IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Criminal Appeal No. 38 of 2004 Date of Decision : June 21, 2010 State of Himachal Pradesh Appellant Versus Suresh Kumar and others Respondents Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the appellant : Mr. Ram Murti Bisht, Dy. Advocate General for the appellants. For the respondents : None for the respondents though represented. Sanjay Karol, J. (Oral) For an offence, which is alleged to have been committed on 18.2.2003, accused were put to trial. In terms of judgment dated 15.11.2003 passed by the learned Sub Divisional Judicial Magistrate Rajgarh, Camp at Sarahan, District Sirmaur, H.P. in Criminal Case No. 11/2 of 2003, titled as State of Himachal Pradesh versus Suresh Kumar and others, the accused stands acquitted of the charged offence. 2. As per the case of the prosecution all the accused persons namely Sh. Suresh Kumar, Sh. Dev Raj and Sh. Naresh Kumar, in Whether reports of Local Papers may be allowed to see the judgment? 2 furtherance of their common intention gave beatings to Sh. Narayan Singh (PW-3) with a ‘danda’ and fist blows as a result of which he received injuries. Sh. Ram Gopal (PW-4) came at the spot to defend PW-3 and after seeing him the accused persons flee away from the spot. Thereafter PW-3 reported the matter to the police by making his statement (Ext. PW3/A) on the basis of which F.I.R. dated 13.3.2003 (Ext. PW 8/B) was registered under Section 325 read with Section 34 of the Indian Penal Code with police station, Pachhad. The injured was got medically examined through Dr. M. L. Gupta (PW-2) and his opinion (Ext. PW2/B) was obtained. The medical record of the injured is Ext. PW 1/A. 3. With the completion of investigation challan was filed in the Court and accused persons were charged for having committed offences punishable under Sections 323, 325 read with Section 34 of the Indian Penal Code to which they did not plead guilty and claimed trial. 4. In support of its case prosecution examined nine witnesses and the statements of the accused under Section 313 Cr.P.C was recorded. In defence, plea of alibi was taken by the accused and in support one defence witness was also examined. 5. Appreciating the material on record the Court below acquitted the accused of the charged offence. 6. The prosecution case rests primarily on the testimony of Sh. Narayan Singh (PW-3), Sh. Ram Gopal (PW-4), Sh. Dev Raj (PW-5), 3 Sh. Gita Ram (PW-6), Sh. Ramesh Kumar (PW-7) and Sh. Narain Singh s/o Sh. Rup Singh (PW-9) who are the independent witnesses. 7. PW-6 simply states that he was admitted in the hospital when he saw PW-3 lying on the cot next to his bed. His testimony does not advance case of the prosecution for the simple reason that he has not stated anything against the accused. In fact, in his cross examination he clarified that PW-3 did not narrate the occurrence or the cause of incident to him. Statement of PW-9 also does not advance case of the prosecution as according to him he could not identify the assailants. 8. The relevant statement is in fact of PW-3 and PW-4 who are the only spot witnesses. In my view, it would not be safe to hold the accused guilty of the alleged offence on the sole testimony of PW-3 and PW-4. Undisputedly both are close relatives. Not only that they have materially contradicted themselves while deposing in court. Undisputedly PW-4 is the brother-in-law (saala) of PW-3. Whereas in his examination-in-chief he has stated that seeing him the accused persons ran away from the spot and he also went away to his house in his cross examination he contradicted himself by stating that he looked for the complainant in the bushes for ten to fifteen minutes. That apart his statement does not inspire confidence. Undoubtedly the complainant had suffered injuries allegedly at the hands of the accused persons. Had it been so this witness would not have abandoned the complainant and gone to his house. He also does not depose that he tried to chase the assailants 4 or recover the alleged weapon of offence at the spot. Now PW-3 has a different version. According to him he was alone at the time when he was attacked. 9. It has come on record from the statements of the prosecution witnesses that the alleged offence took place in broad day light and that too in a market place. Why no independent witnesses were associated by the investigating agencies has not been explained by the prosecution. It is not their case that none came forward in support of the complainant. 10. Statement of PW-3 itself does not inspire confidence. According to him he went to the hospital where he was advised by the Doctor to lodge the report. Dr. Harjit Pal Singh (PW-1) who medically examined PW-3 has not so stated. The Doctor has also not ruled out the possibility of the injuries being suffered due to a fall. 11. The alleged weapon of offence has also not been recovered by the police. 12. The accused have had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down in Mohammed Ankoos and others versus Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the persons has resulted into travesty of justice. No ground for interference is called for. The 5 present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. (Sanjay Karol), Judge. June 21, 2010 (PK)