IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.Appeal No. 109 of 2002 Date of decision : December 11, 2008. State of H.P. …Petitioner Versus. Pawan Kumar & Ors. …Respondent(s). Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge . Whether approved for Reporting ? No For the Petitioner: Mr. Rajesh Mandhotora, Deputy Advocate General. For the Respondents: Mr.S.D. Vasudeva, Advocate. Deepak Gupta, J (Oral) This appeal is directed against the judgment of the of the learned Judicial Magistrate Ist Class, Nurpur dated 29.9.1999 in Criminal case No. 32-II/94, whereby he acquitted the respondents of having committed offences punishable under Sections 147, 452, 342, 427 and 323 of the Indian Penal Code. The prosecution version, in brief, is that the complainant Budhi Singh is admittedly a supporter of the Congress party. According to him, he was an active worker for the candidate of the Congress party from the Nurpur constituency in the elections held for the legislative assembly in the State of Himachal Pradesh. According to him on 8.11.1993 some workers of the Bhartiya Janta Party had threatened him that they would abduct him and therefore he had deputed some - 2 - boys of the village to protect him. His version is that Sanjay Kumar, Sanjeev Kumar, Suridner Kumar and Narinder Singh were sleeping in his house for his protection. On the night intervening 8.11.1993 and 9.11.1993 at about 2.30 a.m. in the morning some persons came to his house and started hurling filthy abuses and asked him to come out. Since he was scared he did not go outside. Thereafter, the accused persons broke open the door of the room where the aforesaid four boys were sleeping and gave beating to the four boys. Then the accused persons forcibly took away these boys in Maruti Vans to some un-identified place. According to him, about 60 persons had accompanied the accused. The complainant also reported to the police that the accused persons have broken the door of the house and some household articles including a television. On the basis of this complaint, FIR Ext.PW- 1/B was registered. Thereafter, the police prepared the site plan, recorded the statements of the witnesses and completed the investigation. The accused were sent for trial. They pleaded not guilty and their case was that a false case has been lodged against them due to political rivalry. Their version was that a false case has been lodged with a view to garner sympathy for the Congress candidate. The prosecution, in support of its case examined Budhi Singh as PW-1 and the four boys as PWs 2 to 5. They are the main witnesses in the case. - 3 - PW-1 has virtually repeated what he had stated in the complaint. He also states that when the police came to the spot at about 9 a.m. next morning, four sticks were taken into possession by the police in his presence vide recovery memo Ext.PW-1/A. He has admitted that there are two houses adjacent to his house. He also admits that there are 500 to 600 other houses in the village but according to him they are situated at a distance from his house. PWs 2 to 5 i.e. Sanjay Kumar, Sanjeev Kumar, Suridner Kumar and Narinder Singh have also stated that they are the workers of the Congress Party and were working actively for the congress candidate. According to them the accused came, beat them up and abducted them and then they were taken to the house of Dr.Rajan Sushant where they were tortured and an attempt was made to electrocute them. They were set free at about 7 a.m. in the morning. They also admit that all the accused persons are members of the BJP. Dr.Anil Mahajan, PW-6 conducted the medical examination of the complainant and other four injured and issued the MLCs. He has found injuries on the persons of the accused which according to him could have been caused by dandas recovered by the police. PW-7 Hans Raj who is the other witness to the recovery of the dandas has turned hostile. Before dealing with the other aspects of the matter it would be relevant to bear in mind that admittedly both sides in the case belong to rival political parties and the incident is alleged to have taken place - 4 - during the height of election fever. There are inherent loopholes in the prosecution version. According to the complainant on 8th November he had received threats that he would be adducted and beaten up. However, as per his own version when on the night intervening 8th and 9th November the accused persons came to his house they neither beat him nor abducted him. The accused are alleged to have broken the door, TV set and other household articles. No broken door, broken bolts, broken TV set or broken household articles have been recovered or produced in Court. According to the SHO some photographs of the broken articles were taken but even these have not been placed on the record of the case. It is not disputed that the incident is alleged to have taken place in the abadi area of the village. It cannot be believed that when 50 to 60 persons came in 10 to 12 maruti vans raising hue and cry, no other persons in the village would wake up. No independent witnesses except PW-9 have been associated in the case. PW-9 has also not supported the prosecution version in its entirety. There is another loophole in the prosecution version. If the four witnesses PW-2 to PW-5 were adducted and taken to the house of Dr.Rajan Sushant, there is no reason why Dr.Rajan Sushant was not arrayed as an accused in the case or at least cited a material witness. No evidence whatsoever has been led to show that actually these persons were kept for the night at the house of Dr.Rajan Sushant or they were tortured there. PWs 2 to 5 have also stated that they - 5 - were given electric shocks and the accused tried to electrocute them. This version of the witnesses has not been supported by the medical evidence at all. The learned trial Court rightly held that there is likelihood of false implication of the accused due to political rivalry and that since no independent witness has corroborated the version of the complainant and the witnesses the accused cannot be held guilty. This finding of the learned trial Court is very reasonable and based on the material on record and calls for no interference. The appeal is without any merit and is dismissed. Bail bonds furnished by the accused are discharged. December 11, 2008. ( Deepak Gupta ), J. PV