IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 141 of 2002. Date of decision: 17.12.2008 State of H.P. ... Appellant Versus Rajesh @ Kaku & Ors. … Respondents Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant: Mrs. Shubh Mahajan, Deputy Advocate General. For the respondents: Mr. Anoop Rattan, Advocate. V.K. Ahuja, J. (Oral): This is an appeal filed by the State of H.P under Section 378 Cr.P.C. against the judgment of the Court of learned Judicial Magistrate Ist Class, Dharamshala, dated 18.9.2001, vide which the respondents were acquitted of the charge framed against them under Section 325 I.P.C. read with Section 34 I.P.C. Briefly stated, the facts of the case are that in 22.12.1999, at about 10.10.P.M., a rapat was lodged with the police by Purshotam Singh accompanied by his son Sukinder. It was alleged therein that his house is near the house of Pradhan Sanjeev and at bout 8.30. P.M., when his son went to their land he found that Sanjiv @ Lucky and two other respondents accompanied by the labourers were digging the boundary of their land. His son informed him in this regard and when he went to the spot, he asked the respondents as to why they 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - were doing this work during night time. The respondents released their dog, which gave a bite on his left leg. He fell down and the Pradhan Sanjiv took up Gainti and started to give him beatings. He further alleged that when he had fallen on the ground, he was given beatings with fists and when his son Sukinder tried to rescue him, the blows were given with fists on his mouth by the respondents. He alleged that he was rescued by the labourers and Ward Panch who had also seen the occurrence. On this rapat, a case was registered subsequently and after investigation, the challan was filed as against the respondents before the learned trial Court, who tried the respondents, leading to their acquittal. I have heard the learned counsel for the parties and have gone through the record. On a perusal of the record of the case, it is clear that the police set in motion on registration of the rapat Ext.PW6/B, the contents of which have been mentioned above. To substantiate these assertions, the complainant Purshotam Chand stepped into the witness box as PW-3 and has stated that Lucky @ Sanjiv was giving a boundary wall to the land. He went to Ward Member. He brought him to the spot who asked him to go to the place and he will follow him. He found 40-45 persons working there and when he asked Lucky in this regard, he released his dog, which gave him bite on his leg. He fell down and was given beatings and his son Sikander also reached there and Ward Member also reached there and respondents started giving beatings to his son and broke his tooth. He did not state specifically as to which of the respondents gave beatings to his son with fists and he had stated in general only. In regard to the beatings on his person, he has simply stated that the respondents started giving him beatings but he did not - 3 - state if it was given with any weapon or legs or fists as alleged in the rapat lodged with the police. He stated in his cross-examination that it has been mentioned by him that 40-45 persons were working there as labourers and he was confronted with his statement under Section 161 Cr.P.C., in which it was not so recorded. He admitted that he has land dispute with the respondents, which was denied by PW-4 Sikander Singh, his son, when he appeared in the witness box. PW-4 Sikander Singh has stated that when he saw the respondents digging the land, he went and informed his father and then they informed Kuldeep, Ward Member, who came to the spot and his father was being given beatings and the respondents had also let loose a dog. He further stated that when he tried to rescue his father, he was also given beatings by all the respondents with fists and they broke his tooth. He did not state if his father was given beatings with the help of a weapon or legs and fists. He also stated that all the three respondents gave blows on his mouth, which looks improbable that all the three gave fists blow together. In cross-examination, he has stated that he had mentioned in his statement that 20-25 persons were working there and he was confronted with his statement, wherein it was not so recorded. He has admitted that Kuldeep, Ward Panch had come to the spot at that time. He is also not clear if the blow was given to him by Lucky since he stated that it was dark at that time, which is contrary to the version given by him in his examination-in-chief. The only independent witness who had come to the spot and seen the occurrence is PW-5 Kuldeep Singh, Ward Panch, who has stated that he went to the spot and enquired about the quarrel, but no quarrel had taken place in his presence. His statement is contrary to the statement of the complainant and his son that the beatings were given to them in - 4 - presence of Ward Panch who turned hostile when examined in Court and did not support the prosecution story. The Investigating Officer PW-8 H.C. Kaur Chand has admitted that at the place of occurrence there is sufficient abadi and there are many houses. He stated that he enquired from the persons living nearby but none had seen the occurrence. He also stated that at the spot no fresh digging had been found. It looks surprising that no fresh digging was found at the spot, though according to the witnesses, labourers numbering 20-25 or 40-45 were doing the work at the spot when the complainant asked one of the respondent as to why they were carrying on with the work. This version given by the complainant party is doubtful, if any, work was going on at the spot. The learned trial Court had also concluded that there is nothing on record to show that if the dog belongs to any of the respondents for which no documentary evidence was required. However, none from the neighbourhood had been examined to prove that any of the respondents was having a dog at that time. It is also in evidence that the labourers had rescued the complainant and his son at that time but none of them has been examined by the prosecution to substantiate the case of the complainant. From the above discussion, it is clear that the statement of the complainant and his son are not corroborative to one and another in regard to minor particulars of the occurrence and the only independent witness alleged to have seen the occurrence apart from the labourers present at the spot has not supported the prosecution story. In view of this discussion, it follows that the final findings recorded by the learned trial Court holding that the prosecution has failed to prove its case against the respondents beyond any reasonable doubt, cannot be said to be perverse calling for an interference by this Court. - 5 - In view of the above discussion, I hold that there is no merit in the appeal filed by the appellant, which is dismissed accordingly. Bail bonds furnished by the respondents shall stand discharged forthwith. (V.K. Ahuja), December 17, 2008 Judge (BSS) - 6 -