HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A.No.: 269 of 1994 Reserved on: 1.9.2008 Decided on: 4.9.2008. State of Himachal Pradesh ………Appellant. Versus Pinka alias Parshotam Singh and others ………Respondents. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For appellant: Mr.R.M. Bisht, Deputy Advocate General. For respondents No.1 to 3: Mr.Anoop Rattan, Advocate. Per V.K. Ahuja, J: This is an appeal filed by State of Himachal Pradesh against the judgment of the court of learned Sessions Judge, Kangra at Dharamshala, dated 13.10.1993, vide which the respondents were acquitted of the charges framed against them under Sections 307/34 of the I.P.C. Briefly stated the facts of the case are that on 3.1.1992, at about 11.15 p.m., a statement was made by Dalip Kumar, complainant, before a police officer that today at about 7.30 p.m., he had gone to Kiryana shop of Buata Ram at ______________________ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. Majra, alongwith his maternal uncle Tarsem Lal. Near the shop, four persons named by him were standing who were abusing the persons belonging to Sansi community as to why they have not voted for Swatantar. He and his uncle asked them not to abuse the persons from that community and then one of them proclaimed the other persons that they should not be allowed to go and accused Pinka @ Parshotam fired from his gun, which hit the complainant on fingers of his left hand and the second fire hit him on the other part of his body. The blood started oozing out. It was further alleged that when Tarsem Lal tried to save him, the other persons present there gave beatings with legs and fists to Tarsem Lal. On hearing their noise, one Joginder Pal reached at the spot and the accused persons ran away. Tarsem Lal and Joginder Pal brought the complainant to the hospital, where his statement was recorded under Section 154 Cr.P.C. by the police officer, on the basis of which a case was registered and after investigation, the challan was filed before the court of Judicial Magistrate, who committed the case to the learned trial Court leading to their trial resulting in their acquittal. We have heard the learned counsel for the parties and have gone through the record of the case. It is clear from a perusal of the judgment passed by the learned trial Court that the prosecution case mainly rests upon the statements of PW-4 Dalip Kumar, PW-5 Tarsem Lal and PW-6 Joginder Pal, whose statements need to be carefully appreciated. The complainant Dalip Kumar, when he appeared in the witness box as PW-4, has himself demolished his own case since he stated in his statement that the statement Ext.PL recorded at his instance under Section 154 Cr.P.C. was not made by him at all, but it was recorded at the instance of PW-6 Joginder Pal since he was under considerable pain due to the injuries sustained by him. His statement has not been corroborated by the statement of the Investigating Officer PW-9, Swaran Singh, that the complainant was not fit to make statement or his statement was recorded at the instance of PW-6 Joginder Pal or that the Medical Officer had opined that the complainant was not fit to make statement. The Investigating Officer PW-9 has clearly stated that he recorded the statement of the complainant Dalip Kumar Ext.PL correctly at the hospital. He denied the suggestion that this statement was recorded at the instance of Joginder Pal on behalf of Dalip Kumar and he simply got the thumb impression of Dalip Kumar on Ext.PL. Once the complainant himself does not own the statement made by him under Section 154 Cr.P.C., he could not be confronted with the improvements made by him while appearing in the Court. Apart from above, the Medical Officer PW-1 Dr.Subhash Chand has nowhere stated that the complainant was not fit to make statement or he had given any such opinion and even the Investigating Officer PW-9 Swaran Singh had not sought any opinion of the Medical Officer before allowing the statement of the complainant to be recorded. Therefore, the statement of the complainant in this regard does not inspire confidence. PW-4 Dalip Kumar, complainant, had nowhere stated that his uncle Tarsem Lal tried to save him or that he was given beatings with legs and fists at that time. Moreover, it is the case of PW-9 Swaran Singh, I.O., that when he was summoned by the Medical Officer, he went to the hospital and recorded the statement of PW-4 Dalip Kumar, but the said Dalip Kumar had stated that his statement Ext.PL was recorded in the police station. A perusal of this statement Ext.PL shows that the time of recording has been mentioned as 11.55 p.m., whereas the MLC Ext.PA shows that the injured was examined at 11.00 p.m. and had been brought by a police constable. This clearly shows that the police had already been informed and had reached the hospital and though this statement has been shown to have been recorded at the hospital, the complainant says that it was recorded at 11.55 p.m. at the police station. This rather suggests that the time of recording of the statement of the complaint has not been correctly brought on record and attempts may have been made to implicate persons falsely. Therefore, the complainant came up with this version that he never made any statement to the police, but it was made by PW-6 Joginder Pal, who had come to the spot. The daily diary report was also registered at 12.05 a.m. as per Ext.PL which is the copy of the FIR, on the basis of the statement made at 11.55 p.m. in the hospital. Coming to the other independent and material witness, namely PW-5 Tarsem Lal, who had every reason to support the statement of the complainant, has stated that Pinka had fired shot from the gun and accordingly PW-4 Dalip Kumar fell on the ground and the fire had hit his left hand and arm. He has also clearly stated that none of the other three accused persons was present at the spot when the gun shot was fired by Pinka. He, being the real uncle of the complainant, was required to support the statement of the complainant if the other accused persons were present on the spot at that relevant time. This clearly shows that PW-4 Dalip Kumar has stated falsely that the other accused persons were present on the spot or PW-5 Tarsem Lal has falsely stated that they were not present. The net result is that there is no corroboration to the testimony of the complainant in regard to the presence of other three accused persons or the part played by them and once efforts have been made to either introduce false witnesses or accused persons, the testimony of the complainant himself becomes doubtful. The person who came to the spot, namely, PW-6 Joginder Pal, when examined has stated that he only found Dalip Kumar lying injured with injury on his left hand. He also proves the presence of PW-5 Tarsem Lal at the spot alongwith Dalip Kumar. However, he stated that when he asked Dalip Kumar as to what had happened, he told him that someone had fired at him. He did not disclose the name of the assailant to him. Once the identity of the assailant was known to the complainant, how it was possible that the same was not disclosed to PW-6 Joginder Pal when he reached at the spot immediately on hearing their cries. Thus, the net result of this discussion is that the statements of these three material witnesses do not corroborate the testimony of one another and thus cannot be relied upon. A perusal of the judgment passed by the learned trial Court also shows that it had referred to the contradictions in regard to the recovery of used cartridges. According to the prosecution case, the gun alongwith two empty cartridges and two live cartridges was recovered from the house of Ranbir Singh, father of accused Pinka. The accused has not denied the recovery of the gun but has stated that three live cartridges were taken in possession and no empty cartridge was recovered. PW-9 Swaran Singh has stated that the empty cartridges were found lying on the floor, whereas PW-3 Tilak Raj has stated that the empty cartridges were lying under the pillow of Ranbir Singh, who himself produced them from under the pillow. The evidence of the prosecution in regard to the recovery of cartridges was found to be self contradictory and was not rightly relied upon by the learned trial Court. It follows from the above discussion that in view of the contradictions in the statements of the material witnesses and other infirmities, the learned trial Court had rightly come to the conclusion that the prosecution had failed to prove their case beyond any reasonable doubt and those findings cannot be said to be perverse calling for an interference by this Court. In view of the above discussion, there is no merit in the appeal filed by the appellant, which is dismissed accordingly. The bail bonds furnished by the respondents shall stand discharged. (Deepak Gupta), Judge. September 4, 2008. (V.K. Ahuja), (TILAK) Judge.