IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.: 553/1996 Reserved on: 21.4.2010 Decided on: 11.5. 2010 _____________________________________________ State of Himachal Pradesh. …Appellant. Versus Sanjeev Kumar and others. …Respondents. _______________________________________________________ Coram: Hon’ble Mr. Justice Deepak Gupta, Judge. Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 For the Appellant : Mr. Rajesh Mandhotra, Deputy Advocate General For the Respondents : Mr. Ajay Sharma, Advocate. ____________________________________________________ Per Rajiv Sharma, J. This appeal has been directed against the judgment dated 1.12.1995 passed by the learned Additional Sessions Judge (2), Kangra at Dharamshala in Sessions Case No. 17-D/VII/94, whereby respondents charged with and tried for offence punishable under section 307 read with section 34 of the Indian Penal Code, have been acquitted. Prosecution case, in a nutshell, is that on 28.12.1993 at about 4.30 P.M., PW-1 Balwant Singh was standing near the rain 1 Whether reporters of the local papers may be allowed to see the judgment? . 2 shelter Yol Road at Dharamshala. Some boys passed lewd remarks. PW-1 Balwant Singh alongwith his brother PW-2 Sanjeev Rana visited Dharamshala on 29.12.1993. They were together at Kachehari Bus Stand at Dharamshala. Respondent No.1 pounced upon PW-1 Balwant Singh. Respondent No.1 caught hold of PW-1 from his neck. Respondent No.2 Deepak gave Darat blow on the head of PW-1. PW-2 Sanjeev Rana tried to rescue his cousin PW-1. Thereafter respondent No.1, who was also armed with Darat, inflicted multiple blows on the head of PW-2. Respondents No.3 and 4 also gave fist blows and kicked PW-1 and PW-2. PW-1 and PW-2 were rescued by PW-3 Rakesh Rana and PW-4 Neeraj Thapa. Consequently, FIR was registered at 6.45 P.M. on 29.12.1993. PW-1 Balwant Singh and PW-2 Sanjeev Rana were medically examined by PW-6 Dr. B.C. Khanna, Medical Officer, Zonal Hospital, Dharamshala. Respondents were booked under sections 307/34 of the Indian Penal Code. The police recovered Darats Ex.M-3 and M-4 from respondents No.1 and 2. The blood stained clothes Ex. M-1, M-2, M-5 and M-6 of PW-1 and PW-2 were also taken into possession by the Police. The challan was put up in the Court against the respondents. Prosecution examined as many as seven witnesses to prove its case. Respondents were examined under section 313 of the Code of Criminal Procedure. Their defence is of complete denial. The learned trial court acquitted the respondents. 3 Mr. Rajesh Mandhotra, learned Deputy Advocate General has strenuously argued that the prosecution has proved its case against the respondents. Mr. Ajay Sharma has supported the judgment of the learned trial court. We have heard the learned counsel for the parties and perused the record carefully. According to prosecution version, as noticed above, some boys had made remarks when PW-1 Balwant Singh was standing with his sister on 28.12.1993 near the rain shelter, Yol Road, Dharamshala. PW-1 Balwant Singh and PW-2 Sanjeev Rana came to Dharamshala. They were attacked by respondents. They received multiple injuries and were medically examined by PW-6 Dr. B.C. Khanna. He has issued medical legal certificate. The nature of injury is simple. PW-1 Balwant Singh has deposed that on 28.12.1993 at about 5.00 P.M., he was standing near the rain shelter with his sister at Dharamshala. Respondent No.1 with two-three boys passed unwarranted remarks. Respondent No.1 met him at Kachehari Bus Stand at about 4/5 P.M. on the next day. He inquired from him why he had passed those remarks. Respondent No.1 started arguing with him. Respondent No.1 came back at about 6.30 P.M. alongwith other boys at Kachehari Bus Stand. He was standing with his cousin PW-2 Sanjeev Rana. He was caught by respondent No.1 from his neck and respondent Deepak gave Darat blow on his head. When PW-2 Sanjeev Rana 4 tried to save him, he was given Darat blow on his head by respondent No.1. Respondents No.3 and 4 also started beating them. What has been stated in the FIR is that few boys had passed unwarranted remarks on 28.12.1993. However, when he appeared as witnesses in the Court, he has named Sanjeev Kumar to be one of the boys who passed unwarranted remarks. He has admitted in his cross-examination on 29.12.1993 that when respondent Sanjeev Kumar met him, he told that he has not passed any remarks. Sanjeev Kumar told him that one painter was with him, namely, Pratap. He asked Sanjeev Kumar to bring painter on 29.12.1993. PW-2 Sanjeev Rana is cousin of PW-1 Balwant Singh. He has deposed that PW-1 was caught hold of from the neck by respondent Sanjeev Kumar and respondent Deepak had given Darat blow at his head. He tried to intervene and respondent Deepak hit him on the head. There are contradictions in the statements made by PW-1 Balwant Singh and PW-2 Sanjeev Rana. According to PW-1 Balwant Singh, he was hit on head by respondent Deepak and PW-2 Sanjeev Rana was hit on head by Sanjeev Kumar. However, PW-2 Sanjeev Rana has testified that it was not Sanjeev Kumar but Deepak, who hit him on his head. This is material contradiction. According to PW-3 Rakesh Rana and PW-4 Neeraj Thapa, PW-1 was hit on head by Deepak with Darat and when PW-2 tried to rescue PW-1, he was hit by respondent Sanjeev Kumar on his head. These statements are also contradictory to the statement made by PW-2. PW-4 Neeraj Thapa, in his cross-examination, has stated that he 5 knew the accused prior to incident being local residents. However, in his statement recorded under section 161 of the Code of Criminal Procedure, he has stated that these persons were shown to him in the Police Station. There is another glaring omission on the part of the prosecution. The prosecution had not sent M-3 and M-4 for chemical examination in order to ascertain if these were used at the time of commission of crime. Kachehari Bus Stand, Dharamshala is a busy place. The incident had taken place at about 6.30 P.M. The prosecution has not associated any independent witness at the time of investigation. Witnesses cited by the prosecution are known to each other. PW-1 and PW-2 are cousins and PW-3 and PW-4 are their friends. PW-7 Suresh Kumar, Investigating Officer has tried to explain that he had tried to associate the local persons, however, they did not cooperate by stating that college students keep on fighting. PW-6 Dr. B.C. Khanna has opined that injuries No.1 and 2 were simple in nature. Accordingly, in view of above discussion, the view taken by the learned trial court is supportable by the evidence and there is no perversity in the findings recorded by the trial court. Consequently, the appeal is dismissed. Bail bonds furnished by the respondents/accused stand cancelled. (Deepak Gupta), J. (Rajiv Sharma), J. 11.5. 2010 *awasthi*