IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 62 of 2002. Date of Decision : June 1, 2011 State of Himachal Pradesh Appellant Versus Dhani Ram and another Respondents Coram: The Hon’ble Mr. Justice R. B. Misra, Judge The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the appellant : Mr. R. K. Sharma, Senior Addl. Advocate General. For the respondents : Mr. Ashwani Pathak, Advocate. Justice Sanjay Karol, J. (Oral) For an offence, which is alleged to have been committed on 20.6.1997 accused were put to trial. In terms of judgment dated 28.4.2001, passed by the learned Addl. Chief Judicial Magistrate, Arki, Distt. Solan, H.P. in Criminal Case No. 65/2 of 1997, titled as State of Himachal Pradesh versus Dhani Ram and another, accused stand acquitted of the charged offence. 2. It is the case of the prosecution that on 20.6.1997 complainant Sh. Jeet Ram (PW-3) was returning home at about 5.30 Whether reports of Local Papers may be allowed to see the judgment? 2 p.m. Dhani Ram (Accused No. 1) who is the brother of the complainant and Malti Devi (Accused No. 2) who is the wife of accused No. 1 were sowing maize in their field. In the meanwhile complainant’s goat entered into their fields. Accused No. 1 abused the complainant and accused No. 2 while abusing came with a ‘darat’. Complainant tried to flee but was over powered by accused No. 1. During the scuffle accused No. 1 gave a blow with a ‘darat’ to the complainant as a result of which two fingers of his hand got cut. He cried for help and his son Sh. Balbir Singh (PW-4) reached at the spot and rescued him. Complainant reported the matter to the police vide rapt (Ext. PW 8/A) on the basis of which F.I.R. (Ext. PW 5/A) No. 63/1997, dated 20.6.1997 under Sections 324 and 506 IPC was registered at police station, Arki. The matter was investigated by HC-Brahmu Ram (PW-8). Complainant was got medically examined through Dr. Udit Kumar (PW-6) who issued MLC (Ext. PW 6/A). The injury suffered by the complainant was grievous. With the completion of investigation challan was presented in the Court for trial. 3. The accused were charged for having committed offences punishable under Sections 326, 324, 506 all read with Section 34 IPC to which they did not plead guilty and claimed trial. 4. In order to prove its case, prosecution examined eight witnesses and the statements of the accused under Section 313 Cr. P.C. were also recorded. 3 5. The Court below acquitted the accused of the charged offences for the reason that independent witnesses Sh. Mahender Kumar (PW-1) and Sh. Amar Singh (PW-2) did not support the prosecution and the version of Sh. Jeet Ram (PW-3) and Sh. Balbir Singh (PW-4) being unconceivable, unreliable and they being unreliable witnesses it could not be said that prosecution was able to prove its case beyond reasonable doubt. 6. In order to prove the charged offences, by leading clear, cogent, convincing, reliable and trustworthy evidence prosecution has to prove, beyond reasonable doubt, the fact that the accused voluntarily caused grievous hurt by means of an instrument meant for cutting which in all likelihood would have caused death and that the accused criminally intimidated the complainant with a common intention. 7. Out of eight prosecution witnesses, PW-1, PW-2, PW-3 and PW-4 allegedly witnessed the occurrence of the incident. 8. Now PW-1 and PW-2 have not supported the prosecution case at all. They were extensively cross examined by the Public Prosecutor, after having been declared hostile and yet nothing fruitful could come out from their testimony. There is nothing on record to show that these witnesses have deposed falsely. According to the prosecution story these persons witnessed the occurrence of the incident. But this fact stands belied by the version of the complainant (PW-3) himself who unequivocally has deposed that except for his son i.e. PW-4 none came at the spot and the incident 4 was not witnessed by anyone else. This renders the prosecution case with regard to the genesis of the occurrence of the incident to be doubtful. The testimonies of PW-1 and PW-2 does not help the prosecution. 9. Even according to PW-4, the incident was not witnessed by him. In fact this witness has been declared hostile on a particular point and then cross examined by the Public Prosecutor. That apart, this witness himself admits that he had not witnessed the incident and that before his arrival his father had already received injuries. He also admits that he did not see any one of the accused giving a blow with a ‘darat’ to his father. Importantly he admits that portion mark “C to C” as recorded by the police in his statement (Mark-Y) recorded under Section 161 Cr. P.C. was not made by him wherein it is written that Dhani Ram gave a blow with a ‘darat’ on the fingers of the left hand of his father. This witness also admits that he did not hear any of the accused hurling abuses. Consequently deposition of this witness does not advance the prosecution case at all. In fact it renders the story to be doubtful. 10. This leaves us with the version of PW-3, who in fact is the real brother of accused No. 1. He admits that there is prior animosity and dispute between the two brothers. Consequently testimony of this witness needs to be examined with circumspection and carefully. In Court he states that accused gave blow with a ‘darat’ with an intention of causing bodily hurt and injury and cut his fingers. Now this version of his stands materially contradicted by the 5 contents of the complaint/FIR (Ext. P1) and statement (Ext. P2) with which he was confronted, wherein it is so recorded that the accused tried to give blow with ‘darat’ which resulted into scuffle and in this process his fingers got cut. That apart, the witness when confronted with his statement (Ext. P2) admits that portion “B to B” was not got recorded by him and the police recorded the same of their own. In this regard it is relevant to note that the police official who investigated the matter has in no uncertain terms deposed that the statement was correctly recorded by him as per the version given by the complainant. It is unbelievable that in a village none would be there at about 5.30 p.m., the time of the occurrence of the alleged incident. Normally villagers are returning back from the fields at that time. What transpired at the spot has not fully come on record. According to PW-3 when his goat entered the field of the accused they started hurling abuses at him which version stands controverted by PW-4 according to whom no abuses were hurled nor did PW-3 narrate this fact to PW-4. He has made material improvements and contradictions which, to our mind render the testimony of this witness to be untrustworthy, unbelievable and the witness unreliable. 11. We further find that the weapon of offence ‘darat’ was not shown either to the Doctor or to the complainant in the Court. The flaw in the prosecution case thus stands magnified. 12. Having perused the testimony of the prosecution witnesses on record we find that no case for interference is made out. It cannot 6 be said that the prosecution has been able to prove its case, beyond reasonable doubt, by leading clear, cogent, convincing and reliable material on record. None of the essential ingredients to constitute the charged offences stands proved by the prosecution. 13. The accused have had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down in Mohammed Ankoos and others versus Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the persons has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. (Justice R. B. Misra), Judge. (Justice Sanjay Karol), Judge. June 1, 2011 (PK)