IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 174 of 2001 Date of decision: 27.5.2008 State of H.P. Appellant Versus Umesh Kumar @ Citu & Ors. Respondents Coram The Hon’ble Mr. Justice V.K. Ahuja, J. Whether approved for reporting1? No. For the appellant: Mr. J.S. Guleria, Law Officer, For the respondents: Mr. Lovneesh Kanwar, Advocate. V.K.Ahuja, J. (Oral): This is an appeal filed by the State of H.P. against the judgment of the Court of learned Judicial Magistrate Ist Class, Court No. III, Mandi, dated 18.8.2000, vide which the respondents were acquitted of the charge framed against them under Sections 451, 325, 324, 323, 506 read with Section 34 I.P.C. Briefly stated the facts of the case are that on 31.10.1995, at about 9.45 A.M., a report was lodged with the police by one Hardyal Singh that on the previous night at about 10.30 P.M. he was sleeping in his house alongwith family members, he heard a noise on the slab of his house, went there and found that four persons were taking liquor on his slab and were giving abuses. He asked them as to why they were giving abuses and taking liquor on his slab, on which those Whether the reporters of Local Papers may be allowed to see the Judgment? Yes. 2 persons caught hold of him, gave him beatings, dragged him for a distance of 300 yards and again gave beatings. He raised an alarm, on which several villagers collected there and his wife also reached there. He ran towards the shop of one Gur Singh to give a telephone call, Those persons also threatened him and his wife. On this report, a case was registered and after investigation, the Challan was filed before the learned trial Court who tried the respondents as detailed above leading to their acquittal. I have heard learned counsel for the parties and have gone through the record. On a perusal of the record of the case, it is very much clear that the complainant had alleged that out of those four persons he was knowing only one person named Situ son of Hardev Singh. The complainant when appeared in the witness box as PW-3 again stated that he was knowing Situ and no other persons. His wife who was examined as PW-4 stated simply that she knows all the accused persons standing in Court who had come there. But in her cross- examination, she had stated that she could not identify those persons because of darkness. PW-5 Narbada Devi, daughter-in-law of the complainant had also stated that she identified one person out of the four persons who was named Situ and she correctly identified him. The other witnesses examined by the prosecution have not identified any of the accused persons or stated that they saw them at the spot. PW-10 Gita Nand had stated that when he went to the house of Hardyal Singh he found that Ramesh and two other persons were quarreling with Hardyal Singh and were giving him abuses. From a perusal of this part of the evidence led by the prosecution, it is clear that the complainant and two persons from his 3 family have only stated that Situ was known to them and have not identified any of the accused persons nor any Identification Parade was got done by the Investigating Officer who investigated the case. The only independent witness is PW-10 Gita Nand who was referred to one of the accused as Ramesh. But other prosecution witnesses including the complainant as mentioned above have not stated that they identified the said Ramesh and the complainant and his two family members had stated that there were four persons, whereas PW- 10 stated that there were three persons and he had not identified the said Situ who was attacking Hardyal. Thus, it is clear that identity of any of the accused except one Situ was not established from the prosecution evidence. Coming to the injuries in question, PW-3 Hardyal Singh had stated about the occurrence i.e. firstly he was giving beatings on the slab, then he was dragged for a distance of about 300 yards and was pushed and given beatings and again the beatings were given to him as well as his wife at the shop of Gur Singh where he had gone to give a telephone call. On this aspect, PW-4 Durgi Devi had also stated that when she came out of her house, her husband was being given beatings, blood was oozing out and he was taken to some distance and then she and her husband were given beatings at the shop of Gur Singh. Thus, she had partly corroborated the statement of her husband in regard to the manner in which injuries were inflicted. However, PW- 5 Narbada Devi, daughter-in-law of PW-3 had stated that her father-in- law was dragged, given beatings and thereafter while going back, the accused persons came to her and manhandled her as well as her grand-mother. While leaving the place, the accused persons gave threat which facts were never stated by any of the three witnesses. 4 However, she had not stated that any injuries were inflicted upon the person of Hardyal Singh and PW-4 Durgi Devi at the shop of Gur Singh, as stated by this witness. In case she was present at the spot and had witnessed the occurrence, it was quite natural for her that she must have witnessed this part of the occurrence when the beatings were given to her father-in-law PW-3 Hardyal Singh and her mother-in-law PW-4. Apart from the above, it has come up in the statement of PW-3 Hardyal Singh that when he raised an alarm, Tara Chand and Gita Nand also came to the spot and rescued him, which clearly shows that these persons must have rescued the complainant from the clutches of the accused persons who were present at that time at the spot. PW-4 Durgi Devi had stated that adjoining to their house, there are houses of Tara Chand, Khalifa and Lekh Ram and had also admitted that in the house of Tara Chand a ‘Kirtan’ was going on and many persons were present there at that time. PW-5 Narbada Devi denied her knowledge in case a ‘Satsang’ was going on in the house of Tara Chand at that time, which fact has been admitted by PW-4, who also supports the above observation that she must not have been present at that time. She had admitted that adjoining to her house, there are houses of Tara Chand, Khalifa, Lekh Ram and Gita Ram and if a voice is raised from their house, it can be heard in those houses also. The complainant in his statement had not stated that when he went to the shop of Gur Singh, he was present there or not and he gave a telephonic call from his shop or not. The said Gur Singh has been examined as PW-7 and had stated that none came to his shop and no quarrel took place in his shop nor he rescued any person. PW-8 Tara Chand about whom a reference has come, his house is 5 nearby , had stated that he went to the house of Hardyal Singh but he did not see the quarrel since it was dark. 3-4 boys came there and he did not see any injury on the person of Hardyal Singh at that time. In case he had gone to the spot on hearing the noise, it was quite natural for him to have seen if there was any injury on the person of the complainant but he stated that he never saw any injury. He further stated that he did not see Hardyal Singh or his wife being given beatings at that time. PW-9 Savitri Devi had stated that she went to the spot on hearing the noise and found that Hardyal Singh and one Umesh Kumar were strained with blood but she was very clear when she stated that she did not see the occurrence. All these witnesses, namely, PW-7 Gur Singh, PW-8 Tara Chand and PW-9 Savitri Devi, when examined by the prosecution turned hostile. PW-10 Gita Nand had stated that he went to the spot, he found Ramesh and two other persons quarreling with Hardyal Singh and gave him abuses. This clearly shows that those persons were present at that time but he never identified nor stated the manner in which the injuries were inflicted on the person of PW-3 Hardyal Singh. He gave reason for the quarrel that their relations were already strained. He did not support the prosecution story in full. The bottles and glass were not taken in possession by the police. From the above discussion of the evidence, it is clear that in the statements of the prosecution witnesses, it has clearly come up particularly the statement of PW-3 Hardyal Singh that a quarrel took place for two and half hours and several persons had come to the spot as has come in the evidence, but none of these persons including neighbours have supported the prosecution story. No reasons have been given as to why neighbours will not support the prosecution story. 6 From the above discussion of the evidence, it is clear that it not a case where no independent witnesses were present but neighbours and several other persons were present at the place, but none of them have supported the prosecution case. Keeping in view the contradictions and infirmities in the prosecution case, the conclusion drawn by the learned trial Court holding that the guilt of the respondents was not established beyond any reasonable doubt cannot be said to be perverse calling for an interference by this Court. In view of the above discussion, I accordingly, hold that there is no merit in the appeal filed by the appellant, which is dismissed accordingly. Bail bonds of the respondents shall stand discharged. May 27, 2008 ( V.K. Ahuja ) (BSS) Judge 7