IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No. 596 of 2000 Date of Decision : 27.2.2008 State of H.P. …Appellant. Versus: Atma Ram & Others …Respondents. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant: Mr. Vivek Thakur, Additional Advocate General. For the respondents : Ms. Devyani Sharma, Advocate. Sanjay Karol, J (Oral). The present appeal arises out of the judgment dated 7.6.1999 passed by the Chief Judicial Magistrate, Bilaspur, H.P. in case No. 219- 1 of 1996/132 - 2 of 1996, acquitting the accused of the charged offences. As per the case of the prosecution, on 31.5.1996 complainant Shri Nikkudeen (PW-2) was running a hotel in the tenanted premises at a place called ‘Baner’, under Police Post Swarghat, Bilaspur, H.P. Adjoining to the said premises, Sh.Amar Singh and Sh. Jeet Ram were having their shops and in the same complex Shri Ramesh Chand, tenant of Shri Atma Ram was also running his business from his shop. In relation to a dispute between Amar 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 Singh and Ramesh Chand, complainant Nikkudeen and Jeet Ram had given evidence against the said Ramesh Chand and Atma Ram. Thus harbouring a grudge against the complainant, on 31st May, 1996, the accused persons entered the complainant’s premises where he alongwith his servants S/Shri Prem Lal (PW-3), Chottu and Raju were present and carrying on their business. Accused Santokh Singh and Pawan caught the complainant from the hair and gave him 5 - 6 slaps. When Shri Prem Lal (PW-3) intervened even he was beaten up by the accused persons. The accused persons were commenting that the complainant had given false evidence. Hearing the noise, Shri Jeet Ram also came at the spot to rescue the complainant but was also beaten up by the accused persons and even he sustained injuries. Somehow, the complainant managed to escape by taking shelter in the nearby shop belonging to Sh. Parkash Chand. On the next day, the complainant lodged a report (Ext.PW8/A) with the Police Station at 10.30 A.M. and on the basis of the same, F.I.R. No.147/96 (Ext.PW6/A) was registered with Police Station, Sadar, Bilaspur, H.P. under Sections 147, 149, 451, 323, 324, 504 & 506 IPC. During the course of the investigation, injured were got medically examined and Medico Legal Certificates (Ext.PW1/A and Ext.PW1/B) were taken by the police. The torn clothes (Ex.P-1 and Ext.P-2) of PW-2 and PW-3 were taken in possession vide memos Ext.PA and Ex.PB by the police. After the completion of the investigation, the challan was presented in the Court for trial. The accused persons were tried together and were charged for offences under Sections 147, 149,451, 504, 323, 324 and 506(II) of the Indian Penal Code The accused did not plead guilty and claimed trial. 3 In order to prove its case, the prosecution in all examined 10 witnesses. Considering the material on record, the learned court below acquitted the accused of the charged offences on the ground that there was unexplained delay in lodging the FIR which was fatal and the statement of the witnesses examined by the prosecution did not inspire confidence and it could not be held that the prosecution had been able to prove its case beyond reasonable doubt. I have heard the learned counsel for the parties and perused the record. In all, the prosecution has examined 10 witnesses. Dr. Piara Singh (PW-1) is the Doctor, who has deposed with regard to the injuries sustained by Shri Nikkudeen (PW-2) and Prem Lal (PW-3). From his testimony, one thing is certain that the said persons had sustained the injuries on their bodies. However, that fact itself would not be sufficient to hold the accused guilty of the alleged offences, particularly when in the cross-examination, the expert has opined that the injuries could have been sustained by falling on the hard surface or could have been self inflicted. ASI Jaram Singh (PW-6), ASI Deep Ram (PW-9) and LHC Man Singh (PW-10) are the police officials, whose testimony is formal in nature. ASI Deep Ram (PW-9) has deposed only with regard to the registration of the FIR. The Investigating Officer, who had carried out the investigation has not been examined by the prosecution during trial. Ramesh Chand (PW-8) has only testified with regard to the taking into possession of the shirt Ext.PA belonging to PW-2. He is not the witness to the incident and also does not narrate the alleged incident. 4 Shri Nikudeen (PW-2), Sh. Prem Lal (PW-3), Sh. Abdul Nazir (PW-4) Sh. Chottu Ram (PW-5) and Sh. Parkash Chand (PW-7) are the spot witnesses, who are alleged to have witnessed the entire incident. Out of the said witnesses, PW-5 and PW-7 have been declared hostile and inspite of cross- examination by the Public Prosecutor, there is nothing in their testimony which would show the complicity of the accused in the commission of the alleged offence. In fact, these witnesses even remotely, do not corroborate the statements of PW-2, PW-3 and PW-4 or support the prosecution case. This leaves us with the statements of PW-2, PW-3 and PW-4. At this point, it is pertinent to notice that PW-2 and PW-4 are real brothers and PW- 3 is the servant of PW-2. They are interested witnesess and, therefore, their testimonies need to be examined with little circumspection, particularly when Sh. Jeet Ram and Amar Singh who were reportedly cited as spot witnesses by the prosecution, were not examined during trial. In my view, witnesses PW2, PW-3 and PW-4 have materially contradicted themselves and their version cannot be believed to prove the guilt of the accused beyond reasonable doubt. The injuries narrated by PW-2 and PW- 3 do not tally with the injuries as shown in MLCs (Ext.PW-1/A and Ext.PW- 1/B). As per the First Information Report (Ext.PW6/A), it is the first version of the complainant that only accused Santokh Singh and Pawan Kumar caught hold of him and gave 5 – 6 slaps and that he had suffered an injury on his right hand. Whereas, as per his statement in the Court, he has referred to the injuries suffered by him on his left hand. In court, he has not referred to any injuries allegedly suffered by him on his face which was so reported by him in the F.I.R. According to the F.I.R., PW-3 Prem Lal sustained injuries on the nose whereas as per M.L.C., no such injuries were found. That apart, Sh.Abdul Nazir (PW-4) does not refer to any injury sustained by PW-2 at all. 5 Perusal of the record would show that PW-2 has been improving upon his statement with the passage of time. In F.I.R., he does not mention the presence of any person belonging to his family, whereas, in his statement in the court, he has referred to the presence of his family members without naming any particular individual. Sh. Abdul Nazar (PW-4) has been examined by the prosecution, as an after thought, only to corroborate the version of PW-2 and PW- 3. In fact, perusal of the statement of PW-4 would show that he has made a general statement with regard to the alleged acts of the accused persons. He does not specifically the particular role of the accused persons. The statements of the witnesses are not in tune with the narration of the manner and sequence of occurrence of the incident as given in the F.I.R. As per version of PW-4 the assailants had entered the premises with Lathis (wooden sticks) in their hand. This, in fact, is not the case of the prosecution nor has it been discovered at any point of time during the investigation. Even PW-2 and PW-3 do not refer to the same. The witnesses have been improving upon their statements and have contradicted the record. Even with regard to the number of assailants there is contradiction. Whereas, PW-2 has referred to the presence of 6 – 7 persons, however, PW-3 refers to the presence of 10 – 12 persons who had assaulted the complainant. The testimonies, in my view, cannot be relied upon to prove the guilt of the accused beyond reasonable doubt. The offence is alleged to have taken place in the night of 31.5.1996. The nearest Police Post was at a distance of 6 – 8 Kilometers. The matter was reported at the Police Post on 1.6.1996 at 10.30 A.M. It is the case of the prosecution and also it has come on the record through the evidence of the 6 witnesses that at the time of alleged incident, other vehicles were also parked outside the hotel run by the complainant. The hotel is situated on a busy road, National Highway – 21. In fact, PW-4 has stated that at the relevant point there were passengers of a bus which was parked outside the hotel. Why no immediate action was taken to report the matter with the police is not evident from the record. Further, why no independent witness or passengers were associated by the police during the investigation or examined by the prosecution during trial has not been explained. The delay in lodging the report in the facts and circumstances of the present case, to my mind, would be absolutely fatal to the case of the prosecution. The story of the prosecution, does not appear to be true and the testimonies of the witnesses do not inspire confidence. The accused have had the advantage of having been acquitted by the court below. The trial court has examined the matter in its entirety and there is no perversity in the same. I see no reason to interfere with the same. The appeal is accordingly, dismissed. The bail bonds are discharged. (Sanjay Karol) Judge. February 27, 2008 (GR).