HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No. : 119 of 1995 Reserved on: 7.4.2009 Decided on: 10.4.2009 State of Himachal Pradesh ……… Appellant. Versus Charanjit Singh and another ………Respondents. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the Appellant: Mr. R.P. Singh, Assistant Advocate General. For the respondents: Mr.Pankaj Negi, vice Mr.N.K. Thakur, Advocate. Per V.K. Ahuja, J.: This is an appeal filed by the State of Himachal Pradesh under Section 378 of the Cr.P.C. against the judgment of the court of learned Sessions Judge, Una, dated 7.3.1994, vide which the respondents were acquitted of the charge framed against them under Section 333 read with Section 34 of the IPC and Section 332 read with Section 34 of the IPC. The prosecution story in brief is that on 14.1.1991, at 1.15 a.m., a rapat was lodged with the police by H.C. Tilak Raj that today at about 10.30 p.m., he was going to the District Hospital, Una alongwith H.C. Onkar Singh in a three wheeler No.HIH 2342. It was alleged that when they reached in the said three wheeler near Kalgighar Furniture House, one scooter No.HP 20 2241 was parked ___________________________________________ Whether reporters of local newspapers may be allowed to see the judgment? Yes. in the middle of the road. He raised a voice as to why the scooter had been parked in the middle of the road. Three persons were standing there talking to one another. Thereafter, the complainant Tilak Raj alongwith Constable Onkar Singh went away in the said three wheeler and when they reached near the house of one Dr.Nanda, the said scooter came on which two persons were sitting and they parked the scooter in front of the three wheeler in which the complainant was going. It was further alleged that those persons asked the complainant and his companion as to why they had given abuses to them. On this, they came out of the three wheeler and those persons caught hold of them from the neck and gave beatings to them with legs and fists and threw them on the road. It was alleged by the complainant that one fist blow was given on his mouth and his three teeth became loose and when Onkar Singh came for his help, those two persons also gave beatings to him with fists and he suffered injuries. The driver of the said three wheeler took the three wheeler and those persons ran away from the spot after leaving their scooter at the spot. It was alleged by the complainant that they learnt the names of these two persons, who gave them beatings and they proceeded on foot to District Hospital, Una, where the statement of one Vidya Devi was recorded in a poisoning case. The complainant got himself medically examined and the Medical Officer advised X- ray examination of his tooth and they had come on the scooter and his uniform which he was wearing was also torn at the spot. On this report, a case was registered and after investigation the challan was filed before the court of the learned Sub Divisional Judicial Magistrate, Una, who committed the case to the learned Sessions Judge, Una, who tried the respondents leading to their acquittal. We have heard the learned Assistant Advocate General for the appellant and the learned counsel for the respondents and have gone through the record of the case. The submissions made by the learned Assistant Advocate General for the appellant were that the statements of both the eye witnesses, who were also the injured, were sufficient to prove the guilt of the respondents and there has been due corroboration to their testimony from the medical evidence and the learned trial Court had considered the minor contradictions in their statements as fatal to the prosecution case and since those findings were perverse, they are liable to be reversed accordingly. On appraisal of the evidence and record of the case, it is clear that while appreciating the evidence, the learned trial Court had referred to some infirmities in the prosecution case and some contradictions in the statements of the witnesses, which makes the prosecution story doubtful leading to the conclusion that the said evidence was not relied upon by the learned trial Court to hold the respondents guilty. We will make a brief reference to the infirmities pointed out by the learned trial Court and other infirmities and contradictions observed while appreciating the evidence. The learned trial Court had referred to the testimony of PW-1 HC Tilak Raj, who has stated that when he reached near Kalgighat Furniture House, he saw a scooter parked on the road and three persons were standing there talking to one another. Since the scooter was parked in the middle of the road, he asked them to remove the scooter and thereafter they proceeded in the three wheeler and reached near the house of Dr.Nanda. Thereafter, two persons came on the said scooter, stopped the same in front of their three wheeler and they asked them as to why he and his companion had abused them. They came out from the three wheeler. Both the accused caught hold of them from the neck and started beating him with their fists. When Onkar Chand came forward to save him, accused Ravinder asked Charanjit to attend to Onkar Chand. Charanjit started beating Onkar Chand while Ravinder kept on beating him with fists. Revinder hit him on his face as a result of which his teeth became loose. He fell down on the ground and thereafter, both of them left the spot leaving their scooter there. He stated that they took the scooter to the District Hospital and he was confronted with his earlier statement Ext.PA in which it was alleged that they had come to the hospital on foot. PW-2 Onkar Chand, Constable, had materially corroborated the statement of PW-1 Tilak Raj. The prosecution had also examined PW-3 Jagdev Chand, the driver of the said three wheeler in which the complainant and his companion came to the spot. He did not support the prosecution story that any quarrel took place and he was declared as hostile and was allowed to be cross examined by the learned Public Prosecutor for the State. He denied the suggestion that the accused told the police officials that they had come there after abusing them or any fist blows were given by both the respondents to PW-1 Tilak Raj and PW-2 Onkar Chand. He admitted the suggestion that he had seen both the accused sitting around the fire with 7-8 persons, where he had left the police officials. He admitted that it was a Lohri Day, which was being celebrated on that day. He stated that when he left the police officials, he had seen one injury on the forehead of one of them but did not notice any other injury on them. He admitted the suggestion that he had been asked by the police officials to take them to the Hospital to see as to who the scooterist was since the suggestions were put up that the police officials were following a scooterist involved in an accident. He also admitted that when the two police officials boarded his three wheeler, one of them was having injury on his forehead, which rather supports the defence plea that the complainant and his companion had already suffered the injuries chasing a scooter before they boarded the three wheeler and it further suggests that this injury may not have been sustained by the complainant and his companion as a result of blows given by the respondents, which evidence has been discussed by the learned trial Court. The learned trial Court had referred to the testimony of PW-3 Jagdev Chand and the other infirmities pointed out above and it is clear that there is nothing on record to show as to why PW-3 Jagdev Chand will not support the police officials and will support the respondents who were not known to him earlier, as per his statement. The fact that the only independent witness cited has not supported the prosecution story makes the statements of the two police officials doubtful in view of the facts which have emerged on record, as mentioned above. Apart from the above, we may also point out that the house of Dr.Nanda, where the occurrence is alleged to have taken place, is just near the Bus Stand and the time of the occurrence was 9.30 p.m. and at that time, the shops remain open and persons normally are present at the Bus Stand. A perusal of site plan Ext.PM shows that there are shops on the one side of the road and on the left side, there is a Panchayat Ghar as well as a school building and there is nothing to show that no other person was present there, at the relevant time, at those shops or other persons had not seen the occurrence. Therefore, only the driver of the three wheeler was associated by the Investigating Officer and no other person, who may have been present at the spot, was associated, but the statement of the said driver also does not support the prosecution story. The other infirmity pointed out by the learned trial Court and rightly so was that though after the occurrence, PW-1 Tilak Raj was medically examined by the Medical Officer, as per MLC Ext.PC, but for the reasons not brought on record, the other injured, namely, PW-2 Onkar Chand was not examined immediately after the occurrence but his time of examination has been mentioned as 14.1.1991 at 11.15 a.m. The time of examination of PW-1 Tilak Raj has been mentioned as 13.1.1991 at 10.45 p.m. It is in evidence that both the complainant and his companion had gone to the Hospital and no reasons have been given as to why Onkar Chand PW-2 was not medically examined at the same time when PW-1 Tilak Raj was examined, when both of them were present together at the Hospital and had gone there after the occurrence. No explanation has been given for the late examination of PW-2 Onkar Chand, which was done after more than 12 hours of the examination of PW-1 Tilak Raj and the possibility that he may not have sustained injuries at that time or he may have been under the influence of liquor, as was argued, cannot be ruled out. The learned trial Court had also referred to an infirmity in the statement of PW-1 Tilak Raj, who had alleged in Ext.PA that he was hit on the upper jaw which had become loose but in the statement given in the court, he shifted his stand so that it was in consonance with the medical evidence where it was mentioned that there was injury on his lower jaw. There is nothing on record to explain as to why the respondents left the scooter at the spot when it has come up in evidence that they had hit the complainant and his companion, who had fallen on the ground and they had every opportunity to start the scooter and take it away, but there is nothing as to why the scooter was left at the spot. The learned trial Court had observed this fact and had also observed that both the complainant and his companion were also of strong built and there is nothing on the record to show as to any injury or abrasion suffered by the respondents at the spot when fisticuffs were exchanged at that time and in case it was a case of free fight, there was some likelihood of the respondents also suffering some injuries or abrasion. The learned trial Court had also observed that it looks unbelievable as to what prevented the respondents from taking away the scooter with them. Moreover, there is nothing on the record to show as to how the witnesses learnt about the identity of the respondents, except the fact that they were calling each other by these names. It should have been brought on record as to how the names of the respondents were learnt by the witnesses and from whom. The learned trial Court had also observed that it looks surprising that though the occurrence had taken place in which the police officials had sustained injuries, why they did not inform their Senior Officer immediately. The complainant and his companion were supposed to remain at the spot, inform the police and they should have left the place after handing over the scooter to the Investigating Officer, but they took the things very lightly, went in a routine manner to the Hospital, recorded the statement of a witness in a poisoning case, as per their evidence, but this fact has also not been proved on record that they recorded any such statement of Vidya Devi at the Hospital in the poisoning case. They proceeded to the hospital in a routine and the report was lodged at 1.15 a.m. and there is nothing that the Investigating Officer came to the spot immediately or recorded their statements. It has also come up that the special report was received by the learned Judicial Magistrate after a considerable lapse of time, though it was a case in which the report should have been sent immediately to the superior officer and special report should have also have been sent to the concerned Magistrate. A perusal of the record shows that the rapat was lodged at 1.15 a.m., as per Ext.PA, and the FIR Ext.PL was received by the Judicial Magistrate on 14.1.1991 at 11.35 a.m., as per the noting Ext.PL, though in view of the facts, this special report should have been sent immediately to the concerned Magistrate who could have received the same atleast in the morning of 14.1.1991 or when the courts open at 10.00 a.m. There is no reason as to why the special report was not sent to the Magistrate immediately or no special report was sent to any Senior Officer and no Investigating Officer was called to the spot and the complainant and his companion proceeded in a routine manner to the Hospital to do their duty as if nothing has happened. The cumulative effect of the above infirmities in the prosecution case leads to the conclusion that the complete facts were not brought on record by the police and this has led the learned trial Court in disbelieving the testimony of both the eye witnesses. There is nothing on record as to why the respondents will go following the complainant and his companion on their scooter to a place where the three wheeler had stopped in case no abuses had been given by them to the respondents at the earlier place, as alleged by them. There was no provocation for them to give these injuries and it looks unbelievable that they will follow the complainant and his companion without they having abused the respondents. This clearly shows that the complete facts have not been brought on record and the findings of the learned trial Court holding that the prosecution has failed to prove their case beyond any reasonable doubt cannot be termed as perverse calling for an interference by this Court. In view of the above discussion, we find no merit in the appeal filed by the appellant, which is dismissed accordingly. The bail bonds furnished by the respondents shall stand discharged. (Deepak Gupta), Judge. April 10, 2009. (V.K. Ahuja), (TILAK) Judge