IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No.24 of 2001 Date of Decision : 20.3.2008 State of H.P. …Appellant. Versus: Lapa Ram & Others …Respondents. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes For the appellant: Ms.. Shubh Mahajan, Dy. A. G. For the respondents : Mr. M. A. Khan, Advocate. Sanjay Karol, J (Oral). The present appeal arises out of the judgment dated 19.2.2000 passed by the Addl. Chief Judicial Magistrate, Sarkaghat, District Mandi, H.P. in Criminal Case No. 64-II/97, titled as State of H.P. vs. Lapa Ram and others, acquitting the accused persons of the charged offence. As per the case of the prosecution, on 14.4.1997 at about 6.30 p.m. , Shri Bansi Ram resident of village Sahwani, Police Station, Sarkaghat was at his house when Shri Gian Chand came from the field and informed him that his mother, Smt. Prabhi Devi was being beaten up 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 by the accused persons. Shri Bansi Ram immediately ran at the spot of occurrence and rescued his mother from the clutches of the accused persons. Smt. Prabhi Devi received injuries and she was taken to the Community Health Centre, Baldwara for medical examination. Police report Ext.PW-1/A was also lodged on the basis of which FIR No. 69/97 (Ext.PW-1/B) was registered with Police Station, Sarkaghat under Sections 325 & 504/34 IPC. From the MLC Ext.PW-10/A and X-Ray report Ext.PW-10/C, it was so revealed that the injuries sustained were grievous in nature. With the completion of the investigation, the challan was presented in the court for trial and the accused persons were charged for the offence under Section 325 read with Section 34 IPC, to which they did not plead guilty and claimed trial. In order to prove its case, the prosecution examined eleven witnesses. Statements of accused persons under Section 313 Cr.P.C. were also recorded. The defence taken by the accused is that the prosecution witnesses were inimical towards the accused on account of land dispute and, therefore, they have falsely deposed. Relying upon the material on record, the Court below acquitted the accused of the charged offence for the reason that the prosecution witness, Jagdish had turned hostile and the contradictions in the statements of the remaining spot witnesses were material and therefore could not be believed to prove the culpability of the accused. I have heard the learned counsel for the parties and perused the record. 3 Shri Ashraf Khan (PW-4) is the witness to the seizure memo Ext.PW-2/A whereby stone Ext.P-1 with which PW-2 was hit, was taken into possession by the police. SI BIshambar Dutt (PW-8) registered the FIR Ext.PW-1/B and Shri Kamlesh Kumar (PW-9) recorded the rapat Ext.PW-1/A. S.I. Ram Singh (PW-11) partly carried out the investigation and prepared the site plan Ext.PW-11/A. Shri Prem Singh (PW-7) and Dr. Balbir Singh (PW-10) are the Radiographer and the doctor who medically examined PW-2. As per their version, in terms of the medical reports Ext.PW-1/A, Ext.PW-1/B & Ext.PW-1/C, PW-2 received grievous injury. However, the doctor has opined that the injury could be caused in a scuffle or falling on the stone or a rocky surface. These witnesses would not prove the guilt of the accused. Complainant Shri Bansi Ram’s mother Smt. Prabhi Devi (PW-2) is alleged to have been injured in the incident. Shri Jagdish Chand (PW-3) is a spot witness. Shri Sunil Kumar (PW-5). is the son of PW-1 and Gian Chand (PW-6) is his relative. These are the spot witnesses who are alleged to have witnessed the occurrence of the incident. . As per the version of Shri Bansi Ram (PW-1), he was informed by Shri Gian Chand that his mother was being beaten by the accused persons. He immediately went at the place of occurrence and saw the accused persons pelting stones with which his mother (PW-2) received an injury. The accused persons were also abusing her. His mother received injury on her right shoulder. In cross-examination, he denied that any dispute is pending between them and the accused persons. The version of PW-1 stands materially contradicted by the 4 version of PW-2, according to whom, PW-1 was not present at the site of occurrence on the date of incident which is 14.4.1997 and he being in service came back only on 18.4.1998. She has further admitted that there is a land dispute pending between the complainant party and the accused persons and the Court had granted stay. She has further admitted that she and the accused persons had quarreled in which both the parties received injuries. Therefore, in view of the material contradictions in the version of these two important witnesses, it cannot be said that their testimonies are reliable and trustworthy. It has come on record that there is a dispute pending between the parties and the scuffle took place between PW-2 and the accused persons. As per the version of PW-2, even the accused persons received injuries in this scuffle which fact was not brought on record by the prosecution either during trial or during investigation. The prosecution has not come out with the complete version of the exact sequence of the events which took place at the relevant time. The absence of PW-1, in view of the statement made by PW-2 renders the whole story of the prosecution to be doubtful. This is also evident from the FIR Ext.PW-1/A which was registered on 18.4.1997 i.e. 4 days after the date of incident. In the facts of the present case, the delay in lodging the FIR is fatal. Shri Jagdish Chand (PW-3) was declared hostile and inspite of cross-examination by the prosecution, there is nothing in his testimony which would prove the complicity of the accused in the commission of the crime. The testimony of Shri Sunil Kumar (PW-5) is of no relevance as he has admitted that no quarrel took place in his presence. Shri Gian 5 Chand (PW-6) has also demolished the case of the prosecution. According to him, PW-2 was not hit by the stone Ext.P1, produced in the Court. The stone was heavy and approximately weighed 4 kgs. whereas the weight of the stone produced in the Court is only about 400 grams. This version stands contradicted by PW-2, according to whom, she had been hit by Ext.P-1. In view of the aforesaid discussion, it can safely be adduced that the prosecution witnesses have not been truthful and their testimonies cannot be relied upon to prove the complicity of the accused in the commission of the crime. Simply because the doctors have opined that PW-2 suffered injury, that by itself would not be enough to prove the guilt of the accused beyond reasonable doubt. From the record, it cannot be said that the accused, in furtherance of common intention had voluntarily caused grievous hurt. The accused have had the advantage of having been acquitted by the court below, which has considered the material in its entirety. I see no perversity in the same. The appeal is accordingly dismissed. The bail bonds are discharged. March 20, 2008. (Sanjay Karol), (rana) Judge.