CR.A/46/2003 on 29 December 2010

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.Appeal No.46 of 2003

Decided on: 29th December, 2009

State of H.P

…..Appellant.

VERSUS Sh.Sansar Chand.

…..Respondent.

Coram

The Hon’ble Mr. Justice Deepak Gupta, Judge.

Whether approved for reporting?1No

For the Appellant: Mr.Rajesh Mandhotra, Deputy Advocate General.

For the Respondent: Ms.Archana Dutt,Advocate vice Shri J.R.Poswal, Advocate.

Deepak Gupta,Judge (Oral)

This appeal by the State is directed against the judgement dated 20.11.2002 passed by the Learned Additional Chief Judicial Magistrate, Palampur in Criminal Case No.81- 1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes

…2… II/1997 whereby he has acquitted the accused of having committed offences punishable under Sections 325, 323, 506 of the Indian Penal Code.

2. The prosecution story, in brief, is that on 27.9.1996, the complainant Sh.Tidu Ram was going from village Daroh to his house situated in village Gadiara. The accused met him at Daroh bus stand. The accused was drunk and abused the complainant and gave him 3-4 fist blows. The complainant was rescued by one Sh.Bikku, shopkeeper. Thereafter, the complainant went towards his house. The accused again caught hold of him and beat him up. The accused also twisted the arm of the complainant as a result of which he suffered injuries. It was alleged that the second incident was witnessed by the wife of Jagan Nath, Kushal Pandit, Ravan and Munshi Ram who reached the spot and saved the complainant from the clutches of the accused.

3. Though the incident is alleged to have taken place on 27.9.1996, the complaint was lodged with the police only on 1.10.1996. Thus, there is a delay of almost four days in lodging the

…3… FIR itself. The explanation put forth is that since the complainant was injured, he could not lodge the complaint. This explanation cannot be accepted due to the simple reason that the injuries on the person of the complainant were not such as to make him totally unable to lodge a report. Secondly, it is proved on record that the son of the complainant is the Vice President of the Gram Panchayat. Even if the complainant could not go to the Police Station himself to lodge the report, his son could have lodged the same.

4. In addition to the delay, another reason to disbelieve the entire prosecution case is that none of the witnesses, who had witnessed the incident as per the FIR, namely BIkku, wife of Jagan Nath, Kushal Pandit, Ravan and Munshi Ram have been examined by the prosecution. Therefore, an adverse inference has to be drawn against the prosecution. One Sh.Dharam Pal was examined as PW/2. His name did not even find mention in the FIR. This is an FIR which was lodged after four days and not at the spur of the moment. Therefore, the learned Trial Court was right in

…4… holding that no reliance can be placed on the statement of PW/2. In any event, the statement of PW/2 contradicts the statement of PW/1, complainant.

5. In view of above discussion, I find no merit in the appeal which is accordingly rejected. No order as to costs.

29th December, 2009

( Deepak Gupta )

(m) Judge.