IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Criminal Appeal No. 258 of 2004 Date of Decision: 24th November, 2010 __________________________________________________________ State of H.P. ….Appellant. Versus Mehar Chand & others ….Respondents. ___________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No. ___________________________________________________________ For the Appellant: Mr. P.K. Sharma, Additional Advocate General. For the Respondent: Mr. Ajay Chandel, Advocate. __________________________________________________________ Dev Darshan Sud, J (oral). The State is aggrieved by the judgment of acquittal passed by the learned Judicial Magistrate Ist Class, Manali acquitting all the respondents for offences under Section 148, 323, 506, 149, 325 readwith Section 34 IPC. The prosecution case, in brief, is that on 20.7.1997 complainant Hardayal Singh alongwith his wife Ijtu Devi, son Rajesh Soni reported to the police that on 19.7.1997 around 11 P.M. Rajesh Soni was returning after attending a marriage at village Jura in the house of Beli Ram. He was confronted on the way by accused persons Mohan Lal, Mehar Chand and Shyam Lal who obstructed his 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes. 2 way. The case is that they illegally restrained him from proceeding further to his destination, beat him up by fist blows and inflicted injuries with a danda (stick). It was alleged that he suffered injuries because of this assault. It is further alleged that at that point of time, the victim was accompanied by his friends Tirth Ram, Ghan Shyam, and Roshan Lal, but they fled away when the accused assaulted the complainant. The case further is that around mid night, i.e. after one hour, accused Mohan Lal, Mehar Chand, Shyam Lal, Manoj, Daulat Ram, Prema Devi, Paini Devi, Jugnu and Som Dev, formed an unlawful assembly and entered the house of the complainant. At this point of time, Mohan Lal is stated to have been armed with a gun and Daulat Ram was carrying a sword. The prosecution case is that Daulat Ram called out the complainant and his wife, when they came out, Daulat Ram hit a blow with a sword to the head of the complainant Hardayal and one blow on the wrist of Smt. Ijtu. They then threatened that they would finish all these people i.e. the complainant and his family. 2. At the time of assault, the complainant and his wife raised an alarm, whereupon one Nirat Ram and Gurdial Singh, who were their guests, came out, rushed outside and saved them from the clutches of the assailants. At this point of time, the sword was also alleged to have been taken into possession which was lying on the spot. At the time, when the assault was in progress, Rajesh Soni was not at home. 3. On the evidence on record, the learned Court acquitted all the accused holding that no offence, as alleged, was proved against the respondents. The learned trial Court considered that the sequence of the prosecution story is that around 11 P.M. at night firstly Rajesh Soni was beaten up and this was witnessed by Tirath Ram, Ghan Shyam and Roshan. When Rajesh Soni appeared as PW5, he stated that when he 3 reached the place at Jura, accused Mohan Lal, Mehar Singh and Shyam had pelted stones at him and they were under the influence of liquor. His case further is that this was followed by blow of dandas but his friends fled away from the spot. He says that as a result of this assault, he became unconscious for about 2 to 4 hours and was unable to move and on the next day in the morning, he was carried to his home by his friends. Thereafter the matter was reported to the police. In his cross examination, he was confronted with his previous statement made to the police. The Court found a number of glaring discrepancies. One was with respect to the manner of assault and the other related to the conduct of the accused party. 4. PW6 Rakesh Kumar also stated that when he was returning in his vehicle, Joginder, Roshan and Chaman Lal had stopped his vehicle nearby village Jagatsukh at around 11 P.M. They asked the occupants of this vehicle to get down and on refusal to do so, they proceeded to smash the glass panes of the vehicle. When this evidence was considered with the statement of PW5 Rajesh Soni, the Court concluded that the case set up by the prosecution is highly improbable as both the sites of assault were at the distance of 1½ Kilometer from each other and time of the assault is the same. There is thus every possibility that the case is fabricated. The Court also held that Ghan Shyam and Roshan who were the independent witnesses had not been produced in evidence. At the time of occurrence also, the evidence of PW7 Tirath Ram does not in any manner tally with the statement as given by the injured. Independent witnesses Ghan Shyam and Roshan were not produced and there is no explanation as to why they had been withheld. The so called weapons of assault were neither produced in Court nor were shown to the 4 Doctor who could ascertain the probable cause of injuries to the complainant by these weapons. 5. The third incident which emerges from the evidence was that the accused persons also assaulted Hardayal and Ijtu Devi. These witnesses admitted enmity between themselves as there are number of civil and criminal cases pending between them. The Court found major discrepancies in evidence as given by them in Court and the First Information Report Ext.PA, which related to the manner of assault and timing etc. The Court also considered the facts that though delay per se of lodging the FIR was not fatal, but there was no explanation as to why it was not lodged at the earliest i.e. the next day though the police station was at a distance of only 6 or 7 Kilometers from the side of incident. 6. I have heard learned Additional Advocate General as also the learned counsel appearing for the respondents. 7. At the outset, I may observe that that the learned trial Court has discussed the evidence of the prosecution witnesses thoroughly. Three incidents were alleged to have occurred at the same time. It was not possible for any party to be present at three sites at the same time. This is a major and fatal flaw in the evidence of the prosecution. As to why independent witnesses have not been examined, no explanation had been put on record of the case. I may observe that on the established facts of enmity between the parties, it was all the more necessary to have examined independent witnesses. The so called weapons of offence were neither shown to the Doctor nor produced in Court. I need not refer to the principles of law that in appeal against the acquittal, when two views are possible, view favourable to the accused, should and ought to be accepted. I do not find any reason to reject the grounds on the basis of which acquittal is based. I have considered the 5 evidence of witnesses and found that essential ingredients in the case are not established. There is thus no merit in this appeal, which is accordingly dismissed. Bail bonds furnished by the respondents are discharged. (Dev Darshan Sud) Judge November 24th, 2010(ms)