IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA: Cr.A.No.237 of 2001. Date of Decision : 25th April, 2008. State of H.P. …Appellant. Versus: Partap Singh and another. …Respondents. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 For the appellant: Mr.Vivek Thakur, Addl. Advocate General with Ms.Subh Mahajan, Deputy Advocate General. . For Respondent. Mr.Rajnish Maniktala, Advocate. Sanjay Karol, J(Oral). The present appeal arises out of the judgment dated 30th November, 2000 passed by Judicial Magistrate, Ist Class, court No.2, Palampur, District Kangra, H.P. in Criminal Case No. 61-II/04 titled as State of H.P. Vs. Partap Singh and another acquitting the accused persons of the charged offence under Sections 452 and 323 read with Section 34 of the Indian Penal Code. On 13th December, 1993, a complaint was registered with Police Station, Palampur on the basis of which an F.I.R. dated 13th November, 1993 (Ext.PW-1/A) was registered under Sections 452, 323 and 34 I.P.C. As per the F.I.R. complainant Dilber Chand (PW-1) and his wife Smt. Shakuntla Devi (PW-5) were present in their house when someone knocked the door of their house and shouted for the 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 complainant. The complainant opened the door when he saw accused Gian Chand carrying ‘darat’ (sickle) in his hand, accused Partap Chad carrying motorcycle iron chain and accused Jovan Ram carrying iron rod and “lathies” (wooden sticks) in his hand. The accused persons without any provocation gave beatings to the complainant. Hearing his cry Smt. Shakuntala Devi (PW-5) came at the spot to rescue him. But, however, even she was assaulted by the assailants. After some time Sabnu Ram (PW-4), compaliant’s sister Smt. Ishroo Devi (PW-7), brother-in-law Sh. Ram Parkash (PW-6) and one Harbans Lal their neighbour came at the spot and on seeing them the accused persons ran away from the spot of occurrence. Based on the F.I.R., the investigation was carried out by Inspector Roshan Lal (PW-12) and the injured were got medically examined through Dr.Mrs. P.Singh (PW-9) and Dr.Yash Pal (PW-10). The weapon of offence i.e. iron rod (Ext.P- 2) vide seizure memo Ext.PW-4/A; iron chain (Ext.P-3) vide seizure memo Ext.PW-8/B, darat (Ext.P-4) vide seizure memo Ext.PW-8/A and Danda (Ext.P-1) vide seizure memo Ext.PW-2/A were recovered. The medico legal certificates of PW-4, PW-1 and PW-5 (Ext.PW-9/A), (Ext.PW-9/B) and (Ext.PW-9/C) respectively were taken on record by the Police. With the completion of the investigation, the challan was filed in the Court for trial. All the accused persons were charged for an offence under Sections 452 and 323 read with Section 34 I.P.C. to which they did not plead guilty and claim trial. In order to prove its case, the prosecution examined twelve witnesses and the statements of the accused persons under Section 313 Cr.P.C. were also recorded. The defence of the accused 3 is that there is prior dispute pending between the parties and the witnesses who are close relatives have falsely implicated them in the present case. In their defence they examined Dr.K.C.Kalyan (DW-13) and also placed on record the medico legal certificates of accused Partap Chand (Ext.D-1) and accused Gian Chand (Ext. D-2). The court below, after appreciating the material on record came to the conclusion that the prosecution had failed to prove its case beyond reasonable doubt. The record established prior dispute and animosity between the parties. Even the assailants had sustained injuries and, therefore, it could not be ascertained as to which of the two were aggressor parties. I have heard learned counsel for the parties and also perused the record. In my view the prosecution has not been able to prove the case beyond reasonable doubt. The fact that there is prior litigation and animosity between the parties in relation to a land dispute has been admitted by the prosecution witnesses. The sworn testimony of the spot witnesses i.e. PW-1, PW-4, PW-5, PW-6 and PW-7 is contradictory rendering the prosecution story to be extremely doubtful. The contradictions are material and in the absence of any independent corroboration, their sworn testimony cannot be believed to prove the guilt of the accused beyond reasonable doubt. The contradictions, improvements and variations on record have been culled out as under: Statement of Dilber Chand (PW-1) is replete with the material contradictions, improvements and variations. In his first information report, he has stated that at the time of 4 the occurrence of the incident, all the accused persons, namely, Gian Chand, Pratap Chand and Jovan Ram had came to his house and knocked the door whereas in his sworn testimony he has mentioned the names of only Gian Chand and Pratap Chand who came inside the house and gave beatings to the complainant. This witness has contradicted himself. In his examination-in-chief, he has stated that he and his wife were beaten by accused Gian Chand and Pratap Chand and accused Jovan Ram gave beatings to his brother- in-law Shri Ram Parkash (PW-6). He also identified the stick (Ext.P-1) the weapon of offence. However, in his cross- examination he has deposed that after having received 3-4 blows on his head, he became unconscious and regained consciousness only after about 3-4 minutes. He has categorically stated that he does not know as to who gave beatings to his wife, brother and Ram Parkash. Further, he has admitted in his cross-examination that “Danda” Ext.P-1 shown to him in the court was not the same weapon with which he had been assaulted and suffered an injury. In the F.I.R. he has referred to only three persons as assailants who had given beatings to them. But, however, in Court he has introduced yet another person by the name of Bhawani. Importantly, this person has not been arrayed as an accused nor any investigation has been carried out qua him. He is silent about the fact that any beatings whatsoever were given to either Sabnu Ram (PW-4) or Ram Parkash (PW-6). 5 According to him the incident was witnessed by one Shri Harbans Lal. But, however, in the next breath he has deposed that Harbans Lal, Dr. Raj Kumar and his sister Ishroo Devi came after the occurrence of the incident. He has further deposed that Ram Parkash came only after he had gone off to sleep after the occurrence of the incident. In examination-in- chief, he has deposed that his brother Sabnu Ram was being beaten by Partap Chand and Gian Chand who were having ‘Darat’ and iron rod in their hands respectively. But in cross- examination he has deposed that Partap Chand was carrying a ‘Danda’. Smt. Shakuntla Devi (PW-5) had deposed that the weapon of offence and iron rod was handed over to the police during the investigation. But, however, she has also stated in her examination-in-chief that iron rod Ext.P-2 produced in the Court was not the same with which the complainant was injured as the same was bent from one side. As per the version of Sabnu Ram (PW-4) the weapon of offence i.e. iron rod and darat were handed over to the police by PW-1 whereas as per version of PW-1 the assailants had not left any weapon of offence at the spot. But, in cross-examination he has given yet another version and deposed that the iron rod Ext.P-2 was handed over to the police by PW-5 and darat by accused Gian Chand. As per the version of PW-4 he had heard cries of PW-1 “Mar Diya Mar Diya” which fact stands belied by PW-1 himself as according 6 to him he had become unconscious. PW-4 has further deposed that the weapon of offence were handed over in the Police Station which stands contradicted by the version of Ramesh Chand (PW-2) and Ghogus Ram (PW-3) as according to the prosecution story the same were recovered from the accused persons. Ishroo Devi (PW-7) has deposed that she received injuries due to the beatings given by the assailants which fact, however, stands contradicted by PW-1 and PW-4. As per the version of Smt. Shakuntla Devi (PW-5) he had shown his blood stained clothes to the Investigating Officer which fact is not corroborated by PW-12. Sh. Ram Parkash (PW-6) had deposed that he received injuries on the head given by accused Gian Chand and Partap Chand. This fact has not corroborated by PW-1. In fact, there is no medical evidence to corroborate his version that he received injury on his body. No doubt PW-9 and PW-10 have proved the fact that the injuries were sustained by the witnesses. But, however, that fact by itself would not be sufficient to prove the guilt of the accused beyond reasonable doubt, particularly when the accused persons themselves have established that even they sustained an injury which is evident from Ext.D-1 and Ext.D-2 and the sworn testimony of PW-13. Importantly the investigating agency has not investigated the matter with 7 regard to the same. There is no justification or reason for not having done so. In my view, the prosecution has not been able to prove the recovery of the weapon of offence. The witnesses themselves have refused to identify the weapons which were produced by the prosecution in the Court. Materially Ramesh Chand (PW-2) and Ghogus Ram (PW-3) who were the witnesses to the recovery of the weapon of offence have not supported the case of the prosecution and in spite of having been declared hostile and cross-examined by the Public Prosecutor, there is nothing in their statements which would prove the guilt of the accused persons in the commission of the crime. The accused persons have had the advantage of having been acquitted by the Court below. The material has been appreciated in its entirety. I see no reason to interfere with the appeal and the appeal is accordingly dismissed. Bail bonds are discharged. (Sanjay Karol), Judge. April 25, 2008(R) 8