IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No.462 of 2001 Reserved on: 5.9.2008. Date of decision: Sept. 15 2008 State of H.P. Appellant Versus Rewti Ram and another. Respondents Coram The Hon’ble Mr. Justice V.K. Ahuja, J. Whether approved for reporting1? No. For the appellant: Ms. Subh Mahajan, Dy. Advocate General. For the respondent: Mr.Rakesh Jaswal, counsel for respondents No.2 & 3. (respondent No.1 since dead). V.K.Ahuja, J. This is an appeal filed by the State of H.P. against the judgment of the Court of learned Additional Sessions Judge, Shimla dated 2/12/2000 vide which the respondents were acquitted and the conviction and sentence imposed by the learned trial Court under Sections 325/341/506 read with Section 34 IPC was set aside. Briefly stated, the facts of the case are that on 29.5.1993 at about 12 midnight, complainant Hem Ram lodged a report with the police that when he along with his nephew Om Parkash were returning from their land at Village, Dehla at about 7.00 p.m., they found their path closed with bushes. They tried to open the same and the accused/respondents immediately pounced upon them, gave beatings to them with Lathis on their head and other parts of Whether the reporters of Local Papers may be allowed to see the Judgment? Yes. 2 the body. Both the injured raised hue and cry and two Gorkhas namely, PW-5 Tek Bahadur and Jid Bahadur came there and rescued them. It was also alleged that the respondents threatened Hem Ram PW-1 and his nephew Om Parkash to kill them. On this report, a case was lodged and after investigation, challan was filed before the Court of learned Chief Judicial Magistrate, Shimla who tried the respondents leading to their conviction as under: Under Section 325 IPC read with Section 34 IPC. Rigorous imprisonment for two years and a fine of Rs.1,000/- each. Under Section 323/34 IPC Rigorous imprisonment for six months. On appeal, the judgment was set aside by the learned Additional Sessions Judge. who acquitted the respondents leading to the filing of the present appeal by the State of H.P. I have heard the learned counsel for the parties and have gone through the record. The main plea taken by the learned Deputy Advocate General was that the findings of acquittal recorded by the learned Additional Sessions Judge are not based upon correct appreciation of evidence and, therefore, the findings recorded by the learned Chief Judicial Magistrate, Shimla are liable to be restored since there were no material contradictions or infirmities in the prosecution case. Coming to the evidence, the prosecution case mainly rests upon the testimony of two injured and one independent witness Tek Bahadur PW-5 examined in this case. A perusal of the statement of the complainant PW-1 Hem Ram shows that when they tried to cross the path, the accused persons came there and gave them beatings with Dandas, he suffered injuries and fell down. He also stated that Om Pakash accompanying him suffered injuries on his arms and back. He did not state that he suffered the injury over his head with Danda which was the main injury. He stated that they 3 raised an alarm and two Gorkhas who were working there came there and saved them from the clutches of the accused persons. He did not name those Gorkhas. In his statement, he has clearly admitted the long standing enmity with the accused party. He admitted that a dispute is already going on in between them and the accused in regard to the land, prior to the occurrence. He denied his knowledge in case earlier when they constructed Dogri, the father of the accused made a complainant against them in the Panchayat and the Up Pradhan and the Secretary Panchayat had come to the spot. He also admitted that respondent Bhagat Ram has taken stay against them, though he volunteered that he has also taken stay as against them. He stated that his clothes were blood stained at that time but he did not produce those clothes to the police. In case the clothes were blood stained, these should have been handed over to the police or taken in possession by the police which could have corroborated the statement of this witness. He stated that there was no blood mark on the Dandas. He further stated that Tek Bahadur and Jid Bahadur, the two Gorkhas were not working with them at that time and they were only passing through that place. He further stated that both the witnesses were present there at that time which suggests that they had witnessed the occurrence. He also admitted that for the same occurrence a case was lodged by the accused persons which is fixed for the next date. He denied in case the accused persons had suffered injuries at that time. In case the accused persons had also suffered injuries and a criminal case was registered, it was rightly observed by the learned Additional Sessions Judge that both the cases should have been disposed of together. He stated that they gave the Dandas to the police and again stated that they were lying on the spot, which Dandas are commonly available. He 4 denied the suggestion that they gave beatings to the accused persons on that day. PW-2 Om Parkash and nephew of the complainant has stated that when they tried to cross the pass, they were given Danda blows and he suffered injuries on his arm and other parts of the body. He stated that the two Gorkhas were working with them, which is contrary to the version of PW-1 Hem Ram who has stated that they were not working with them but were crossing the path at that time. This clearly shows that the complainant has deposed falsely in this regard. He denied his knowledge in case any dispute is going on with accused persons in regard to the land which is contrary to the version of complainant PW-1 Hem Ram. He denied his knowledge in case his father and uncle have dispute in regard to the land with accused which is again contrary to the version of complainant PW-1 Hem Ram. He also denied his knowledge in regard to the stay and clearly stated that Gorkhas were working with them for the last 2-3 years. He denied his knowledge in case in regard to the cross case which fact was admitted by the complainant as PW-1. He also stated that the blood had oozed out and their clothes were stained with blood but these clothes were not taken in possession by the police. He stated that Dandas were produced by the accused, whereas complainant as PW-1 has stated that they were lying at the spot. He admitted that two of the witnesses are witnesses against them in the cross case. He denied that these injuries were sustained by them by fall. The only independent witness examined in the case, namely, PW-5 Tek Bahadur has stated that when he reached near the path, the accused persons gave beatings to Hem Ram and Om Parkash and Hem Ram suffered injuries on his head, while Om Parkash suffered injuries on his arm and blood also oozed out. He admitted that he was working with the complainant-party and Jid 5 Bahadur is his brother, which clearly shows that they were working with the complainant party and may be interested to help the complainant party. He also stated that the Dandas were given to the police by one of the accused whereas the recovery memo. Ex.PW-1/A shows that these were produced by all the accused persons. PW-5 Tek Bhadur had admitted that when he reached the spot the quarrel had already taken place which clearly shows that he had not witnessed the occurrence. The Medical Officer PW-4 Dr. Suman Gupta was not shown the Dandas if the injuries are possible with these Dandas. Her MLC was proved bearing her signature which have only been proved in evidence as Exhibits whereas details of the MLCs were also required to be recorded in her statement. She admitted the suggestion that these injuries are possible by a fall. From the above discussion, it is clear that keeping in view the contradictions in the statements of the witnesses and the infirmities in the prosecution case, the learned Addl. Sessions Judge had rightly disbelieved the evidence led by the prosecution and those findings cannot be termed as perverse calling for an interference by this Court. In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the appellant, which is accordingly dismissed. The bail bonds furnished by the respondents stand discharged. September 15, 2008 (V.K.Ahuja),J. (sds)