IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA: Cr.A.No.687 of 2000 Date of Decision : 26th October, 2007. State of H.P. …Appellant. Versus: Varinder Kumar and others …Respondents. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant: Mr.Ashok Chaudhary, Addl. Advocate General. For the respondents. Mr. R.S.Kanwar vice Mr. Virender Singh Rathore, Advocate. Sanjay Karol, J (Oral). Present appeal arises out of judgment dated 5.6.2000 passed by the Judicial Magistrate Ist Class, Dharamshala, H.P. in case No. 56-II/99/98, titled as State of H.P. vs. Varinder Kumar and others, whereby the accused persons have been acquitted of the charged offences. As per the case of the prosecution on 29.6.1998 at about 9.00 A.M in the morning while complainant Janak Raj was on his fields all the accused persons came and attacked the complainant. The complainant was thrown on the ground and he was beaten up with fists and blows by the accused persons as a result of which he 1 Whether reporters of Local Papers may be allowed to see the judgment? sustained injuries on his person. The complainant moved an application Ext.PW-1/A with the Panchayat and also filed complaint with the police Ext.PW-1/B, on the basis of which FIR No.160 (Ext.PW-9/B) was registered in the Police Station, Dharamshala, H.P under Section 325 of the Indian Penal Code. The accused was medically examined by Dr. Arvind Kanwar (PW-11) who issued medico legal certificate Ext.PW-11/A detailing the injuries suffered by the complainant. His X-Ray and the opinion thereof are Ext.PW- 10/A and Ext PW-10/B. Site plan Ext.PW-9/A was prepared and with the completion of the investigation the challan was presented in the Court for trial. The accused were charged for offences under Section 325, 147 and 506 IPC and to prove its case the prosecution examined 11 witnesses. The statements of the accused under Section 313 Cr.P.C were also recorded. On the basis of the material on record the Court below acquitted the accused of the charged offences for the reason that the statements of the witnesses were contradictory and belied the case of the prosecution. Out of 11 witnesses complainant Janak Raj (PW-1) , Nand Lal (PW-2), Ram Chand (PW-3), Madan Gopal (PW-7) are the spot witnesses who have seen the occurrence of the alleged incident. PW-4 has testified the receipt of complaint Ext.PW-1/A. The testimony of Harbans Lal (PW-5) is to the effect that PW-1 had narrated the incident to him. Gurmeet Singh (PW-6) is a person who received the complaint and he entered the report in the Daily Diary, which is Ext.PW-6/B. PW-8 Karam Chand is a formal witness and Kailash Nath (PW-9) has testified the preparation of the site plan Ext.PW-9/A and has carried out the investigation. Dr. J.R.Azad (PW- 10), Radiologist, has carried out the X-Ray Ext.PW-10/A & 10/B and Dr. Arvind Kanwar (PW-11) has testified the injury sustained by PW-1 on his body. Through the deposition of the aforesaid witnesses, it is clear that PW-1 sustained grievous injury and a complaint had been made against the accused person by him; the statement of the witnesses had been recorded by the Investigating Officer and the site plan was prepared during the course of investigation. The statements of PW-1, PW-2, PW-3 and PW-7 now need to be examined. Madan Gopal (PW-7) an independent witness has not supported the prosecution case and has been cross- examined by the public prosecutor but nothing has come out of his statement. PW-3 is the relative of PW-1. It has come in his statement that the accused persons had beaten PW-1 but, however, in his cross-examination he has admitted that he is a relative of PW-1 and there were about 25 to 30 persons present at the time of occurrence of the incident. During trial this witness has wrongly identified one of the accused persons. According to him, the police had recorded his statement on the third day of the incident. This version is contrary to the record as his statement under Section 161 Cr.P.C was recorded on 6th July, 1998. For the very same reason the version of PW-2 cannot be relied upon as, according to him, his statement was recorded by the police on the second day of the incident. Record shows that his statement under Section 161 Cr.P.C was recorded on 6th July, 1998. Further not much credence can be given to the statement of this witness for the reason that his version is at variance with his statement recorded under Section 161 Cr.P.C., with which he has been confronted. Nand Lal (PW-2) has admitted that he is a hawker and usually sits in front of the shop of PW-1. Therefore, he has an interest to depose in favour of the complainant. Further, both PW-2 and PW-3 have deposed that about 25 to 30 persons had collected at the time of the incident. Why no independent witness was associated by the police is not clear from the record. No explanation is also forthcoming in this regard. The version of PW-2 and PW-3 differs with the version of PW-1 who has testified about the occurrence of the incident. However, his statement is also not absolutely truthful and reliable for the simple reason that in the Court he has only named five persons whom he identified to have given him beatings in contradiction with his complaint (Ext.PW-1/A) made to the Panchayat where he had mentioned names of 10 persons. Therefore, no credence can be given to the statements of the independent/spot witnesses and it cannot be said that the prosecution has been able to prove its case beyond reasonable doubt. The Court below has arrived at its right conclusion after appreciating the entire material on record. There is no perversity in the same. The statement of the witnesses cannot be said to inspire confidence so as to hold the accused guilty of the charged offences beyond reasonable doubt. For the aforesaid reasons, the appeal is dismissed. Bail bonds are discharged. October 26, 2007 (Sanjay Karol), (TM) Judge.