IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No. : 57 of 1999. Decided on: 19.05.2010. _________________________________________________________ State of Himachal Pradesh. …Appellant. -Versus- Dev Raj and others. …Respondents. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1No. __________________________________________________________ For the appellant : Mr. Rajesh Mandhotra, Deputy Advocate General. For the respondents : Mr. Virender Rathore, Advocate. ---------------------------------------------------------------------------------------- Deepak Gupta, Judge(Oral) : This appeal by the State is directed against the judgment dated 05.09.1998, delivered by the learned Additional Sessions Judge (I), Kangra Division at Dharamshala in Sessions Case No. 1-N/98, whereby the accused have been acquitted of having committed offences punishable under Sections 147, 148 and 302 read with Section 149 of the Indian Penal Code. 2. Admitted facts are that deceased Tilak Raj lived in one house alongwith his brothers. The mess was not joint and they used to live in separate portions, but in one building. It is not in dispute that the accused Nos. 1 to 4 are real brothers and 1 Whether the reporters of the local papers may be allowed to see the judgment?.Yes. accused No. 5 is the wife of accused No. 2, Santokh Ram. They are the neighbourers of the deceased. 3. According to the prosecution, on 25.01.1997 at 9:20 a.m., Bal Krishan (PW-4) lodged a report with the Police Station Indora to the effect that his deceased brother Tilak Raj was residing in village Sanjwan alongwith his youngest daughter Tripta Devi (PW-11). According to him, on 23.01.1997, when he reached home, he came to know that his brother Tilak Raj had been beaten up by all the accused and he was not talking or eating. He, however, did not bother to visit his brother on that day and next morning he went to the house of his brother, who was lying unconscious. Then, he telephoned his other brother Narayan Dass, who reached on 24.01.1997 and thereafter, a complaint was lodged in the morning on 25.01.1997. 4. According to the prosecution, the deceased was beaten up by the accused at about 9:30 p.m. on 22.01.1997. There is obviously an inordinate delay in lodging the F.I.R.. It was for the prosecution to explain this delay. In the F.I.R., the delay is being explained by stating that on 22.01.1997, the deceased was lying unconscious in the house with his daughter. On 23.01.1997, in the evening, the complainant Bal Krishan was informed by his wife that his brother Tilak Raj was in a serious condition. In fact, in the F.I.R. PW-4 Bal Krishan has given two dates about the receipt of the information. In one part, he stated that on 22.01.1997 itself he came to his home, whereas in the second part, he stated that he came on 23.01.1997 in the evening. Taking the case of the prosecution at its best, that he came home for the first time on 23.01.1997, there is no explanation why this person did not lodge the report with the Police immediately. According to him, he informed his brother Narayan Dass who was working at Thein Dam telephonically. If he could have informed his brother Narayan Dass telephonically, what prevented him from informing to the Police telephonically that his brother Tilak Raj had been beaten up. In fact once the injured had been beaten up by the accused, his dauther Tripta Devi (PW-11) who was residing with him could have lodged the report. According to the prosecution, PW- 5 Kewal Krishan, another brother of the deceased had witnessed the occurrence on 22.01.1997 itself. However, no explanation has been given by Shri Kewal Krishan (PW-5) as to why he did not lodge the report. Merely stating that they were waiting for all the brothers to come is not a reasonable and plausible explanation. 5. We are dealing here with a case where according to the prosecution, the deceased brother was beaten up so mercilessly by the accused party that he lost consciousness. He could not eat, talk or drink. Despite this, he was not taken to the hospital and no complaint was lodged with the Police. It is not as if the complainant side belongs to that strata of society which is ridden by poverty. As admitted by the prosecution witnesses and the case set up by them, one of them owned a flour mill and one of the accused persons owed more than one thousand rupees to the deceased. Therefore, it would not have been difficult for them to arrange money and transportation to carry the injured to the hospital. It has also come on record that hospital at Indora is barely 15 k.m. away from the place of occurrence. Telephone facilities were also available in the village. Therefore, there is no reasonable explanation for not lodging the F.I.R. within time. 6. In the present case, the only witnesses, who have supported the case of the prosecution, are PW-5 Kewal Krishan, brother of the deceased and PW-11, daughter of the deceased. In a case where the F.I.R. is lodged after such a delay, the possibility of this time being used by the interested witnesses to come up with the false story cannot be ruled out. None of the independent witnesses have supported the prosecution case. 7. PW-4 Bal Krishan is the complainant. He obviously was not present when the incident took place. There are material contradictions in his statement, as already pointed out hereinabove. 8. PW-5 Kewal Krishan stated that he saw the accused inflicting blows on his brother. The first blow was inflicted by accused Kanta Devi with a danda. He stated that during the said process, Kanta Devi and Santokh accused also sustained minor injuries. We fail to understand how a person, who was un-armed and was attacked by five persons armed with dandas could have inflicted injuries on the accused. According to this witness, he witnessed the occurrence in the light of a bulb. He was confronted with his statement recorded under Section 154 of the Criminal Procedure Code, where there is no mention of any bulb being there. This witness also stated that while this occurrence was going on, Swaran Singh, Sarla Devi, Tilak Raj and Ram Lal came there and thereafter the fight stopped. 9. Sarla Devi was examined as PW-6. She did not support the prosecution case at all. In fact, according to her, Radha, daughter of accused Kanta Devi came to her house at about 9:30 p.m. on 22.01.1997 and complained that the deceased was harassing her mother accused Kanta Devi . Sarla Devi (PW-6) then went to the house of Kanta Devi, where the accused was also present. Tripta Devi (PW-11) was standing there and one Ram Payari, sister-in-law of Kanta Devi was also present. According to Sarla Devi, no other person was present there. Kanta Devi had a tooth in her hand. No fight took place in her presence and Tilak Raj was not beaten up by anybody. 10. Statement of PW-8 Narayan Dass, brother of the deceased is not material since he was not an eye witness of the occurrence. Further, there are material contradictions in his statement and the statement of PW-4 Bal Krishan. According to PW-4, it was he who informed Narayan Dass about the deceased Tilak Raj being beaten up, but according to PW-8 Narayan Dass, it was his son Parveen Kumar who informed him about the occurrence. 11. PW-11 Tripta Devi has supported the prosecution version. She also stated that Sarla Devi and Ram Lal rescued her father. As already stated above, Sarla Devi had not at all supported the prosecution version. The other independent witnesses were all given up. 12. In this case, the only independent witness examined, i.e., Sarla Devi has not supported the prosecution case. As observed above, there is great delay in lodging the F.I.R. and, therefore, it would be very risky to rely upon the statements of the family members alone in the peculiar facts and circumstances where the family members did not care to take the seriously injured person to the hospital or lodge the report in the Police Station though both the hospital and the Police Station were not very far off. There are injuries on the person of accused Dev Raj and Kanta Devi. Therefore, the defence version that on 22.01.1997, deceased Tilak Raj had beaten Kanta Devi and Dev Raj and had thereafter run away and returned on 25.01.1997 morning in serious condition cannot be discarded, especially when there is no plausible explanation as to why he was not taken for treatment for three days. It has also come on record that the house of the injured adjoins the main road where a number of buses ply, therefore, there was no dearth of transportation for the family members to go to the Police Station. 13. It has also come on record that the deceased was a very quarrelsome person and there a number of criminal cases were pending against him. In fact, the brother of the deceased himself admitted that the deceased once stabbed his elder brother Prakash Chand. 14. Keeping in view all the aforesaid facts and circumstances, especially the fact that there is inordinate delay in lodging the F.I.R. and the fact that none of the independent witnesses have supported the prosecution, we feel that the learned trial court was fully justified in acquitting the accused and there is no reason to interfere with the judgment of the trial court. In view of the above discussion, we find no merit in this appeal, which is accordingly dismissed. The bail bonds are ordered to be discharged. (Deepak Gupta), Judge (Rajiv Sharma) Judge May 19, 2010. (bhupender)