IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.A. No.498/2001 Reserved on: 16.7.2008 Decided on:6.8.2008. ________________________________________________ State of Himachal Pradesh. …Appellant. Versus Dharam Chand and others. … Respondents. __________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. For the Appellant: Mr. Rajinder Dogra, Additional Advocate General. For the Respondents: Mr. Surinder Saklani, Advocate. ________________________________________________________ Rajiv Sharma, Judge. The respondents were prosecuted in criminal case No.73-II/97 in the Court of Additional Chief Judicial Magistrate, Kangra under sections 451,323,325 and 506/34 of the Indian Penal Code and were acquitted on 15.2.2001. The State has filed this appeal against the judgment dated 15.2.2001. 1 Whether reporters of the local papers may be allowed to see the judgment? No. 2 The prosecution case in nutshell is that at about 7.30 P.M. in furtherance of their common intention, the accused criminally trespassed into the shop of one Sh. Mehar Singh where his wife Saina Devi along with her daughter was going to close the shop. Some altercation took place and accused started giving beatings to Saina Devi as well as her daughter Lajya Devi. One Paras Ram rescued the ladies, however, he was also given danda beatings by accused Dharam Chand. In the meantime, one Suti Devi also reached on the spot and she was also given beatings. The FIR was registered and injured were medically examined. The prosecution examined as many as ten witnesses. The accused were examined under section 313 of the Code of Criminal Procedure. The trial court acquitted the accused on 15.2.2001. Mr. Rajinder Dogra, Additional Advocate General had strenuously argued that the prosecution has proved its case and the judgment dated 15.2.2001 is not sustainable in the eyes of law. Mr. Surinder Saklani, Advocate has supported the judgment dated 15.2.2001. I have heard the learned counsel for the parties and have also perused the record carefully. The incident took place on 28.8.1996 at 7.30 P.M. PW-8 Lajya Devi has deposed that on the date of occurrence, she along with her mother Smt. Saina Devi was at Palah Chaklu in their shop. They were going to close the shop. The accused came on the spot. Des Raj asked her mother why she has reported the matter to Gram Panchayat. Des Raj gave danda blow on the head of her mother. She raised alarm and Des Raj gave danda blow on her head also. 3 According to her, Paras Ram and Suti Devi reached on the spot. Paras Ram was also given danda blow by Dharam Chand and blood oozed out from the injury. The other accused gave fist and kick blows to all of them. She further deposed that dandas Ex.P-1 and P-2 were taken into possession with which accused Dharam Chand and Des Raj were armed. The other material witness is PW-3 Paras Ram. He has deposed that at 7.30 P.M. he had gone to Palah Chaklu. He had to purchase certain articles from Madan and he found that Smt. Saina Devi and Lajya Devi were being given beatings by Dharam Chand, Ashwani Kumar and Des Raj. He tried to pacify them. However, he was given danda blow by the accused. PW-2 is Smt. Suti Devi. She has deposed that at about 7.30 P.M. she had gone to Palah Chaklu. According to her, her brother had already reached there and thereafter she reached there. She found that the accused were giving beatings to Lajya, Saina and to her brother. She was also given danda blow by Dharam Chand on her arm on account of which fracture was caused. PW-7 has deposed that skygram and its cover were not bearing any number or his initial. He has stated that sky gram was conducted by him at the instance of Sh. V.P. Sharma and as per record he found fracture in the fore-arm. He has also stated that the Ex.PW-10/A is of two parts of the body taken from two different angles. He had affixed no signatures or initial over it. Dr. V.P. Sharma, has deposed that medical certificate Ex.PW-7/B, Suti wife of Roshan Lal resident of Palah Chaklu has been written. Whereas on Ex.PW-7/C, Suti wife of Roshan Lal, resident of Chahri, has been written. The distance between Chahri and Palah Chaklu is about 8 KMs and not 20-22 KMs as suggested. According to the prosecution, altercations took place 4 between Saina Devi and accused on 28.8.1996 at about 7.30 P.M. PW-8 Lajya Devi has deposed as noticed above that Saina Devi was given beatings by the accused. However, surprisingly Saina Devi has not been examined by the prosecution. She was material witness and the explanation put forth by the prosecution for her non-examination is neither plausible nor convincing. She was important witness to depose the manner in which the altercation had started on the date of occurrence. The other witness who has not been examined by the prosecution is Sh. Madan Lal. PW-3 Paras Ram has categorically deposed that he was given beatings in the shop of Madan Lal. If the beatings had been given in the shop of Madan Lal by the accused, he was bound to be examined by the prosecution. Madan Lal has not been joined during the course of investigation. There are material contradictions in the statements of prosecution witnesses whether the shops were opened or not at the time of occurrence. It has come in the statements of few prosecution witnesses that the shops were opened, however, nobody came to their rescue. The fact that the shops were opened and it was 7.30 P.M. on 28.8.1996, there was sufficient light to identify the accused by the shop keepers. The prosecution has not examined any independent witnesses though they were available in the shops and houses in the vicinity on the spot. One thing which is also evident from the statements of the prosecution witnesses that they are closely related. The Court has to examine their statements cautiously since independent witnesses though available were not cited by the prosecution. The trial court has come to a just conclusion that Saina Devi and Madan Lal ought to have been 5 examined by the prosecution. The trial court has rightly acquitted the accused. In view of the aforesaid reasons, there is no merit in this appeal and the same is dismissed. The bail /surety bonds are discharged. (Rajiv Sharma), J. August 6, 2008. *awasthi*