IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Criminal Appeal No. 301 of 2003 Date of Decision: 21st July, 2010 __________________________________________________________ State of H.P. ….Appellant. Versus Bir Singh & others ….Respondents. ___________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 __________________________________________________________ For the Appellant: Ms. Ruma Kaushik, Addl. Advocate General. For the Respondents: Shri Anuj Nag, Advocate. __________________________________________________________ Dev Darshan Sud, J (oral). The State has challenged the order passed by the Judicial Magistrate Ist Clas (1), Dharamshala acquitting the respondents for offences under Sections 451, 427 and 323 read with Section 34 of the Indian Penal Code. 2. The prosecution case, in brief, is that on the evening of 9.5.2002 around 7.30 P.M. to 8 P.M. when son of the complainant Rakesh Kumar was engaged in repair work of T.V. Deck etc. in his shop at Ladwara the accused-respondents in furtherance of their common 1 Whether Reporters of Local Papers may be allowed to see the judgment? 2 intention committed trespass, illegally entered the shop and beat up his son with fist blows and kicks. They also destroyed electronic equipment and T.V. sets etc. which was lying in the shop. Ravi Kumar, brother of PW2, was also present in the shop and when the incident took place, he alongwith PW2 fled away from the spot. Complainant PW1 Achhari Devi, mother of Ravi Kumar, went to the spot where she found her both sons missing and after sometime Ravi Kumar, complainant as also their maternal uncle PW4 also reached the spot. PW1 Acchari Devi mother of complainant lodged a complaint Ext.PW1/A with the police on which Rapat No. 14 dated 10.5.2002 Ext.PW8/B was recorded and on the basis of said Rapat, the First Information Report Ext.PW8/C was registered against the respondents. 3. The learned Court, on the evidence on record, acquitted the respondents/accused holding that the incident as alleged has not been proved. To arrive at this conclusion, the learned Court has considered the evidence of PW1 Acchari Devi who is the complainant, PW2 Rakesh Kumar who was injured, PW3 Banti eye witness, PW4 Suresh Kumar maternal uncle of the injured. 4. It is significant to note that in her evidence PW1 Achhari Devi stated that when she reached the spot accused were not present there and admits that there are number of shops adjoining the shop of her son and about 100-150 people were present at the spot. PW2 Rakesh Kumar has contradicted the star witness of the prosecution with respect to the occurrence. At one time, he states that entire incident took place inside the shop and then in cross examination, he says that this incident took place outside the shop. PW3 Banti stated that the accused had beaten PW2 Rakesh Kumar, damaged his counter and goods on which 3 both PW2 and his brother Ravi Kumar ran away from the spot. PW4 is the maternal uncle of both the brothers and stated that on 9.5.2002 at around 8 P.M. Ravi Kumar came to his house and disclosed that accused had damaged his shop and beaten up his brother PW3 Rakesh Kumar. He states that the accused were not present on the spot when he reached there and articles were lying in damaged condition in the shop. But in cross examination, he admits that Ravi Kumar came to his house around 4/5 p.m. and informed him that a scuffle had taken place in a function and names of persons who were involved in the scuffle/fight were not known to him. He also says that when he reached the spot around 150-200 persons were present at that time and accused had fled away from the scene of occurrence. The learned trial Court, after considering the evidence of all witnesses, holds that Achhari Devi has stated in her cross examination that she found the accused present on the spot, whereas PW4 Suresh Kumar stated that when he reached the spot nobody was present. On the evidence of Banti, the Court notes that he states that when the respondents-accused started beating up PW2 Rakesh, he ran away from the spot but Ravi Kumar remained in the shop, which is in direct contradiction to the statements made by other three witnesses examined by the prosecution to establish this fact. The medical evidence has not been relied upon because the medical examination was not carried out immediately after the so called assault but the same has been done after a lapse of more than 22 hours. The Court also notes that there is enmity between the complainant’s son Rakesh Kumar as also accused because of some kind of marriage relationship. The testimony of injured PW2 Rakesh Kumar was clear that the so called scuffle had taken place on the 4 road and therefore the offence under Section 451 of the Indian Penal Code had not been proved on record of the case. 5. After having considered the evidence in detail and findings of the trial Court, I cannot persuade myself to come to a different conclusion than even reached by the trial Court. The evidence of other witnesses contradicts not only the others with respect to the material particulars of the assault but also to the fact that brother of injured PW2 had himself disclosed to PW4 Suresh Kumar that he was not aware that who were the assailants. In these circumstances, merely the statement of PW2 Achhari Devi that the assault took place cannot be relied upon. The delay in medical examination also creates a serious doubt that he sustained injuries in the fight. 6. In these circumstances, I do not find that the learned Court below has committed any mistake in arriving at the conclusion that the prosecution had not been able to prove the case against the respondents. This appeal is accordingly dismissed. Bail bonds furnished by the respondents shall stand discharged. July 21, 2010 (Dev Darshan Sud) (ms) Judge