CRIMINAL APPEAL 8 of 2003 on 10 November 1998

1. Surinder Kumar @ Dhesa S/o Kahnu Ram, R/o Chaman Niwas near Satsang Bhawan, Khalini, Shimla-2.

2. Kapil Sharma S/o Yoginder Lal Sharma, R/o Rosevilla, Below Satsang Bhawan, Khalini, H.P.

… …Respondents

Appeal under Section 378 Cr.P.C.

Coram

The Hon’ble Mr.Justice R.B. Misra, Judge. The Hon’ble Mr.Justice Dev Darshan Sud,Judge.

Whether approved for reporting ?[1]

For the Appellant: Mr.R.K. Sharma, Senior Additional Advocate General with Mr.Rajinder Dogra, Additional Advocate General.

For the Respondents: Mr.Shrawan Dogra, Advocate.

Dev Darshan Sud,J.

This appeal has been preferred by the State against the judgment of the learned Additional Chief Judicial Magistrate, Shimla, acquitting the respondent for offences under Sections 326, 324 read with Section 34 of the Indian Penal Code (hereinafter referred to as `IPC’) and Section 25 of the Arms Act.

1 Whether the reporters of Local Papers may be allowed to see the judgement?

Yes.

2. The prosecution case is that at around 8.00 P.M. on 10.11.1998 Surinder Kumar accused-respondent went to the house of Manish and took him to Khalini Vihar where other accused Atul and Kapil were waiting for him. He was beaten up by them. Accused-respondent Surinder inflicted a Khukhri blow and respondents-accused Kapil and Atul punched him, kicked him and beaten up with knuckle duster. He raised then alarm whereupon his sister Sapna PW-6 and Jatinder Kumar PW-7 rushed the spot and took him for medical examination. 3.PW-5 Manish Kumar complainant states that on 10.11.1998 at the time as stated, he was informed by his sister that Surinder had come to meet him. He accompanied this accused and when they reached near the office of the Chief Conservator of Wild Life the other two accused Kapil and Atul were waiting for them. They demanded money and when he refused to comply with their demand, he was hit with a Khukhri, Lathi and knuckle duster. He raised an alarm and became unconscious, whereafter he was taken to Snowdon Hospital (Indira Gandhi Medical College Hospital, Shimla). After treatment, he alongwith PW-7 Jitender lodged report Ex.PW-5/A with the police. Sapna PW-6, sister of the complainant injured, supported the prosecution case. She also went to the spot to rescue the injured and could identify only Surinder as she stated that she saw three boys running from the spot. She was declared hostile by the prosecution and in her cross-examination she admitted that she had stated differently before the police. She also admitted in her cross-examination that there was complete darkness at the time when the incident took place. When she reached the spot she found her brother lying on the ground. PW-7 Jitender also states that he saw the accused lying on the ground and the “boys” had run away from the spot. There was no street light and it was pitch dark. PW-3 Dr.Puneet Mahajan examined Manish and found five injuries on his person. He issued MLC Ex.PW-3/A. The other witnesses are official witnesses corroborating the investigation. 4. On consideration of the evidence, the learned trial Court found that the identity of the accused had not been established. The Court advert to the evidence of the prosecution, namely, PW-6 Sapna and PW-7 Jatinder who have corroborated each other on one fact (a) that when they reached the spot, the injured was lying on the spot; (b) there was no light and it was a pitch dark night. The learned trial Court also considers one more fact and this is the evidence of PW-6 Sapna where she says that her brother was injured on his right hand, whereas such injuries were on his left hand. We do not give much credence to this fact for the reasons that once it was a pitch dark night, the identification of the accused was not possible. True that at the time when the injured was called from the house, one of the accused Surinder had been identified who was participating with the other in the attack, but

criminality cannot be established for the reason that there has been no identification of the persons, who actually committed the crime. We are unable to accept the submissions made by learned Additional Advocate General that the complainant has been corroborated on all material facts. We find from the evidence that PW-6 Sapna and PW-7 Jitender completely exonerates the accused. We, thus, find no merit in this appeal which is dismissed. The bail bonds furnished by the respondents are discharged.

(R.B. Misra) Judge

November 2, 2011 (aks)

(Dev Darshan Sud) Judge