IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal Nos.314 & 335 of 2009 Date of Decision: 18.04.2026 ----------------------------------------------------------------------------------------- 1. Cr. Appeal No.314 of 2009 State of Himachal Pradesh ...Petitioner Versus Jitender Singh & Ors. …Respondents 2. Cr. Appeal No.335 of 2009 State of Himachal Pradesh ...Petitioner Versus Rajesh Kumar …Respondent Coram: The Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting?1 . --------------------------------------------------------------------------------------- For the appellants(s): Mr. Rajan Kahol & Mr. Vishal Panwar, Additional Advocate Generals with Mr. Ravi Chauhan & Mr. Anish Banshtu, Deputy Advocates General. For the Respondent(s): Ms. Simran Chauhan, Advocate vice Mr. Anil Chauhan, Advocate, for respondent No.1, in Cr.Appeal No.335 of 2009. Mr. Sanjeev Kuthiala, Senior Advocate with Mrs. Garima Kuthiala through video conferencing & Ms. Tamanna & Ms.Rachna Kuthiala, Advocates, for respondents in Cr. Appeal No.314 of 2009. ----------------------------------------------------------------------------------------- Sandeep Sharma, J. (Oral) Since common questions of facts as well as law are involved in both the above-captioned cases, this Court heard them together and the same are now being disposed of vide common judgment. 1 Whether reporters of the local papers may be allowed to see the judgment? 2. In nutshell, case of prosecution as emerge from the pleadings as well as other record made available to this Court is that FIR Ext. PW-7/A came to be lodged against the persons namely Jitender, Rajesh Kumar, Suresh, Yograj, Dhanbir, Kamlender, Arun Kumar, Geeta Ram @ Vijay and Ram Lal under Sections 147, 148, 341, 325, 323 and 506 of Indian Penal Code, on the basis of statement of the complainant, namely Naresh Kumar (PW-1), who alleged that on 30.06.2003, while he was returning from Basadhar to Solan driving bus bearing registration No.HP-16-2185 and had reached near Snora at about 10:15 a.m., he found three vehicles bearing registration Nos. HP-16-0431, HP-16-4001 and HP-025-0110 parked in the middle of the road and there were about 15-20 persons including the accused standing on the road. He alleged that he stopped the bus on the road and suddenly accused Jitender and Kamlender dragged him out of the driver seat and thereafter, alongwith other co-accused gave beatings to him. He alleged that Jitender Kumar (PW-5), who was conductor in the bus, was also dragged out of the bus and beaten by the accused Yog Raj, Rajesh, Surender, Chhellu, Ram Lal and Jitender with dandas and iron rod, which they were carrying at relevant time, as a result thereof, they both suffered multiple injuries. Complainant also alleged that accused Rajesh also got signed a blank paper from him and took away his ring and 2 watch. Complainant also apprised Court that incident was seen by Vinod Kumar (PW-2), Shamsher Singh (PW-12) and Subhash Chand (PW-14). Record reveals that on receipt of information with regard to aforesaid incident, ASI Krishan Kumar (PW-13) along with Constable Rajender went to the spot and found that both the complainant Naresh Kumar (PW-1) and Jitender Kumar (PW-5) were lying there in an injured condition, who were thereafter taken to hospital at Rajgarh. After lodging of FIR Ext. PW-7/-A, police also got Naresh Kumar (PW-1) and Jitender Kumar (PW-5) medically examined at Sub Divisional Hospital, Rajgarh. Dr. Yash Pal (PW-9), who examined both the injured persons named herein above, opined that they had sustained both simple and grievous injuries, in respect of which MLCs Ext. PW-9/B and Ext. PW-9/C were issued. Police, after having completed codal formalities, started investigation and after completion of investigation, presented challan in the competent Court of law, which being satisfied that prima facie case exists against the accused named in the FIR, proceeded to frame charges against the accused under Sections 147, 148, 149, 341, 325, 323 and 506 of the Indian Penal Code, to which they pleaded not guilty and claimed trial. 3. Prosecution, with a view to prove its case, examined as many as 14 witnesses. Accused, in their statement recorded under Section 313 Cr.P.C, denied the case of prosecution in toto 3 and claimed that they are innocent. Accused also examined two witnesses in their defence i.e. DW-1 Bharat Singh and DW-2 Smt. Arita Devi. Learned trial Court, on the basis of evidence led on record by the respective parties, though acquitted the accused namely Dhanbir, Arun Kumar, Geeta Ram @ Vijay and Ram Lal of the charges, for which they were tried, but convicted the accused persons namely Jitender, Rajesh Kumar, Suresh, Yog Raj and Kalmender Singh under Sections 147, 148, 341, 325, 323 read with Section 149 of Indian Penal Code and sentenced them as under: (a) to undergo rigorous imprisonment for three months and fine of Rs. 500/- each and in default of payment of fine to undergo simple imprisonment for one month under Section 147 of the Indian Penal Code, (b) to undergo rigorous imprisonment for three months and to pay a fine of Rs.1000/- each and in default of payment of fine to undergo simple imprisonment for one month under Section 148 of the Indian Penal Code, (c) to undergo rigorous imprisonment for three months and to pay a fine of Rs.500/- each and in default of payment of fine to under go simple imprisonment for one month under Section 149 of the Indian Penal Code, (d) to undergo rigorous imprisonment for one month each under Section 341 of the Indian Penal Code, (e) to undergo rigorous imprisonment for three months and to pay a fine of Rs.1000/- each and in default of payment of fine to 4 undergo simple imprisonment for one month under Section 323 of the Indian Penal Code. (f) to undergo rigorous imprisonment for six months and to pay a fine of Rs.2000/- each and in default of payment of fine to undergo simple imprisonment for one month under Section 325 of the Indian Penal Code, However, all the sentences so passed have been ordered to run concurrently.” 4. Afore accused also came to be acquitted under Section 506 of Indian Penal Code. 5. Though accused persons, who were convicted under aforesaid provision of law, filed appeal under Section 374 of Cr.P.C in the Court of learned Additional Sessions Judge, Sirmaur District at Nahan, Himachal Pradesh, but appellant-State chose not to file any appeal against the acquittal of the accused namely Dhanbir, Arun Kumar, Geeta Ram @ Vijay and Ram Lal, as a result thereof, judgment of acquittal recorded by learned trial Court qua aforesaid accused has attained finality. Appeal filed by the respondents-accused came to be allowed vide judgment dated 03.01.2009 passed by learned Additional Sessions Judge, Sirmaur District at Nahan, Himachal Pradesh. In the afore background, appellant-State has approached this Court in the instant proceedings, praying therein for restoration of judgment passed by learned trial Court, whereby the respondents-accused were 5 convicted under aforesaid provisions of law, after setting aside the judgment of acquittal recorded by learned Additional Sessions Judge, Sirmaur District at Nahan, Himachal Pradesh. 6. Precisely, the grouse of the appellant-State, as has been highlighted in the grounds of appeal and further canvassed by Mr. Vishal Panwar, learned Additional Advocate General, is that court of learned Additional Sessions Judge, Sirmaur, committed grave error, while appreciating the evidence adduced on record by the prosecution, as a result thereof, well reasoned judgment of learned trial Court, thereby convicting the respondents-accused under aforesaid provisions of law, has been reversed. While making this Court peruse statements made by the material prosecution witnesses, Mr. Panwar, attempted to persuade this Court to agree with his contention that prosecution successfully proved beyond reasonable doubt that respondents-accused had formed an unlawful assembly and thereafter, gave merciless beatings to the complainant (PW-1) and Jitender Kumar (PW-5). He submitted that though bare perusal of statements made by the material prosecution witnesses nowhere suggests any inconsistencies and material contradictions, but even if it is presumed that there are minor inconsistencies, the same are not sufficient to reverse the well-reasoned judgment passed by learned trial Court. Mr. Panwar submitted that respondents-accused could 6 not claim parity, if any, with the accused namely Dhanbir, Arun Kumar, Geeta Ram @ Vijay and Ram Lal, who were acquitted by the learned trial Court by extending the benefit of doubt because it has come specifically in the evidence that respondents-accused, who were convicted by the learned trial Court, had fully participated in the incident and gave merciless beatings to the complainant, Naresh Kumar and Jitender Kumar (PW-5) with dandas and iron rod. While referring to medical evidence adduced on record, Mr. Panwar further submitted that prosecution successfully proved on record that complainant (PW-1) and Jitender (PW-5) sustained serious injuries, which were opined to be simple as well as grievous in nature. 7. To the contrary, Mr. Sanjeev Kuthiala, learned Senior Counsel for the respondents-accused, while supporting the impugned judgment of acquittal recorded by learned Additional Sessions Judge, vehemently argued that there is no scope of interference. He submitted that there are material contradictions and inconsistencies in the statements made by PW-1 and PW-5, who were allegedly given beatings by the respondents-accused. He submitted that none of the independent witnesses supported the case of prosecution, but yet learned trial Court proceeded to convict the accused merely on the statements of PW-1 and PW-5, whose version was never corroborated by the other prosecution 7 witnesses. He submitted that learned trial Court committed grave error while convicting some of the accused on the same set of evidence, on the basis of which some of the accused, who allegedly gave beatings to the accused were extended the benefit of doubt. He submitted that since learned trial Court, after having perused evidence adduced on record by the prosecution, found it insufficient to conclude the guilt of the accused named in the FIR, it ought to have extended similar benefit of doubt to the respondents- accused herein. 8. Having heard learned counsel for the parties and perused material available on record vis-a-vis reasoning assigned by the learned Additional Sessions Judge, while recording the judgment of acquittal, this Court is not persuaded to agree with Mr. Vishal Panwar, learned Additional Advocate General, that Court below had committed grave error in appreciating the evidence, rather this Court finds that learned Additional Sessions Judge has appreciated the evidence in its right perspective and there is no scope of interference. 9. Though in the case at hand, prosecution examined fourteen witnesses to prove its case, but statements made by PW-1 Naresh Kumar, PW-2 Vinod Kumar, PW-5 Jitender Kumar, PW-12 Shamsher Singh and PW-14 Subhash Chand are material 8 to determine the correctness of judgment of acquittal recorded by learned Additional Sessions Judge. 10. PW-1 Naresh Kumar stated on oath that on the relevant date and time, while he was returning to Solan driving the bus bearing registration No.HP-16-2185 and had reached near Snora, he saw a Maruti Car, Tata Sumo and a Van parked in the middle of the road and accused Kamlender, Jitender Rajesh, Suresh, Ram Lal, Yog Raj, Vijay were also present there. He deposed that he stopped the bus and the accused Jitender and Kamlender dragged him out of the driver seat and started giving him beatings with the iron rods, fist and kick blows. He deposed that some of the persons entered into the bus and dragged the conductor (PW-5) out of the bus and gave him beatings. He deposed that he was beaten by the accused Jitender, Kamlender and Yog Raj and accused Rajesh got his signature on a blank paper and also took away his golden ring and watch. He deposed that accused Jitender, Kamlender were carrying dandas, while accused Yog Raj was in possession of an iron rod. He further deposed that after some time, Vinod Kumar (PW-2) came on the spot in van bearing registration No.HP-01-3483 and police also reached there and thereafter, they were taken to Hospital at Rajgarh. If the aforesaid statement of him made in Court is perused and juxtaposed with his initial statement recorded under 9 Section 154 Cr.P.C., on the basis of which FIR Ext.PW-7/A was lodged, this Court is persuaded to agree with Mr. Sanjeev Kuthiala, learned Senior Counsel that there are material contradictions. Though complainant Naresh Kumar corroborated the version of occurrence as narrated vide Ext. PW1/A, but there are contradictions with regard to names of the persons, who allegedly gave him beatings. In his cross-examination, he deposed that he was beaten by the accused Jitender Kamlender and Yog Raj and there were about 35 persons in his bus including Subhash and Sunil. He deposed that accused Vinod came to the spot after about half an hour from the occurrence, whereas version put-forth by PW-5 Jitender Kumar (Conductor) suggests that PW-2 was present at the time of occurrence and he had an occasion to see the alleged incident with his eyes. 11. PW-2, in his statement on oath, stated that he reached the spot after having heard that PW-1 Naresh Kumar, who was known to him, had been beaten up, but once he reached the spot, he found that only PW-1 Naresh Kumar and PW-5 Jitender were present and both of them were lying injured. Similarly, PW-1 deposed that he had mentioned the names of Subhash and Sunil, while reporting the matter vide Ext. PW-1/A, however, perusal of Ext. PW-2/A nowhere suggests that PW-1 Naresh Kumar had mentioned the names of Subhash and Sunil as eye witnesses of 10 the occurrence. PW-1 deposed that it was accused Jitender, Kamlender and Yog Raj, who gave him beatings with dandas and iron rod. However, such version of him is also an improvement over the version as reported vide Ext. PW-1/A, wherein he reported that some of the accused dragged him out of the bus, whereas other accused dragged the conductor out of the bus and thereafter they were beaten by the accused, but he nowhere specifically named accused Kamlender, Jitender and Yog Raj to be the persons, who allegedly gave them beatings with iron rods and dandas. He nowhere mentioned that he was dragged out of the bus by the accused Jitender and Kamlender. Failure of PW-1 to specifically name accused Kamlender and Jitender as the persons, who had allegedly dragged him out of the driver seat and his failure to name accused Jitender, Kamlender and Yog Raj as the persons who gave him beatings with iron rod and dandas, while reporting the matter to the police, certainly compels this Court to agree with Mr. Sanjeev Kuthiala, learned Senior Counsel for the respondents, that afore witness, while deposing before court below, purposely made an attempt to improve his statement. 12. PW-5 Jitender Kumar, who was conductor in the bus being driven by Naresh Kumar (PW-1), deposed that at the relevant date and time, three vehicles were seen by him parked in the middle of the road and 15-20 persons were present there. He 11 deposed that when the bus was stopped, 3-4 persons entered into the bus, dragged him out of the bus and gave him beatings. He also deposed that driver Naresh Kumar was also dragged out of the bus and was beaten with dandas, fist and kick blows and he named the accused Yog Raj, Rajesh, Suresh, Ram Lal, Jitender and Chellu to be the persons who had given beatings to them. He deposed that accused Rajesh, Suresh, Yog Raj and Chellu gave beatings to him with dandas, which they were carrying. He nowhere deposed that at the time of alleged occurrence, signature of Naresh Kumar (PW1) was obtained on some paper by the accused Rajesh or that they took away his watch and golden ring. Cross-examination conducted upon this witness clearly compels this Court to agree with learned Senior Counsel that there are material contradictions and inconsistencies in his deposition. This witness, in his cross-examination, deposed that while narrating the occurrence to the police, he had mentioned the names of accused Rajesh, Ram Lal, Kamlender, Jitender, Yog Raj, Raghubir, Suresh etc. as he knew only 6-7 persons, whereas the names of the other accused were told to him by Vinod Kumar, who took them to Rajgarh hospital in his vehicle. Aforesaid version of him is total contrary to the statement of PW-1, who deposed that PW-2 Vinod Kumar came to the spot after about half an hour from the occurrence. 12 13. As per PW-1, PW-2 had no occasion to see the incident, whereas PW-5 Jitender Kumar deposed that Vinod Kumar reached the spot at the time of occurrence along with the police officials and also witnessed the occurrence. In his cross- examination, PW-5 deposed that he was dragged out of the bus by accused Rajesh, Suresh, Yog Raj and Chellu and accused Yog Raj was carrying iron rod, whereas accused Rajesh and Suresh were having dandas in their hands, which version of him is again contradictory to the version put-forth by PW-1. PW-1 Naresh Kumar named accused Jitender, Kamlender and Yog Raj to be the persons who gave him beatings, whereas as per PW-5, persons namely Suresh, Yog Raj, Chellu and Rajesh gave them beatings. 14. PW-1 Naresh Kumar vide Ext.PW-1/A reported to the Police that all accused Jitender, Rajesh, Suresh, Yog Raj, Dhanbir, Kamlender, Arun Kumar, Geeta Ram and Ram Lal gave beatings to him and PW-5 after obstructing their path, but such version of him never came to be corroborated by PW-5 Conductor of the bus. 15. Interestingly, in the case at hand, learned trial Court acquitted the accused Dhanbir, Arun Kumar, Geeta Ram @ Vijay and Ram Lal by giving them benefit of doubt. However, on the same set of evidence, respondents-accused came to be convicted and sentenced by the learned Court below. Since no appeal ever came to be filed against the acquittal of accused Dhanbir, Arun 13 Kumar, Geeta Ram @ Vijay and Ram Lal, findings returned by the learned trial Court have attained finality. Since suspicion had arisen in the mind of learned trial Court that evidence adduced on record by the prosecution is doubtful and insufficient to convict the accused, whom it subsequently proceeded to acquit, it is not understood as to what prevented the learned trial Court to not extend similar benefit of doubt to the respondents-accused. On the same set of evidence, the learned trial court ought to have either acquitted all the accused or convicted those named in the FIR, but it could not have extended the benefit of the doubt to only some of them. 16. PW-1 Naresh Kumar deposed that there were about 35 passengers in his bus at the time of occurrence and Shamsher Singh (PW-12) and Subhash Chand (PW-14), who were travelling in the bus, had an occasion to see the incident with their eyes. Though prosecution examined afore witnesses in support of its case, but version put-forth by them, if perused in its entirety, it nowhere suggests that they supported the case of the prosecution, as such, were rightly declared hostile, but yet learned trial Court taking cognizance of the cross-examination conducted upon afore witnesses, wrongly proceeded to conclude that afore witnesses supported the case of the prosecution to the extent that PW-1 14 Naresh Kumar and PW-5 Jitender Kumar were given beatings at the time of alleged incident by the respondents-accused. 17. PW-12 Shamsher Singh deposed that neither he was travelling in the bus nor any occurrence took place in his presence, but he only saw Naresh Kumar at Snora in injured condition. Cross-examination conducted upon this witness nowhere suggests that prosecution was unable to extract anything contrary to what this witness stated in his examination-in-chief. He specifically denied that three vehicles were parked in the middle of the road at Snora and 20 persons including all the accused were present at the spot. He also denied that some of the accused entered into the bus and dragged the driver and conductor out of the bus and thereafter, gave them beatings. 18. PW-14 Subhash Chand deposed that he was travelling in the bus being driven by Naresh Kumar (PW-1) on 30- 6-2003 and at the time of alleged incident, he saw two vehicles parked on the road along with some persons and persons, namely, Dhanbir, Rajesh and Jitender gave beatings to Naresh Kumar. He deposed that afore persons did not give beatings to any other person, save and except Naresh Kumar. Afore witness was declared hostile. In his cross-examination, he admitted that there were three vehicles parked in the middle of the road along with 20 persons at the time of alleged incident, but he denied that it was 15 the accused Vijay, Rajesh, Ram Lal, Pinku, Kamlender, Arun, Jitender, Yog Raj, Suresh and Dhanbir, who obstructed the road. He deposed that he had told the police that accused persons dragged the driver out of the bus and some of the accused also gave beatings to the conductor with danda, kick and fist blows causing injuries to both of them. If the version put-forth by this witness in his cross-examination is perused, he nowhere specifically named any of the accused, but he simply deposed that all the accused gave beatings to the driver and conductor of the bus, which version of him is totally contrary to the version put-forth by PW-1 and PW-5. 19. As already observed, PW-1 named only accused Kamlender, Rajesh Jitender and Yog Raj to be the persons who gave beatings to him, whereas PW-5 named only accused Rajesh, Suresh, Yog Raj and Chellu to be the persons who gave beatings to him. Some of the persons named hereinabove though faced trial, but they were acquitted by the learned trial Court by extending the benefit of doubt. 20. PW-2 Vinod Kumar also did not support the case of the prosecution, rather his version is totally contrary to the version put-forth by PW-5. Though prosecution cited PW-5 Subhash Chand as eye witness, but version put-forth by him does not support the case of prosecution. In his cross-examination, this 16 witness deposed that PW-12 Shamsher Singh was also travelling with him, which version of him is totally contrary to the statement made by Shamsher Singh (PW-12), who categorically deposed that he was not travelling in the bus at the relevant time and date. 21. Having scanned the statements of all the material prosecution witnesses as have been taken note hereinabove, this Court is fully convinced and satisfied that there are material contradictions and inconsistencies in the prosecution evidence. No doubt, minor contradictions and inconsistencies may not be fatal to the case of prosecution, but once there are contradictions with regard to names of the accused, who allegedly gave beatings to PW-1 and PW-5 as well as presence of PW-2, PW-12 and PW-14, who were otherwise attempted to be cited as an independent witnesses, version put-forth by PW-1 and PW-5 rightly could not have been taken into consideration without there being any corroboration by the independent witnesses. 22. In this regard, reliance is placed upon the judgment passed by Hon’ble Apex Court in C. Magesh and others versus State of Karnataka (2010) 5 Supreme Court Cases 645, wherein it has been held as under:- “45. It may be mentioned herein that in criminal jurisprudence, evidence has to be evaluated on the touchstone of consistency. Needless to emphasis, consistency is the keyword for upholding the conviction of an accused. In this 17 regard it is to be noted that this Court in the case titled Surja Singh v. State of U.P. (2008)16 SCC 686: 2008(11) SCR 286 has held:-( SCC p.704, para 14) “14. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witness is held to be creditworthy;..the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.” 46. In a criminal trial, evidence of the eye witness requires a careful assessment and must be evaluated for its creditability. Since the fundamental aspect of criminal jurisprudence rests upon the stated principle that “ no man is guilty until proven so,” hence utmost caution is required to be exercised in dealing with situation where there are multiple testimonies and equally large number of witnesses testifying before the Court. There must be a string that should join the evidence of all the witnesses and thereby satisfying the test of consistence in evidence amongst all the witnesses.” 23. No doubt, PW-9 Dr. Yash Pal and PW-10 Dr. B.K. Bhardwaj, who medically examined Naresh Kumar and Jitender Kumar, opined injuries suffered by both the above named victims to be simple as well as grievous, but once prosecution has not been able to prove that injuries suffered by the complainant (PW-1) and Jitender Kumar (PW-5) were inflicted by the accused named in the FIR, MLCs adduced on record may not be of very much relevance, as such, rightly came to be ignored by learned Additional Sessions Judge, while recording the judgment of acquittal. Similarly, this Court finds that there are material 18 contradictions with regard to recovery of weapon of offences i.e. dandas and iron road from the possession of the accused Kamlender, Rajesh, Yog Raj and Jitender. 24. Though prosecution attempted to prove that dandas used in the alleged offence were recovered at the instance of the accused, but version put-forth by SHO Sucha Nand (PW-6) clearly reveals that accused Kamlender presented the danda, which was taken into possession vide memo Ext.PW-6/A by him, whereas statement of PW-7 ASI Chet Ram reveals that accused Rajesh Kumar presented one iron rod and two dandas, which were taken into possession vide memos Ext. PW-7/B. Statements of both these witnesses are in contradiction with the statement of Constable Piyush Kumar (PW-8), who is the witness to the seizure memos Ext. PW-7/B and Ext. PW-6/A. This witness though stated that accused Kamlender presented one danda, which was seized vide memo Ext. PW-6/A, but he further deposed that two dandas and one Iron rod were recovered from the spot after carrying out its search by the police in the presence of the accused Rajesh, Jitender and Yog Raj, which version of him clearly reveals that accused Rajesh, Jitender and Yog Raj never presented any dandas or rod to the police during investigation, rather same were recovered from the spot in the presence of afore accused. 19 25. Consequently, in view of the detailed discussion made herein above, this Court finds no reason to interfere with the well reasoned judgment recorded by learned Additional Sessions Judge, Sirmaur District at Nahan, Himachal Pradesh, thereby reversing the judgment of conviction recorded by learned Court below and as such, same is upheld. Accordingly, both the appeals fail and are dismissed alongwith pending applications, if any. Bail bonds, if any, furnished by the accused stand discharged. (Sandeep Sharma) Judge April 18, 2026 (sunil) 20