IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Criminal Appeal No. 727 of 2002. Judgment reserved on : 18.5.2009. Date of decision: 19.5.2009. State of Himachal Pradesh . …Appellant. Versus Khem Singh & Others. ...Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? No For the Appellant : Mr. Anshul Bansal, Additional Advocate General. For the Respondents : Mr. Rakesh Jaswal, Advocate for respondents No.1 & 2. Ms. Neena Guleria, vice Mr. G.R.Palsra, Advocate for respondent No.3. Mr. Vijay Chaudhary, Advocate for respondent No.4. __________________________________________________________ Kuldip Singh, Judge. The State has come in appeal against the judgment dated 29.4.2002 passed by the learned Judicial Magistrate 1st Class, Court No.III, Mandi in Criminal Case No. 140-II/2001/1998 acquitting the respondents for offence punishable under Sections 341, 323, 325, 506 read with Section 34 IPC. ______________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes. 2 2. The prosecution case in brief is that PW-1 Madan Lal complainant on 11.1.1998 at about 7.30 P.M. was in his vehicle at Nagchala, PW-2 Amrit Lal came there and asked for his help as his tractor got stuck somewhere in Lunapani. On this, PW-1 Madan Lal along with PW-2 Amrit Lal reached the spot where the tractor had got stuck. It was night time, therefore, they decided to take out the tractor in the morning. PW-1 Madan Lal returned with PW-2 Amrit Lal and PW-6 Rajesh Kumar in his vehicle and reached Nagchala bridge. The accused Jagdish, Khem Singh and two more persons stopped complainant and dragged PW-1 Madan Lal out of his vehicle and gave him kick and fist blows which caused injuries on the mouth, chest and other parts of the body of the complainant. He was rescued by PW-2 Amrit Lal and PW-6 Rajesh Kumar. It was alleged that accused were drunk and they threatened the complainant to do away with his life. 3. The matter was reported to the police vide FIR Ex.PW-7/C. The injured was medically examined vide MLCs Ex.PW-3/A and Ex.PW-4/A, site plan Ex.PW-8/A was prepared and statements of witnesses were recorded. On completion of investigation, challan was presented in the Court. The respondents were charged for having committed offence punishable under Sections 341, 323, 325, 506 read with Section 34 IPC to which they pleaded not guilty. The prosecution has examined eight witnesses and has also placed on record some documents. The respondents denied the prosecution case in their statements recorded under 3 Section 313 Cr.P.C. The respondents were acquitted, hence the State has come in appeal. 4. Heard and perused the record. In FIR Ex.PW-7/C, it has been stated that Amrit Lal and Rajesh Kumar were with the complainant when he returned from Nagchala. He noticed Jagdish Chand, Khem Singh and two more standing on the road who stopped the vehicle of the complainant and started abusing him. They directed him to bring the vehicle on the side of the road. They dragged him out of the car and gave him beatings with kick and fist blows as a result of which he sustained injuries on his mouth, tooth, chest and other parts of the body. He was saved by Amrit Lal and Rajesh Kumar. The accused were drunk and they threatened him that they would kill him. Ex.PW-8/A is the site plan wherein mark ‘B’ is the point where the incident allegedly took place. Marks ‘C’, ‘D’ and ‘E’ in the site plan are shops of different persons. Ex.PW-3/A is the MLC of Madan Lal showing injuries on the upper lip. Ex.PW-4/A is another MLC of Madan Lal indicating incised edge of lower right canine chipped off with rough surface. 5. PW-1 Madan Lal in his statement in the Court has stated that Jagdish Kumar came in front of the vehicle, he asked him to clear the road. In the meantime, three persons Khem Singh, Dinesh and Babloo alias Yashwant came on the spot and started abusing the complainant, they had taken liquor. They stopped his vehicle. He had parked his car but all four of them came and dragged the complainant outside the car and started beating him. He sustained injuries on the mouth and other parts of the body. 4 They gave beatings to him with kick and fist blows. The persons who were sitting with him in the car intervened and saved him. The accused threatened him to do away with his life. In the cross- examination, he has stated that he had named Dinesh and Babloo in his report which was lodged with the police. He has further stated that he was dragged from the car only by Khem Singh and his statement that all four dragged him out of the car was incorrect. The blood fell on the ground. He contacted his family immediately after the occurrence on telephone from the residence of Tara Chand. The house of Tara Chand is near to the place of occurrence. Tara Chand and his wife had also seen him in injured condition. 6. PW-2 Amrit Lal has stated that Jagdish stopped the car and had scuffle with Madan Lal. Thereafter, Dinesh Kumar, Babloo and one more gave beatings to Madan Lal. PW-3 Dr. Shiva Nand has proved MLC Ex.PW-3/A of Madan Lal. In cross- examination, he has stated that there should have been multiple injuries had the injured been given fist and kick blows by four, five persons. PW-4 Dr. K.K.Vaidya, has proved MLC Ex.PW-4/A and has stated that the injury cannot be caused by fist blows. In cross-examination, he has stated that injury is possible if the injured in a mobile vehicle strikes against hard object by application of brakes of the vehicle. 7. PW-5 Dina Nath is the father of Madal Lal complainant, who is not an eye witness. PW-6 Rajesh Kumar did not support the prosecution and was declared hostile. He was 5 cross-examined by the prosecution. PW-7 ASI Ram Lal has proved FIR Ex.PW-7/C. PW-8 H.C. Amar Nath is the Investigating Officer. He has stated that there was abadi near the place of occurrence but he did not record the statements of persons residing near the place of occurrence. He did not see any blood drops at the place of occurrence. 8. In FIR Ex.PW-7/C the complainant has named Jagdish Chand and Khem Singh and two more persons who committed the offence. The two other persons were not identified in the FIR. But in the Court PW-1 complainant has stated that he named Dinesh and Babloo when he reported the matter to the police. This part of the statement of complainant does not find support from FIR Ex.PW-7/C in which names of Dinesh and Babloo have not been mentioned. Therefore, the complainant has made improvement in his statement in the Court. In FIR, the complainant has stated that all the persons who stopped his car dragged him out and gave him beatings with kick and fist blows. But in the Court, he has stated that only Khem Singh dragged him out of the car and his statement that all four persons dragged him out from the car is incorrect. 9. PW-6 Rajesh Kumar who was allegedly accompanying PW-1 complainant at the time of incident did not support the prosecution and he was declared hostile but prosecution could not extract in his cross-examination which can be used by the prosecution against the respondents. PW-2 Amrit Lal has stated that Jagdish stopped the car of Madan Lal. Dinesh 6 Kumar, Babloo and one more gave beatings to Madan Lal. He has not named the fourth accused nor he has stated that Madan Lal was dragged out of the car by Khem Singh. Thus, on material points his statement is not inconformity with the statement of complainant. PW-1 has stated that immediately after the incident, he contacted his family on telephone from the house of Tara Chand and at that time Tara Chand and his wife had seen him in injured condition. In this context, Tara Chand and wife were material witnesses but they were not examined by the prosecution. 10. PW-1 has stated that blood fell on the ground at the place of occurrence but PW-8 H.C. Amar Nath, who investigated the case has stated that he did not see any blood drops at the place of occurrence. It has come on record in the statement of PW-8 H.C.Amar Nath that there was abadi near the place of occurrence but he did not record the statements of persons residing near the place of occurrence. In site plan Ex.PW-8/A many shops have been shown near the place of occurrence but no one from those shops was joined during investigation and produced in the Court. PW-3 Dr. Shiva Nand, who has issued MLC Ex.PW-3/A has stated that there should have been multiple injuries had the injured been given kick and fist blows by four, five persons. PW-4 Dr. K.K.Vaidya, who issued MLC Ex.PW-4/A has stated that injuries cannot be caused by fist blows. The complainant has named the respondents in the court who allegedly attacked him, but in FIR Ex.PW-7/C he has named only two persons Jagdish 7 Chand and Khem Singh. No explanation has been given why all the four persons were not named in the FIR. 11. The learned Judicial Magistrate has noticed various contradictions, improvements and deviations in the initial story recorded in FIR and in evidence which has come in the Court. The view taken in the impugned judgment by the learned Court below emerges from the evidence on record. No case for interference is made out. Resultantly, the appeal fails and is accordingly dismissed. The bail bonds are discharged. May 19, 2009. ( Kuldip Singh ), (GR) Judge.