IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.A.No.36/2003. Date of Decision: 17th July ,2009. _________________________________________________________ State of H.P. …..Appellant. Versus Shivanand and others …Respondents. Coram: Hon’ble Mr.Justice Surinder Singh, Judge. Whether approved for reporting1?No. For the petitioner: :Mr.Vikas Rathore, Dy. Advocate General. For the respondents: :Mr.Dinesh Kumar Advocate. __________________________________________ SURINDER SINGH,J(Oral): The respondents were tried and acquitted by the learned Trial Court for the offences punishable under Sections 452, 147, 148, 323, 325, 506 read with Section 34 of the Indian Penal Code. Their acquittal has been assailed in this appeal by the State. Briefly stated the facts giving rise to the present case are that Km.Nisha (PW9) was alleged to be the God- sister of complainant Radha Krishan, who was residing at the place known as Datiyar. On 14.2.1997 Smt.Kamla Devi the mother of Km Nisha was also there. It is alleged that during the intervening night of 14th/15th February, 1997, some persons had broken open the door and entered into the room and gave beatings to the complainant as well as to Whether reporters of the Local papers are allowed to see the judgment? yes. 2 Km.Nisha and her mother Smt.Kamla Devi. Some persons were outside their house and they pelted the stones by which the window-panes were broken. It is also the case of the prosecution that PW7 Devi Ram and PW8 Prem Singh were also staying in the house of complainant as guests, they had intervened and rescued them. The matter was reported to the police. The complainant got recorded his statement under Section 154 Cr.P.C. and injured, namely, Radha Krishan, Kamla Devi and Km.Nisha were got medically examined. They had sustained minor injuries but complainant Radha Krishan had also sustained fracture of “Metacarpal bone” of the right hand. Thereafter the police registered a case for the aforesaid offences, visited the spot and affected the recoveries of stone and dandas etc. On completing the investigation, the police presented the challan against the respondents for the aforesaid offences for their trial in the Court. The respondents were accordingly chargesheeted to which they pleaded not guilty and claimed trial. To prove its case the prosecution examined its witnesses and the respondents were also examined under Section 313 Cr.P.C. The stand taken by the accused persons was that complainant Radha Krishan was already married whereas Km.Nisha was un-married and the complainant was carrying on illicit relation with her to which the objection was raised by the villagers. The respondents denied their 3 involvement in the alleged incident and adduced evidence in defence. Tara Dutt (DW1) is the owner of the house wherein complainant was residing. According to him since the complainant was living with Km.Nisha and they had illicit relation which was objected to by the villagers and he had also taken to the Pradhan of the Gram Panchayat requesting them to vacate his premises but the complainant had threatened them to implicate in a false case. To be precise, the learned trial court did not give its own detailed reasons for acquitting the respondents except reproducing the recorded evidence. Thus a complete examination and re-evaluation of the evidence is necessitated. On examination of the record, I find that although the complainant had tried to assert in his statement before the Court that Km.Nisha was his God- sister living with her mother at the said place but very conveniently he side-tracked the issue as to what were their relations. Kamla was not examined in the case as a witness. Complinant stated that the respondents herein had broken up the door of the room and gave them beatings. It is further stated that the electricity supply was cut off by the accused persons who could not be identified but in the statement recorded under Sections 154 Cr.P.C. there was no such reference. Not only this in his cross-examination he stated that when the persons entered into his room the respondent Shivanand had muffled his face but he could not 4 spell out what was the dress of the respondents and who entered into the room. It is also not understood as to how he could recognize the respondents when it was dark inside and outside. There is also a reference in his statement that on that day PW7 Devi Ram and PW8 Prem Singh were also staying with them but PW8 has contradicted his version. According to him he along with Devi Ram were putting up in a tenanted premises in the house at the rate of Rs.200/- per month. He further stated that on the day of the alleged incident, there were 6-7 persons armed with ‘dandas’ and attacked the complainant party because they wanted to get the premises vacated. He could not identify the assailants. He was declared hostile. It is also pertinent to note that the complainant stated that Nisha was his god-sister but according to Prem Singh, Nisha is the daughter of his maternal uncle. She was unmarried whereas the complainant was married but both i.e. complainant and Nisha were residing as husband and wife illegally. This further causes a dent in the prosecution story. He further stated that except Sanju he could not identify anyone. But he did not say that said Sanju was one of the respondents facing the trial in this case. Not only this PW9 Km.Nisha has shaken the prosecution story by adding one more name of Tara Dutt (DW1) as an accused. His name did not find mention in the earlier statement of the complainant recorded under Section 5 154 Cr.P.C. She has also deposed contrary to the statement of Prem Singh and Devi Ram to the extent that they had visited their house on that very day and were staying as a guest with them. In cross-examination she admitted having stated to the police that she could not identify any of the assailants because of the darkness. If that being so later how she could know who were the assailants, is not spelt out. After considering overall aspect of the case, in my considered opinion, the evidence led by the prosecution is falling short of requisite standard and the prosecution witnesses have not deposed whole truth. Thus the prosecution case lacks probity. For the aforesaid reasons the prosecution cannot be said to have proved its case beyond reasonable doubt. Thus giving the benefit of doubt to the respondents, their acquittal recorded by the learned trial Court is justified which requires no interference by this Court, as such the appeal is dismissed. The respondents are discharged of their bail bonds entered upon by them at any point during the proceeding of the case. (Surinder Singh), Judge. July 18,2009(R) 6