IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No. 208 of 2001 Date of decision : 31.12.2010 ____________________________________________________________ State of Himachal Pradesh …Appellant. Versus Virender Kumar and another …Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? No _____________________________________________________________ For the appellant : Mr. Ramesh Thakur, Assistant Advocate General For the Respondents : Mr. Anup Rattan, Advocate. Deepak Gupta,J (Oral) This appeal by the State is directed against the judgment dated 14.11.2000 delivered by the learned Judicial Magistrate 1st Class, Dharamshala, whereby the accused/respondents have been acquitted of having committed offences punishable under Section 326 read with Section 506 IPC. 2. The prosecution story, in brief, is that on 14.11.1997 at about 4.30 p.m., complainant PW-3 Rajinder Parshad was getting the work of plastering of his house done at his native village Shahpur, when accused Virender Kumar alias Kittu came to his house and ________________ Whether reporters of Local Papers may be allowed to see the Judgment ?Yes 2 stated that he (complainant) had raised the staircase on the land of Kittu etc. and he would get the land demarcated and, therefore, he the complainant should remove the staircase. He then asked the complainant to come out side the house and when the complainant came out side, the second accused who is the real brother of Kittu gave a blow with a sharp edged weapon just above his eye. It is further alleged that Kittu also beat the complainant with a danda which he was carrying. The complainant then raised an alarm and on hearing the cries, his sister-in-law, PW-3 Rajnish, other members of the family and other villagers from the neighborhood gathered there. When his sister-in-law tried to save him, the accused gave a blow on her head and she also sustained injuries and finally they were saved by Sanjeev Kumar and Anup Kumar from the hands of the accused. The report was lodged with the police on 15.11.1997 at 5 p.m. After the FIR Ex.PW-12/A was lodged, the Investigating Officer visited the spot, got the injured medically examined and completed other investigation on the spot. The injuries on the person of the complainant were found to be simple and on Mrs.Rajnish Sharma were found to be grievous in nature. The injuries on both the injured were caused by a sharp edged weapon. After investigation the accused were charged with having committed the offences as aforesaid. They pleaded not guilty and claimed trial. After trial the learned trial Court acquitted the accused. Hence the present appeal by the State. 3. The prosecution in support of its case has examined complainant Rajinder Parsad (PW-2), Smt. Rajnish Sharma the other injured as PW-3 and one Shikha Sharma (PW-6), who is the daughter 3 of PW-3. PW-2 fully supported the prosecution and repeated what had been said in the original FIR. However his version is not fully supported by PW-3. According to PW-2, his sister in law PW-3 arrived after he had been hit and when he raised a hue and cry. PW-3 appeared in the witness box and stated that she had witnessed the entire incident. According to her, she was present on the spot when the accused objected to the construction of the staircase. This version does not tally with the statement of PW-2. According to PW-2, his sister in law PW-3 arrived after he had been hit and when he raised a hue and cry. 4. As far as PW-6 is concerned, she is the daughter of PW-3 and according to her, she had witnessed the occurrence. However, there are some contradictions in her statement also. She was not named in the FIR as the person who had seen the incident in question. Whereas, according to PW-2 and PW-3, it was only accused Kittu who came inside the house and then asked the complainant to go out side the house, this witness states that both the accused had come to the spot and objected to the staircase being constructed by the complainant. 5. The most important lacuna in the prosecution case is that none of the independent witnesses has been examined. According to the statement of the complainant one mason and two other labourers were constructing the staircase. It is also averred that a number of villager come to the spot after PW-2 raised an alarm. According to the prosecution, PW-2 and PW-3 were saved by Anup Kumar and Sanjeev 4 Pathania. None of these persons were examined and there is no plausible explanation for their non-examination. 6. Another lacuna in the prosecution case is that the FIR was lodged after more than 24 hours. This has given ample time to the complainant to give a doctored version of the incident. There is no doubt that some incident did take place, since the suggestions to the complainant are that he was asked to remove the staircase and, therefore, some altercation took place. It was incumbent upon the prosecution to prove that the staircase was being constructed on the land belonging to the complainant. The prosecution has not led any evidence in this regard. No independent witness has been examined. There is delay in lodging of the FIR. The witnesses to the recovery of danda have turned hostile. Furthermore there are various contradictions in the statements of the prosecution witnesses. There was also prior litigation between the parties and therefore the possibility of a false case being initiated cannot be ruled out. 7. Therefore, we find no merit in the appeal which is accordingly dismissed. Bail bonds, if any, furnished by the accused are ordered to be discharged. (Deepak Gupta) Judge December 31, 2010 (Kuldip Singh) (sks) Judge 5 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. LPA No. 151 of 2009 Judgment reserved on 23.11.2009 Date of decision: ____________________________________________________________ State of Himachal Pradesh & Anr. …Appellants. Versus Narinder Kumar & Others …Respondents. Judgment for consideration, please. ( Kuldip Singh) Judge. I agree/do not agree. ( R.B. Misra) Acting Chief Justice List for pronouncement of judgment on__________. ( R.B. Misra) Acting Chief Justice Court Secretary