IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 105 of 2004. Decided on: June 27, 2011. ____________________________________________________ State of Himachal Pradesh. ……..Appellant. Versus Gulshan Kumar and others. …..Respondents. Coram Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting1? For the appellant : Mr. A.K.Bansal, Addl. Advocate General. For the respondents : Mr. Rakesh Thakur, Advocate, vice Mr. Virender Sharma, Advocate. _______________________________________________________ SURINDER SINGH, J (oral): The appeal filed by the respondents hereinafter to be referred as ‘the accused’ against their conviction was allowed by the learned Additional Sessions Judge and against their acquittal, State has filed the present appeal. 2. Heard and gone through the evidence on record. 3. It is the case of the prosecution that on 11.7.1999 at about 7.30 p.m., complainant Whether reporters of the Local papers are allowed to see the judgment? - 2 - Shakti Singh was driving Jeep bearing registration No.CH-01Y-6072 and another vehicle bearing registration No.CH-01G-8583 driven by Vijay Kumar was ahead of him. They were going from their village to Chandigarh and cross the bridge. When they reached near Nandpur, Jeep No.HP-19-5501 driven by accused Ashok Kumar (deceased) came in high speed from the opposite side and hit the Jeep of Vijay Kumar. Ashok Kumar instead of feeling apologetic exchanged hot words with him. Accused Ashok Kumar got down from his vehicle and started beating Shakti Singh. In the meantime, accused Santosh Kumari, Rani Devi and Raj Kumar also came to the spot, armed with the sticks and gave beatings to the complainant Shakti Singh and also to Vijay Kumar, Gurdeep Singh and Alisa Devi. Vijay Kumar on sustaining injuries fell unconscious. Accused persons apprehended some serious consequence, as such fled away. 4. Shakti Singh injured lodged the FIR. He alongwith Vijay Kumar, Gurdeep Singh and - 3 - Alisa Devi got medically examined. Both the accidental vehicles were taken into possession by the police and got mechanically examined. During the investigation, police also recovered the dandas/ sticks used by the accused persons in beating the complainant and others. 5. After completing the investigation, challan was presented in the Court for the trial of the accused person. All the accused persons except accused Ashok Kumar were charge- sheeted for the offences punishable under Sections 147, 323, 324, 201 read with Section 149 of the Indian Penal Code, whereas, Ashok Kumar was charge-sheeted for the offence punishable under Section 279 of the Indian Penal Code. 6. Relying upon the statement of the injured, learned trial Court convicted and sentenced the accused persons but released on probation by giving them the benefit of Section 4 of the Probation of Offenders Act. 7. Accused persons did not feel satisfied by the impugned judgment, as such challenged it - 4 - in Cr.A. No.16 of 2001 by accused Ashok Kumar and Cr.A. No.18 of 2001 by other accused. Vide its judgment dated 27.9.2003, learned Additional Sessions Judge, Judge acquitted all the accused persons on the grounds of identification and that there was no sign of dent in both the vehicles to prove the accident in question and other injured persons were not examined and the witnesses already examined have given contradictory version. 8. Shri A.K.Bansal, learned Additional Advocate General submitted that the impugned judgment of acquittal was passed by the learned Appellate Court in slip-shot and perfunctory manner. According to him, there is sufficient evidence on record to establish the sanctity of the accused persons. Since the accused persons proved to have formed an unlawful assembly and given beatings to the injured, therefore, their conviction stands to be maintained. 9. To appreciate the points raised, I venture to go through the evidence adduced on - 5 - record. At the very outset, I would like to say that the Cr. Appeal No.43 of 2004 filed by the State against accused Ashok Kumar stands abated because of his death, whereas qua other accused persons, the evidence of the prosecution appears to be contradictory and not worthy of credence. There lacks the corroborative evidence with respect to the alleged accident. The vehicle being driven by Vijay Kumar was got mechanically examined after four months of the alleged incident, but the Mechanic did not find any dent in both the vehicles. It is specifically mentioned in the report Ext.PW6/A that the driver side seat window/ door appears to be different from other which might have been newly fitted. Admittedly, the accused persons were not known to the witnesses. They were also travelling in the different vehicles as aforesaid. 10. PW1 Shakti Singh stated that his vehicle had already crossed the bridge and another vehicle coming behind him and was in the process of crossing the bridge. He admitted - 6 - that the alleged offending vehicle was coming from the opposite side and was at a distance, so could not see as to who was driving it, but when it stopped, he could see the driver. He also admitted that PW11 ASI Avtar Singh Investigating Officer belonged to his village. Accused Ashok was called by him at a later date where he was shown to him. He stated that he was caught hold by Shivender Kumar accused. He only came to know about his name when examined in the Court, but neither Shivender Kumar is an accused nor his name finds mentioned in the FIR. He further stated in the cross-examination conducted on behalf of accused No.2 that he also did not know any of the accused, but he only identified them during the trial, but when he was asked about as to who was Gulshan Kumar, he failed to identify, therefore, his identification is also faulty. 11. PW2 Vijay Kumar stated about the accident having been caused by Ashok Kumar. As already stated above, the fact of - 7 - accident in question does not stand proved in accordance with law. He admitted that at the time of alleged incident, there was lot of traffic on the road and about 20 persons were also present, but surprisingly none of the independent witnesses were examined to lend strength to the case of the prosecution. Both the witnesses have contradicted each other and on the point of identification of the accused persons, their statements are fragile which cannot be explicitly relied upon. 12. In the instant case, PW11 ASI Avtar Singh, is admittedly from the village of complainant party. He Investigated the case and the accused persons have alleged bias and particularly raised the defence that being the co-villagers, said Police Officer distorted to the facts. 13. Further PW8 Dr. Usha Daroch also noticed the incised wound on the middle of the scalp of Partap Singh injured (not examined), mentioned in Medico Legal Certificates Ext.PW8/C and D which as per the doctor can - 8 - only be caused by a sharp edged weapon, but in the instant case, there is no allegation that the accused persons had also used the sharp edged weapon, therefore, it appears that the very origin of the story has been suppressed by the prosecution witnesses. 14. For the reasons aforesaid, the judgment of acquittal passed by the learned Appellate Court against the respondents cannot be interfered as the findings of acquittal are borne out from the record. The appeal sans merits is accordingly dismissed. 15. The respondents are discharged of their bail bonds entered upon by them at any time during the proceedings of this case. 16. Send down the records. (Surinder Singh), Judge. June 27, 2011. (Pds)