1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 748 of 2000. Date of Decision: May 2, 2008. _______________________________________________________ State of H.P. Appellant. Versus Rajinder Kumar and others. Respondents. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? No. For the appellant : R.M. Bisht, Deputy Advocate General. For respondents : Shri Neel Kamal Sharma, Advocate. Surinder Singh, J(oral) . The State has appealed against the judgment of acquittal passed by learned trial Court on 19-9-2000 passed under Section 451, 506, 323, 324 and 325, I.P.C. read with Section 34, I.P.C. The leave to appeal was granted on 29-12-2000. Heard and gone through the record. Precisely, the case of the prosecution has been that the respondents herein, are alleged to have entered into the cow- shed of complainant Krishan Lal with an intention to assault him and his wife Leela Devi. They caused simple hurt to both of them with sticks and knife and also grievous hurt to Krishan Lal complainant. The incident was reported to the Police in terms of F.I.R. Exhibit PW1/A. Police visited the spot and prepared the site plan Exhibit PW9/A. The complainant and his wife were medically examined and X-rayed for the injuries. Medico Legal Certificates of Krishan Lal and his wife are Exhibit PW5/C and PW5/D, respectively. Police recorded the statements of the witnesses and Whether reporters of the Local papers are allowed to see the judgment? yes 2 on completion of the investigation, presented the challan before the trial court against the respondents. Finding a prima facie case against the respondents, they were charge-sheeted for the aforesaid offences. They pleaded not guilty and claimed trial. To prove their case, the prosecution examined its witnesses and at the end of the trial, the respondents were acquitted on the ground that there are material contradictions in the statements of the witnesses and further that regarding the same incident, the respondents had also registered a case against the complainant party, meaning thereby there were counter cases of both the parties regarding the same occurrence as admitted by PW1 Krishan Lal. It was not clear as to who was the aggressor and there was no independent witness to corroborate the prosecution version. Therefore, the trial Court gave the benefit of doubt to the respondents and accordingly acquitted them. Shri R.M. Bisht, learned Deputy Advocate General had taken me through the statements of the injured witnesses and ventilated that their evidence is enough to convert the acquittal into conviction. I have carefully gone through the evidence on record. According to PW1 Krishan Lal, he was present in his house on 15-7-1996. At about 4.00 P.M, Sunil Kumar respondent told him to come out. When he came to the door step, the other respondents started beating him with Dandas except respondent Raj Pal (Raj Kumar) who was having a stone in his hand. All of them started beating him. The stone was thrown by Raj Pal which hit Rajinder Kumar respondent. His wife was also given beatings by them and they went to the Police Station to lodge the First 3 Information Report. At that time, the respondents had already reached the Police Station as they had gone in their vehicle. In his cross-examination, he has stated that the quarrel took place for about half an hour. According to him, Bara Ram came first and after about fifteen minutes, Prema also reached the spot. On seeing Bara Ram and Prema, the respondents are alleged to have run away from the spot. He has admitted that the respondents had registered a case regarding the same incident against the complainant party and they are also facing the trial in the counter case. According to PW2 Leela Devi, Rajinder Kumar was having a knife with him. When the quarrel was going on, Namberdar Prema had come to the spot to relieve them from the clutches of the respondents. She has stated that Rajinder Kumar respondent had hit her with a knife whereas, this fact has not been stated by PW Krishan Lal in his statement. In her cross- examination, she has also admitted the presence of Bara Ram along with Prema who had witnessed the knife attack on her but they did not say that she was given any knife blow. She further stated that at that time, Rita had also arrived on the spot. Bara Ram (PW3) stated that the respondents gave beatings to the complainant and his wife. He did not state how the finger of PW2 was cut. He has introduced one Balku in addition to Prema as witness to the alleged occurrence. In cross-examination, he has stated that the quarrel was going on for about an hour and he clearly stated that he did not notice who had hit whom. Prema Ram (PW6) though was cited as eye witness, but according to him, when he reached the spot, incident did not take place in his presence but on reaching the spot, he was told about the injuries sustained by the complainant and his wife. 4 It is pertinent to note that the Doctors who had medically examined PW1 and PW2 were not produced during the trial of the case to prove their injuries as per the medico legal certificates given by them. Shri N.K. Sankhyan (PW7) who was the then Chief Medical Officer of District Hospital, had given his opinion Exhibit PW5/B based upon the X-rays which shows the evidence of fracture of fourth finger of left hand of PW2 Leela Devi. His report is pasted at the end of the treatment history. He did not state that he had consulted the X-rays of PW2 when gave the aforesaid report, nor any attempt was made to identify PW2, with respect to whom the opinion was given. As a matter of fact, the Medico Legal Certificates and the X-rays were not connected with the aforesaid injured persons in absence of the examination of the Doctors who had examined them, for which no cogent explanation has been offered. There has been a counter criminal case inter-se the parties regarding the same occurrence. It is not decipherable whether the respondents were the aggressors because the testimonies of injured persons would be unsafe to act upon in the circumstances when either the alleged eye witnesses had not seen the occurrence as initially alleged in the FIR or not stated as to how the occurrence took place. It is not known from where Balku Ram was also introduced as an eye witness for the first time during the trial in the court. The moot question which remained unanswered in this case is whether the respondents were the aggressors for which the evidence lacks probity. Therefore, in the circumstances, the respondents were rightly given the benefit of doubt. Since there is no perversity in the impugned judgment of acquittal, the appeal is dismissed. The respondents are 5 discharged of the bail bonds entered upon them at any time during the proceedings of this case. (Surinder Singh) Judge. May 2, 2008. (bm)