HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No.: 712 of 2001 Reserved on: 10.11.2008 Decided on: 11.11.2008. State of Himachal Pradesh ………Appellant. Versus Udho Ram and others ………Respondents. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the appellant: Ms.Shubh Mahajan, Deputy Advocate General. For the respondents: Mr.Virernder Rathour and Mr.Ashutosh Burathoki, Advocates. V.K. Ahuja, J: This is an appeal filed by the State of H.P. under Section 378 of the Cr.P.C. against the judgment of the court of learned Judicial Magistrate Ist Class, Dharamshala, dated 31.8.2001, vide which the respondents were acquitted of the charge framed against them under Sections 325, 324 and 323 read with Section 34 of the Indian Penal Code. Briefly stated the facts of the case are that on 24.11.1999 at about 1.20 p.m., a report was lodged with the police by one Joginder Singh. It was alleged in the said report that on the previous day there was a function in the house of his uncle Prem Singh, where he and other persons were serving food to the persons present there. At about 7.30/8.00 p.m., Udho Ram’s son came _______ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - there and asked them to get out of the place. He told him that they have come there on invitation. He stated that Pawan Kumar, who was under the influence of liquor started giving beatings with danda to the complainant. Thereafter, Nardev and Desh Raj, sons of Udho Ram, also came there and started giving beatings to them. He raised an alarm and his mother and brother came to rescue him and these persons and Udho Ram started giving beatings to them also. Udho Ram gave beatings to his father with danda when he was coming back from the fields, who suffered injuries on his right arm and other parts of his body. He further alleged that his brother and mother also suffered injuries. His daughter-in-law Reena Devi and daughter Nisha Devi raised an alarm and many persons gathered there and the respondent ran away from the spot. It was alleged that because of the injuries suffered, they could not come yesterday to lodge the report, which was lodged with the police on the next day, on which a case was registered and after investigation, the challan was filed before the learned trial Court, who tried the respondents leading to their acquittal. I have heard the learned counsel for the parties and have gone through the record of the case. On appraisal of the report lodged with the police, it is clear that the complainant had alleged in regard to the beatings given to him with danda and the beatings given to his mother, brother and father Roshan Lal with dandas by the respondents. There was no mention of any blow having been given with a drati, but when the complainant Joginder Singh stepped into the witness box as PW-1, he came up with the plea that respondent Pawan Kumar was having a drati with which they gave blows upon him. He further stated that his younger brother Surender Kumar, when he tried to rescue them, respondent Desh Raj gave a drati blow on his person. He came up with another plea that firstly they - 3 - went to the Pradhan and lodged the report with him who asked them to lodge the report with the police. A perusal of the report Ext.PW-1/A shows that there was no mention of any blows having been given upon the person of Surender Kumar with a drati by the respondents, though it was only alleged that his mother and brother were given blows, but there was no mention of any blow having been inflicted by the respondent Desh Raj with a drati on the person of Surender Kumar. There was no mention of any report having been lodged with the Pradhan, as now stated by the complainant in his statement on oath in the Court. The complainant was confronted with the FIR wherein there was no mention of the drati blow. He denied his knowledge in case some land had gone to respondent Udho and denied that they are inimical with each other. However, he denied his knowledge in case some disputes are going on in the courts in regard to the land but his cross examination suggests that the relations in between the parties are not cordial and there is some land dispute also. He specifically stated that he had mentioned in his earlier statement that Desh Raj had given the blow with drati which was not so mentioned in the earlier version given to the police. He stated that at that time, 25-30 persons were present at the spot but none of them has been examined who could be said to be independent witnesses and not related to the family of the complainant. However, PW-3 Surender Kumar, son of Roshan Lal, is specific that at that time only 2-3 persons were present but rest of the persons had already left the place. PW-2 Roshan Lal, the father of the complainant, has stated that firstly respondents were giving beatings to Joginder and blood had also oozed out. He further stated that Udho was having a danda while Pawan was having a drati, which version was not there in the first report lodged with the police. He never stated that Surender or his mother also suffered injuries at that time as stated by - 4 - the complainant in his report and on oath also while he appeared in the witness box as PW-1. PW-3 Surender Kumar, son of Roshan Lal, has also stated about the drati blow given by Pawan Kumar, which fact was never mentioned in the report lodged on the next day of occurrence. The prosecution had also examined Nisha Devi daughter of Roshan Lal as PW-5, who had stated that when her brother Surender Kumar tried to rescue his brother Joginder, he was also given blows on his head. She also stated that Pawan Kumar was having a drati and Udho Ram was having a danda but there was no mention of drati in the report lodged with the police. Apart from the above, the prosecution had also examined PW-6 Janam Singh and PW-7 Kamal as witnesses to the recovery of danda and drati but both of them turned hostile and stated that no recoveries were effected in their presence. The prosecution had not examined the mother of the complainant who was also one of the injured and as such was a material witness. The prosecution had not associated any other person attending the said function in the house of the uncle of the complainant at that time, though the presence of some of them stands established from the evidence. During the course of arguments, it is was also pointed out by the learned counsel for the respondents that no questions have been put to any of the accused, while recording their statements under Section 313 of the Cr.P.C., in regard to the injuries having been inflicted with drati on the person of PW-1 Joginder Singh and PW-3 Surender Kumar by any of the accused persons. Thus, they had no opportunity to explain in regard the injuries inflicted with drati, if any. - 5 - Coming to the findings recorded by the learned trial Court, the learned trial Court has referred to the infirmities in the prosecution case since both the recovery witnesses had not supported the prosecution story. The learned trial Court had brushed aside the statements of the other witnesses apart from the complainant observing that they are relatives and are likely to support the complainant, but these statements should have been discussed in detail and the infirmities or contradictions in their versions should have been mentioned therein. The learned trial Court had also omitted to refer to the testimony of PW-5 Nisha Devi, who was an eye witness and her statement should have been discussed by the learned trial Court. In regard to the observations of the learned trial Court that PWs-1 to 3 and 5 are related with one another and there are more chances of their deposing in favour of the complainant, I am inclined to observe that the learned trial Court should go through the judgments of the Apex Court as to how the statements of the relatives as witnesses should be appreciated in case they are the only persons present at the time of occurrence and since they had suffered injuries also at the time of occurrence, their statements cannot be brushed aside simply because they are related to one another. In case they are the only persons present at that time, their statements have to be appreciated with more care and caution and therefore, a copy of this judgment be sent to the learned trial Magistrate by name for perusal. However, keeping in view the fact that there are material infirmities and contradictions in the prosecution story, the final findings recorded by the learned trial Court holding that the prosecution has failed to prove their case beyond any reasonable doubt cannot be termed as perverse calling for an interference by this Court. - 6 - In view of the above discussion, I hold that there is no merit in the appeal filed by the prosecution, which is dismissed accordingly. The bail bonds furnished by the respondents shall stand discharged. November 11, 2008. (V.K. Ahuja), (TILAK) Judge.