IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 387/2004 Date of decision: 29.6.2011 State of H.P. …..Appellant Versus Pawan Kumar and another ……Respondents Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 No For the Appellant: Mr. A.K. Bansal Addl. Advocate General. For the respondent : Mr. Vikas Bhardwaj, Advocate. Surinder Singh, J. (Oral) The present appeal was admitted only against respondent Pawan Kumar who stood acquitted by the learned trial Court along with his co-accused for the offences punishable under Section 324 read with Section 34 Indian Penal Code. 2. Heard and gone through the evidence on record. 3. Precisely, the case of the prosecution is that on 29.11.1998 at about 4.30 p.m. PW2 Mehar Singh was 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes - 2 - working in his fields at some distance and his wife PW1 Amrawati complainant had gone to fetch water to her residence. While returning on the way, she happens to meet respondent and his brother Trilok Chand and asked them as to why they teased her College going daughter. On this, respondent Pawan Kumar is alleged to have used abusive language against her and started jostling with her and dealt a darat blow (an instrument of cutting) and also gave beatings with stick which was with him. She cried for help, but her husband who was at a distance who could not hear her, in the meantime, respondents made escape from the spot. 4. The complainant as well as her husband went to PW5 Kapil Mandyal Pradhan of the Panchayat and moved an application. Since the matter did not fall within his jurisdiction as such advised them to report the matter to the police. 5. Next day, i.e., on 30.11.1998, complainant along with her husband went to the police Station for lodging the report and got the complainant medically examined from PW4 Dr. H.K. Vashisth. He noticed a linear contusion over left thigh and incised wound on the left hand and issued Medico legal certificate Ext. PW4/A. In his opinion, injury No. 1 was with a blunt weapon whereas - 3 - injury No. 2 was possible with the sharp edged weapon having been caused within 24 hours. 6. Finding a prima facie case under the aforesaid Sections against the respondent and his brother Trilok Chand, formal FIR was lodged. Police visited the spot, prepared the site plan and took into possession darat Ext.P1 the alleged weapon of offence and filed the report in the Court for the trial of the respondents. 7. Respondents were accordingly charge sheeted, tried and acquitted for the offences aforesaid on the ground that the recovery of the alleged weapon of offence Ext. P1 could not be connected with the injury in question and also that the parties were already locked in the litigation prior to the alleged incident. Thus, the testimony of the prosecutrix was not relied upon in absence of its corroboration. 8. The prosecutrix though when examined in the Court testified that respondent Pawan Kumar gave beatings to her jostled with her on being asked as to why he had been teasing her college going girl but with the same breath stated that at that time accused was having a stick in one hand and darat on the other hand. I find that the version so put up by her appears to be unbelievable for the reason that when both hands of accused Pawan Kumar were occupied then as to how he - 4 - was able to jostle and throw the complainant on the ground and gave beatings to her. To corroborate her version, prosecution relied upon the recovery of darat which further falsify prosecution case. The recovery of danda has not been effected nor there is any explanation as to why it was not recovered. In so far as the recovery of darat is concerned to which the complainant identified with which the respondent No. 1 had given blow to her, is proved to have been purchased by the accused from DW1 vide receipt Ext. P1 for `45/- on 1.11.1998, as per receipt produced during the trial. PW3 is a witness to the recovery memo Ext. PW3/A which is also effected on the same day when darat was purchased by the accused whereas alleged incident took place on 29.10.1998. Therefore, it is clear that the darat Ext. P1 which was recovered by the police was not with the accused on the day of the alleged incident. Therefore, the very use of the alleged weapon of offence on the day of the alleged incident, as stated by the complainant has been proved to be wrong. 9. Further, as per the case of the prosecution, the alleged incident took place on 29.11.1998 but the complainant did not give any specific date when examined in the Court. She simply stated that the alleged incident took place in the month of November, 1998 - 5 - whereas her husband stated that it took place on 28.11.1998. If, his version is taken to be true then the injury in question which were noticed by PW4 Dr. H.K. Vashisth having been caused within 24 hours are not relatable to the incident in question. PW2 Mehar Singh nowhere stated that the entire incident was disclosed to him by his wife. Pertinently, in cross examination he also stated that his statement was not recorded by the police. He also admitted that a land suit is pending against Chandu Lal and also one case is pending against Sugreev with respect to beatings in which the respondent is also one of the accused whereas PW3 Lalman stated that respondents are the witnesses against the complainant party. 10. Therefore, in the totality of the circumstances, the case of the prosecution lacks probity as such acquittal passed by the learned trial Court cannot be interfered with. The appeal is without any merit therefore, dismissed. 11. Respondent No. 1 is discharged of his bail bonds entered upon by him at any time during the proceeding of this case. June 29, 2011 (Surinder Singh), (cm) Judge.