IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 401 of 2003 Date of decision: 15.05.2010 State of H.P. ... Appellant Versus Hari Dass and others … Respondent Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant: Mr. J.S. Guleria, Assistant Advocate General. For the respondents: Mr. Satyen Vaidya, Advocate. V.K. Ahuja, J. (Oral): This is an appeal filed by the State of H.P. under Section 378 Cr.P.C. against the judgment of the Court of learned Additional Chief Judicial Magistrate, Court No. 1, Shimla, dated 10.3.2003, vide which the respondents were acquitted of the charge framed against them under Sections, 147, 148, 323, 506 read with Section 149 I.P.C. 2. The prosecution story in brief is that on 2.2.1997, a report was ledged with the police by one Jamna Dass, in which he alleged that they were working near the place of occurrence and when they were throwing soil on the road to repair the road, Bala Ram, Ram Rattan, Gopal, Sita Ram, Hari Ram, Ram Lal and Shanker formed an unlawful assembly, came there armed with Dandas and stones and threw stones over them leading to suffering of injuries by some persons of the complainant party. On this, a report was 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - lodged and after investigation, the challan was filed before the learned trial Court, who tried the respondents, leading to their acquittal. 3. I have heard the learned counsel for the parties and have gone through the record. 4. On appraisal of the record of the case, these facts stand established from perusal of the judgment also that a cross case was also registered against the complainant party for the same occurrence, in which father of the respondents No. 2 to 8 namely Brahma Nand had suffered serious injuries leading to his death and ultimate trial of the complainant party for the offence of murder. This clearly shows that the origin of the fight is not known and both the parties had suffered injuries and the injuries suffered by the father of the accused were serious leading to his death. In the present case, all the five injured, namely, Madan Lal, Jamna Dass, Kamal Kumar, Jia Lal and Shonk Ram, suffered injuries, which were simple in nature and accordingly, the respondents could not have been held guilty in a free fight when both the parties had suffered injuries. 5. Apart from the above, it has been rightly observed by the learned trial Court that two of the witnesses of the spot namely Budh Ram and Om Prakash, who had rescued the complainant party at that time were not associated by the police during the investigation of the case nor their statements under Section 161 Cr.P.C. were recorded and their non-association and non- examination leads to an adverse inference being drawn against the prosecution for non-examining the material witnesses. The identity of the two persons was duly established, but their non-examination leads to an adverse inference being drawn against the prosecution. - 3 - Moreover, in the complaint lodged with the police presence of father of the accused namely Brahma Nand was not mentioned at the time of incident. PW-3 Jia Lal and PW-4 Shonk Ram had clearly admitted that he was present at the spot and no explanation had been furnished by the prosecution regarding the injuries sustained by Brahma Nand. A perusal of the statements of PW-3 and PW-4 also shows that they have made improvements in their statements and their statements were not accordingly relied upon by the learned trial Court. The net result of the discussion is that the findings recorded by the learned trial Court cannot be said to be perverse calling for an interference by this Court. 6. In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the State of H.P., which is dismissed. The bail bonds furnished by the respondents shall stand discharged. (V.K. Ahuja), May 15, 2010 Judge (BSS) - 4 -