HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A.No. 353 of 2001 Decided on: 22.4.2008. State of Himachal Pradesh ………Appellant. Versus Vinod Kumar and others ……Respondents. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the appellant: Mr.J.S. Guleria, Law Officer. For the respondents: None. V.K. Ahuja, J (Oral): This is an appeal filed by State against the judgment of the court of learned Judicial Magistrate Ist Class, Court No.2, Palampur, District Kangra, H.P., dated 27.11.1999, vide which the respondents were acquitted of the charge framed against them under Sections 147, 148, 149, 323, 427 & 452 IPC. Briefly stated the facts of the case are that on 19.3.1992, at about 3.00 p.m., a report was lodged with the police by one Madho Ram that he alongwith his brother Subhash Chand are running a bakery shop. During day time when they were working in the Bakery shop, 12/13 boys who were residents of Rajpura came to his shop and out of them he only knows four persons and can _______ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - identify them but he does not know about the remaining persons. They came there armed with dandas, toka and one of them inflicted a blow of toka on his head and left arm. When his brother tried to save him, he was also given push and he suffered one injury. The glasses of his shop were also broken. Those persons had come in two vehicles. He also alleged in the FIR that these persons were inimical with him. On this report, a case was registered and after investigation, the challan was filed leading to the trial of the respondents by the learned trial Court resulting in their acquittal. I have heard the learned Law Officer and have gone through the record of the case. On appraisal of the FIR, it is clear that the complainant had alleged that the occurrence was witnessed by one Smt.Suti Devi and one Rajinder Kumar and other persons had also gathered at the spot. However, the complainant only named these two persons and for the rest he probably left a ground that their names could be added subsequently. The said Smt.Suti Devi was examined as PW-9 and said Rajinder Kumar, who has been named in the FIR, has been examined as PW-1. These witnesses turned hostile when examined in the court and did not support the prosecution story at all. The prosecution also examined two other witnesses, namely, PW-2 Rajesh Kumar and PW-3 Pritam Chand as eye witnesses. In view of the fact that their names were not mentioned in the FIR, their statements have to be taken with caution. A perusal of the statement of PW-2 Rajesh Kumar shows that he clearly stated that he does not know the remaining accused persons except three named by him. He stated that the accused persons were having dandas, hockey - 3 - and one rod with which the loss was caused to the shop and Madho Ram was given blows over his head and arm, but who inflicted these injuries was not stated by him. He stated that brother of Madho Ram also reached the spot, who was also given blows. He does not say about the toka with which the blow was allegedly given on the person of the complainant. A perusal of the statement of PW-3 Pritam Chand shows that he clearly stated that he does not know the accused persons nor he had brought them in the Van to the place of occurrence. Coming to the testimony of the complainant, who was examined as PW- 5, he has stated that he knows only five persons out of 12/13 boys who had come to the spot. He stated that they were having hockey sticks and toka with which he was attacked and he suffered injuries on his head and arm with toka but he did not name the person who inflicted the injuries. He clearly stated that the blow was given with toka by the person who is not present today, again stated that the blow was also given by Ashwani Kumar who is present in the Court. He also stated about the blows were given with dandas on his head and arm which was not so alleged in the FIR. PW-7 is Subhash Chand, brother of the complainant, who has identified only one of the persons as Ashu, who was having a toka and gave a blow with toka over the head of his brother. But, according to his brother, these injuries were inflicted by Ashwani Kumar. He has stated that he was also given blows with hockey sticks by the accused persons which was not stated by his brother PW-5 or any other witness. The learned trial Court has also referred to some contradictions in regard to hockey sticks, whether it were broken or not and has also referred to - 4 - other minor contradictions in the prosecution case. The Investigating Officer was not examined and it not clear how the identity of the accused persons was established, particularly, when the complainant or his brother were not knowing all the accused persons. No identification parade of the accused persons was conducted. Therefore, the identity of the accused was not established beyond any reasonable doubt nor part played by the accused was established. Therefore, the final findings recorded by the learned trial Court holding that the guilt of the respondent was not established beyond reasonable doubt 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 State of H.P. Therefore, the same is dismissed. Bail bonds furnished by the respondents shall stand discharged. April 22, 2008 (TILAK) (V.K. Ahuja), Judge.