IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 206 of 2005 Date of Decision : December 27, 2011 State of H.P. Appellant Versus 1. Tulsi Ram s/o Sh. Kalu Ram 2. Neelam Chand s/o Sh. Tulsi Ram. Both residents of Timba Demana, Tehsil and P.O. Shillai, Distt. Sirmaur, H.P. Accused/Respondents Appeal under Section 378 of the Code of Criminal Procedure against the impugned judgment of acquittal dated 15.12.2004, passed by the Ld. Judicial Magistrate Ist Class, Court No. I, Paonta Sahib , Distt. Sirmaur, H.P. in Cr. Case No. 101/2 of 2000/99, under Sections 324/326, 342, 506(2) read with Section 34 IPC. Coram: The Hon’ble Mr. Justice R. B. Misra, Judge The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the appellant : Mr. R. K. Sharma, Sr. Addl. Advocate General with Mr. Rajinder Dogra, Addl. Advocate General for the appellant/State. For the respondents : Mr. N. K. Thakur, Advocate, for the respondents-accused. Justice Sanjay Karol, J. (Oral) For an offence, which is alleged to have been committed on 1.9.1999, accused were put to trial. In terms of judgment dated Whether reports of Local Papers may be allowed to see the judgment? 2 15.12.2004, passed by the Ld. Judicial Magistrate Ist Class, Court No. I, Paonta Sahib , Distt. Sirmaur, H.P. in Cr. Case No. 101/2 of 2000/99, accused stands acquitted of the charged offences. 2. It is the case of prosecution that on 1.9.1999 at about 8.30 a.m., complainant Sh. Sukh Ram (PW-1) was going towards Shillai Bazar in connection with his personal work. When he reached at the spot where the alleged incident took place, both accused Tulsi Ram and accused Neelam Chand blocked his way. In their hands accused Neelam Chand held an axe and accused Tulsi Ram held an iron rod. They wrongfully restrained him from proceedings towards Shillai and without any provocation started assaulting. They gave blows with the sharp edged weapons on the mouth and head of PW-1 as a result of which his two teeth of the upper jaw broke. PW-1 reported the matter to the police and F.I.R. No. 57 of 1999 (Ext. PW 1/A) dated 1.9.1999 under Sections 341, 323, 325, 506 / 34 IPC was lodged at Police Station Shillai, District Sirmaur, H.P. Police commenced investigation. PW-1 was got medically examined through Dr. H. S. Sodhi (PW-2) and Dr. Talwinder Singh (PW-3). Police recovered weapon of offences on the statement made by accused Neelam Chand. With the completion of investigation challan was presented in the Court for trial. 3. Accused were charged for having committed offences punishable under Sections 324/326, 342, 506(2) all read with Section 34 IPC to which they did not plead guilty and claimed trial. 3 4. In order to prove its case, in all prosecution examined ten 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. In order to prove guilt of the accused, prosecution has essentially relied upon statements of three non official witnesses i.e. the complainant Sh. Sukh Ram (PW-1) and two independent witnesses Sh. Guman Singh (PW-5) and HHC-Lal Bahadur (PW-9). 7. Having heard learned counsel for the parties and also perused the record we find that statement of the complainant not to inspire confidence. We notice that independent witness Sh. Lal Bahadur (PW-9) has not supported the prosecution and was declared hostile. To us it appears that Sh. Jagdish (PW-6) is not a spot witness, he has been introduced by the prosecution later on. 8. To begin with, in F.I.R. (Ext. PW 1/A) PW-1 got recorded that at the time of occurrence of the incident, accused was present with one Sh. Anil Kumar who also was one of the assailants. Now during investigation police did not find this part of the complaint to be correct. Prosecution was initiated only against the present accused. Accused did not challenge this position. Police officials have categorically deposed that complainant with regard to Sh. Anil Kumar was found to be not true. That apart, presence of Sh. Anil Kumar is also not indicated by the other independent witness. Even in Court, complainant has not made much reference about the 4 same. Thus we find that deposition of the complainant cannot be accepted as a gospel truth and needs to be examined with care and circumspection. To begin with he falsely tried to implicate some one else in the alleged crime. No doubt in Court he narrated the version as given in the F.I.R. (Ext. PW1/A) but we find that there are serious, major and material contradictions in the version given by other independent prosecution witnesses, rendering his version not to be true, if not false. He does not appear to be a reliable witness, inspiring confidence. 9. Sh. Guman Singh (PW-5) is stated to be an independent witness. In Court he has supported the prosecution by corroborating the version of the complainant. But we find that in cross examination his testimony stands totally shattered. It is the version of PW-1 that at the time of incident accused were leveling the fields where stones had been collected by them, which fact is totally denied by Sh. Guman Singh (PW-5). Further according to PW-5 his house is just at a distance of 10 to 15 metres from the house of accused Tulsi Ram. Now this version is not supported by anyone but in fact stands belied by the material placed on record by the prosecution. In this regard reference to the spot map (Ext. PW 8/A) is material. Neither the house of PW-5, nor the distance of his house from the house of the accused is reflected in the spot map prepared by the investigating agency. That apart, PW-5 himself has been shifting stands. According to him after hearing cries of the complainant he arrived at the spot first. But in his cross examination 5 he contradicts this version by stating that one Sh. Nanda and Sh. Lal Bahadur had already reached prior to his arrival. Now prosecution has not examined Sh. Nanda in Court and Sh. Lal Bahadur (PW-9) has not supported the prosecution at all. That apart, he states that Sh. Bir Singh also arrived but subsequently. Now Sh. Bir Singh has not been examined in the Court and according to PW-1, Sh. Bir Singh had arrived at the spot even prior to the arrival of Sh. Guman Singh. The contradictions in the statement of this witness renders his statement to be untrustworthy. Further this witness has made several improvements from his statement recorded by the police under Section 161 Cr. P.C. (Ext. DA) with which he was confronted with. In his statement (Ext. DA) he admits that Sh. Bir Singh was present in his house but in Court he categorically denies this fact. There is yet another glaring contradiction in his statement. According to the prosecution, weapons of offence were actually recovered by the police pursuant to the disclosure statement made by accused Neelam Chand before Investigating Officer, whereas according to this witness soon after the occurrence of the incident weapons of offence, i.e. rod and axe, were actually taken by Sh. Lal Bahadur and Sh. Kedar Singh from the spot to the police station. Now this totally shatters the prosecution case and in fact is a poor reflection of the manner in which the police carried out the investigation. 10. Version of the complainant that accused had given blows with sharp edged weapon on his face and head is not corroborated by 6 medical evidence placed. Complainant was examined by Dr. H. S. Sodhi (PW-2) and Dr. Talwinder Singh (PW-3) who in report (Ext. PW 2/A) do not indicate that any blunt injury with a sharp edged weapon was found on the body of the complainant. Defence taken by the accused that the complainant objected to leveling of the fields which resulted into a scuffle as a result of which complainant fell on the stones and as such sustained injuries appears to be more probable. 11. Thus in the instant case it cannot be said that prosecution has been able to prove, beyond reasonable doubt, by leading clear, cogent, convincing material/ piece of evidence and establish that the accused, in furtherance of their common intention wrongfully restrained/confined the complainant and prevented him from proceeding to Shillai Bazar or that accused voluntarily caused simple hurt with a sharp edged weapon by giving blows with an axe and rod. It also cannot be said that the accused had common intention of voluntarily causing grievous injuries to the complainant. It also cannot be said that accused had criminally assaulted the complainant and threatened him to do away with his life. Thus we find that there is no merit in the present appeal. 12. 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 versus Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, it cannot be said that the Court below has incorrectly appreciated the 7 evidence on record or that acquittal of the accused has resulted into travesty of justice. No ground for interference is called for. Present appeal is thus dismissed. Bail bonds, if any, furnished by the accused are discharged. (Justice R. B. Misra), Judge. (Justice Sanjay Karol), Judge. December 27, 2011 (PK)