IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 312 of 2002 Date of decision: 1.1.2009. State of H.P. …. Appellant. Vs. Kansi Ram and another ... Respondents. Coram The Hon’ble Mr.Justice Deepak Gupta, J. Whether approved for reporting?1 No. For the appellant-State: Mr. Rajesh Mandhotra, Dy.Advocate General. For the respondent: Mr. Dinesh Sharma, Advocate. Per Deepak Gupta, J. (Oral) This appeal by the State is directed against the judgement of the learned Additional Chief Judicial Magistrate, Arki , District Solan, in Criminal Case No. 41/2 of 1997 dated 12.6.2001, whereby he acquitted the accused of having committed offences punishable under Sections 325 and 506 read with Section 34 IPC. Brief facts of the case are that the complainant Vidya Sagar is the real brother of Kansi Ram and uncle of Hem Chand who is the son of Kansi Ram. The prosecution case is that a partition has taken place between the family. The accused persons were not satisfied with the partition of the house and therefore, on 21.3.1997 at about 9 a.m. the two accused persons came to the house of the complainant. They abused the complainant and caused injuries to the complainant with a Jhhabal. The complainant raised an alarm and on hearing his cries his wife reached the spot. The wife was also beaten by the accused persons. Thereafter, the complainant lodged the complaint with the police, on the basis of which F.I.R. was lodged. After investigation, the prosecution filed the challan. The accused were 1 Whether the reporters of the local papers may be allowed to see the Judgment .yes. 2 summoned. They appeared in Court and pleaded not guilty and claimed trial. After trial they have been acquitted. Hence, the present appeal. The three witnesses examined by the prosecution are the complainant, his wife and his daughter-in-law. The complainant appearing as PW-2 has supported his version in examination-in-chief. She also states that when she raised an alarm Numberdar Neem Chand came to the spot and on seeing Neem Chand the accused fled away from the spot. Neem Chand was not examined by the prosecution in Court. He was the only independent witness to the occurrence. No cogent reason has been given for his non- examination. There may be cases where only family members are available and the evidence of the family members cannot be discarded only on the ground that they are family members. However, in a case where independent witnesses are available, the prosecution must try and examine the same. In the present case, there is great doubt as to whether PW-1 Suharu Devi, wife of the complainant, in fact, witnessed the incident or not. In examination-in-chief she has stated that when her husband was about to leave for work at about 7.45 am accused gave him a Jhabbal blow. She tried to rescue her husband upon which she was pushed and her bangles were broken. She was also beaten by accused Hem Chand. She states that thereafter she summoned the Numberdar through her daughter and then accused ran away. In cross-examination, she clearly stated that she had not actually witnessed the incident and she had stated whatever had been told to her by her husband. Her statement is also contrary to that of her husband because according to her she through her daughter-in-law summoned the Numberdar whereas the complainant states that the Numberdar came on hearing his cries. 3 The name of Shri Neem Chand does not find mention in the original complaint and it is apparent that his name has been introduced only at the stage when the matter was pending in Court. The testimony of Suharu Devi is also doubtful because according to her she was beaten up and her bangles were broken. According to the complainant, neither his wife nor his daughter-in-law was wearing any bangles. The complainant has also admitted that due to some ailment his wife cannot walk and he has admitted that his wife did not reach the spot because she is unable to walk. Therefore, the question of her bangles breaking on the spot did not arise. She was not got medically examined. The Jhhabal was also not recovered. It has also come in evidence that there are number of houses of other villagers near the house of the complainant. If a fight had taken place at about 8 a.m in the morning some of the neighbours would have witnessed the fight. Their non association in a case where their relations between the parties were admittedly strained leads to an adverse inference being drawn against the prosecution. Keeping in view the contradictions in the prosecution case, the non examination of Neem Chand or any other independent witnesses, the non recovery of the Jhhabal and the fact that the presence of the star eye witnesses Suharu Devi on the spot is extremely doubtful, the learned trial Court was fully justified in acquitting the accused. I see no error in the judgement of the learned trial Court. The appeal is accordingly dismissed. Bail bonds furnished by the accused are ordered to be discharged. January 1, 2009 ( Deepak Gupta ), J. ™