in the Court. 9. As per prosecution, the alleged occurrence pertains to 9.6.2001 at about 6.00 p.m. At that time the complainant along with children was present at her house and her husband had gone to Namhol to bring tomato seeds. It was at this juncture that the accused had allegedly gone to the house of the complainant and on inquiry when he found that her husband was away to Namhol, he allegedly caught hold of her from her ‘Kamiz’ and tore the same and thereafter, gave tooth bites on her face and neck. However, while appearing as PW-1, she has stated that the accused after entering the house started talking to her in obscene language. Thereafter, he tore her ‘Kamiz’ and caught hold of her arm and gave beatings to her as a result of which, she suffered injuries on 4 the arm and neck etc. Thus, it is apparent that while appearing as a witness in the Court, she has not made any mention about the accused having given any tooth bite to her on her face and neck. This aspect of the matter cannot be lightly overlooked. A combined and harmonious reading of the deposition of PW-1 would also go to show that there have been strained relations between the parties for the last about 3-4 years. 10. PW-2 Shri Lekh Ram, who according to the prosecution, was an eye witness to that part of the occurrence involving the accused and the complainant and her husband that had taken place in the courtyard of the complainant as also to the recovery of ‘Kamiz’ Ext. P1 and ‘Danda’ Ext. P2, did not support the prosecution case during the trial and was declared hostile. He was cross-examined by the learned Assistant Public Prosecutor at quite length but nothing tangible could be extracted out of him so as to support the prosecution case. 11. To the contrary, during cross-examination by the learned defence counsel, he has admitted that when he was called by the complainant on the next day of the occurrence, he had not seen any injuries on her person. According to him, the husband of the complainant, when drunk, often used to give beatings to her. He has admitted that he had also quarrelled with the accused under the influence of liquor and the matter was taken to the Panchayat. He has further admitted that there had been quarrels between the parties relating to the field of the accused which adjoins the land of the complainant party, where the complainant used to throw broken pieces of glass and garbage, which was the cause of the quarrel. 5 12. Though PW-4 Shri Jagat Ram, who is husband of the complainant, has stated that when he came back home from Namhol, he found that the accused, who was present at his house, was tearing the clothes of his wife, the complainant. However, when confronted with his statement recorded by the police, under Section 161 Cr.P.C., though not exhibited, this part of the statement made by him in the Court was not found to have been stated therein. He has admitted that the Investigating Officer, PW-7 S.I. (Retd.), Ranjha Ram, is related to him. 13. Though presence of independent witnesses was not expected at the suggested time and place when the alleged occurrence is stated to have taken place and no fault can be found with the prosecution case in this regard, yet since as per prosecution, PW-2 Shri Lekh Ram was going by the side of the courtyard of the complainant at the relevant time and had witnessed a part of the occurrence that had allegedly taken place in the courtyard of the house of the complainant and the witness not at all supporting the prosecution version in this regard, it is difficult to come to the conclusion that the prosecution has been able to bring home guilt against the accused beyond reasonable doubt. It being so, the findings returned by the learned trial Court to this effect vide the impugned judgment, dated 11.12.2003 do not call for any interference in the present appeal against acquittal. Accordingly, the appeal is dismissed. (V.K. Sharma) Judge. June 15, 2010. (cr)