HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No. : 747 of 2002 Decided on: 23.3.2010 State of H.P. ……… Appellant. Versus Madan Lal and others ………Respondents. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the Appellant: Mr.Vikas Rathour, Deputy Advocate General, and Mr.J.S. Guleria, Assistant Advocate General. For the respondents: Mr.Harmeet Singh, Advocate. V.K. Ahuja, J.: This is an appeal filed by the appellant/ State of H.P. against the judgment of the court of learned Judicial Magistrate Ist Class, Court No.II, Shimla, dated 6.7.2002, vide which the respondents were acquitted of the charges framed against them under Sections 451, 147, 354, 323 and 506 read with Section 149 of the IPC. Respondent Devender Kumar was also charged under Section 344 of the IPC in addition to the aforesaid Sections. Briefly stated the facts of the case are that on 29.3.2000, at 10.15 p.m., a report was lodged with the police by the complainant Darshanu Devi that at about 9.30 p.m., during night time, when she was sitting in her Dhaba, respondent Devender alongwith 7-8 other persons came to her Dhaba in furtherance of their common intention. She further alleged that respondent Devender caught hold of her from her ___________________________________________ Whether reporters of local newspapers may be allowed to see the judgment? Yes. - 2 - breast and gave her threat and asked her to close the Dhaba, failing which, he will commit rape upon her. Her husband came to the Dhaba on hearing noise who was also given beatings by these persons. She also alleged that those persons gave a threat to take her life as well as that of her family. She also alleged that she recognizes the said Devender, who is a resident of Village Chamiyana and can identify the other persons if produced before her. On this report, a case was registered by the police and after investigation, the challan was filed against the respondents. The learned trial Court framed charge against the respondents, as detailed above, and tried them leading to their acquittal. I have heard the learned counsel for the parties and have gone through the record of the case. On appraisal of the record of the case, it is clear that in the complaint lodged by the complainant, she had named only one accused as Devender and had alleged that he was accompanied by 7-8 persons, who had not been named by her in the report lodged with the police. The complainant was examined in the court as PW-1. A perusal of her statement shows that she has nowhere stated as to who were the accused persons, had not named them and had not identified the persons present in the court to be the same persons who had come to her shop and quarreled with them. In case the other accused persons were not known to her, it is difficult to believe as to how she came to know about the identity of these persons since no identification parade was conducted and there is nothing on the record as to how the complainant - 3 - had identified these persons. In her statement, she simply stated that the accused persons came to her shop and told her that they wanted to take liquor and when she refused, the accused persons started throwing stones. She further stated that on this her husband came there and the accused persons gave beatings to him. She did not name as to who gave beatings and upon which portion of the body. She has not stated about any indecent assault about which she alleged in the FIR lodged by her. The other witness, who has supported the version of the complainant, is PW-3 Keshav Ram, son of the complainant Darshanu Devi. He stated that 6-7 persons came to the shop, started throwing stones upon them and they closed the shutter of the shop. He further stated that they committed indecent assault upon his mother, which was not so stated by the complainant in her statement when she appeared in the witness box. He did not state which of the accused persons committed this indecent assault. He simply stated that the accused persons present in the court quarreled with them, but he did not name them or state as to how he identified them. Simply because this witness stated that he identified the accused persons is not sufficient to establish the identification of the accused persons. This statement is not in corroboration to the testimony of his mother, who has stated differently. He came up with the plea that one Liaq Ram was also given beatings and his uncle Hari Nand also came to the spot, which was not so stated by the complainant. He further stated that he suffered injuries in his abdomen, - 4 - which was not so stated by the complainant, and no medical certificate of his has been proved on the record. The next eye witness was PW-5 Het Ram, who is the husband of the complainant, who stated that the accused persons came to the shop, threw stones and gave blows on his head and he suffered injuries. He stated that Liaq Ram was also given beatings and one Hari Nand came to the spot. He had also not identified the accused persons and simply stated that the accused persons are present in the court, but had not named any of them and had not stated as to how he learnt about the identity of the accused persons. The other two witnesses, namely, PW-2 Hari Nand and PW-4 Liaq Ram have not supported the prosecution story on material particulars. A perusal of the judgment passed by the learned trial Court shows that the learned trial Court devoted much time in the discussion by referring to the testimonies of the witnesses as to when the police came to the spot, but no discussion was made as to the identity of the respondents. The learned trial Court has also referred to a fact that PW-9 ASI Bhagat Ram has stated that one of the respondent, namely, Devender Kumar had come to him to lodge a report at 9.30 p.m., who was also sent for medical examination. I am not inclined to rely upon the testimony of such a police officer who has stated that the accused came to him at 9.30 p.m., since he did not lodge any rapat or FIR and made oral statement in the Court after sufficient time, which shows that he is interested to help the respondents. In case the accused had come to make the alleged report, the same should have been recorded as a rapat or an FIR and then the - 5 - accused could have been sent for medical examination. The medical examination of Devender Kumar took place at 12.30 p.m. on the next day. This makes the statement of PW-9 ASI Bhagat Ram unreliable. The net result of the above discussion is that there is no sufficient evidence on record to prove the guilt of the respondents and thus, the final findings recorded by the learned trial Court that the case was not proved beyond reasonable doubt cannot be termed as perverse calling for an interference by this Court. In view of the above discussion, I accordingly hold that there is not merit in the appeal filed by the appellant, which is dismissed accordingly. The bail bonds furnished by the respondents shall also stand discharged. March 23, 2010. (V.K. Ahuja), (TILAK) Judge