IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No.511 of 2001 Date of Decision : 04.05.2011 State of H.P. …Appellant. Versus: Harish Kumar & 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, Sr. Addl. A. G. For the respondents: Mr. Bhim Raj Sharma vice Mr. Y.P.S. Dhaulta, Advocate Sanjay Karol, J.(Oral) For an offence, which is alleged to have been committed on 16.8.1998, accused were put to trial. In terms of judgment dated 21.6.2001 passed by learned Sessions Judge, Kullu, in Sessions Case No. 46 of 1999 titled as State of H.P. vs. Harish Kumar & another, accused stand acquitted of the charged offence. 2. It is the case of the prosecution that injured Bhikham Ram (PW-8) was working as a labourer at Subzi Mandi, Bhuntar. Accused Harish Kumar and Virender 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 Kumar had given beatings to Sh. Gian Chand. After sometime, Bhikham Ram (PW-8) inquired from the accused the cause of such beatings. The accused took Bhikham Ram in the bus and after some distance they alighted from it and the accused inflicted blows with kicks and gave one blow with a knife in the stomach of Bhikham Ram. Thereafter they ran away from the spot. Bhikham Ram walked upto Truck No.HIE-1255 parked near the office of the Truck Union. In the truck, Hukam Chand (PW-3) conductor was sitting. Noticing the injuries sustained by Bhikham Ram, Hukam Chand straightaway took him to the District Hospital, Kullu, where Dr. J.R. Thakur (PW-1), after examination gave medical treatment. The matter was reported to the police by Hukam Chand and police reached the hospital. After ascertaining the consent of the Doctor, police recorded the statement (Ex.PW-7/A) of Bhikham Ram. On the basis of such statement, F.I.R. No. 327/98 (Ext.PW-7/B) dated 16.8.1998 under Sections 341, 323, 34 IPC was registered with Police Station, Kullu. Police carried out the investigation. Knife (Ex.P-1) concealed by the accused was recovered pursuant to the disclosure statement (Ex.PW-13/A) of accused Harish Kumar made in the presence of C. Bhag Singh (PW-13). Blood stained clothes of the injured were recovered by the police. The police took on record the medical reports (Ex.PW-1/A and Ex.PW-1/E) issued by the Doctor 3 in the hospital. With the completion of the investigation challan was presented in the Court for trial. 3. The accused were charged for having committed an offence punishable under Section 307 read with section 34 IPC, to which they did not plead guilty and claimed trial. In order to prove its case prosecution examined 14 witnesses. Statements of accused under Section 313 Cr. P.C were also recorded. 4. Appreciating the material placed on record by the prosecution, the court below acquitted the accused of the charged offence. Hence, the present appeal. 5. Having heard learned counsel for the parties and also perused the record, we find no ground to interfere with the impugned judgment. In our considered view, prosecution has failed to prove the guilt of the accused, beyond reasonable doubt, by leading clear, cogent, convincing and reliable material. 6. Out of 14 prosecution witnesses, the relevant statements are of spot/independent witnesses i.e. Hukam Chand (PW-3), Bhikham Ram (PW-8), Puri Ram (PW- 9) and Bhumi Ram (PW-11). Before we deal with their statements, we shall first refer to the medical evidence on record. 4 7. From the testimony of Dr. J.R. Thakur (PW-1) as also the medical records (Ex.PW-1/A, Ex.PW-1/B and Ex.-PW1/C), it is evident that the injured sustained the following injuries : “1. Patient was conscious, pulse was 88 chest and heart=NAD. Locally there was a wound oblique in nature measuring 1” x 1/2” in depth in size the edges were clean cut. 2. There was another wound in left temporal region measuring ½ x ½” x ½” with bleeding from the nose. The wound was stiched and the patient was referred to Surgeon for expert opinion and treatment and was admitted in male surgical ward. 3. MLC X-ray was done, which showed haemothorax on left side with haemopertonium with gass under the diafram.” 8. According to the Doctor, these injuries could be caused if a person was to fall on broken glass/surface. That apart, merely because the injured sustained the aforesaid injuries that fact by itself, on the basis of mere suspicion, would not prove the guilt of the accused to the commission of the alleged crime. 9. Significantly, Hukam Chand (PW-3), Puri Ram (PW-10) and Bhumi Ram (PW-11) have not supported the prosecution case. There is nothing in their 5 statements which would even remotely link the accused to the alleged crime. 10. We find that the statement of Bhikham Ram (PW- 8) also does not inspire confidence apart from the fact that it was not corroborated by any other contemporaneous material on record. In fact Bhikham Ram was himself declared hostile and cross-examined by the Public Prosecutor. We also find that in Court, Bhikham Ram has not only contradicted his earlier statement (Ext.PW-7/A) made to the police under Section 154 Cr. PC, but has also made several improvements rendering his statement to be absolutely untrustworthy. 11. There is yet another glaring fallacy in the prosecution case. In the statement (Ext.PW-7/A), Bhikham Ram only mentions that “two persons engaged as Labourers with Lala Parkash Chand”, gave beatings to him and also inflicted blows with a knife. Now, admittedly in this case no test identification parade was carried out. Bhikham Ram admits not to have known these persons from before. If this was so, then how did the police reach upto the accused. On what basis were the accused identified by the police. It is not that Lala Prakash Chand had employed only persons as labourers. 6 12. Prosecution has not cross-examined Gian Chand, who was allegedly given beatings by the accused. Thus, the genesis of the prosecution case stands not to have been proved. It appears that the prosecution has not come out with the whole truth. The genesis of the incident stands concealed or not fully revealed by the prosecution. Importantly, in his testimony Bhikham Ram (PW-8) categorically states that he does not know accused Harish Kumar. If this was so, then obviously accused cannot be said to have been involved in the alleged crime. That apart, in his testimony Bhikham Ram (PW-8) states that after alighting the accused took him around the bus and gave him blows with fists and kicks. Not only this fact does not find mention in his statement Ex.PW-7/A, but in fact stands contradicted, wherein it is categorically stated that after they alighted from the bus, it was driven away by the driver. Further there was no enmity between the accused and complainant. Importantly, Bhikham Ram (PW-8) admits that the names of persons who had fled away from the spot were disclosed to him by the police. This totally demolishes the prosecution case. Consequently, we find no ground to interfere in this case. The statement of the complainant being full of contradictions and also untrustworthy cannot be relied upon to prove the guilt of the accused. The 7 prosecution has failed to bring home the guilt of the accused by leading clear, cogent and convincing material. 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 vs. 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. ( R. B. Misra ) Judge. ( Sanjay Karol ) Judge. May 4, 2011. (rana)