IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal 690 of 2001 Decided on 16.12.2008 State of H P …….Appellant Versus Prem Singh & another ……. Respondents Coram: The Hon’ble Mr. Justice Surinder Singh.J. Whether approved for reporting ?1 Yes For the appellant: Mr. J.S.Guleria, Law Officer. For the Respondent: Mr. Sanjeev Kuthiala, Advocate. Surinder Singh, J. (oral) A challenge has been made by the State to the acquittal of the respondents passed by the learned trial court in Case No. 111-1 of 2000/RBT No. 57-II of 2000 decided on 31.8.2001 under sections 325, 323, 506 read with section 34 of the Indian Penal Code. Succinctly stated the facts giving rise to the present appeal are that complainant Subhash Chand had boarded the bus on 23.10.2000 at about 5 p.m. to reach his village Marwari. He alighted from the bus around 7 p.m. and proceeded towards his house along with PW-2 Roshan Lal, who met him on the way. 1 Whether the reporters of Local Papers may be allowed to see the judgment ?.yes 2 It is alleged by the complainant that Prem Singh and one another person to whom he could not be recognized way-laid and attacked him with iron rod. Prem Singh hit on his leg and head whereas second person gave injury on his left leg with the iron- rod, on account of these injuries he fell down and raised an alarm. Accused persons ran away from the spot. He went to the house of Jagdish Ram (PW-3), he took him to his house. Thereafter he was taken to the police post Daulatpur in a vehicle to lodge the report. His report was recorded by the police in the daily diary on the basis of which formal FIR was registered. He was got medically examined. Vide medico-legal-certificate Ex. PH injury No.2 on his left leg was found to be grievous, as per report of the radiologist Ex. PG. The police prepared the site plan Ex.PK of the spot and also took into possession iron rod vide Memo Ex.PC in the presence of witnesses Bhag Singh and Ravi Dutt, which was allegedly identified by the complainant. The second person was identified as Mohinder Singh. After completing the investigation of the case, a challan was presented in the court against the respondents for their trial. 3 Finding a prima-facie against the respondents, the learned trial court framed the charges, to which they pleaded not guilty and claimed trial. To prove its case, prosecution examined its witnesses and the respondents were also examined under section 313 of the Code of Criminal Procedure. According to respondent Prem Singh, case has been foisted against him because of old enmity, as he had appeared as a witness in a murder case against the complainant. Mohinder Singh stated that he happened to be the driver of respondent Prem Singh and that was the reason for implicating him in the case. I have heard the learned counsel for the parties and have reappraised the evidence on record. It is pertinent to note that the complainant Subhash Chand has deviated from his earlier version given in the FIR. He has initially alleged that he did not know about the second person who had attacked him but as PW1 he stated that the second person was Mohinder Singh, who had given him injury on his head with an iron rod. In 4 so far as respondent Prem Singh is concerned, against him, he has stated that from behind Prem Singh had given him blow of iron rod which was snatched by him. If it was so, then there was no reason how respondent Prem Singh could acquire the possession of iron rod for causing second injury on his leg as stated by him. He further stated that after the alleged incident he had gone to the house of PW-3 Jagdish Singh Up-Pradhan and revealed about the incident to him but PW3 aforesaid did corroborate his version. He only took him to the police post Daulatpur and lodged the FIR. To further corroborate his version prosecution examined Roshan Lal (PW-2) but he also did not support the case of the prosecution. He stated that he was about 4-5 furlongs behind from the complainant. Two persons had come from behind and threw sand into his eyes and started beating Subhash Chand. Although he knew the respondents but he has categorically stated that he did not recognize as to who had attacked the complainant. PW-5 Smt. Meena Rani wife of the complainant stated that Up-Pradhan Jagdish Ram (PW- 3) had revealed about the injuries inflicted by the respondent to her husband and informed that he was 5 admitted in the hospital but this fact was not substantiated by PW-3 Jagdish Ram Up-Pradhan. Legally, the injured witness has precedence over the independent and other witnesses but it should be cogent, trust-worthy and consistent worth inspiring confidence, which is lacking in the instant case. Reasons to conclude this are firstly that Prem Singh respondent had appeared as a witness in a rape-cum-murder case of his sister-in-law against the complainant, who was an accused. This fact has also been admitted by him in his cross-examination. This fact further corroborated by a copy of the judgment Ex.DA. Secondly, the complainant was confronted with his earlier statement made to the police to which he has materially contradicted, his improved testimony shatters his own case. Thirdly, he categorically stated at the time of alleged incident it was dark then how could recognize the assailants, thus his conduct becomes doubtful in the given circumstances. Fourthly, although he identified the iron rod Ex.P-3 with which he is alleged to have been attacked by the respondents but PW-4 Bhag Singh, a witness to the recovery of Ex.P-3, stated that the Iron rod which was taken into possession 6 was cut from the roof of his house by the police and at that time Prem Singh respondent was not on the spot. Another witness of recovery Ravi Sharma (PW6) also did not support the case of the prosecution with respect to recovery of iron rod. Fifthly, important fact which makes the case of the prosecution doubtful is that the alleged incident had taken place on 23.10.2000 around 7 p.m. and he was medically examined on 24.10.2000 at 3.35 p.m. The complainant gave the alleged history of beating to the Doctor by some person due to the family dispute. Thus, the pith and substance of the entire discussion leads to the conclusion that statement of the injured witness cannot be acted upon for want of corroboration in view of the peculiar circumstances discussed above. On re-examining the evidence of the prosecution, I do not find anything to up-set the findings of acquittal, recorded by the learned trial court. The appeal is merit less and is accordingly dismissed. December 16, 2008 (Surinder Singh),J. (D)