1 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. A. No. 585 of 2002. Date of decision: June 16, 2009 _________________________________________________ State of HP …Appellant. Versus Gagan Singh & others …Respondents. Coram: The Hon’ble Mr.Justice R.B.Misra , Judge. Whether approved for reporting? For the Appellant: Mr. P.K. Sharma, Addl. A.G with Mr. P.M. Negi, Deputy Advocate General. For the Respondents.: Mr. Rahul Mahajan, Advocate. R.B. Misra, Judge (Oral) Heard. The present criminal appeal has originated consequent upon the grant of leave in reference to the judgment dated 25.4.2001, whereby learned Judicial Magistrate, 1st Class, Nurpur, District Kangra, Himachal Pradesh, has acquitted the alleged accused, respondents herein in reference to criminal case challan No. 153-II/1995, for the alleged offences under sections 325, 324, 323 IPC read with Section 34 IPC. 2. In order to adjudicate the present criminal appeal, it is necessary to give brief facts of the case. The prosecution has stated that on 10.4.1995 at about 9 AM, Purshotam Singh along with Usha Devi and Sadhu Ram came to the police station, Nurpur and lodged FIR against the accused persons, e.g. Gagan Singh, 2 Dara Singh and Swadesh Singh, alleging that on 10.4.1995 when Purshotam Singh was coming back to his home after answering the call of nature at about 7.30 AM, he came across Gagan Singh on the way who asked him as to why he and his brother Sansar Chand abused his father. Then he told to Gagan Singh that the matter has been resolved between the parties and compromise had been effected. Gagan Singh, alleged accused, asked Purshotam Singh to call Sansar Chand. In the meantime, Sansar Chand also came there but accused Gagan Singh gave fist blows to Sansar Chand and when Purshotam tried to rescue Sansar Chand from the clutches of Gagan, then Gagan Singh started beating him with fists and blows. In the meantime, Swadesh and Dara Singh, other accused, also came there having sticks in their hands, who had also hit both of them with sticks. Accused Dara Singh was said to have applied danda and accused Swadesh was also said to have given dandablow on both the hands of victim. On hearing the noise, wife of Purshotam, Ms. Usha and the uncle of Purshotam M. Sadhu Ram also came to the spot to rescue him and his brother Sansar. However they were also beaten by accused Swadesh and Dara. 3. The accused were charged for the alleged offence under sections 325, 324, 323 IPC read with Section 34 IPC. The prosecution had examined as many as nine prosecution witnesses, whereas the alleged accused have denied the said alleged offence in their testimony recorded under section 313 Cr.P.C. 3 4. Mainly two points were kept for determination which are as under: 1) Whether the prosecution has proved beyond all reasonable doubt that on 10.4.95 at about 7.30 PM at village Talara all accused in furtherance of common intention voluntarily caused simple hurt to Purshotam and Usha Devi by means of blunt and sharp edged weapon and also caused grievous hurt for Sadhu Ram, as alleged. ? 2, Final order. Point No.1 was answered in negative. 5. On the basis of prosecution witnesses and on analysis of the same, the vital aspects which impressed the learned trial court is that the story narrated by complainant while lodging FIR was altogether different from what the complainant has stated before the learned trial court. The complainant had no where mentioned in the FIR that the accused gave blow by a weapon on his head. The complainant has also no where mentioned about the spade which was used as weapon in the said incident, whereas the spade was taken into possession and was shown as Ext P-5. The weapon, alleged to have been used in the said incident by the accused persons while giving blow to the complainant, was totally different from what the police has taken into possession. The complainant was said to have given blow by the accused with iron rod having the shape of knife, but no such weapon was said to have been produced in the court by the prosecution. In the FIR, it was mentioned that the accused was not having any stick with him when the incident took place, but two other accused who came to the 4 spot were carrying sticks through which the injuries were inflicted, but interestingly, the police has taken into possession three bamboo sticks and spade in their possession and highlighted them as weapon used in the said incident. Considerable irregularities and illegalities were noticed by learned trial court. 6. The learned trial court has also noticed that a person who has saved the complainant from the accused persons, i.e. real brother of the accused, Waryam was also not associated by the prosecution during investigation. The Investigation Officer has also not bothered to associate the independent persons of locality who were available on the spot, as eye witnesses or independent witnesses. The witness who was said to be an eye witness has also noticed to be belonging to a place of one furlong way form the place of incident. Large number of persons were assembled at the place of incident, but no explanation was given by the Investigating Officer as to why no one was associated as an eye witness. The prosecution has also not given any explanation about non association of Sansar Chand who was said to be the prosecution witness as PW-6, who was cited as an eye witness. The very vital aspect was noticed by learned trial court that the incident was said to have taken place on 10.4.1995 and the story narrated by the complainant while lodging FIR is altogether different from what the complainant has stated before the court. 5 7. Keeping in view the discrepancies in the prosecution witnesses and the manner of occurrence in carrying the alleged weapons and its use, learned trial court has rightly found that the prosecution has failed to prove the prosecution case beyond all reasonable doubt. 8 After going through the record and material on record, I find that the trial court has rightly given the benefit of doubt to the accused persons. In view of the above stated position, I see no merit in the present appeal. The same is, therefore, dismissed. June 16,2009(sl) ( R.B. Misra), Judge.