HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No. : 685 of 2002 Reserved On: 26.2.2010 Decided on: 11.3.2010 State of H.P. ……… Appellant. Versus Ajay Kumar and another ………Respondents. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the Appellant: Mr.J.S. Guleria, Assistant Advocate General. For the respondents: Mr.Himmat Negi, vice Mr.Ajay Sharma, Advocate. V.K. Ahuja, J.: This is an appeal filed by the appellant against the judgment of the court of the learned Judicial Magistrate Ist Class, Court No.II, Amb, District Una, H.P., dated 18.6.2002, vide which he acquitted the respondents of the charge framed against them under Sections 353, 332 read with Section 34 of the IPC. Briefly stated the facts of the case are that on 22.7.2000, at about 10.10 a.m., a complaint was lodged with the police by one Shyam Kumar that he was working in PWD Sub Division, Bharwain as Beldar and he was on duty today at Kalruhi Toll Tax Barrier. Apart from him, other persons present on the duty were Jagdish Ram and Om Parkash. He stated that as per practice, he has to check the slips at the Barrier and at about 10.10 a.m., when he was on duty, a bus (number given) came from Mubarikpur side. There was a rope ___________________________________________ Whether reporters of local newspapers may be allowed to see the judgment? Yes. - 2 - put on the Barrier but the bus driver did not stop the bus and broke the rope. Thereafter, the rope got entangled in the bonnet of the bus and the driver came out and he asked the driver as to why he had not stopped the bus. At this, the driver and the conductor of the bus caught hold of him, gave him beatings with legs, fists and slaps, due to which he suffered injuries and the shirt worn by him was also torn. He was rescued by the persons named in the report. Thereafter, he came to the Police Station and lodged the report with the police. On this report, a case was registered and on completion of investigation, the challan was filed before the learned trial Court, who put notice of accusations to the respondents for the offences, as detailed above, leading to their acquittal. I have heard the learned Deputy Advocate General for the State and the learned counsel for the respondents and have gone through the record of the case. The main question before the learned trial Court was in regard to the identity of the accused persons as to whether they were the driver and the conductor of the bus, which did not stop, broke the rope and its driver and conductor gave beatings to the complainant. The complainant had substantiated the assertions made by him in his report, when he stepped into the witness box as PW-4. In the report, he alleged the names of the persons, who rescued him, as Jagdish, Om Parkash, Pritam Singh and Malkiat Singh. Out of these persons, the prosecution did examine Pritam Chand as PW-2 and Jagdish Ram as PW-5. Both these witnesses, when examined, turned hostile and clearly stated that they were - 3 - present at the spot, but could not say if the persons, who gave beatings to the complainant, were the accused persons or not. Therefore, their statements do not support the statement of the complainant. The third eye witness, namely, Om Parkash has been examined as PW-3, who stated that he was on duty on that day at the Toll Tax Barrier. He stated that the driver and the conductor came down and started beating the complainant since he had enquired from them about toll tax slip. His statement was not relied upon by the learned trial Court for the reason that he had not stated as to how he saved the complainant from the clutches of the accused persons and who were the other persons present at the spot at the relevant time. His statement was also disbelieved since he did not state that the complainant pulled up the rope, but the driver of the bus did not stop the bus and broke the rope and he had simply stated that the beatings were given to the complainant by the accused persons since he had enquired from them about toll tax slip. For these reasons that he was silent about the presence of other persons at the spot, did not name the other persons who saved the complainant from the accused persons and that did not state about the fact that when the complainant pulled up the rope, the driver of the bus did not stop the bus, his statement was not relied upon by the learned trial Court. The fourth witness named by the complainant in the report lodged by him, namely, Malkiat Singh was not examined by the prosecution. Apart from the three eye witnesses examined, who were named by the complainant, the prosecution also - 4 - examined PW-6 Udham Singh as an eye witness. He stated that he was emptying the bitumen from the drums and at that time, the bus came, broke the rope and the conductor and the driver of the bus quarreled with Shyam Lal, whose shirt was also torn. He stated that he, apart from Pritam, saved the complainant. He also stated that he had gone to the spot on hearing noise. He further stated that he had saved the complainant from the clutches of the accused but his statement was not relied upon by the learned trial Court since the complainant or other witnesses have not stated about the presence of this witness or the fact that he had saved the complainant at that time. He was also disbelieved since he was an employee of the same Department. In view of the above testimony of the prosecution witnesses, the learned trial Court observed that the solitary statement of the complainant PW-4 Shyam Kumar cannot be relied upon in regard to the occurrence or the beatings given by the respondents since there was no independent corroboration and the witnesses produced are the employees of the same Department. It has come up in evidence that around 20-30 persons had gathered at the spot and the learned trial Court also observed that since the Investigating Officer had not associated other witnesses, these statements cannot be relied upon. It was not considered by the learned trial Court as to whether those persons were the passengers of the bus, which had already left, or who were those persons present at the spot at that time. - 5 - Apart from the above, one factor which weighs heavily is as to how the complainant learnt about the names of the accused persons at the spot. In his report Ext.PW-7/E to the police, the complainant had alleged that he learnt about the names of the driver and the conductor as respondents Ajay Kumar and Anil Kumar and he mentioned the names in the report lodged by him after about one hour of the occurrence. In his statement as PW-4, the complainant also states that he learnt about the names of the respondents at the Police Station, but does not state as to who told the names at the Police Station to him. The other relevant witness can be said to be the Investigating Officer PW-7 Suresh Kumar, who stated that he had gone to the spot in the afternoon after about two hours. He stated that the names of the accused persons were told to him by the complainant himself, but the complainant, as mentioned above, is silent as to how he learnt about the names of the accused persons. There is nothing in the statement of the Investigating Officer or the complainant as to whether the bus had already left the place when the report was lodged after about one hour or the accused persons had been apprehended by the employees posted at the Barrier and were handed over to the police thereafter. Therefore, it appears that the bus had already left the place when the report was lodged and the complainant is silent as to how he learnt about the names of the respondents. It is difficult to hold that these were the same persons who were the driver and the conductor in the said bus. The Investigating Officer had not enquired about the driver and the conductor, whether public or private, as - 6 - to whether these persons were on duty with the bus at the relevant time and this bus had crossed the Barrier at that time. No duty roster of the respondents was placed on the record by the Investigating Officer and there is no evidence on record to show if the bus was impounded or taken in possession and thereafter was released in favour of the owner or the driver. The cumulative effect of all this discussion is that it cannot be said that the identity of the respondents was established beyond any reasonable doubt and as such the findings recorded by the learned trial Court holding that the prosecution has failed to prove its case cannot be termed as perverse calling for an interference by this court. In view of the above discussion, I hold that there is no merit in the appeal filed by the appellant, which is dismissed accordingly. The bail bonds furnished by the respondents shall stand discharged. March 11, 2010. (V.K. Ahuja), (TILAK) Judge