IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.A. No. 63 of 2001 Reserved on.26.12.2007 Decided on.3.1.2008 Surinder Singh. …Appellant. Versus State of H.P. …Respondent Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. No For the appellant : Mr. Tarlok Chauhan, Advocate. For the respondent Mr. V.K. Verma, Addl. Advocate General. Rajiv Sharma, J. The appellant was prosecuted in Sessions Trial No.17-S/7 of 2000 in the Court of Additional Sessions Judge, Shimla for offences punishable under sections 353 and 333 of the Indian Penal Code and was convicted and sentenced to undergo rigorous imprisonment for 3 years under section 333 of the Indian Penal Code and to pay a fine of Rs. 5000/- and in default of payment of fine the appellant-accused was directed to further undergo simple imprisonment for 6 months. The appellant has assailed the judgment dated 12.1.2001. The brief facts are that on 22.8.1999 at about 2.30 P.M. the complainant Sh Kanwar Singh, Assistant Lineman of HPSEB, Supply Division No.1, Chirgaon, District Shimla was on duty in village Diswani in connection with the repair work of the phase. When he reached village Diswani at about 11.30 A.M., he noticed that the appellant son of Bhajan 1 Whether the reporters of Local Papers may be allowed to see the judgment? No 2 Dass, who had electric connection for flour mill in the name of his mother Smt. Krishana and which was disconnected about 2 months earlier for non-payment of the bill on the directions of Junior Engineer, Incharge after the orders were issued by the Sub Divisional Officer from the supply pole, was running the flour mill by connecting the electric supply illegally. The appellant according to the complainant misbehaved with him and gave him danda blow on his left arm. Consequently the complaint was lodged on the basis of which FIR Ex.PJ was registered under sections 353 and 333 of the Indian Penal Code against the appellant. The prosecution had produced as many as 12 witnessed to prove its case. The appellant was examined under section 313 of the Code of Criminal Procedure. The trial court convicted and sentenced the appellant on 12th January, 2001 to undergo 3 years rigorous imprisonment under section 333 of the Indian Penal Code and to pay a fine of Rs. 5000/- and in default of payment of fine, the appellant was further directed to undergo simple imprisonment for 6 months. The appellant has assailed this judgment dated 12.1.2001. Mr. Tarlok Chauhan, Advocate appearing on behalf of the appellant-accused had submitted that the prosecution has miserably failed to prove its case against the appellant. He had further submitted that the court below has not properly appreciated the material on record. The prosecution case is full of contradictions. The prosecution story is highly improbable and the impugned judgment is liable to be set aside. The learned Additional Advocate General appearing on behalf of the State had strenuously argued that the prosecution has proved its case beyond reasonable doubt. I have heard the learned counsel for the parties and have gone through the record of the case. 3 The incident dated 22.8.1999 happened on Sunday. The complainant appeared as PW-1. In the FIR Ex.PJ, which was recorded as per the statement of PW-1 only two persons, namely, Bhau Singh and Atma Ram reached the spot. It has further come in the FIR that the complainant had narrated the entire incident to Bhau Singh and Atma Ram. In his statement as PW-1, complainant has categorically stated that Atma Ram, Bhau Singh and Deep Chand were present on the spot and he remained on the spot for about half an hour. The name of Deep Chand was not mentioned in the FIR. He has further deposed that he did not narrate the incident about the inflicting of injury by the accused to any one. However, in the FIR it has come that the complainant had narrated the incident to Sh. Bhau Singh and Atma Ram. He had narrated the incident to Sub Divisional Officer on 23rd August, 1999. In the normal circumstances, he was supposed to inform his superiors immediately after the incident on 22.8.1999. PW-5 Sh. Atma Ram has not supported the prosecution case and was declared hostile. Sh. Bhau Singh name finds mention in the FIR as well as in the statement of PW-1, however, he has not been cited as a witness by the prosecution. Sh. Roshan Lal PW-6 was not present on the spot. He had admitted in his cross-examination that the relations between his family and the appellant are strained and the litigation is also going on between the two families. He has deposed that PW-1 has narrated the incident to him. It is thus evident that there are material contradictions in the statement of the complainant and witnesses cited by the prosecution to prove its case. PW-5 Atma Ram has been declared hostile by the prosecution. Sh. Atma Ram PW-5 according to complainant PW-1 was present on the spot immediately after the incident, but he has not supported the case of the prosecution. PW-6 Roshan Lal was not on the spot and his statement being interested 4 witness cannot be believed. Bhau Singh, who was present on the sport for the reasons best known to the prosecution, has not been produced as witness. The name of Deep Chand though finds mention in the statement of PW-1, but he was also not cited as a witness. There was no eye witness to the incident dated 22.8.1999. There is variance in the facts narrated in the FIR vis-à-vis the statement made by PW-1. The prosecution has not examined any independent witness in support of its case. The defence plea cannot be over looked altogether that the complainant had received injuries due to fall. The prosecution has failed to prove the case against the appellant-accused beyond reasonable doubt. The trial court has not properly appreciated the evidence on record and erred in passing the impugned judgment of conviction and sentence. Therefore, I hold that the prosecution has failed to establish beyond all reasonable doubt the offences charged against the appellant and so I find him not guilty of the offences charged against him and acquit him of the charges. In the result, the appeal is allowed. The bail bonds are cancelled and surety is discharged. The fine amount, if any, deposited by the appellant be refunded to him. ( Rajiv Sharma), Judge January 3, 2008. *Awasthi*