IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 650 of 2002. Date of Decision: September 27,2011. _______________________________________________ State of H.P. ….Appellant. Versus. Mohinder Singh . ….Respondent. Coram: Hon’ble Mr. Justice R.B.Misra, Judge. Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting1?. For the appellant: :Mr. R.K.Sharma, Senior Addl. Advocate General . For Respondent.: :Mr.Virender Singh Rathore, Advocate. R.B.Misra, Judge(Oral). The present Criminal Appeal has come up for consideration after grant of leave to appeal under Section 378(3) of the Code of Criminal Procedure against the judgment dated 23.5.2002 passed by Chief Judicial Magistrate, Kangra at Dharamsala, in criminal Case No. 75- II/1999 acquitting the respondent-accused for the offence under Sections 353, 324, 326 and 506 of the Indian Penal Code. 2. The prosecution case in brief is that Smt. Roshni Devi victim while cutting grass in Kutharana Jungle at about 9 Whether reporters of the Local papers are allowed to see the judgment. 2 A.M. on 27.11.98 was molested by the accused-respondent. She narrated the entire occurrence to her husband Jigri Ram, who along with victim went to the place of accused and asked the reason of molestation trying outrage the modesty of his wife Roshani Devi. At that time the accused gave beating to Jigri Ram, during that beating victim endeavoured to rescue her husband, however she was attacked by sickle Ext.P2 and had sustained injuries. After investigation, the accused was charged for the aforesaid offences. 3. In order to prove its case, the prosecution examined as many as seven witnesses, whereas, the accused through his statement under Section 313 Cr.P.C. denied the prosecution case. 4. PW1 Roshani Devi in support of the prosecution case has stated that she was attacked by sickle Ext.P-2 and sickle Ext.P2 was handed over by her to police. But in her cross-examination PW1 deposed that the accused was not known to her and she never saw him before and was totally stranger to her. Whereas, the accused is said to be a resident of the same village and as per the facts reported in the F.I.R the accused was already known to her. PW2 Jiggri Ram has also supported the prosecution case and stated that when he was being beaten by accused-respondent, Roshani Devi intervened to save him and during that scuffle the accused attacked Roshni Devi with sickle Ext.P2 and inflicted injuries on her person. As stated by PW2, the sickle Ext.P2 was also recovered from the house of the accused but in his cross- 3 examination he has admitted that his land is situated just near the land of the accused and there was a boundary dispute between them and they had already quarreled over the boundary dispute several times. PW2 has also stated that on the fateful day, they went to quarrel with the accused over the boundary situated between their lands. 5. PW3 Gorkhu Ram did not support the prosecution case and has very categorically stated that no sickle was taken into possession by the police in his presence and only his signatures were obtained on a paper. PW3 has further stated that only a shirt and piece of cloth was handed over by victim Roshni Devi to the police vide memo Ext.PW1/B. However, PW3 was declared hostile. PW4 ASI, Joginder Singh, who investigated the case, has stated that Roshani Devi handed over that shirt Ext.P1 to him which was taken into possession vide memo Ext.PW1/B . PW5 H.C. Rajinder Singh recorded the First Information Report. PW6 Dr.D.P.Swamy has medically examined the victim/Roshni Devi and noticed two injuries on her person out of which one was simple in nature, whereas, the others were grievous, which could have been caused by a sharp edged weapon. PW7 S.I. kailash Nath, who recorded F.I.R.Ext.PW7/A, arranged for medical examination of victim Roshni Devi. 6. On analysis of the prosecution witnesses and the materials on record, we noted that PW1 and PW2 both appears to be inimical to accused. In view of testimony of PW2, a boundary dispute was going between them as such 4 the testimony of PW1 cannot be out rightly accepted. More so, the testimony of PW1 and PW2 are contradictory as has been stated by PW1 that sickle Ext.P2 was handed over by her to the police in the presence of PW3, whereas, PW3 has totally denied every recovery of sickle. The F.I.R.Ext.PW7/A reveals that when the accused was molesting Roshni Devi in Kutharana Jungle, she raised hue and cry and other persons present in the jungle also observed the occurrence. Surprisingly other independent witnesses said to be present at the relevant time have not been examined. PW1 though has categorically stated in her cross-examination that at the time of occurrence, 5/6 persons including Saini Ram and Jiggri Ram have also witnessed that occurrence, but, those 5/6 persons were not examined. The prosecution has withheld independent witnesses. Sickle Ext.P2 said to be handed over by the accused to Investigating Officer, was taken into possession vide memo Ext.PW1/C, whereas, PW1 Roshni Devi has categorically stated that sickle Ext.P2 was handed over by her to the Police. Whereas, PW3 Gorkhu Ram has denied any recovery of sickle Ext.P2 in his presence and stated that only his signatures were obtained on a paper. 7. PW1 and PW2, though related as a wife and husband, are inimical to the accused respondent and had been quarrelling on a boundary dispute as such their testimony is contradictory. No other independent witness has supported the prosecution case. In these circumstances, the testimony of PW1, though being injured witness, cannot be 5 relied upon as her testimony is swayed over by her inimical relation with that of the accused. 8. On the basis of material and evidence on record, learned trial court has rightly arrived at the conclusion that the prosecution has failed to prove the guilt of the accused beyond shadow of reasonable doubt. We are also of the considered view that the prosecution has failed to bring home the guilt to the accused. There is no scope of interference in the impugned judgment. In view of the aforesaid facts and circumstances, the present criminal appeal, being devoid of any merit, is dismissed. 9. The bail bonds furnished by the accused/respondent are hereby discharged. (R.B.Misra), Judge. (Dev Darshan Sud), Judge. September 27, 2011(R) 6