2026:HHC:7980

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Appeal No. 290 of 2014

Reserved on: 25.02.2026

Date of Decision: 20.03.2026

State of H.P. ...Appellant

Versus

Rakesh Kumar & Ors. ...Respondents

Coram

Hon’ble Mr Justice Rakesh Kainthla, Judge.

Whether approved for reporting?

1

No

For the Appellant/State : Mr Ajit Sharma, Deputy Advocate

General, Advocate.

For the Respondents : Mr P.P. Chauhan, Advocate.

Rakesh Kainthla, Judge

The present appeal is directed against the judgment

dated 30.04.2014 passed by learned Judicial Magistrate First Class,

Dharamshala, District Kangra, H.P. (learned Trial Court) vide

which the respondents (accused before learned Trial Court) were

acquitted of the commission of offences punishable under

Sections 147, 148, 323, and 325, read with Section 149 of the Indian

Penal Code (IPC). (Parties shall hereinafter be referred to in the same

1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

2

2026:HHC:7980

manner as they were arrayed before the learned Trial Court for

convenience.)

2. Briefly stated, the facts giving rise to the present appeal

are that the police filed a charge sheet against the accused persons

for the commission of offences punishable under Sections 147,

148, 323 and 325 read with Section 149 of the IPC. It was asserted

that the informant, Rajnish Kumar, was running a shop. He and

his brother Sajneesh Kumar (PW2) were closing the shop on

14.02.2009 at about 8:30 PM. Rakesh Kumar @ Rinku and Pankaj

@ Pinku came to the shop and started abusing them. Rakesh

Kumar inflicted a blow on the informant’s head by means of a

brick. Rakesh and Pankaj gave beatings to the informant and

Sajneesh Kumar (PW2). Prakash Chand, Shareshtha Devi and

Mona Devi also came to the spot. They also gave beatings to the

informant and his brother. The matter was reported to the police.

An entry (Ext.PW8/A) was recorded in the police station. An

application (Ext.PW-10/E) was filed for medical examination of

the injured. Dr Inder Mohan (PW9) examined Rajnish Kumar

(PW1) and found that he had sustained multiple injuries. He

referred Rajnish Kumar (PW1) to the Dental Surgeon for expert

opinion. Dr Randeep Kumar (PW6) examined Rajnish Kumar

3

2026:HHC:7980

(PW1) and found that one tooth was missing. He issued the report

(Ext.PW6/A). Dr Inder Mohan (PW9) issued a final opinion stating

that the nature of the injury was grievous, which could have been

caused within six hours of the examination. He issued the MLC

(Ext.PW9/A). Dr Inder Mohan (PW9) examined Sajneesh Kumar

(PW2) and found that he had sustained multiple injuries, which

could have been caused by means of a blunt weapon. He issued the

report (Ext.PW9/B). The police registered the FIR (Ext.PW10/F)

after the receipt of the medical opinion. ASI Dalip Singh (PW10)

investigated the matter. He visited the spot and prepared the site

plan (Ext.PW10/A). Rajnish Kumar (PW1) produced three pieces of

bricks (Ext.P1 to Ext.P3) which were put in a cloth parcel, the

parcel was sealed with four impressions of seal ‘M’, and it was

seized vide memo (Ext.PW1/A). Statements of witnesses were

recorded as per their version, and after the completion of the

investigation, the challan was prepared and presented before the

learned Trial Court.

3. Learned Trial Court found sufficient reasons to

summon the accused persons. When the accused persons

appeared, they were charged with the commission of offences

punishable under Sections 147, 148, 323 and 325, read with Section

4

2026:HHC:7980

149 of the IPC, to which they pleaded not guilty and claimed to be

tried.

4. The prosecution examined eleven witnesses to prove its

case. Informant Rajnish Kumar (PW1) and the victim Sajneesh

Kumar (PW2) narrated the incident. Baldev Kumar (PW3) and

Naresh Kumar (PW7) are eyewitnesses. Budhi Singh (PW4)

witnessed the recovery. Ashwani Kumar (PW5) did not support the

prosecution’s case. Dr Randeep Kumar (PW6), Dental Surgeon,

examined Rajnish. HC Arjun Pal (PW8) proved the entry in the

daily diary. Dr Inder Mohan (PW9) medically examined the victim.

ASI Dalip Singh (PW10) investigated the matter. Inspector

Bahadur Singh (PW11) signed the FIR and prepared the challan.

5. The accused, in their statements recorded under

Section 313 of Cr.P.C., denied the prosecution’s case in its entirety.

They claimed that the witnesses were the informant’s relatives,

and they made false statements against the accused because of the

land dispute. They tendered documents in evidence.

6. Learned Trial Court held that the relationship between

the parties was strained because of the land dispute. The

informant admitted that other persons were present in the shop;

5

2026:HHC:7980

however, no such person was examined. The FIR was registered on

17.02.2009, whereas the incident had occurred on 14.02.2009. The

FIR was not sent to the learned Magistrate within time and was

sent on 19.02.2009. This made the prosecution’s case suspect.

Hence, the learned Trial Court acquitted the accused.

7. Being aggrieved by the judgment passed by the learned

Trial Court, the State has filed the present appeal asserting that

the learned Trial Court failed to appreciate the evidence in a

proper perspective. The statements of prosecution witnesses were

discarded without any cogent reason. Sajneesh Kumar (PW2),

Baldev Kumar (PW3) and Naresh Kumar (PW7) had corroborated

the informant’s version. Baldev Kumar (PW3) and Naresh Kumar

(PW7) were independent witnesses and had no reason to support

the informant. Their testimonies were duly corroborated by the

statements of the Medical Officers. The matter was reported to the

police on the same day, and an entry was recorded in the Police

Station. This entry was ignored by the learned Trial Court.

Therefore, it was prayed that the present appeal be allowed and

the judgment passed by the learned Trial Court be set aside.

6

2026:HHC:7980

8. I have heard Mr Ajit Sharma, learned Deputy Advocate

General for the appellant/State and Mr P.P. Chauhan, learned

counsel for the respondents/accused.

9. Mr Ajit Sharma, learned Deputy Advocate General for

the appellant/State, submitted that the learned Trial Court failed

to properly appreciate the material on record. The matter was

reported to the police on the same day, and an entry in the daily

diary was recorded. The FIR was registered after the medical

examination. This was ignored by the learned Trial Court. Enmity

is a double-edged weapon and cannot be used to discard the

prosecution’s case. Learned Trial Court had taken an unreasonable

view of the matter. He prayed that the present appeal be allowed

and the judgment passed by the learned Trial Court be set aside.

10. Mr P.P. Chauhan, learned counsel for the

respondents/accused, submitted that the relationship between the

parties was strained over the land. The FIR was sent belatedly to

the learned Magistrate, and the learned Trial Court had rightly

drawn an adverse inference against the prosecution for doing so.

Learned Trial Court had taken a reasonable view, and this Court

should not interfere with the reasonable view of the learned Trial

7

2026:HHC:7980

Court while deciding the appeal against an acquittal. Hence, he

prayed that the present appeal be dismissed.

11. I have given considerable thought to the submissions

made at the bar and have gone through the records carefully.

12. The present appeal has been filed against a judgment of

acquittal. It was laid down by the Hon’ble Supreme Court in

Surendra Singh v. State of Uttarakhand, (2025) 5 SCC 433: 2025 SCC

OnLine SC 176 that the Court can interfere with a judgment of

acquittal if it is patently perverse, is based on misreading of

evidence, omission to consider the material evidence and no

reasonable person could have recorded the acquittal based on the

evidence led before the learned Trial Court. It was observed at page

438:

“24. It could thus be seen that it is a settled legal position that

the interference with the finding of acquittal recorded by the

learned trial Judge would be warranted by the High Court only

if the judgment of acquittal suffers from patent perversity;

that the same is based on a misreading/omission to consider

material evidence on record; and that no two reasonable views

are possible and only the view consistent with the guilt of the

accused is possible from the evidence available on record.”

13. This position was reiterated in State of M.P. v. Ramveer

Singh, 2025 SCC OnLine SC 1743, wherein it was observed:

“21. We may note that the present appeal is one against

acquittal. Law is well-settled by a plethora of judgments of

8

2026:HHC:7980

this Court that, in an appeal against acquittal, unless the

finding of acquittal is perverse on the face of the record and

the only possible view based on the evidence is consistent

with the guilt of the accused, only in such an event, should

the appellate Court interfere with a judgment of acquittal.

Where two views are possible, i.e., one consistent with the

acquittal and the other holding the accused guilty, the

appellate Court should refuse to interfere with the

judgment of acquittal. Reference in this regard may be made

to the judgments of this Court in the cases of Babu

Sahebagouda Rudragoudar v. State of Karnataka (2024) 8 SCC

149; H.D. Sundara v. State of Karnataka (2023) 9 SCC 581, and

Rajesh Prasad v. State of Bihar (2022) 3 SCC 471.”

14. The present appeal has to be decided as per the

parameters laid down by the Hon’ble Supreme Court.

15. Rajnish Kumar (PW1) stated that he had reported the

matter to the police on the same day, and he was taken to the

hospital for medical examination. This is duly corroborated by the

statement of HC Arjun Pal (PW8), who stated that Rajnish Kumar

and Sajneesh Kumar (PW2) had visited the Police Station on

14.02.2009 and reported the matter to him. An entry No. 26(A)

(Ext.PW8/A) was registered in the Police Station, and the injured

were taken to the hospital for their medical examination.

16. The entry (Ext.PW8/A) mentions that Rakesh Kumar

and Pankaj Kumar had inflicted injuries on the informant and his

brother in their shop. Rakesh inflicted a blow by means of a brick

upon the head of the informant. Parkash Chand, Shareshtha Devi

9

2026:HHC:7980

and Mona Devi also came to the spot, and they gave beatings to

the victim. This version was subsequently incorporated into the

FIR.

17. Learned Trial Court held that the police should have

registered the FIR, and the registration of the FIR on 17.02.2009

made the prosecution’s case suspect. This finding cannot be

sustained. The police had referred the victims for their medical

examination, and the dental surgeon had issued his opinion on

17.02.2009 at 11:30 AM stating that a fracture was detected.

Thereafter, the police registered the FIR at 4:45 PM. The

informant had narrated the incident to the police, and if the police

had only recorded an entry in the daily diary instead of registering

the FIR, the informant could not be faulted; hence, the findings

recorded by the learned Trial Court that the FIR was lodged

belatedly, which made the prosecution’s case suspect, cannot be

sustained.

18. The informant, Rajnish Kumar (PW1), admitted in his

cross-examination that his sister Shareshtha and her family

members were residing on the land of his parents. He admitted

that his father had executed a gift deed of 10 marla of land in

favour of Prakash Chand, and the possession was delivered to him.

10

2026:HHC:7980

He volunteered to say that Prakash Chand has encroached upon

more than 10 biswa of the land. Sajneesh Kumar (PW2) also stated

in his cross-examination that Shareshtha and her family

members were residing on the land of his parents. He admitted

that a gift deed was executed by his father in favour of the accused.

He admitted that, as per him, Prakash has encroached upon more

land than was gifted to him. He admitted that the accused were in

possession of the area in front of the shops.

19. These admissions show that the relationship between

the parties is strained over the land occupied by Prakash Chand,

and the learned Trial Court was justified in seeking the

corroboration of the statements of the informant and his brother.

20. Dr Randeep Kumar (PW6) examined Rajnish Kumar

and found chronic destructive periodontitis, calculus, generalised

gingival recession, and one missing tooth. The socket was empty.

No corresponding soft tissue injury was present. The injury could

have been caused by means of fist blows or striking of any hard

object, like a piece of brick, within 2-3 days of the examination. He

stated in his cross-examination that three teeth of the patient

were missing and 13 teeth were mobile. The fresh missing tooth

was uprooted in a natural way, as the other teeth were also mobile.

11

2026:HHC:7980

21. The statement in the cross-examination that the teeth

had been uprooted naturally, and the other teeth were also mobile,

makes the prosecution’s case suspect.

22. Dr Inder Mohan (PW9) examined Rajnish Kumar (PW1)

and found that he was smelling of alcohol. Rajnish Kumar (PW1)

admitted in his cross-examination that he and his brother had

consumed alcohol on the date of the incident. He volunteered to

say that a birthday was being celebrated on the date of the

incident. Rajnish Kumar (PW1) denied that he had consumed

alcohol on 14.02.2009. He volunteered to say that he had

consumed Beer. Thus, the medical evidence, the admission of the

informant and the witness show that the informant and the victim

had consumed alcohol. This would assume significance because Dr

Randeep Kumar (PW6) stated that the injury noticed by him could

have been caused by way of fall. Dr Inder Mohan (PW9) also stated

in his cross-examination that the injury noticed by him could

have been caused by a fall under the influence of alcohol.

23. Rajnish Kumar (PW1) stated that he and his brother

were closing the shop. Rakesh and Pankaj came to the shop and

started abusing him. He enquired as to why they were hurling the

abuses. The accused started beating him and his brother. They

12

2026:HHC:7980

picked up a piece of brick lying near the shop and inflicted injury

on the head and the face. They gave beatings to his brother with

kicks and fist blows. They also bit him (the informant) with their

teeth. Prakash, Shareshtha and Mona Devi also came to the spot,

and they gave beatings. Pradeep and Naresh came to the spot and

rescued them.

24. The statement made by the informant in the Court that

the accused had bitten the informant with teeth is an

improvement because this fact has not been mentioned in the FIR,

and the Medical Officer had not noticed any bite marks. This

improvement shows the informant’s desperation to secure the

conviction at any cost.

25. Sajnish Kumar (PW2) stated that he and his brother

were closing the shop. Rakesh and Pankaj came to the spot and

started abusing them. When the informant asked them not to hurl

abuses, they picked up the pieces of brick and inflicted injuries on

his head and face. The accused gave him beatings with kicks and

fist blows. Parkash and Shareshtha came to the spot, and they

gave him beatings. Baldev and Naresh rescued him.

13

2026:HHC:7980

26. This witness has not mentioned Mona Devi as the

assailant, who was named by the informant and was also

mentioned in the FIR. Thus, he has contradicted the informant’s

statement regarding the assailants.

27. Baldev Kumar (PW3) stated that he was going to his

home on foot. He reached the shop of Rajnish Kumar (PW1) and

found that a quarrel was going on. Rajnish Kumar (PW1) and his

brother were being beaten by his brother-in-law and nephew.

Rajnish Kumar (PW1) had sustained an injury on the face.

28. This witness has only named the brother-in-law and

the informant as the assailants. He has left Shareshtha and Mona

Devi.

29. Baldev Kumar (PW3) stated in his cross-examination

that he used to purchase articles from the shop of Rajnish Kumar

(PW1). He admitted that Rajnish and Sajneesh had taken him to

the Police Station on 16.02.2009, when his statement was

recorded. He admitted that he had consumed alcohol, but could

not see whether Rajnish Kumar (PW1) and Sajneesh Kumar (PW2)

had also consumed alcohol.

14

2026:HHC:7980

30. He is a resident of a different village. He claimed that he

was going to his home on foot. He admitted in his cross-

examination that it takes about 15 minutes to cover the distance in

a bus, but he volunteered to say that he used to travel on foot. He is

known to Rajnish Kumar (PW1) as he used to purchase articles

from him. The bus is a convenient method of transportation, but

he did not opt for it. He is a chance witness. It was laid down by the

Hon’ble Supreme Court in Harbeer Singh v. Sheeshpal, (2016) 16

SCC 418: (2017) 4 SCC (Cri) 503: 2016 SCC OnLine SC 1164 that the

chance witnesses have a habit of appearing suddenly at the place

of the incident and thereafter disappearing. Their testimonies

should be seen with due care and caution. It was observed at page

427:

23. The defining attributes of a “chance witness” were

explained by Mahajan, J., in Puran v. State of Punjab, (1952) 2

SCC 454: AIR 1953 SC 459: 1953 Cri LJ 1925. It was held that

such witnesses have the habit of appearing suddenly on the

scene when something is happening and then disappearing

after noticing the occurrence about which they are called

later on to give evidence.

24. In Mousam Singha Roy v. State of W.B., (2003) 12 SCC 377:

2004 SCC (Cri) Supp 429, this Court discarded the evidence

of chance witnesses while observing that certain glaring

contradictions/omissions in the evidence of PW 2 and PW 3

and the absence of their names in the FIR has been very

lightly discarded by the courts below. Similarly, Shankarlal

v. State of Rajasthan, (2004) 10 SCC 632: 2005 SCC (Cri) 579

15

2026:HHC:7980

and Jarnail Singh v. State of Punjab, (2009) 9 SCC 719: (2010)

1 SCC (Cri) 107 are authorities for the proposition that

deposition of a chance witness, whose presence at the place

of incident remains doubtful, ought to be discarded.

Therefore, for the reasons recorded by the High Court, we

hold that PW 5 and PW 6 were chance witnesses and their

statements have been rightly discarded.

31. It was laid down by the Hon’ble Supreme Court, Rajesh

Yadav v. State of U.P., (2022) 12 SCC 200: 2022 SCC OnLine SC 150

that the testimony of a chance witness is to be seen with due care

and caution and his presence on the spot should be satisfactorily

established. It was observed:

“Chance witness

29. A chance witness is one who happens to be at the place

of occurrence of an offence by chance, and therefore, not as

a matter of course. In other words, he is not expected to be

in the said place. A person walking on a street witnessing

the commission of an offence can be a chance witness.

Merely because a witness happens to see an occurrence by

chance, his testimony cannot be eschewed, though a little

more scrutiny may be required at times. This again is an

aspect that is to be looked into in a given case by the court.

We do not wish to reiterate the aforesaid position of law

which has been clearly laid down by this Court in State of

A.P. v. K. Srinivasulu Reddy [State of A.P. v. K. Srinivasulu

Reddy, (2003) 12 SCC 660: 2005 SCC (Cri) 817]: (SCC pp. 665-

66, paras 12-13)

“12. Criticism was levelled against the evidence of PWs 4

and 9, who are independent witnesses, by labelling them

as chance witnesses. The criticism about PWs 4 and 9

being chance witnesses is also without any foundation.

They have clearly explained how they happened to be at

16

2026:HHC:7980

the spot of occurrence, and the trial court and the High

Court have accepted the same.

13. Coming to the plea of the accused that PWs 4 and 9

were “chance witnesses” who have not explained how

they happened to be at the alleged place of occurrence, it

has to be noted that the said witnesses were independent

witnesses. There was not even a suggestion to the

witnesses that they had any animosity towards any of

the accused. In a murder trial, by describing the

independent witnesses as “chance witnesses”, it cannot

be implied thereby that their evidence is suspicious and

their presence at the scene doubtful. Murders are not

committed with previous notice to witnesses; soliciting

their presence. If murder is committed in a dwelling

house, the inmates of the house are natural witnesses. If

a murder is committed in a street, only passers-by will

be witnesses. Their evidence cannot be brushed aside or

viewed with suspicion on the ground that they are mere

“chance witnesses”. The expression “chance witness” is

borrowed from countries where every man's home is

considered his castle, and everyone must have an

explanation for his presence elsewhere or in another

man's castle. It is quite an unsuitable expression in a

country where people are less formal and more casual, at

any rate in the matter of explaining their presence.”

30. The principle was reiterated by this Court in Jarnail

Singh v. State of Punjab, (2009) 9 SCC 719: (2010) 1 SCC (Cri)

107: (SCC p. 725, paras 21-23)

“21. In Sachchey Lal Tiwari v. State of U.P., (2004) 11

SCC 410: 2004 SCC (Cri) Supp 105, this Court, while

considering the evidentiary value of the chance

witness in a case of murder which had taken place in a

street and a passer-by had deposed that he had

witnessed the incident, observed as under:

If the offence is committed in a street, only a

passer-by will be the witness. His evidence

cannot be brushed aside lightly or viewed with

suspicion on the ground that he was a mere

17

2026:HHC:7980

chance witness. However, there must be an

explanation for his presence there.

The Court further explained that the expression

“chance witness” is borrowed from countries where

every man's home is considered his castle, and

everyone must have an explanation for his presence

elsewhere or in another man's castle. It is quite an

unsuitable expression in a country like India, where

people are less formal and more casual, at any rate in

the matter of explaining their presence.

22. The evidence of a chance witness requires very

cautious and close scrutiny and a chance witness

must adequately explain his presence at the place of

occurrence (Satbir v. Surat Singh, (1997) 4 SCC 192:

1997 SCC (Cri) 538, Harjinder Singh v. State of Punjab,

(2004) 11 SCC 253: 2004 SCC (Cri) Supp 28,

Acharaparambath Pradeepan v. State of Kerala, (2006)

13 SCC 643 : (2008) 1 SCC (Cri) 241 and Sarvesh Narain

Shukla v. Daroga Singh, (2007) 13 SCC 360 : (2009) 1

SCC (Cri) 188 ). Deposition of a chance witness whose

presence at the place of the incident remains doubtful

should be discarded (vide Shankarlal v. State of

Rajasthan, (2004) 10 SCC 632: 2005 SCC (Cri) 579).

23. Conduct of the chance witness, subsequent to the

incident, may also be taken into consideration,

particularly as to whether he has informed anyone

else in the village about the incident (vide Thangaiya

v. State of T.N., (2005) 9 SCC 650: 2005 SCC (Cri) 1284).

Gurcharan Singh (PW 18) met the informant Darshan

Singh (PW 4) before lodging the FIR, and the fact of

conspiracy was not disclosed by Gurcharan Singh (PW

18) or Darshan Singh (PW 4). The fact of a conspiracy

has not been mentioned in the FIR. Hakam Singh, the

other witness on this issue, has not been examined by

the prosecution. Thus, the High Court was justified in

discarding the part of the prosecution’s case relating

to conspiracy. However, in the fact situation of the

present case, the acquittal of the said two co-accused

18

2026:HHC:7980

has no bearing, so far as the present appeal is

concerned.”

32. Baldev Kumar (PW3) stated that he had tried to rescue

the informant but did not sustain any injuries in the incident. He

omitted the names of Shareshtha and Mona Devi, who were

present on the spot as per the prosecution. All these circumstances

make it difficult to place reliance on his testimony.

33. Naresh Kumar (PW7) stated that he was going to his

home on 14.02.2009 at about 9 PM and saw that the relatives of

Rajnish Kumar (PW1) and his nephew were quarrelling with

Rajnish Kumar (PW1). They inflicted injuries to Rajnish Kumar

with bricks, kicks and fist blows. The accused left the spot.

34. This witness has not named any particular accused but

has used the generalised term ‘accused present in the Court’. He

did not state that injuries were caused to Sajneesh Kumar (PW2) in

his presence. He claimed that the informant Rajnish had sustained

injuries on his back and on his face. Nobody stated that informant

Rajnish had also sustained injuries on his back. He stated that

many people were present on the spot who had rescued the

informant from the accused. It was nobody's case that many

people were present on the spot; rather, the prosecution version is

19

2026:HHC:7980

that he and Baldev Kumar (PW3) were present on the spot.

Therefore, his testimony is not reliable and was rightly rejected by

the learned Trial Court.

35. Thus, the statements of the prosecution witnesses were

not credible. Learned Trial Court had taken a reasonable view

while doubting these testimonies, and this Court will not interfere

with the reasonable view of the learned Trial Court, even if

another view is possible.

36. In view of the above, the present appeal fails, and the

same is dismissed, and so are the pending miscellaneous

applications, if any.

37. In view of the provisions of Section 437-A of the Code

of Criminal Procedure (Section 481 of Bhartiya Nagarik Suraksha

Sanhita, 2023) the respondents/accused are directed to furnish

bail bonds in the sum of ₹25,000/- each with one surety each in

the like amount to the satisfaction of the learned Trial Court

within four weeks, which shall be effective for six months with

stipulation that in the event of Special Leave Petition being filed

against this judgment, or on grant of the leave, the

20

2026:HHC:7980

respondents/accused on receipt of notice thereof, shall appear

before the Hon’ble Supreme Court.

38. A copy of the judgment, along with records of the

learned Trial Court, be sent back forthwith.

(Rakesh Kainthla)

Judge

20

th

March, 2026

(Nikita)