IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No. 278 of 2003. Date of Decision: 12.7.2010. _______________________________________________ State of H.P. ….Appellant. Versus. Jiva Nand and others. ….Respondents. Coram: Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting1? For the appellant : Ms. Ruma Kaushik, Addl. Advocate General. For Respondents. : Mr. T.S.Chauhan, Advocate. Dev Darshan Sud, J.(Oral). The State has preferred this appeal against judgment of acquittal passed by the learned Additional Sessions Judge, Mandi. The respondents herein were charged for offences under Sections 353 and 332 read with Section 34of the Indian Penal Code. The prosecution case in brief is that on 19.1.2000 S.H.O. Harbhajan Singh of Police Station, Karsog recorded the statement of PW-7 Durga Singh under Section 154 Cr.P.C. The allegations were that complainant Durga Singh was posted on general duty in Police Station, Karsog and he along with HHC Amar Singh (PW-9) was also accompanying the Whether reporters of the Local papers are allowed to see the judgment? 2 complainant on patrol duty. According to the direction issued by the Station House officer, when the complainant Durga Singh along with Amar Singh reached near the school building at Hiundi, they apprehended Parvati wife of respondent No.1-Jiva Nand who was allegedly carrying two ‘cannnies’ (cans). The complainant Durga Singh checked these ‘cannies’ and found that each contained illicit liquor. The incident is of 1.30 at night. The prosecution story further is that when Parwati was apprehended, all the accused viz. Jiva Nand and Tula Ram came running to the spot. Jiva Nand was armed with ‘Kulhari’ and Deep Ram and Tula Ram were ‘lathies’. At this juncture, Jiva Nand attacked Amar Singh and gave him a blow with the axe which was stopped by complainant Durga Singh. Durga Singh sustained injury on his right hand arm. Thereafter, the other accused Tula Ram also gave one lathi blow on the leg of Durga Singh and this was followed by another blow by Jiwa Nand. Thereafter, all the accused snatched the ‘cannies’ from the police party and ran away from the spot. First Information Report was lodged. The learned trial Court on the evidence of PW-1 Dhani Ram, PW-2 Jodu Ram, DW1 Samru and DW2 Naraotu Ram in conjunction with the medical evidence convicted the petitioners. The judgment has been set aside in the appeal. Considering the judgment of the learned trial Court, I find that the learned trial Court has paid no heed to the fact that PW1 Dhani Ram has admitted that the police party had come to his house in connection with investigation 3 of a case lodged by this witness against the accused persons. The learned trial court simply brushes aside this fact when proceeding to assess the evidence of the prosecution. The learned appellate Court has considered the evidence in some detail. The court holds that Smt. Parwati, who was the wife of Jiva Nand was apprehended by the police party as she was carrying two ‘cannies’ of illicit liquor. The evidence of PW9 says that the ‘cannies’ themselves were empty. The very genesis of the dispute was, therefore, in doubt. The court further holds that even the recoveries vide Ext.PW7/B on 21.1.2000 could not be believed as the other evidence on record was that the recovery was effected on the same day of the incident which is 19.1.2000. The delay of two days is a contradiction which has not been explained. The court further holds that PW9 Amar Singh in his evidence states that he did not receive any injury and that the injury referred to M.L.C. (Ext.PW6/A) on the person of Amar Singh could not be explained by the prosecution. The court further holds that two independent witnesses namely, Tula Ram and Meena Ram were not produced. Therefore, adverse inference had to be drawn against the prosecution. In the totality of the facts and circumstances of the case, the learned appellate court holds that there is a grave doubt as to whether the incident occurred at all in the manner as alleged by the prosecution. Looking to the facts and circumstances of the case, I cannot persuade myself to take different view than 4 that which has been taken by the learned appellate Court. There are major contradictions in the manner in which the incident supposed to have taken place. I do not find any perversity in the judgment of the learned appellate Court. This revision petition is dismissed. Bail bonds furnished by the petitioners are discharged. (Dev Darshan Sud), judge. July 12,2010(R)