IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Criminal Appeal No. 497 of 2002. Judgment reserved on : 9.4.2009. Date of decision: April 21, 2009. State of Himachal Pradesh …Appellant. Versus Gagan Kumar & Others. ...Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? No For the Appellant : Mr. Anshul Bansal, Additional Advocate General. For the Respondents : Mr. Ashwani K. Sharma, Advocate. __________________________________________________________ Kuldip Singh, Judge The respondents were prosecuted for having committed offence punishable under Sections 148, 324, 325 and 149 IPC, they were acquitted by the learned Judicial Magistrate 1st Class, Court No.II, Dharamshala, at Kangra in case RBT No.29-A/II/01/2K decided on 28.2.2002. 2. The prosecution case, in brief, is that PW-1 Vijay Kumar complainant on 18.9.2000 at about 9.15 p.m. was sitting in his shop at Lamba Colony Sarah, two taxis came from Gagal side with 7 – 8 persons. Gagan Kumar was abusing in front of his shop, he was asked by the complainant not to abuse, Gagan Kumar came out from the van ______________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes 2 holding a hockey in his hand and gave a blow on the head of the complainant. The other persons who were sitting in the van also started beating him. One accused was holding a knife in his hand with which blows were given on the back and hands of the complainant who was rescued by PW-4 Ashok Kumar and PW-2 Bidhu Ram father of the complainant. On the basis of statement under Section 154 Cr.P.C. Ex.PW-1/A of complainant, FIR Ex.PW-8/A came to be registered. The injured was medically examined and his MLC Ex.PW-7/A was obtained, site plan Ex.PW-9/A was prepared, statements of witnesses were recorded, recoveries were made and on completion of investigation, challan was presented against respondents and they were charged for offence punishable under Sections 148, 324, 325 and 149 IPC to which they pleaded not guilty and claimed trial. The prosecution has examined nine witnesses and placed on record some documents. The statements of respondents were recorded under Section 313 Cr.P.C., they denied the prosecution case but led no evidence in defence. The learned Judicial Magistrate, acquitted the respondents, hence this appeal. 3. I have heard Mr. Anshul Bansal, learned Additional Advocate General for the State and Mr. Ashwani K. Sharma, Advocate, learned counsel for the respondents and have also gone through the record. On behalf of the State, it has been submitted that the learned Judicial Magistrate has misconstrued, misinterpreted the material on record. The prosecution has proved the case against the respondents by leading oral and documentary evidence on record. The learned Judicial Magistrate has erred in acquitting the respondents. The learned Additional Advocate General has prayed for setting aside of the impugned judgment and conviction of the respondents. The learned counsel for the respondents has supported the impugned judgment and 3 has submitted that the appellant has failed to point out any perversity in the impugned judgment. The prosecution has miserably failed to prove the charge against the respondents. The view taken by the learned Judicial Magistrate is possible from the evidence on record. There is no error in the impugned judgment and has prayed for dismissal of the appeal. 4. PW-1 Vijay Kumar in his statement Ex.PW-1/A under Section 154 Cr.P.C. has stated that on 18.9.2000 at about 9.15 p.m. 7 – 8 persons came in taxis, out of them, he could recognize only Gagan Kumar, who came in front of the shop of the complainant and started abusing, he was advised by the complainant not to abuse. On this Gagan Kumar came out of the taxi holding hockey in his hand and hit the complainant on his head. The other persons who were sitting in the van came out and they started beating him. One person was holding dagger with which blows were given on the back and on the hands of the complainant. The father of the complainant came there and rescued him. The blood started oozing out from his right arm due to injury inflicted by dagger, on raising alarm, the aggressors ran away towards Gagal. In the meantime, Ashok Kumar came there who also helped him in rescuing from the attackers. As per prosecution, knife was recovered from Munish vide recovery memo Ex.PW-5/A and hockey from Gagan Kumar vide recovery memo Ex.PW-4/A. Ex.PW-7/A dated 19.9.2000 is the MLC of Vijay Kumar in which nature of injuries have been shown grievous. Ex.PW-9/A is the site plan showing point ‘X’ where incident alleged to have taken place. 5. PW-1 Vijay Kumar in the court has stated that accused were abusing someone and he asked them not to abuse. On this Gagan hit him on the head, other accused also came out of the van and gave 4 him beatings. Narinder and Munish were having knives with them who gave knives blows on his back and hands. On raising alarm, his father came on the spot, who tried to rescue him but accused gave him beatings also. The complainant sustained injury on his arm with the blows of knives. Ashok Kumar came on the spot and he also saw the incident. In cross-examination he has stated that adjacent to his shop is Lamba Colony having 200 – 300 students and office of Principal and Doctor. The facility of the telephone is available in Lamba Colony. He does not know with whom the accused were having altercation earlier. The vehicles were having registration numbers HP-39-1484 and HP-40- 213. Ashok Kumar is having his shop at a distance of 20 – 25 feet away from his shop and he came immediately when beatings were given to the complainant. 6. PW-2 Bidhu Ram, father of the complainant has stated that he had laid his bed in the verandah of the shop. Gagan Kumar asked to take out Vijay Kumar, he was to be given beatings. There were 5 – 6 persons in the vehicles. Vijay Kumar got one blow on the head, one blow on each arm and one blow on the waist. The accused attempted to lift Vijay Kumar and put him in taxi. On this the witness raised alarm and accused gave beatings to witness also and thereafter, they ran away from the spot. He does not recognize the accused as he had weak eye-sight and due to night he could not recognize the accused properly. In cross-examination he has stated that Gagan Kumar was having a knife in his hand and he came all alone and started quarrel and other accused remained in the vehicles. When Ashok Kumar came, Gagan had already run away from the spot and the other accused were sitting in the vehicle. He was pushed and slapped and he became unconscious. He uses contact lenses and can see properly. 5 7. PW-3 Mehar Chand is the witness of recovery. PW-4 Ashok Kumar has stated that he has not seen the occurrence and when he reached the spot, both the vans had left. He was not declared hostile. PW-5 Ravinder Kumar is the witness of recovery of knife Ex.P-4. PW-6 Ved Parkash is the witness of recovery of van HP-01-1484. PW-7 Dr. Archna has stated that she examined Vijay Kumar and issued MLC Ex.PW-7/A. PW-8 S.I. Karam Chand has proved FIR Ex.PW-8/A. PW-9 H.C. Kuldeep Kumar has stated that he recorded the statement Ex.PW- 1/A of the complainant and investigated the case. 8. PW-1 Vijay Kumar has stated that PW-4 Ashok Kumar came on the spot and helped him in rescuing from the attackers. PW-4 Ashok Kumar in his statement in the Court has stated that he had not seen the occurrence, he was not declared hostile and cross-examined by the prosecution, this means prosecution has accepted the version of PW-4 Ashok Kumar that he had not seen the occurrence. The first version was given by the complainant in his statement Ex.PW-1/A under Section 154 Cr.P.C. In that statement, he has named Gagan Kumar, according to complainant the cause of trouble was the abuses given by Gagan Kumar to someone to which complainant objected. The complainant has not stated whom Gagan Kumar had abused. According to complainant, first of all Gagan Kumar came and thereafter rest of the occupants of the taxis came and attacked him. He has stated that one person was holding dagger with which injuries were inflicted on him. He has not identified the person who was holding dagger. The complainant has said that his father also came on the spot. The complainant in his statement in the Court has made improvements in the statement which he had made to the police. In the Court, he has stated that Narinder and Munish were having knives with them with which they attacked him. The 6 father of the complainant tried to save him but he was also given beatings. In his statement Ex.PW-1/A he has not stated that accused had given beatings to his father. The complainant has stated that there is Lamba Colony nearby having 200 – 300 students but surprisingly no one came there to help complainant. The complainant could not tell with whom Gagan Kumar had altercation. In his statement before police he did not identify the vehicles in which the accused had come but in the court he has given the vehicle numbers also. PW-2 Bidhu Ram has given entirely different version, according to him Gagan Kumar enquired about Vijay Kumar. He has not stated that any dagger or knife was used by any accused while attacking Vijay Kumar complainant. He has also stated that Gagan Kumar was having knife in his hand whereas PW-1 complainant has stated that Gagan Kumar was having a hockey stick. According to PW-2 only Gagan climbed up and the other accused remained sitting in the vehicle. This is also in contradiction to the statement of the complainant. In the examination in chief he has stated that he could not see properly as he had weak eye-sight but in cross- examination, he has stated that he uses contact lenses and can see properly. PW-2 has not named anyone except Gagan. The prosecution has not associated independent witnesses in the investigation and examined them in the Court. The MLC Ex.PW-7/A of complainant is of no help in absence of proof the manner in which injuries came on the person of PW-1. 9. The learned Judicial Magistrate has properly appreciated the material on record. The view taken by him emerges from the evidence on record. The prosecution has miserably failed to prove the case against the respondents beyond reasonable doubt. There is no 7 perversity in the impugned judgment. No case for interference is made out. 10. As a result of above discussion, the appeal fails and is accordingly dismissed. Bail bonds are discharged. April 21, 2009. ( Kuldip Singh ), (GR) Judge.