HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No. 216 of 2001 Date of Decision:27.3.2008 State of H.P. ……. Appellant Versus Anil Kumar and others …….. Respondents. Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting? Yes. For the appellant -State : Mr. Vivek Thakur, Addl. A. G. with Ms. Shubh Mahajan, Dy. A. G For the respondents : Mr. Rajeshwar Thakur, Advocate. --------------------------------------------------------------------------------------------------- Sanjay Karol, J. (Oral) The present appeal arises out of the judgment dated 19.9.2000 passed by the Judicial Magistrate Ist Class-I, Dharamshala, in Criminal Case No. 92-1/98/97, titled as State of H.P. v. Anil Kumar and others, acquitting the accused of the charged offence. As per the case of the prosecution, the police officials were on patrolling duty at Shahpur Bazar, District Kangra, H.P., when they learnt that on the Pathankot-Mandi Highway, some people were quarrelling with hockey sticks. The said officials visited the spot, when they were informed that one Jaswinder Singh who was injured, had been taken to the hospital. Accordingly, the police officials visited the hospital and got the statement of Jaswinder Singh u/s 154 Cr.PC recorded on 2 the basis of which FIR No.146/95 was registered with Police Station Shahpur under Sections 147, 323, 336, 341 read with Section 149 IPC. The blood stained shirt was taken into possession vide seizure memos Ext.PW-9/A and Ext.PW-8/B and the weapon of offence ‘Khoncha’ (wooden) was taken into possession vide memo Ext. PW-8/A. Injured Udham Singh, Hazara Singh, Jaswinder Singh and Dhian Singh who were also injured were medically examined and their respective MLCs Ext.PW-2/A, Ext.PW-2/B, Ext.PW-2/C & Ext.PW-2/D were also taken by the police. With the completion of the investigation, the challan was presented in the Court for trial against the accused persons for having caused an unlawful assembly and use force and cause violence and voluntarily causing hurt to the witnesses. The accused persons were charged for the offences under Sections 147, 323, 336, 341 read with Section 149 IPC, to which they did not plead guilty and claimed trial. In support of its case, the prosecution examined thirteen witnesses. Statements of the accused persons under Section 313 Cr.PC were also recorded. In defence, the accused examined one witness and placed on record the proceedings and the record of criminal case No. 43/III/1997 titled as State of H.P. v. Jaswinder Singh and others passed by the Judicial Magistrate Ist Class, Dharamshala. 3 Relying upon the material on record, the Court below acquitted the accused of the offences for the reasons that the prosecution had failed to prove its case beyond reasonable doubt and also it could not be held as to whether the accused persons were aggressor party or not. I have heard the learned counsel for the parties and also perused the record. From the said record, Ext.D-1 to Ext.D-10 of criminal case No. 43/III/1997, it is clear that in relation to the very same incident, the spot witnesses herein, namely, S/Shri Jaswinder Singh (PW-3), Dhian Singh (PW-11), Hazara Singh (PW-9), Udham Singh (PW-6), Mukhtiar Singh (PW-7) and Kirti Singh (PW-4), were the accused persons therein. From the testimony of Dr. R. K. Mahajan (PW-1) and Dr. S. K. Sood (PW-2), it is clear that the injuries were sustained by S/Shri Udham Singh (PW-6), Mukhtiar Singh (PW-7), Hazara Singh (PW-9), and Dhian Singh (PW-11), as is evident from MLCs. Ext.PW-2/A, PW-2/B, PW-2/C & PW-2/D, respectively. Undoubtedly, the spot witnesses, namely, PW-3, PW-4, PW-5, PW-7, PW-9, PW-10 & PW-11 have supported the version of the prosecution, but however, keeping in view the defence taken by the accused and also the material placed by them on record, their statements need to be examined with circumspection. 4 S/Shri Udham Singh (PW-6), Vidya Sagar (PW-12) and Kirpal Singh (PW-13) are the witnesses who allegedly have witnessed the recovery of weapon of offence mark ‘X’. From the testimonies of these witnesses, inspite of the fact that they were declared hostile and cross-examined, there is nothing which would show the complicity of the accused in the commission of the crime. The seizure of the weapon of offence not having been proved by the prosecution belies the version that the accused persons had assaulted the complainant with the weapon of offence. It is important to notice that the Investigating Officer has not been examined in the present case. Even the police officials who were on patrol duty and allegedly recorded the statement of the complainant Jaswinder Singh have not been examined as witness. As per the case of the prosecution, Shri Jaswinder Singh got the statement recorded u/s 154 Cr.PC when the police party was on patrol duty. This fact has not only come on record but in fact stands contradicted by the version of PW-4, according to whom, he went to the police station and on the basis of his statement, FIR was recorded. The version of PW-4 also stands contradicted by the version of PW-5 as according to him, it was he who had made a telephone call to the police and the police reached at the spot thereafter. It is the case of the prosecution that it was Jaswinder Singh who had sustained injuries when the accused persons 5 attacked him. Importantly, Shri Jaswinder Singh has not been medically examined at all, which further belies the prosecution version and renders the whole story to be doubtful. The accused persons have placed on record the copy of the judgment Ext.D-1 from which it is clear that the complainant party themselves were accused persons in a criminal case in relation to the very same incident. The complainant herein were given benefit of doubt and were accordingly acquitted. In fact the pendency of the cross case in relation to the very same incident stood admitted by the witnesses in the present case. From the record, it cannot be said with certainty as to whether the accused persons were aggressor and had actually assaulted the complainant party. It is to be noted that PW-9, PW-10 & PW-11 are real brothers and PW-3 & PW-7 are sons of PW-9 and PW-4 & PW-8 is son of PW-11. They have admitted that they were present at the spot together, therefore, they being in large number and the possibility of being aggressors cannot be ruled. The version of PW-7 & PW-8 cast a doubt about the fair investigation. According to PW-7, the police got blank papers signed from him. Further, PW-5 could not state with certainty as to whether the accused persons, as aggressors, had not assaulted the complainant party. It has come on record through the prosecution witnesses that at the relevant time about more than 150 people had gathered. Importantly, none of these persons 6 were associated during investigation or trial. All the spot witnesses are near relations and in the absence of any independent and corroborative evidence, in my view no case proving the complicity of the accused in the commission of the offence beyond reasonable doubt is made out. The accused persons have had the advantage of having been acquitted by the Court below. The trial Court has considered the material in its entirety. There is no illegality or perversity in the appreciation of the evidence and the appeal is accordingly dismissed. Bail bonds stand discharged. I must placed on record the appreciation for the assistance rendered by Shri Rajeshwar Thakur, Advocate, who on the request of the Court had assisted in the matter. ( Sanjay Karol ), Judge. March 27, 2008 (rana)