IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.A. No. 135 of 1997. Decided on: 12.8.2010. ___________________________________________________________ State of H.P. … Appellant. Versus Mangal Singh and another. … Respondents. ___________________________________________________________ Coram: Hon’ble Mr. Justice R.B. Misra, Judge. Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 For the appellant : Mr. Anil Jaswal, Dy.A.G. For the Respondents : Mr. K.S. Pathania, Advocate. ___________________________________________________________ R.B. Misra, J. (Oral). The present criminal appeal has come up for consideration after leave to appeal has been granted, under Section 378 (3) Cr.P.C., in reference to the impugned judgment, dated 4.3.1996, passed by the Chief Judicial Magistrate, Bilaspur, acquitting the respondents-accused for the alleged involvement for the offences under Sections 323, 325, 382 IPC read with Section 34 IPC. 2. On 21.6.1994 at about 8.00 p.m. at place Jhandutta, P.S. Sadar Bilaspur, both the accused persons in furtherance of their common intention allegedly assaulted one Deep Chand and tried to drag him out of the vehicle in which he was sitting. It so happened that at the relevant time Shri Deep Ram was driving a water tanker belonging to the Irrigation & Public Health Department 1 Whether reporters of the local papers may be allowed to see the judgment? 2 and complainant PW1 Babu Ram was also on duty at the relevant time being a boat operator. The officials were stated on duty to distribute the water in the area concerned. The accused persons who were being accompanied by 3-4 other persons at first asked Deep Chand to take vehicle and to follow the bus but when said Deep Chand declined to do so, the accused along with their companions started assaulting Deep Chand. The complainant Babu Ram, who intervened and tried to rescue Deep Chand made escape by driving the vehicle from the spot, whereas, Babu Ram was given beatings by accused. On account of the alleged beatings given to Shri Babu Ram complainant simple and grievous injuries with blunt weapon were received by him who also in the process lost an amount of Rs. 930/- and a wrist watch which was stated to have been taken by the accused. Due to the intervention of one Mangal Singh and Reham Deen, the accused was rescued from the clutches of the accused. 3. On the statement of complainant Ext. PW1/A recorded by ASI Suraj Parkash at Jhandutta formal FIR Ext. PW6/F was registered at P.S. Sadar Bilaspur. The police during investigation prepared site plan Ext. PW6/A and also took into custody shirt Ext. P1 on being produced by Pardeep Chand alias Deep Chand which was alleged to have been torn by the accused. Injured Babu Ram was also got medically examined and his MLC is Ext. PW7/A along with x-ray report Ext. PW7/B and films Ext. PW7/C, Ext. PW7/D and Ext. PW7/E. After completion of the investigation, the challan was presented in the Court and accused were charged for the alleged offences under Sections 323, 325 and 3 382 IPC read with Section 34 IPC to which they pleaded not guilty and claimed to be tried. 3. In order to prove its case, prosecution examined as many as seven witnesses, whereas, in their statements under Section 313 Cr.P.C. the respondents-accused have denied the prosecution case. 4. PW2 Mangal Singh and PW3 Rahim Deen, the two independent witnesses have failed to corroborate and endorse the prosecution version on material particulars. PW2 Mangal Singh has specifically stated that he did not see the incident. PW3 has stated that there was scuffle between the complainant and respondents-accused and further clarified that the dispute between the parties was on account of civil litigation. 5. PW1 Babu Ram himself has admitted in cross- examination that 3-4 other persons besides the accused had beaten him but has not named them. 6. PW4 Pradeep Chand @ Deep Chand has also stated that a person at a place Jhandutta forcibly entered in the vehicle being driven by him had asked PW4 to drive the vehicle but as the said request was not entertained, thereafter, the person got down from the vehicle and tried to pull him also out. PW4 has further stated that in the process, his clothes were torn but was rescued by PW1 Babu Ram. In cross-examination, PW4 has stated that only one person had entered the vehicle, however, such version is contradicted by the deposition of PW1 Babu Ram, who has stated that both the accused persons had entered the vehicle along with few other persons. 4 7. PW5 Avtar Singh has stated that at the relevant time he was working as Conductor with the Tanker being driven by PW4 Kuldeep Chand. Neither PW1 Babu Ram nor PW4 Pardeep Chand alias Deep Chand referred to the presence of PW5 Avtar Singh on the spot being Conductor. 8. We also take note of that the name of PW5 was not mentioned in the FIR according to PW1 Babu Ram and PW4 Pardeep Chand who stepped into the witness box. 9. PW7 Dr. Rajesh Kumar has medically examined PW1 Babu Ram and has observed injuries on the person of Babu Ram. However, inflicting of injuries was not observed by the witness and prosecution has also failed to corroborate the deposition of any of their prosecution witnesses that injuries were actually caused by the accused. FIR appears to have not been recorded by the police as per the version given by the complainant immediately after the occurrence, there is delay of 18/19 hours in filing the report without explanation. Such delay casts a serious doubt in the prosecution case and the possibility of concoction, consultation and deliberation in recording of the report cannot be ruled out. More so, when besides accused there were 3-4 other persons on the spot and if at all any injury was caused to the person of the complainant, possibility cannot be ruled out that the said injuries might have been caused by the other persons than the accused. Moreover, version of complainant does not find corroboration either from the testimony of the material eye witnesses cited nor the driver and conductor of the tanker with whom the complainant at the relevant time was travelling. 5 10. After observing the material discrepancies and inconsistencies in the prosecution witnesses, the trial Court has rightly arrived at the finding that the prosecution has miserably failed to bring home the guilt to the accused and has failed to prove its case beyond any reasonable doubt. Therefore, the present appeal being devoid of any merit is dismissed. (R.B. Misra) Judge. (V.K. Sharma) Judge. August 12, 2010. (cr)