IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.A. No.266/2001 Reserved on.27.2.2008 Decided on.7.3.2008 State of H.P. …Appellant. Versus Satya Pal and others. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. No. For the appellant : Mr. Anil Kumar Jaswal, Deputy Advocate General. For the respondents Ms. Shivanee Kanwar, Advocate vice Mr. Bimal Gupta, Advocate. Rajiv Sharma, J. The respondents were prosecuted in criminal case No. 19/2 of 2000 for offences punishable under sections 147,148,149,452,323,427 of the Indian Penal Code in the court of Sub Divisional Judicial Magistrate, Rajgarh and were acquitted on 10.1.2001. The State has filed this appeal against the judgment dated 10.1.2001. The facts which can be gathered from the judgment of the trial court are that on 9.11.1999 Surinder and Joginder came to the house of Baldev Singh, complainant (PW-1). While they were engaged in discussion in the kitchen of Baldev Singh at about 1.00 A.M. on the night intervening 9/10.11.1999, they heard noise of certain persons out side the house. The accused persons started pelting stones and also 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. 2 uprooted the planks of the wall of the kitchen of the complainant. The accused persons armed with dandas trespassed into the kitchen of the complainant and started administering beating to him. Surinder and Joginder fled away from the scene. Two teeth of the complainant were broken and he also received injuries on his head, legs and left arm and blood also oozed out from the injuries. He visited the Police Station on 10.11.1999 and lodged FIR Ex.PW-1/A. he was subjected to medical examination and 5 injuries were found on his person as per MLC. Ex.PW-6/A. He was referred to the Dental Surgeon. The Dental Surgeon gave his opinion Ex.PW-5/B. The police investigated the case and the challan was put up in the Court. The prosecution examined as many as 12 witnesses to prove its case. The accused were examined under section 313 of the Code of Criminal Procedure. The accused persons examined MHC Hukam Singh as DW-1 and Dr. Sanjay Aggarwal as DW-2 and also tendered copy of FIR Ex.D-1. The accused persons were acquitted on 10.1.2001. The learned Deputy Advocate General had strenuously argued that the prosecution has proved the case against the respondents- accused. Ms. Shivanee Kanwar, Advocate, appearing for the respondents- accused had supported the judgment dated 10.1.2001. I have heard the learned counsel for the parties and have gone through the record of the case. PW-1 Baldev Siongh has deposed that Surinder and Joginder had come to his house on 8th November, but it appears from the FIR. Ex.PW-1/A that they had come on 9.11.1999. He has deposed that witnesses Surinder and Joginder fled away out of fear and he sustained 3 injuries on his person and two teeth were also broken and blood also started oozing out. He is silent about the quarrel which had taken place with the accused-party at 7.15 P.M. He could not explain the injuries received by the accused persons. PW-1 was also made the accused in FIR No. 119/99. As per the FIR all the accused had given danda blows on his person, but in his statement, he has stated that accused Satya Pal had given danda blow on his mouth and two blows on his fore- head. He has further deposed that his parents had retired to their respective rooms. The prosecution has not examined the mother of the complainant, who was also present according to PW-1 in the house. Dila Ram (PW-2) is the father of the complaint. He has stated that he heard the noise at 1.00 A.M. and he found Joginder and Surender present on the spot. PW-1 had stated that Surrender and Joginder had fled away from the spot. The very presence of Surender and Joginder on the spot is doubtful. If they were present on the spot, they would have definitely saved the complainant from the clutches of accused persons. PW-2 has also stated that accused had come to his house on 8th November, but the incident happened in the night intervening 9/10.11.1999. There are contradictions in the statement of PW-2 whether Surender and Joginder had come back and stayed during the night at complainant’s house. PW-2 has stated that Surinder and Joginder had come and remained in the house of the complainant throughout the night. PW-1 is silent about this aspect. PW-2 has also been arrayed as accused in the counter case i.e. FIR No. 119/99. Joginder Singh PW-4 has stated that he had gone to the house of complainant on 9.11.1999 where Surender had also come. He has stated that he ran towards the house and woke up father of the 4 complainant and narrated the incident to him. However, PW-1 has categorically stated that Surender and Joginder ran away from the spot. PW-2 has not stated that PW-4 Joginder Singh narrated the incident to him. He has stated that the roof was of slates and the slates were broken and fell down, but the police has not taken into possession any broken slates. This statement was not corroborated by PW-1 and PW- 2. He is closely related to the complainant. He has also been arrayed as accused in the counter case. PW-10 Surender has not supported the prosecution case. He was declared hostile. PW-11 Sahi Ram had also not supported the prosuection case. He has denied that he heard noise on the night intervening 9/10.11.1999. PW-8 Kamal Chand is witness to memo Ex.PW-8/A to Ex.PW-8/D and Ex.PW-2/A. He was also declared hostile. The other gap in the prosecution case is that one tooth was found on 13.11.1999 and the second tooth was recovered on 23.11.1999. The signatures of PW-9 Sewa Ram on memo Ex.PW-8/A to Ex.PW-8/D, Ex.PW-2/A and Ex.PW-1/B differ from his other signatures on the remaining memos. He has stated that memos were not prepared in his presence and all the articles were already kept when his signatures were obtained. PW-6 Dr. Sanjay Aggarwal had examined the complainant and prepared the MLC Ex.PW-6/A. It is evident from his cross-examination that the injured had given the history of scuffle and MLC Ex.PW-6 shows that the injuries were sustained in scuffle. PW-5 Dr. Randeep Shah found one tooth missing and mobility on upper left tooth but it is strange that on 13.11.1999 only one tooth could be recovered and another tooth was recovered on 23.11.1999 and even MLC Ex.PW-6 suggests that only one tooth was 5 missing. PW-12 Churamani is the Investigating Officer. He has also not taken into consideration while investigating the case the injuries received by the accused persons. He has not associated any independent witness from the village. The accused had produced the copy of FIR Ex.D-1 on record to substantiate that they had also filed the FIR against the complainant-party. Dr. Sanjay Aggarwal (DW-2) has examined Satya Pal and Rakesh Kumar on 10.11.1999. He has stated that he found 3 injuries on the person of accused Satya Pal and 2 injuries on the person of accused Rakesh Kumar. The prosecution has not explained these injuries. In view of the observations made hereinabove, this Court will not interfere in the well reasoned judgment of the trial court dated 10.1.2001 acquitting the respondents. The result of the above discussion is that there is no merit in the appeal and the same is dismissed. The bail bonds are cancelled and sureties are discharged. 7.3. 2008. ( Rajiv Sharma), Judge *Awasthi*