IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No. 515 of 2003 Date of Decision : 3.4.2008 State of H. P. …Appellant. Versus: Rajinder Kumar …Respondent. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant: Mr. Vivek Thakur, Addl. A. G. with Ms. Shubh Mahajan, Dy. A. G. For the respondent : Mr. Bimal Gupta, Advocate. Sanjay Karol, J (Oral). The present appeal arises out of the judgment dated 21.8.2003 passed by the Judicial Magistrate Ist Class, Court No.3, Shimla, H.P., in Criminal Case No. 78/2 of 2002, titled as State of H.P. v. Rajender Kumar acquitting the accused of the charged offence. Complainant lodged a complaint Ext.PW-2/A with the Police Station Boileauganj, Shimla stating that the complainant an employee of Himachal Roadways Transport Corporation, was driving Bus No. HP-33-5418 from Mandi to Shimla on the 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 National Highway. On 7.5.2002 when he reached at a place known as Tavi Moure near Tutu at about 9.45 a.m., he saw one Ambassador Car No. HP-03-0018 coming from the adjoining old Tutu road and trying to take a pass after blowing a horn. On the main road, a private bus from which passengers were alighting was parked, therefore after overtaking the parked bus he allowed the said Car to cross. However, the accused, got down from the said Ambassador Car and after opening the window of the bus, caught the complainant from the neck and slapped him on his face which was witnessed by the bus passengers. The police stopped the bus at police Check Post, Tavi Moure, where the accused narrated the incident and one of the passengers, namely, Kushal Sharma (PW-1) called at the Police Station Boileauganj and informed the occurrence of the incident. On the basis of the complaint, FIR No.102/02 Ext.PW-4/A under Sections 332 & 353 IPC was registered with Police Station Boileauganj, and the matter was investigated. HC Rajesh Kumar (PW-9) carried out the investigation and prepared the site plan Ext.PW-9/A and recorded the statements of the witnesses under Section 161 Cr.PC. The necessary record showing that the complainant was on duty was also taken on record. With the completion of the investigation, the challan was presented in the Court for trial. Notice of accusation was put to the accused under Section 353 IPC, to which he did not plead guilty and claimed trial. 3 In order to prove its case, the prosecution examined 9 witnesses and statements of the accused under Section 313 Cr.PC was also recorded. Considering the material on record, the Court below acquitted the accused of the charged offence on the ground that the prosecution had failed to prove its case beyond reasonable doubt as the prosecution witnesses had materially contradicted themselves and also that the complaint appeared to be a counter blast to the prior complaint made against him for having driven the vehicle in a rash and negligent manner at the very spot of the occurrence of the incident in question. I have heard the learned counsel for the parties and gone through the record. In order to support its case, the prosecution has examined S/Shri Kushal Sharma (PW-1), Bhag Chand (PW-2), Vijayant Kumar Sharma (PW-3), Pawan Sharma (PW-4), SHO Ashok Kumar (PW-4-A), Roshan Lal (PW-5), ASI Rajinder Kumar (PW-6), Prem Singh (PW-7), Bhupinder Singh (PW-8) & HC Rajesh Kumar (PW-9). The case of the prosecution rests upon the testimonies of PW-1, PW-2, PW-4 & PW-7, who are the witnesses to the occurrence of the incident. Rest of the witnesses are police and other officials who have carried out the investigation and are formal in nature. PW-9 has carried out the investigation of the case. 4 The alleged incident is stated to have taken place at about 9.45 a.m on 7.5.2002. The complainant, who was driving the HRTC bus was on his way from Mandi to Shimla reached at Power House Tutu, where one private bus was parked on the main highway from which passengers were alighting. The complainant after overtaking the stationary bus realized that the vehicle was coming from the adjoining old Tutu road applied his brakes and stopped his bus. Thereafter, the accused is alleged to have got out of the Car and after opening the driver’s window caught hold of the complainant by neck and slapped him. Having gone through the entire record, I am of the considered view that the sworn testimonies of the spot witnesses do not lend credence to the prosecution story. Careful scrutiny of all the spot witnesses would show that they materially contradicted themselves, each other and also the record. As per the version of PW-2, after the occurrence of the incident, he was driving the bus towards Shimla when his vehicle was stopped at a Police Check Post Tavi Moure in relation to a complaint lodged against him for having driven his bus in a rash and negligent manner at the very same spot where the alleged incident took place. He admitted that the said complaint was lodged by the accused. According to him, when the Bus was stopped and police was making an inquiry some of the passengers got agitated and PW-1 made a telephone call to the Police Station, Boileauganj where he brought the Bus and the 5 police conducted the entire proceedings He deposed that he was slapped twice by the accused. Ext.PW-2/A is the report made by the complainant in writing recording the events for the first time. On oath, he admitted that the complaint was not written by him and was made on the asking of PW-1 and he only signed the same. He tried to improve his version and contradict the complaint Ext.PW-2/A which records that the accused slapped him only once whereas in Court he deposed that the accused gave him two slaps on his face. The pendency of a criminal case for having driven the vehicle in a rash and negligent manner is not refuted. As per the version of PW-1, he made a call to the police from his Mobile Phone and the police reached the spot of the occurrence of the incident and carried out the investigation and conducted the proceedings at the spot. Even his statement u/s 161 Cr.PC was recorded by the police on the spot. This version, however, stands materially contradicted by PW-2 and PW-9, according to whom, everything was done at Police Station, Boileauganj. Further, as per the version of PW-1, another bus was parked on the road and before over taking the said vehicle the complainant had also stopped his bus and overtook the parked vehicle at a very slow speed. This version, however, stands contradicted by PW-2, according to whom, he had not stopped 6 his bus behind the parked vehicle and when he over took the same his bus was in speed. Further, PW-1 has deposed that immediately after overtaking the parked vehicle, PW-2 stopped the bus on the side which stands contradicted by PW-2, according to whom he did not stop the bus while overtaking the parked vehicle and giving the pass to the Ambassador Car. PW-4 makes the story of the prosecution to be extremely doubtful, as according to him the proceedings were initiated only at the instance of the passenger of the bus PW-1 Dy. S. P. PW-7 has not supported the case of the prosecution but, however, upon examination by the Public Prosecutor, has given yet another version showing the innocence of the accused, as according to him the accused never got out of the Car and gave any slap to the complainant. PW-2, in his cross- examination has admitted that immediately after the incident he did not lodge any report with the police and it was only when his bus was stopped at the Police Post Tawi Moure, the passengers got agitated and the Dy. S.P (PW-1) provoked him to lodge the FIR. He admitted pendency of a prior complaint lodged against him in relation to an offence which took place at the occurrence of the incident. That PW-2 was driving the bus in a rash or negligent manner was subject matter of the prior complaint. 7 From the careful scrutiny of the statements of the witnesses and for the aforesaid discussion, it cannot be said that the accused had caught the complainant from the neck and slapped him with an intention to prevent or deter him in discharging his official duty as a public servant. The deposition of the prosecution witnesses cannot be said to be reliable as there are major and material contradictions in their version rendering the entire prosecution story to be doubtful. It appears that in order to create defence in his favour, the complainant, on the asking of the Dy. S.P. implicated the accused in the present case. The accused has had the advantage of having been acquitted by the Court below. The material has been appreciated by the Court below in its entirety. There is no perversity in the same and the appeal is accordingly dismissed. Bail bonds stand discharged. ( Sanjay Karol ), Judge. April 3, 2008 (rana)