IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 1 of 2004 Date of decision: 16.07.2010 State of H.P. ... Appellant Versus Totu Ram and others … Respondents Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant: Mr. J.S. Guleria, Assistant Advocate General. For the respondents: Mr. Ramesh Sharma vice Mr. Lakshay Thakur, Advocate. V.K. Ahuja , J. (Oral): This is an appeal filed by the State of H.P. under Section 378 Cr.P.C. against the judgment of the Court of learned Judicial Magistrate Ist Class, Court No. III, Mandi, dated 23.7.2003, vide which the respondents were acquitted of the charge framed against them under Sections 147, 325, 324, 323 read with Section 149 I.P.C.. 2. Briefly stated, the facts of the case are that on 13.10.1996, at about 3.00 P.M., a rapat was lodged with the police by one Nihal Singh that he is having a dispute with one Debu since long. He was doing working in his fields and 10 persons named by him came, who were hiding in some fields, jumped in his fields alongwith daratis and dandas. He was given a darati blow by Dharmu and blow with danda by Roshan and all these persons gave beatings to 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 him. He made a complaint to Pradhan Smt. Shakuntla Devi, who told him that it was a police case and then he went to Up Pradhan, who accompanied him and a report was lodged with the police. On this rapat, a case was subsequently registered and after medical examination of the complainant and after investigation, the challan was filed as against the respondents, who were tried by the learned trial Court for the offences as detailed above, leading to their acquittal. 3. I have heard the learned counsel for the parties and have gone through the record of the case. 4. On appraisal of the evidence led by the prosecution, it is clear that the prosecution had examined 11 witnesses to substantiate their case. PW-1 Nihal Singh is the complainant himself, who has stated that he was working in his fields and accused persons came with lathis and daratis and gave him beatings on his head, arms, shoulder, abdomen and on his mouth. He further stated that he was given blow with danda by Dharmu, by Mansha Ram with darati, which is contrary to the report lodged by him, in which he had alleged that Dharmu gave darati blow and not with danda and blow with darati was attributed to Mansha Ram, though in the report it was attributed to Dharmu. He further stated that all other persons gave beatings to him. He nowhere alleged in the report as to the persons who came on the spot including his son PW-2 Kamal Singh, his daughter Kumari Krishna Devi or he was rescued by these persons apart from PW-6 Roop Singh. There is nothing in the report lodged by him with the police that he became unconscious or why he could not name me the persons, who rescued him or came to the spot. For the first time, he stated that he became unconscious, which was not so 3 alleged by him in the report lodged with the police. He was confronted with the police statement in regard to the injuries given with darati and danda and as such, the contradictions made, can be looked into the fact that he did not mention that he was rescued by his son, daughter and other witnesses, leads to the inference that the examination of these witnesses as eye witnesses make their version doubtful and has to be appreciated with more care and caution since the complainant never stated that these persons came to the spot and rescued him. He however admits his long standing enmity with the accused persons. 5. PW-2 Kamal Singh, son of the complainant has been examined to show that his father was caught hold by the accused persons and they started giving beatings with lathis and daratis, but he was not specific which accused gave blow with lathis and daratis. It was never stated by the complainant that his son Kamal Singh came to the spot and he was given beatings. He further stated that Roop Singh came on the spot and in case he had not rescued, his father would have been killed on that day. This witness also did not name his sister PW-3 Kumari Krishna Devi, who came to the spot and rescued them also. He was confronted with the improvements made in regard to his statement recorded under Section 161 Cr.P.C. 6. PW-3 Kumari Krishna Devi is the daughter of the complainant, whose presence was not so stated by the complainant or his son PW-2. She stated that she alongwith Kamal Singh and Roop Singh ran to save his father and when she reached there, 11 persons were giving beatings to her father with daratis or dandas. She also did not state as to the particular blows given by which of 4 the accused persons with daratis or dandas. She stated that her father was lying unconscious at the spot, which was not so stated by PW-2. 7. PW-6 Roop Singh, an alleged eye witness, has stated that the persons name by him came to the spot. Mast Ram was having danda, while Dharam Singh was having darati in his hand and they were giving beatings to Nihal Singh. This is contrary to the version of the complainant in Court, who stated that Dharmu gave blow with danda and not with darati. He further stated that when he reached the spot accused persons ran away and son of the complainant and his daughter took him to his house. He no where stated that the complainant became unconscious and the presence of son and daughter was not so stated by the complainant himself. He further stated that he had seen the occurrence from a height and did not come to spot, which is contrary to the statements of other prosecution witnesses, namely, PW-2 Kamal Singh and PW-3 Kumari Krishna Devi that he also rescued the complainant at that time. He was confronted with his police statement wherein he had not mentioned that the complainant was lying at the spot in a conscious state. 8. The Statement of PW-4 Shakuntla Devi is only to this effect that the complainant came to him. She was declared as hostile and was allowed to be cross-examined. PW-5 Nettar Singh, Up Pradhan, to whom the mater was reported afterwards, had also turned hostile. 9. The statement of Medical Officer PW-7 Dr. Vijay Kumar shows that there was several injuries on the person of the injured. In cross-examination, he has stated that all the injuries except 5 Injury No. 3 are possible by fall on a hard surface and Injury No. 3 is possible by a fall on sharp edged weapon. It is, therefore, clear from the evidence that the version of the complainant is quite different from the one such mentioned in his report lodged with the police and there is no reference to the presence of any other witnesses and statements of other witnesses are not such which can be relied upon to hold that the complainant’s version stands corroborated by these witnesses. It has been observed that the learned trial Court that before lodging of the report by the complaint, a cross case had got registered by the accused persons, but the said copy of rapat has not been referred to in evidence. However, the fact remains that the findings recorded by the learned trial Court holding that the prosecution has failed to prove their case beyond any reasonable doubt, cannot be termed as perverse. 10. 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. The bail bonds furnished by the respondents shall stand discharged. ( V.K. Ahuja ), July 16, 2010 Judge (BSS) 6