HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No. : 186 of 2003 Decided on: 28.11.2011 State of Himachal Pradesh ……… Appellant. Versus Krishan Chand ………Respondent. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the Appellant: Mr.Rajesh Mandhotra, Deputy Advocate General. For the respondent: Ms.Archana Dutt, Advocate. Justice Deepak Gupta, J.(oral): This appeal by the State is directed against the judgment dated 25.4.2000, whereby the learned Additional Chief Judicial Magistrate, Kangra, acquitted the accused of having committed offence punishable under Section 326 IPC. 2. The prosecution story in brief is that the complainant Sohan Lal lodged an FIR Ext.PW-9/A in the police to the effect that he and accused are neighbours. Their land adjoins each other. On 24th September, 1995, at about 10.00 a.m., when the complainant Sohan Lal was grazing his cattle in the field, accused Krishan Chand came and asked him as to why he (Sohan Lal) had uprooted the fence of the complainant. Thereafter, the accused started abusing him and suddenly __________________________________________________________________________ Whether reporters of local newspapers may be allowed to see the judgment? Yes. - 2 - snatched the Sotha (stick) being carried by the complainant and started beating the complainant with the said stick. One blow of the stick was given on the head of the complainant and other blows on his legs. Thereafter, the accused inflicted a blow of drat on the complainant. The complainant raised an alarm and on hearing his cries, a large number of people gathered at the spot and on seeing them, the accused fled from the scene of occurrence. 3. After the FIR was lodged, the complainant was got medically examined and the Investigating Officer prepared the site plan etc., recorded the statements of the witnesses and completed other codal formalities. Thereafter, on the basis of the material gathered during investigation, the accused was charged for having committed the offence aforesaid. After trial, the accused had been acquitted, hence this appeal by the State. 4. The accused has been acquitted on three grounds. Firstly, that the complainant himself has resiled from his statement made under Section 154 Cr.P.C. and has given a totally different version about the incident. Secondly, that the independent witness Gian Singh was not examined and lastly, that the only witness examined, namely, Amar Singh, is the son of the complainant and his testimony cannot be relied upon because his name did not find mention in the first information given to the police. 5. As mentioned hereinabove, the case in the FIR was that the accused wanted to know from the complainant as to why the complainant had uprooted his fence and this was the genesis of the dispute. However, while appearing in the - 3 - Court, the complainant stated that when he was grazing his cow in the field, then the accused started cutting the hedge (fence) belonging to the complainant and when he i.e. the complainant asked the accused not to cut the hedge then the fight started. This is completely opposite to what had been stated in the FIR. When confronted with the statement recorded in the FIR Ext.PW-9/A, the complainant stated that he had never made such a statement to the police. Therefore, the very foundation of the case is weak and there is reason not to believe the version of the complainant since he has taken two different stands. 6. The only eye witness mentioned in the FIR was Gian Singh. He was an independent witness and it was stated that he was crossing the area when he had gone to collect the Neem leaves. The prosecution could not procure his presence for almost three years as recorded by the learned Magistrate and thereafter, the evidence was closed. The non-examination of this witness, who was the only witness named in the first information and who, it was alleged, had rescued the complainant from the clutches of the accused, is fatal to the prosecution. 7. As far as PW-3 Amar Singh is concerned, as noted above, he is the son of the complainant. It may be true that family members are also credible witnesses, but that will depend on the facts and circumstances of each case. In the present case, when the FIR was lodged, the name of Amar Singh did not find mention in the same. If Amar Singh had been present, there was no reason why the complainant Sohan Lal would not have mentioned his name while getting the FIR - 4 - recorded. The learned Magistrate has also pointed out differences in the statements of the complainant and PW-3 Amar Singh. The presence of Amar Singh at the spot itself is very doubtful. It is also an admitted fact that there is long standing dispute between the parties and, therefore, the chances of the accused being falsely implicated cannot be ruled out. 8. In view of the above discussion, we find no merit in the appeal filed by the State, which is dismissed accordingly. The bail bonds furnished by the respondent shall stand discharged. (Deepak Gupta), Judge. November 28, 2011 (V.K. Ahuja), (tilak) Judge.