IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 39 of 2004 Date of decision: 24.09.2010 State of H.P. … Appellant Versus Virender Sain and others … Respondents Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant: Mr. J.S. Guleria, Assistant Advocate General. For the respondents: Mr. Romesh Verma, Advocate. V.K. Ahuja , J. (Oral): This is an appeal filed by the Sate of H.P. under Section 378 Cr.P.C. against the judgment of the Court of learned Judicial Magistrate Ist Class, Court No. 4, Shimla, dated 19.9.2003, vide which the respondents were acquitted of the charge framed against them under Sections 353 I.P.C. read with Section 34 I.P.C., 341 I.P.C. read with Section 34 I.P.C. and 323 I.P.C. read with Section 34 I.P.C. 2. Briefly stated, the facts of the case are that on 25.6.1996 ASI Incharge Police Post Junga recorded the statement of PW-1 Jagdish Chand, complainant, under Section 154 Cr.P.C. at the spot. In the said statement, he alleged that he was posted as a constable in First Batalian Junga and stated that his duty timings were from 3.00 P.M. to 6.00 P.M. Today on 25.6.1996 after the duty, his Incharge 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 asked him to bring bedding from Welfare Guard. At about 7.30 P.M., he was going to bring bedding and when reached near the Bus Stand, three persons met him, who enquired him about his identity. He told that he was a constable in the First Batalian, Junga and is going to bring bedding and at this, the respondents gave beatings to him with slaps and fists. On this statement, which was recorded by the police officer, the case was subsequently registered. After investigation, the challan was filed before the Court and the case was assigned to the Judicial Magistrate Ist Class, Shimla, who tried the respondents under the sections mentioned above, leading to their acquittal. 3. I have heard learned counsel for the parties and have gone through the record of the case. 4. On appraisal of the evidence led by the prosecution, it is clear that the prosecution has examined nine witnesses to substantiate its case. PW-1 Jagdish Chand is the complainant himself, who has stated that his duty timings were from 3.00 P.M. to 6.00 P.M. and at 7.30 P.M., he was going to Welfare Guard to bring the bedding. On the way the respondents met him under the influence of liquor, enquired about his identity and he told that he is a constable in First Batalian Junga, they gave him beatings. He was rescued by one Naresh and two constables Joginder and Ramesh. He orally reported the matter to the Commandant and he went to Police Chowki and his statement was recorded, which is Ext.PW1/A. In examination-in-chief, he has stated that he identified the accused persons, but one of them is not present today. He also stated in examination-in-chief that his statement was recorded at the Chowki, again stated, it was recorded at the spot and a perusal of the said statement recorded under Section 154 Cr.P.C. 3 shows that it was not recorded at Police Chowki, but at the spot. This statement was sent to the Police Station for registration of a case. There was no occasion for him to state differently in this regard. He was not knowing the accused persons earlier and no identification parade of the accused was got conducted. 5. PW Naresh Kumar, who alleged to have rescued him as per the testimony has been examined as PW-5. However, when examined, he stated that he does not know anything about the case, nor he had seen the accused persons giving beatings to complainant Jagdish Chand. He was declared as hostile and was allowed to be cross-examined by the learned A.P.P. for the State, but nothing could be extracted on record to show that he has any reason to depose falsely as against the prosecution. The other two persons who had allegedly rescued him were PW-8 Joginder Singh and PW-9 Ramesh Kumar. PW-8 Joginder Singh had not identified the accused persons when examined, though he supported the statement of the complainant that he was given beatings by the respondents under the influence of liquor. However, he was specific that he cannot identify the accused persons since the occurrence had taken place 5 years ago. No identification parade had been conducted in this case. He also stated that his statement was not recorded by the police. He was also declared hostile and was allowed to be cross-examined by the learned A.P.P. for the State. He further stated that he is not aware as to whether the police has come to the spot after 5 minutes and the complainant had gone to the Police Chowki. He was not knowing the accused persons earlier and learnt about the names of the accused persons from the persons present at the spot. 4 6. PW-9 Ramesh Kumar, constable, from the Police Station Jubbal, who was also posted in First Batalian Junga, had stated that three persons named by him were quarrelling with Jagdish and were giving beatings. He and other persons rescued the complainant and all the three persons were under the influence of liquor. He also stated that out of those three persons, two are present and they are the same persons, who gave beatings to the complainant. He gave the date of the occurrence as 26.6.1996 and this had weighed heavily in the mind of the learned trial Court to disbelieve his statement. He admitted that the complainant was also from his Batalian and, therefore, also the learned trial Court had not relied upon his testimony being from the same Batalian. He stated that he cannot state about the names of the accused persons present today in Court and, therefore, it cannot be said that the identity of the accused persons was established beyond any reasonable doubt. 7. The Investigating Officer was not examined in the case since several opportunities were given, but he was not produced by the prosecution. The statement recorded by him under Section 154 Cr.P.C. also was not proved from his statement, since the Investigating Officer did not appear in the witness box. The final conclusion drawn by the learned trial Court in view of the fact that the accused persons were not properly identified and in view of other infirmities as pointed out above, cannot be said to be perverse calling for an interference by this Court, though the other view could have been taken by the learned trial Court, but the view taken, cannot be termed as perverse calling for an interference by this Court. 5 8. In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the appellant, which is dismissed. The bail bonds furnished by the respondents shall stand discharged. ( V.K. Ahuja ), September 24, 2010 Judge (BSS) 6