IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Criminal Appeal No. 326 of 2003 Date of Decision: 19th July, 2010 __________________________________________________________ State of H.P. ….Appellant. Versus Pardeep Kumar ….Respondent. ___________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 __________________________________________________________ For the Appellant: Ms. Ruma Kaushik, Addl. Advocate General For the Respondent: Shri S.D. Vasudeva, Advocate. __________________________________________________________ Dev Darshan Sud, J (oral). This appeal is filed against the order of acquittal passed by the learned Judicial Magistrate Ist Class, Dharamshala acquitting the respondent for offences under Section 341, 323 and 506 of the Indian Penal Code. The prosecution case is that on the night of 11/12.10.2002 when the complainant, Hans Raj, was returning to his house alongwith some persons around 11.49 PM after watching Ramleela at Gubbar Lapiara, he was assaulted by the respondent. He not only blocked his way but abused him and beaten with danda Ext.P2. This incident is reported to have occurred at Parab Khad Patwarkhana. On the next day, the case 1 Whether Reporters of Local Papers may be allowed to see the judgment? 2 was reported to the police on the basis of which FIR Ext.PW4/A was lodged. The injured was medically examined at Civil Hospital, Shahpur and a Medico Legal Certificate Ext.PW5/A was issued. The prosecution has examined five witnesses i.e. PW1 Hans Raj, PW2 Rumla Devi, PW3 Jagdish Chand, PW4 ASI Negi Ram and PW5 Dr. M.K. Saxena. 2. While considering the evidence of prosecution, learned Judge noted that it is the case of prosecution that Desh Raj, Rumla Devi and Naresh Kumar rescued the complainant from the clutches of the assailant. The prosecution has examined only Rumla Devi, Desh Raj has been given up and Naresh Kumar has also not been examined. Turning to the evidence of PW2 Rumla Devi, the Court notes that she admits that she was at a distance of 50 feet from the scene of occurrence and in this situation, it is not possible to have witnessed the entire incident, when it was dark in the night. The reason, as to why Naresh Kumar has not been examined, has not been given though he was an independent witness. Desh Raj has been given up on the ground that he would be repetitive. PW2 also states that the complainant left for Delhi and he handed over a danda and shirt to her which were produced before the police. 3. The Court rightly also considers the fact that the complainant himself stated that a number of persons were present at the time when incident took place, but none of them has been examined in Court. There is a major discrepancy on the question of weapon of assault which is the danda. The statement of complainant and that of Rumla Devi could not be reconciled. These basic contradictions in the opinion of learned trial Court were sufficient for acquittal of the accused. 4. Learned Additional Advocate General submits that the learned Court below was in error in not considering the statement of 3 injured namely Hans Raj, complainant and that of Rumla Devi PW2. She submits that they were the best witnesses to the incident and no other or further proof was required more especially when the evidence was corroborated by the medical evidence. There is no dispute that the injured obviously is the best witness to what has happened. But this is not a case where his sole statement is sufficient as the complainant himself admits that a number of other people had also gathered there. Naresh Kumar who was an independent witness has been given up for the reasons best known to the prosecution. In these facts and circumstances, I do not find any infirmity in the judgment of learned trial Court, which is affirmed. This appeal is accordingly dismissed. Bail bonds furnished by the respondent are discharged. July 19, 2010 (Dev Darshan Sud) (ms) Judge