Whether reporters of local papers may be allowed to see the judgment? Yes. IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.29 of 2002. Dated of Decision: February 26, 2009. --------------------------------------------------------------------------------------------------- State of H.P. …… Appellant. Versus Dilwar Singh. ……. Respondent. Coram The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting? No. For the Appellant : Mr. J.S. Guleria, Asstt. Advocate General. For the Respondent : Mr. Navlesh Verma, Advocate. Surinder Singh,J (oral) : The State has challenged the acquittal of the respondent, passed by the learned trial court in Criminal Case No.30-II/95, decided on 14.8.2001, under Sections 353 and 332 of the Indian Penal Code, for allegedly beating the police driver Megh Nath and two other police constables in discharge of their official duties. Precisely, the case of the prosecution put-forth can be stated thus. On 17.3.1994, Shri Chokas Ram allegedly informed the police about the apprehension of breach of peace and danger to his life from the respondent. On his report, Deputy Superintendent of Police deputed the police party to the spot, which proceeded to the spot in a police vehicle No.HIK-197, which was being driven by Megh Nath, complainant. When they reached village Manjha, the police found the gathering of about 200 people on the spot. Straight away, the - 2 - police is alleged to have ordered the respondent and his father to surrender in the presence of PW5 Jagat Ram Pradhan, PW1 Jagdish Up-Pradhan and PW2 Hari Singh Ward Member of the Gram Panchayat. In turn, the respondent is alleged to have threatened the police party and wielded with an axe in his hand. Megh Nath Head Constable who was the driver approached the respondent to persuade him to surrender. It is alleged that the respondent gave a blow of the axe on his forehead and also caused the injuries on his mouth. Thus he was deterred to perform his duties as a public servant. On the statement of Megh Nath, recorded under Section 154 Cr.P.C. (Ex.PW10/E), FIR Ex.PW10/G was registered. He was got medically examined and doctor noticed simple injuries on his forehead and also on the left hand dorsum. Immediately after the alleged incident, the respondent was arrested under Section 107/151 of the Code of Criminal Procedure. The recovery of the axe, Kudali and some broken pieces of bottle were effected. Police prepared the site plan Ex.PW10/A and after recording the statements of the witnesses, the challan was presented in the court for trial of the respondent under the aforesaid sections. The respondent was charge-sheeted. He denied the charges leveled against him and claim trial. To prove its case, prosecution examined its witnesses and the respondent was also examined under Section 313 of the Code of Criminal Procedure. He denied the circumstances put to him and pleaded his innocence, however, no evidence in defence was led. - 3 - At the end of the trial, the respondent was acquitted precisely, on the grounds that Megh Nath, police driver was not authorized to arrest the respondent and further that the complaint of Shri Chokas Ram, on the basis of which police proceeded to the spot was not produced and in nut-shell, the prosecution has failed to prove that Megh Nath Head Constable was discharging his official duties. The State has challenged the order of acquittal, on the grounds that the learned trial Court did not appreciate the evidence on record in the proper perspective. I have heard Shri J.S. Guleria, learned Assistant Advocate General for the State. He led me through the evidence on record and ventilated that if the evidence of the prosecution is scanned properly, the acquittal can be converted into the conviction. Contra, Shri Navlesh Verma, learned counsel for the respondent has supported the impugned judgment of acquittal. I have given my thoughtful consideration to the rival contentions of the parties and have carefully gone through the record of the learned trial court. The whole case generated on the complaint of PW3 Chokas Ram, who has been constant litigation with the respondent for the last so many years. However, he stated that on 17.3.1994, he moved an application to the Deputy Superintendent of Police to take some action against his nephew Dilwar Singh, respondent, who had been threatening him to take his life thus he was causing breach of peace, but unfortunately his application did not find the light of the day during the trial of the case. Even the Roznamcha Rapat - 4 - Ex.PW10/F makes a reference of the said application having been moved by Chokas Ram at 3.45 p.m. regarding the alleged allegations against respondent. Ex.PW10/F was forwarded to the Deputy Superintendent of Police, who is stated to have deputed the police party on the same day. To substantiate this fact, the Deputy Superintendent of Police was not examined. Even in the statement of Megh Nath Ex.PW10/E before the police on the spot makes a reference that when the police party reached the spot, about 200 persons were present there and the respondent alongwith his father were in their house and they were ordered by the SHO, SDM and Dy.S.P. on the spot to surrender, which means all were present there and he did not adhere to them. Thus in the presence of Pradhan, Up-Pradhan, Panch and Subedar Jagdish, Subedar Abhay Singh, Kikker Singh, Jolly, Kashmir Singh Numberdar, Jagat Ram and Chokas Ram, the respondent raised ‘lalkar’ to the police and wielded an axe and also attacked them with the stones and bottles. Ultimately, the complainant had to go to the respondent to make him understand alongwith one Kaku. But the respondent attacked him. This version given by the complainant is neither supported by PW5 Jagat Ram Pradhan, PW1 Jagdish Up-Pradhan nor by PW2 Hari Singh, Panch of the Gram Panchayat. They have categorically stated that at about 9/10 P.M. the respondent was sitting on the roof of his house, but nothing had happened as alleged by the police. Neither the S.D.M. or the Dy.S.P. were examined nor SHO stated about the facts as alleged by the complainant. Yet, there is another regrettable feature in the case, if the respondent has committed - 5 - cognizable offence as alleged in the presence of the police, there was no necessity to arrest him under Section 107/151 Cr.P.C. as stated by Balbir Singh Investigating Officer, who has also not substantiated the case of the complainant. Shri Megh Nath, police driver when examined as PW7 in the court also did not state about the fact of presence of the Dy.S.P. and SDM on the spot, as alleged in the complaint, but however, he stated that he was directed by the SHO to negotiate whose presence on the spot is also doubtful and his presence is not even noted by PW10 Balbir Singh. He further stated that he alongwith four constables went to the respondent for making him understand about the consequences on which he attacked but did not say that Kaku was with him. No such order, oral or verbal given to him has been substantiated by any of the person named by the complainant. It was not the duty of the driver accompanying the police party to intervene in the matter, so it cannot be said that the respondent deterred him in discharge of his official duties. Further Megh Nath was also not having the police uniform, he was in the civil dress as stated by PW4 Jeewan Singh, thus there was no occasion for the respondent to believe that he was a police official. In the above circumstances, the ingredients of the offences charged against the respondent are not proved. The testimony of Chokas Ram in absence of the corroboration with reference to his animosity with the respondent cannot be relied upon. As noted above, the statements of the witnesses are dilatory, contradictory and do not inspire confidence, therefore, the judgment of acquittal - 6 - passed by the learned trial court is based on the facts borne out from the record. As such, there is no scope for its interference in the appeal filed by the State. Accordingly, the appeal sans merit and it is dismissed. The respondent is discharged of his bail bonds entered upon by him at any stage during the proceeding of the case. Send down the records. February 26, 2009. (Surinder Singh) (Pds) Judge.