IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No. 338 of 2003. Date of Decision: 22.7.2010. _______________________________________________ State of H.P. ….Appellant. Versus. Ishwar Dass and others. ….Respondents. Coram: Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting1?No. For the appellant : Ms. Ruma Kaushik, Addl. Advocate General. For Respondents. : Mr. Ajay Sharma, Advocate. Dev Darshan Sud, J.(Oral). The State is aggrieved by the judgment of the learned trial Court acquitting the respondents for offence under Sections 323, 325 and 506 read with Section 34 of the Indian Penal Code. 2. The case of the prosecution is that on 21.5.1995 at around 9 p.m. when complainant Smt. Sheela Devi (PW2) were sitting in the court yard of her house in village Baryal Behad someone flashed a beam of light from torch into her Whether reporters of the Local papers are allowed to see the judgment? Yes. 2 house. She asked as to who was the person flashing the light but there was no response. Thereafter she raised an alarm that there is a thief in the house. At this, respondent Ishwar Dass is supposed to picked up “Jham” (agriculture implement) and inflicted two blows to her head causing injuries and respondents Kuldip Kumar and Pushpa Devi attacked her with “dandas” (sticks). She was rescued from the clutches of the assailants by her daughters Sushma Devi and Kusam Lata (PW3). On 22.5.1995, the complainant lodged a report of the occurrence with Police Station, Jawalamukhi at around 11.30 a.m. which was the basis of FIR No. 77/95 recording commission of offences under Sections 323, 325, 506 read with Section 34 of the Indian Penal Code as having been committed by the accused persons. 3. The prosecution has examined ten witnesses in all. Out of these, PW2 Smt. Sheela Devi is the injured and PW3 Kusam Lata is an eye witness of the entire incident. Obviously, Smt. Sheela Devi has supported the case as narrated by her in the First Information Report. She admits in her cross-examination that there are some disputes pertaining to land etc. between her and the accused persons. She also states that prior to the present incident, she had also been beaten up by the accused but the matter was compromised before the Sub Divisional Magistrate. She also admits in cross-examination that she was fined Rs.95/- by the Panchayat but denied that this fine was imposed upon her because she given a shoe beating to one of the accused 3 Ishwar Dass. It is also her case that she had appeared as a witness against Ishwar Dass in a criminal case filed against him by one Smt. Leela Devi. Most important of all, she admits that at the time of incident occurred, it was dark and there was no light in the Verandah. 4. PW3 Kusum Lata states that she along with her brother was present in the house while their father was away to Kullu. Mother (complainant) was repairing the light in the verandah and in the meantime someone flashed a beam of light and when her mother asked as to who was flashing the light, there was no response. Thereafter Kuldeep Chand hit her mother with a result that she fell down and Ishwar Dass and Pushpa Devi came there with ‘dandas’ and also assaulted her. The case is that Ishwar Dass picked up a “Jham” and then hit the complainant on the forehead. The complainant became unconscious. When this witness tried to intervene to save her mother she also received blows of ‘danda’ inflicted by accused Kuldip Kumar. She tried to raise an alarm, Ishwar Dass accused told her that none would come to their rescue. The complainant regained consciousness at around 2.30 a.m. and thereafter she informed Kusum Lata about the occurrence when she was taken to Dehra for medical treatment. 5. On the totality of the evidence, the learned trial Court holds that narration of the incident by these two witnesses is not inconformity with the version as stated by the complainant in First Information Report Ext. PW10/A. There are contradictions with respect to the site where the 4 injuries were inflicted as also the manner in which blows etc. were given by different persons using the ‘dandas’ and ‘Jham’. More importantly, the court holds that even the medical evidence of PW1 Dr. Anita Mahajan states that she had medically examined the injured and issued MLC Ext.PW1/A. She has admitted that no injury on the person of the complainant has been caused with the “Jham” Ext.P-3. Surprisingly, the radiologist has not been produced which was necessary to prove the X-rays as the injuries inflicted on the complainant were grievous as she is supposed to have been sustained fractures on her head. 6. The learned trial Court also holds that the complainant stated in her evidence that she started bleeding from the wounds after the injuries were inflicted but no blood stained clothes etc, have been produced in Court. More importantly, the case of the prosecution that the injured complainant was taken to Dehra by one Kusma Devi has not been established on the record as she has not been produced in evidence. Lastly, the court notices that the relations between the parties are inimical, as they have been fighting civil and criminal litigation against each other, the complainant was fined by the Panchayat for purportedly beating up by one of the accused with shoes, there were disputes with respect to house and she had also appeared as a witness against the accused Ishwar Dass. 5 7. In these circumstances, the learned trial Court has insisted for production of testimony of some independent witnesses. 8. Learned Additional Advocate General submits that the complainant and her daughter PW3 Kusum Lata was the natural eye witness to the incident and her evidence cannot be treated as being partisan. She submits that in any given situation, when a crime is committed, it is but obvious that the persons who have suffered would be the natural witness and is not expected to produce independent witnesses which would mean a prior knowledge of the incident taking place. There is no dispute to this proposition. However, to rely upon the evidence of the injured in a situation when there is proved subsisting enmity between the complainant and the accused, the evidence of the complainant/injured must be consistent in all respects that is to say the testimony oral as well as the circumstantial evidence should be of a nature which can admit of no doubt. 9. In this case, I do not find that the evidence is of such a character more especially considering that there is no love lost between the parties. I also find it very strange that Radiologist has not been produced in evidence. Even PW1 Dr. Anita Mahajan rules out any injury with ‘Jham’ which, in fact, corroborates the contradictions in the evidence of PW2 Smt. Sheela Devi and PW3 Kusam Lata in the manner and nature which the injuries inflicted. 6 10. In these circumstances, I do not find any merit in this appeal which is accordingly dismissed. Bail bonds furnished by the accused are discharged. (Dev Darshan Sud), Judge. July 22, 2010(R)