IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 317/2004 Date of decision: 26.5.2011 State of H.P. …..Appellant Versus Prashant Kumar ……Respondent Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 no For the Appellant: Mr. A.K. Bansal, Addl. Advocate General. For the respondent : None. Surinder Singh, J. (Oral) Respondent was acquitted for the offences punishable under Sections 323 and 325 Indian Penal Code by the learned trial Court hence the present appeal by the State. 2. Shri. A.K. Bansal, Learned Additional Advocate General vehemently argued that the learned trial Court has given too much importance to the minor contradictions in the statements of the witnesses, whereas the statement of the complainant is worth inspiring confidence which can 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes - 2 - be acted upon. Since the impugned judgment passed by the learned trial Court is perverse, the acquittal of the respondent requires interference. 3. To appreciate the arguments of the learned Additional Advocate General for the State, the background facts can be stated thus. On 4.6.2003 during the intervening night of 3rd /4th June, 2003, the complainant (PW10) Pawan Kumar was sleeping on the “Tiyala” beneath the “peeple tree”. Around 12.30 a.m. respondent is stated to have come there and hit Pawan Kumar aforesaid on his head, hand and legs with a stick. PW4 Tilak Raj, Charan Dass, Suresh Kumar and Raj Kumar got attracted by the cries raised by the complainant. They reached the spot. On seeing them, respondent threw the danda on the spot and escaped. 4. The matter was reported to the police. Pawan kumar aforesaid was got medically examined. His MLC is Ext. PW9/A. PW9 Dr. Shashi Dutt Sharma noticed the following injuries on the person of Pawan Kumar:- (i). An abrasion on left fore arm size 2x1 cm red in colour. (ii). swelling on left elbows joint with restuction movement. - 3 - (iii). An abrasion on left are posteriorly near elbow joint. (iv). Two parallel bruises on left leg lateral aspect size 2x1 cm. 0-5 cm. Apart. (v). A Bruise near left ankle joint on latel aspect of the left leg 1x1 cm. 5. Injured was X-rayed for left elbow joint and left forearm by PW5 P.C. Verma under his supervision through PW3 Jeewan Kumar Radiographer. In the opinion of the Radiologist, there was a fracture of ulna of the left fore arm. 6. The police recovered the danda, alleged weapon of offence and after recording the statements of the witnesses, presented the challan against the respondent in the Court for trial. 7. Respondent was accordingly charge sheeted, tried, and acquitted as aforesaid on the ground that there are contradictions in the statements of prosecution witnesses and further that the recovery of the danda was a farce. Since the statements of the prosecution witnesses do not inspire confidence as such respondent was given benefit of doubt and accordingly acquitted. 8. I have reappraised the evidence on record to appreciate the arguments advanced by the learned Additional Advocate General. - 4 - However, no one appeared on behalf of the respondent. 9. PW10 Pawan Kumar stated that when he was sleeping he was given a danda blow on his left leg and arm by the respondent. PW4 Tilak Raj, Charan Dass, Suresh Kumar and Raj Kumar had relieved him from the clutches of the respondent. Respondent throw danda on the spot and fled- away. He admitted in cross examination that Tilak Raj is his maternal uncle. No other independent witness, as named by him initially, was examined to substantiate this version except PW2 Shri Sanjay Kumar whose name has not been stated by him as an eye witness. Even he stated, during the trial that his statement was not recorded by the police under Section 161 of the Code of Criminal Procedure. PW4 Tilak Raj stated that he was first to reach the spot whereas PW2 stated that it was he who reached the spot first, followed by others. He further stated that respondent had given danda blows on the head of Pawan Kumar whereas no such injury was detected or stated by the injured on his head. The doctor stated that the injury in question, including the fracture can also be caused by a fall. It has come in evidence that the Nana of the respondent was a - 5 - tenant, though the suggestion has been made that in order to vacate the tenanted premises; respondent was framed in the present case. 10. Further PW11 HC Jagdish Kumar Investigating Officer stated that PW10 Pawan Kumar produced danda in question before him which was taken into possession whereas Pawan Kumar himself did not endorse this statement. Even PW4 Tilak Raj stated that the danda was produced by Charan Dass and Raj Kumar to the police in the police post but he did not name Pawan Kumar. Though PW10 Pawan Kumar stated that he had advanced money to the respondent and it was not repaid by him, when he raised the demand, respondent had administered threatening to him, but this fact pertinently does not find mention in the report Ext. PW6/A lodged by him to the police. 11. In so far as the report which was alleged to have been lodged by the complainant is concerned, PW4 MHC Surjit Singh stated that PW4 Tilak Raj was accompanying the injured and whatever Tilak Raj was stating, he jotted down in the report. Tilak Raj appears to be interested witness and is a close relative of the injured. The manner, in which the incident is alleged to have taken place, is - 6 - doubtful. The learned trial Court also noticed the above facts while recording the acquittal of the respondent, which are borne out from the record. As such the acquittal of the respondent cannot be interfered with. The appeal sans merit and is accordingly dismissed. 12. The respondent is discharged of his bail bonds entered upon by him at any stage during the proceeding of this case. May 26, 2011 (Surinder Singh), (cm) Judge.