1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 359 of 2002. Judgment reserved on 24.3.2009 Date of decision: 30.3.2009 State of H.P. …….Appellant Vs. Rakesh Kumar & Ors. ….. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellant : Ms. Shubh Mahajan, Deputy Advocate General. For the Respondents : Mr. Anuj Nag, Advocate Kuldip Singh, Judge This appeal has been filed by the State against the judgment Dated 21.2.2002 passed by learned Judicial Magistrate Ist Class (I), Dharamshala in Crl. Case No.133-II/99, acquitting the respondents for commission of offence punishable under Sections 341, 147, 149,323, and 325 IPC. 2. The prosecution case, in brief, is that PW-1 Brij Lal complainant on 30.3.1999 at about 9.45 p.m. was coming with his herd of sheep along with his brother Ishwar, PW-2 Kartar Singh, Karan Singh and PW-6 Surinder nephew towards Durgella. At place near Kholi khad bridge a blue colour tempo and a scooter came with three persons and asked PW-2 Kartar Singh to give a Whether the reporters of the local papers may be allowed to see the Judgment? Yes 2 sheep failing which they would see him at Rehlu. The three persons started abusing son and nephew of the complainant and thereafter PW-2 Kartar Singh approached complainant and as soon as complainant and Kartar Singh etc. reached Rehlu, 7/8 persons came in white colour van from opposite side. All the aforesaid persons alighted from the van with sticks and they started beating PW-2 Kartar Singh and complainant and threatened them to do away with their lives. Thereafter the said persons also attacked PW-4 Pritam Singh. The complainant and Kartar Singh went to the house of Ram Krishan but the said persons fled away from the spot. The matter was reported to the police and FIR Ex.PW-1/A was registered. The case was investigated by PW-19 Desh Raj, spot map was prepared, injured were medically examined, sticks Ex.P-5 to Ex.P-7 were taken into possession, scooter, tempo used for commission of the offence were also seized. On completion of the investigation challan was presented in the Court. The respondents were charged for offence punishable under Sections 341,147,149,323 and 325 IPC to which they pleaded not guilty and claimed trial. The prosecution has examined 19 witnesses and placed on record some documents. The statements of respondents were recorded under Section 313 Cr.P.C. The learned Judicial Magistrate gave benefit of doubt and acquitted the respondents, hence this appeal. 3. I have heard Ms. Shubh Mahajan, learned Deputy Advocate General for the State and Mr. Anuj Nag, learned counsel for the respondents and have also gone through the record. Ms. Mahajan has submitted that the learned Court below has 3 misconstrued and misinterpreted the evidence on record. The prosecution has proved the case beyond reasonable doubt against the respondents by leading oral and documentary evidence. The oral evidence is supported by the medical evidence, the Court below has erred in giving benefit of doubt to the respondents. On the contrary, learned counsel for the respondents has submitted that merely because some injuries were found on the person of injured that does not mean those injuries were caused by the respondents. The prosecution has failed to connect the commission of offence with the respondents. There are material contradictions in the prosecution story. The prosecution has not examined material witnesses. In these circumstances no error can be found with the judgment of acquittal recorded by learned Court below. 4. Ex.PW-1/A is the FIR wherein place of occurrence has been mentioned Kholi Khad and Rehlu. The time of occurrence has been given from 9.45 p.m. to 10.15 p.m. on 30.3.1999. The information was received at police station at 4.20 a.m. on 31.3.1999. In the FIR the complainant has stated that he does not know the names of the assailants but he could recognize them. PW-1 Brij Lal complainant has stated that at 9.30 p.m. one scooter and tempo near Kholi Khad bridge came from Shahpur side and stopped near him and demanded a sheep free of cost from him, he refused. All the accused were there. He named accused Rakesh Prithi Singh, Narinder, Sappi and said that he can recognize the others. They left in the tempo and scooter. Roshan Lal, Vijay and Nikhil were with him. A van came from Rehlu near temple and accused alighted from that van and started beating them with 4 dandas. Rakesh, Narinder were carrying dandas. He could not say what others were carrying as it was night time. The respondents initially gave beatings to Kartar and then to him. On the next morning at 4 O’clock they reported the matter at Shahpur Police Station vide FIR Ex.PW-1/A. The police came next day. In cross- examination he has stated that he knew the accused earlier, then said he knew only accused Rakesh and Narinder and not others. He recognized them when they were talking in darkness. He disclosed the names of the accused to the police when he went to police station. Ganshyam Pandit who is witness in the case gave the names and addresses of the accused to the police. 5. PW-2 Kartar Singh has stated that when they reached Kholi Khad bridge a scooter and tempo came from Shahpur side. There were three persons on the scooter who asked them to give a sheep free of cost, they refused. They left the place on tempo and scooter. Those persons then took quarrel with Brij Lal and Roshan Lal. He approached Ram Krishan Pandit to help him. In the meantime from Rehlu side a white colour van came and 7/8 persons alighted from that van and they gave beating to them. Surinder, Prithi Singh, Rakesh alias Minu gave beating to them, he does not recollect the names of others but can recognize them. It was dark at that place. He was initially given beatings with danda, thereafter Brij Lal and Pritam Singh were also beaten. In cross-examination he has stated that he does not know who had beaten with danda as it was dark at that time. In the report lodged with the police the names of the assailants were disclosed. 5 6. PW-3 Vijay Singh has also stated that when they reached Kholi bridge a scooter and tempo came there. They demanded a sheep from them free of cost, but they refused. When they reached near temple a jeep came from Chambi side. Brij Lal and Kartar Singh who were ahead of him were given beatings with dandas. He could not recognize assailants as it was dark. PW-4 Pritam Singh has supported the prosecution in general but he has also admitted that it was dark at the place of occurrence. The police arrested the assailants on the next day and on that date they had shown them first time. In the police station they had disclosed the names of Rakesh and Narinder. 7. PW-5 Dalip Singh is a formal witness with respect to recovery of clothes Ex.P-1 to Ex.P-4 vide recovery memo Ex.PW- 1/B. PW-6 Surinder Singh has supported the prosecution in general and has stated that when they crossed the bridge then scooter No.HIK-202 with three persons appeared on the spot, one of them was Mintu. They demanded a sheep free of cost from them but they refused. In cross-examination he has stated that he had not seen Mintu earlier and his name was disclosed by the police. The names of other assailants were disclosed by the police. 8. PW-7 Piar Singh did not support the prosecution and he was declared hostile. He was cross-examined by the prosecution. PW-8 Nirmal Singh has stated that three persons demanded a sheep from them, but they refused. The three persons came on scooter and one in van. They started beating them. In cross-examination he has stated that after about six days the police called them in the police station and told them that the 6 respondents are the accused. PW-9 Parveen Guleria has stated that his signatures were taken on some papers. He did not support the prosecution and was declared hostile. He was cross-examined by the prosecution. PW-10 Ajay Pankil and PW-11 Balbir Singh did not support the prosecution and they were cross-examined by the prosecution. PW-12 Dr. Anuradha Chaudhary has proved MLC Ex.PW-12/A of Surinder Singh and in cross-examination she has stated that injuries are possible by fall on hard surface. PW-13 Pardeep Kumar did not support the prosecution and he was cross- examined by the prosecution. 9. PW-14 Dr. Mohan Chaudhary has stated that he examined Nirmal Singh and found no visible injury and therefore, no MLC was issued. He proved OPD slip Ex.PW-14/A. PW-15 Dr. Deepak Chaudhary has stated that he examined Brij Lal on 31.3.1999 and issued MLC Ex.PW-15/A. He also gave opinion Ex.PW-15/B. On the same date he examined Pritam and issued MLC Ex.PW-15/D. In cross-examination he has stated that the injuries mentioned by him in MLCs can be caused by a fall. PW-16 Birbal SI has proved FIR Ex.PW1/A. PW-17 Kushal Kumar has stated that he prepared the challan. PW-18 Dr. R.K. Mahajan has proved X-ray opinion Ex.PW-18/A. PW-19 Desh Raj is the Investigating Officer. The statements of respondents were recorded under Section 313 Cr.P.C. and they denied the prosecution case. 10. In FIR Ex.PW-1/A the complainant has not named any accused. It has come in the statements of many witnesses that it was dark at the place of occurrence. The occurrence took place at about 9.30 p.m. on the road and no prosecution witness has stated 7 that there was light at the place of occurrence to identify the accused. The registration numbers of the tempo and van used by the assailants have not been given. It has come in evidence that Ganshyam and Ram Krishan were contacted by the complainant party immediately after the occurrence but they were not examined by the prosecution. PW-1 has stated that a sheep free of cost was demanded from him by the accused, he refused. He has not stated that any sheep was demanded by accused from any other person of the complainant party. In FIR Ex.PW-1/A, PW-1 Brij Lal has stated that sheep was demanded from Kartar Singh. PW-2 Kartar Singh has stated that the persons who were on the scooter asked sheep from the complainant party, which they refused, thus PW-1 and PW- 2 have contradicted each other on the point of demand of sheep free of cost by the accused. 11. In FIR Ex.PW-1/A, it has been stated that 7/8 persons initially gave beatings to Kartar Singh with lathi but PW-1 in his statement in the Court without naming Kartar Singh has stated that the persons who alighted from the van started beatings complainant party with dandas, dandas were with Rakesh and Narinder. PW-2 Kartar Singh has stated in cross-examination that he does not know who were beaten with dandas as it was dark at that time. PW-3 Vijay Singh has contradicted the prosecution story that 7/8 persons came in white colour van from Rehlu side. He has stated that a jeep came from Chambi side and without naming the approximate number of persons, he said those persons gave beatings to Brij Lal and Kartar but he could not recognize the assailants as it was dark. There is a difference between a jeep and a van. PW-3 has even 8 stated that jeep came from Chambi side in contradiction to the prosecution case that 7/8 persons came from Rehlu. PW-1 has stated that Ghansyam Pandit gave the names and addresses of the accused to police. PW-3 has stated that the police had arrested the assailants on the next day and on that date they had shown them first time. PW-6 Surinder Singh has stated that the names of the assailants were disclosed by the police. PW-7 Piar Singh has also stated that after about six days the police called them in the police station and told them that the respondents are the accused. It is thus clear that the complainant and other prosecution witnesses could not recognize the assailants. The names of the respondents were disclosed to the prosecution witnesses by the police. In case Brij Lal and other alleged witnesses of the spot were otherwise aware of the names or identity of the assailants then naturally in the FIR names or identity of the assailants would have been recorded, but names of the respondents or identity of the assailants has not been disclosed in the FIR. PW-12 Dr. Anuradha Chaudhary who has issued MLC Ex.PW-12/A has stated that the injuries are possible by fall on hard surface. PW-15 Dr. Deepak Chaudhary has stated that injuries recorded by him in MLCs Ex.PW-15/A and Ex.PW-15/D could be caused by a fall. Even if, some injuries were found on the person of complainant party that does not mean that those injuries were inflicted by respondents. 12. There are material contradictions in the prosecution case. There is no worth believing legal evidence on record to connect the respondents for commission of the offence. The learned trial Magistrate has appreciated the material on record and 9 has pointed out various contradictions, infirmities, variations, improvements in the prosecution case. In the appeal, it has not been established by the appellant that the view taken by learned trial Magistrate does not emerge from the evidence on record. The learned trial Magistrate has rightly given the benefit of doubt to the respondents in as much as the prosecution has failed to prove the case against respondents. 13. No other point was urged. 14. The result of above discussion, the appeal fails and is accordingly dismissed. Bail bonds discharged. ( Kuldip Singh) Judge March 30, 2009. (sks)