IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Criminal Appeal No.284 of 2002. Judgment reserved on : 16.4.2009. Date of decision: April 24, 2009. State of Himachal Pradesh …Appellant. Versus Moti Sagar & Others ..Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? No For the Appellant : Mr. Anshul Bansal, Additional Advocate General. For the Respondents : None. __________________________________________________________ Kuldip Singh, Judge The respondents were prosecuted in criminal case No. 71- 1/1996 for having committed offence punishable under Sections 147, 149, 323, 325 IPC but were acquitted by the learned Chief Judicial Magistrate, Hamirpur on 30.7.2001, hence the State has filed the present appeal. 2. The prosecution case, in brief, is that FIR Ex.PA was got registered by PW-1 Dev Raj on 23.12.1995 wherein it has been stated that in the election of Nagar Panchayat, Amar Nath, Moti Sagar, Tilak Raj and Dina Nath were the candidates for the office of Vice-President, he supported Amar Nath. The result was declared on 22.12.1995 and ______________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes 2 Amar Nath was declared elected as Vice-President. After declaration of result, Moti Sagar along with his supporters went to his home. The complainant had also went to his village along with other villagers. At place Balongni, he had talk with Roshan Lal S/o Sh. Prabha Ram, Shrawan Kumar, Hans Raj and Ramesh Chand who was elected as President. The other villagers left for the village. A short-while thereafter, the aforesaid four persons also left for their village. At about 11.00 p.m. he reached near the shop of Moti Sagar where Moti Sagar, his brother Krishan Chand, Brij Lal, Chander Shekhar, Koyal Devi, Sunita Devi and Saroj Devi encircled complainant and Roshan Lal; Moti Sagar and Kishan Chand gave fist blows to the complainant and Roshan Lal and both of them fell down. Thereafter, all aforesaid gave them beatings with lathis. They raised alarm, Shrawan and Hans Raj who were following them reached the spot. They tried to rescue them but the aforesaid persons also gave them beatings with fist blows. 3. The complainant and Roshan Lal were caught by Moti Sagar and Kishan Singh from legs and were pulled for about 100 yards and left them there. After some time on coming to know of the incident, some villagers came there and took them to their homes. He sustained injuries on head, back, chest and elbow. Roshan Lal sustained injuries on face, back and on rest of the body. Roshan Lal became unconscious and, therefore, report could not be made during the night. In the morning Roshan Lal was admitted in the hospital and thereafter, report was lodged. 4. On the registration of the case, police came into action, site plan Ex.PW-6/A was prepared. MLC Ex.PW-4/A of Dev Raj and MLC Ex.PW-4/B of Roshan Lal were obtained. The statements of witnesses were recorded. On completion of investigation, challan was presented 3 against the accused for having committed offence punishable under Sections 147, 149, 323, 325 IPC and they were accordingly charged. The prosecution has examined seven witnesses in order to prove the case. The respondents were examined under Sections 313 Cr.P.C., they denied the prosecution case, but led no evidence in defence. The learned Chief Judicial Magistrate acquitted the respondents, as noticed above. The respondent No.2 Brij Lal died during the pendency of the proceedings in the trial Court, his name in the appeal was deleted vide order dated 23.8.2002. 5. I have heard Mr. Anshul Bansal, learned Additional Advocate General for the State and have gone through the record. None appeared on behalf of the respondents. It has been submitted by the learned Additional Advocate General that the prosecution has proved the case against the respondents by leading oral and documentary evidence. There is no reason to dis-believe the version of the prosecution. The learned Chief Judicial Magistrate has mis-construed and mis-interpreted the evidence and has erred in acquitting the respondents. He has prayed for conviction and sentence of the respondents. 6. The occurrence took place on 22.12.1995 at 11.P.M. but FIR was registered on 23.12.1995 at 9.30 a.m. PW-1 Dev Raj has stated that after the election Moti Sagar had gone to his home, he and other villagers were also returning to their homes via Balongni. On that very day, Ramesh Chand was elected President of Balongni Panchayat. Ramesh Chand and others were coming from school to Balongni. They met complainant and others. He, Roshan Lal, Hans Raj and Shrawan Kumar stopped to congratulate Ramesh Chand, the other villagers accompanying PW-1 had gone after about 10 minutes, they were 4 returning to their homes. On the way, there is a shop of Moti Sagar. Shrawan Kumar and Hans Raj stopped to urinate at a distance of 200 – 250 yards from the shop of Moti Sagar, PW-1 and Roshan Lal proceeded further. The moment they reached the shop of Moti Sagar; Moti Sagar, Krishan Chand, Brij Lal, Chander Shekhar attacked them with kick and fist blows as well as dandas. Their women Koyal Devi, Sunita and Saroj also caught hold them. They raised alarm and on hearing alarm, Hans Raj and Shrawan Kumar came to their rescue. They were also given beatings by those persons and were asked to leave the place and on this, all of them run away from that place. Roshan Lal became unconscious on account of injuries sustained on head. Both of them were dragged by holding them from leg for about 100 yards and they were thrown there. Thereafter some villagers reached there who took them to their homes. A jeep was arranged for taking unconscious Roshan lal to Hamirpur hospital and on 23.12.1995 in the morning he was got admitted in Hamirpur hospital and the matter was reported to police. He has stated that FIR Ex.PA was lodged by him. In cross- examination, he has stated that villagers were Amar Nath, Dhani Ram, Shrawan Kumar, Hans Raj about 10 – 12 people, some women were also there. There is a shop of Gian Chand near the shop of Moti Sagar at a distance of 300 yards, the residence of Gian Chand is also there. None came out from the house of Gian Chand at the time of incident. 7. PW-2 Roshan Lal has stated that on 22.12.1995 after declaration of result at 9.00 or 9.15 p.m. he left for his home along with other villagers. At Balongni they stopped to congratulate Ramesh who was elected President of Dhanet Panchayat. Dev Raj was accompanying the witness. They stopped for about 10 minutes and other villagers proceeded further. Thereafter, he and Dev Raj also proceeded to their 5 homes. Hans Raj and Shrawan met them but Shrawan and Hans Raj stopped 100 yards before the shop of Moti Sagar to urinate. Moti Sagar and his family members were in front of their shop, who were, Moti Sagar, Brij Lal, father of Moti Sagar, mother Koyal Devi, sister-in-law Sunita, wife Saroj, Krishan Chand and nephew Chander Shekhar. Moti Sagar asked him to whom he had given the vote, he replied. Moti Sagar pushed him from behind and he fell down. The other family members laid him on the ground and gave him beatings. He was given beatings by Danda and fist blows. He sustained injuries on the back, head, chest, arm and teeth. Dev Raj was also given beatings. He was pulled by Moti Sagar and Brij Lal for about 100 yards and they were thrown there. He became unconscious. On regaining consciousness, he found himself in Hamirpur hospital. There were about 20 -22 persons on the spot. Amar Nath newly elected Vice President, Shrawan came on the spot. At the time of occurrence, Dev Raj, Shrawan and Hans Raj were on the spot. He has stated that the case which was filed against them regarding the incident in the Court of Sub Divisional Magistrate is false. 8. PW-3 Dr. J.R. Azad has stated that X-ray examination of Roshan lal was conducted under his supervision. After seeing X-ray, he found fracture of lower end of radius in the part x-rayed, he proved report Ex.PW-3/A and X-rays Ex.PW-3/B, Ex.PW-3/C and Ex.PW-3/D of Roshan Lal. PW-4 Dr. L.R.Sharma, has stated that on 23.12.1995 at 11.40 a.m. he examined Dev Raj and issued MLC Ex.PW-4/A. On the same day, he examined Roshan Lal and issued MLC Ex.PW-4/B. In cross-examination he has stated that injuries found on both the persons Dev Raj and Roshan Lal are possible by fall and rolling down. PW-5 Ramesh Chand has proved FIR Ex.PA. PW-6 Mehar Chand, S.I. investigated the case and prepared site plan Ex.PW-6/A. On completion 6 of investigation, the file was handed over by him to SHO Gulab Chand. In cross-examination, he has stated that he challaned Roshan Lal and others which is a separate incident. He did not recover any weapon of offence from the accused. PW-7 Suresh Kumar, Radiographer was examined to prove ski grams of Dev Raj, he is not material witness. The accused in their statements denied the prosecution case. 9. PW-1 Dev Raj has stated that the moment they reached the shop of Moti Sagar; Moti Sagar, Krishan Chand, Brij Lal, Chander Shekhar attacked them with kick and fist blows as well as dandas, Koyal Devi, Sunita and Saroj caught hold them. On hearing their alarm, Hans Raj and Shrawan Kumar came to their rescue. Roshan Lal became unconscious on account of injuries sustained on head. Both of them i.e. Complainant and Roshan Lal were dragged for about 100 yards and were thrown there. In FIR Ex.PA he has stated that respondents encircled the complainant and Roshan Lal, Moti Sagar and Krishan Chand gave fist blows to the complainant and Roshan Lal as a result of which both of them fell down and thereupon whole of the family gave them beatings with dandas. Shrawan Kumar and Hans Raj rescued them. The complainant and Roshan Lal were dragged by Moti Sagar, Krishan Chand, Brij Lal and Chander Shekhar for about 100 yards. The prosecution has not examined Hans Raj on the alleged ground that he was won-over. There is no material on record that Hans Raj was won over by the respondents. Shrawan Kumar the other alleged eye witness has also not been examined. In this way, the statements of PW-1 Dev Raj and PW-2 Roshan Lal are left for consideration. 10. PW-2 Roshan Lal has stated that Moti Sagar and his family members were in front of their shop. Moti Sagar asked him to whom he had given the vote, he replied. Thereafter, Moti Sagar pushed 7 him behind and he fell down. The other family members laid him on the ground and gave him beatings with dandas and fist blows. The start of incident as revealed by PW-2 Roshan Lal has not been corroborated by PW-1 Dev Raj, who has not stated that Moti Sagar asked PW-2 to whom he had given the vote and thereafter, incident took place. PW-1 Dev Raj has stated that Moti Sagar, Krishan Chand, Brij Lal and Chander Shekhar attacked them with kick and fist blows whereas Koyal Devi, Sunita and Saroj caught hold them. PW-1 has also not stated that Moti Sagar pushed PW-2 Roshan Lal and he fell down. PW-2 rather has said that family members of Moti Sagar laid him on the ground and gave him beatings with danda and fist blows. PW-1 and PW-2 have stated that they were dragged for about 100 yards but PW-4 Dr. L.R.Sharma, who examined Dev Raj and Roshan Lal and issued MLCs Ex.PW-4/A and Ex.PW-4/B has stated that the weapon used was blunt. In cross-examination, he has stated that injuries found on the person of Dev Raj and Roshan Lal are possible by fall. He has nowhere stated that any injury found on the person of Dev Raj and Roshan Lal could be caused by dragging. In case Dev Raj and Roshan Lal were dragged for 100 yards, then normally their clothes from the back side should bear dragging marks, if not torn but no such clothes of Dev Raj and Roshan Lal were produced in the Court. PW-1 and PW-2 have stated that dandas were used by accused while giving beatings to them but no dandas were recovered. The prosecution case is that several persons gathered on the spot but no such persons were examined in the Court. 11. PW-1 Dev Raj has stated that there is a shop and residence of Gian Chand nearby but nobody came out of the house of Gian Chand at the time of incident. PW-1 and PW-2 have alleged that respondents had given them beatings, they raised alarm. Many people 8 came on the spot. In normal course, in such a situation, it is reasonable to infer that somebody should have responded from the residence or shop of Gian Chand. It is not the case of the prosecution that at that time nobody was occupying the shop and residence of Gian Chand. The Investigating Officer has not stated that he enquired from the shop or residence of Gian Chand regarding the incident. This creates suspicion in the prosecution case. The motive for giving beatings to PW-1 Dev Raj and PW-2 Roshan Lal according to prosecution was that they supported the opponent of Moti Sagar in the election. In the present case, almost the entire family of the respondents has been implicated. There is no reliable evidence on record that Moti Sagar’s family along with women gave beatings to PW-1 and PW-2 as alleged by the prosecution. PW-6 Mehar Chand, S.I. who investigated the case has stated that he challaned Roshan Lal and others but that is a separate incident but he has not elaborated what is that incident. 12. The occurrence took place at about 11.00 p.m. on 22.12.1995 at a distance of 24 KM from the Police Station, the FIR was lodged on 23.12.1995 at 9.30 a.m. PW-1 Dev Raj in his statement has stated that some delay was caused for arranging the jeep for taking Roshan Lal to Hamirpur hospital. But he has not stated at what point of time the jeep was arranged. The prosecution case is that Roshan Lal became unconscious, therefore, it was more the reason to act promptly to take Roshan Lal to hospital as early as possible. There is no sound explanation for delay in lodging the FIR. In Mahmood & anr. Vs. State of U.P. AIR 2008 SC 515, the Hon’ble Supreme Court has held that delay in lodging the FIR may result in embellishment, which is a creature of an after thought. In these circumstances, the delay in lodging the FIR also creates suspicion in the prosecution case. No doubt in MLC 9 Ex.PW-4/A of PW-1 Dev Raj and in MLC Ex.PW-4/B of PW-2 Roshan Lal, some injuries were found on their person but PW-4 Dr. R.L.Sharma has stated that such injuries are possible by way of fall. Simply some injuries were found on PW-1 and PW-2, it cannot be said that such injuries were inflicted by the respondents, more particularly when the prosecution has miserably failed to prove the case against the respondents by leading cogent evidence. The learned Chief Judicial magistrate has properly appreciated the material on record. It cannot be said that the view taken by the learned Court below is perverse or does not emerge from the evidence on record. No case for interference is made out. 13. No other point was urged. 14. As a result of above discussion, the appeal fails and is accordingly dismissed. Bail bonds are discharged. April 24, 2009. ( Kuldip Singh ), (GR) Judge.