1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 47 of 2001 Decided on December 21, 2010 __________________________________________________________ State of H.P. …Appellant. Versus Shyam Singh & Others ...Respondents. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. ¹Whether approved for reporting? No. For the appellant: Mr. R.K.Sharma, Senior Addl. Advocate General, with Mr.Rajinder Dogra, Addl. Advocate General. For the respondent: Mr. B.C. Verma, Advocate. Justice Sanjay Karol,J. For an offence, which is alleged to have been committed on 27.3.1995, accused were put to trial. In terms of judgment dated 7.8.2000 passed by Additional Sessions Judge, Shimla, in Sessions Trial No.24-S/7 of 1996, titled as State of H.P. vs. Shyam Singh and others, accused stand acquitted of the charged offences. 2. It is the case of the prosecution that on 28.3.1995 at about 11 A.M., complainant Romesh Chand got his statement (Ex.PW.4/A) recorded under Section 154 Cr.P.C. before Pratap Singh ASI, Police Station, Theog. As per complainant, on 27.3.1995 at about 6.30 P.M., he was present in the bazar at Matiana. Accused 2 Shyam Singh started using foul language against him. He reported the matter to Lamberdar Sh.Puran (not examined). On his way back, accused caught him and started giving him beatings with stones and iron rod. Complainant suffered injuries on his head, right eye, lips and back, as a result of which he fell unconscious on the spot. In the incident, complainant lost his wrist watch, currency notes worth `800/- and shoes which he was wearing. Accused were having grudge against the complainant on account of pendency of a civil dispute before the Courts at Theog. On the basis of complaint, FIR No.50/95 dated 27.3.1995 (Ex.PW.9/A) was registered under Sections 307, 147, 148, 149 and 341 of the Indian Penal Code at Police Station, Theog. Complainant was got medically examined through Dr.Ashwani Kumar, who issued MLC (Ex.PW.3/A). Injury No.1 was found to be dangerous to life and other injuries were found to be simple in nature. During investigation, accused Shyam Singh made a disclosure statement (Ex.PW.8/A) and got iron rod (Ex.P-1) recovered in the presence of Smt.Sumitra (PW.8) and Piare Lal. With the completion of investigation, challan was presented in the Court for trial. 3. Accused were charged for having committed offences punishable under Sections 307, 148, 341, 149 and 341 IPC, to which they did not plead guilty and 3 claimed trial. 4. In order to prove its case, prosecution examined 12 witnesses and statements of the accused under Section 313 Cr.P.C. were also recorded. 5. Court below acquitted the accused of the charged offences, hence the present appeal. 6. From the testimony of Dr.Sarina Chhabra (PW.1), Dental Surgeon and Dr.Ashwani Kumar (PW.3), it is quite apparent that complainant suffered the following injuries :- “Lacerated wound on scalp lateral and left side of sagittal sure of size around 7 x ½ cm and was exposing the bone of the skull under neath. There was bleeding from the wound profusely. The margins were ragged and the injury was present on perital region. He was advised X-ray of the skull to rule out underlying fracture. Lacerated wound on occipital region 5 cm above the nuchal line and size was 1 x ½ cm. Lacerated wound on forehead on left side, which was 5 cm below the hair line. The size of the wound was 3 cm x ½ cm and it was ½ cm deep. The margins were ragged. There was also abrasion on left side of forehead near the injury (lacerated wound) of size 2 x 1 cm and was irregular shaped. Perioribital swelling on right side of face with black eye and large echymosis. The swelling was extending to right pinna 4 and below to the maxillary region. The right eye was closed and vision could not be assessed. He was advised to seek ophthalmologist opinion at GMC Shimla after swelling subsides. Abrasion on right heel 5 x 3 cm just above tendo Achilles insertion, fresh bleeding was present. Large swelling on right side of upper lip which was swollen and tender. There was abrasion on the inner aspect of upper lip for which he was advised dental opinion. Reddish brown, pattenned bruise on right side of back 10 cm below tip of scapula of size 7 x 5 cm tenderness was present. 7. Injury No.1 was opined to be dangerous to life and grievous in nature. Now doctor admits that except for injury No.1 all injuries could be caused by fall or rolling over on hard surface. Doctor also admits that in report (Ex.PW.3/A) there is no specific reference that blood vessels were cut. This therefore, implies that opinion given by an expert was made on the basis of presumption. 8. Assuming that complainant did suffer injuries in the alleged incident, prosecution still has to prove role of each of the assailants / accused in the incident. Now in the instant case, independent witnesses Smt.Beggi Devi (PW.5) and Dassi Devi (PW.6) have not witnessed the incident. Sh.Chet Ram (PW.7) simply states that he found the accused lying unconscious on 5 the road and Sumitra (PW.8), who was declared hostile and extensively cross-examined by the Public Prosecutor, has specifically denied any disclosure statement made by accused Shyam Singh. Sh.Tilak Raj (PW.10) was declared hostile and has not supported the prosecution case at all. 9. According to complainant Romesh Chand (PW.4), accused suddenly assaulted him and gave him blows with iron rod. Importantly, he states that Pratap and Sunder witnessed the incident and also came to rescue him from the clutches of the accused. Now these persons have not been examined in Court. This witness admits that except for Puran Lamberdar he did not inform Pratap or anyone else, that accused was searching for him. This witness also admits that there are 30-35 shops in the bazar, where the incident took place. Incident is alleged to have taken place at about 6 P.M., when even according to the complainant shops were open. None of the local persons have been associated by the Investigating Officer to prove the prosecution case. 10. Witness Jeet Ram (PW.12), who has tried to corroborate the version of Romesh Chand (PW.4) is admittedly a close friend and relation of the complainant. He is an interested witness and his testimony does not inspire confidence. His presence at 6 the spot appears to be doubtful. Version of the complainant is rendered doubtful also for the reason that he admits that there is dispute with the accused party. 11. Further according to the police, iron rod in question was got recovered by accused Shyam Singh after he made disclosure statement. This evidence materially contradicts the statement of complainant (PW.4) who in no uncertain terms has deposed that it was he who had handed over the same to the police along with other articles. 12. Version of Dassi Devi (PW.6) and Smt.Beggi Devi (PW.5), to the effect that they saw the complainant lying unconscious on the road, also does not appear to be true, as according to them they left the complainant lying unconscious on the road and yet did not do anything to provide medical aid to him. This is an extremely unnatural conduct on the part of the witnesses. Therefore their presence on the spot appears to be doubtful. Surprisingly no local shop keeper has come forward to depose that complainant was lying unconscious on the road. Thus, keeping in view material contradictions in the statements of witnesses, prosecution case cannot be said to have been proved, beyond reasonable doubt. 7 13. The accused have had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down in Mohammed Ankoos and others vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the persons has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. (R.B. Misra) Judge December 21, 2010 (Sanjay Karol) (Purohit) Judge