IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 366 of 2002. Judgement reserved on: 18.5.2009. Date of decision: May 19, 2009. State of H.P. ….. Appellant. Vs. Karam Chand & ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the appellant : Mr. A.K. Bansal, Addl. Advocate General. For the respondents : Ms. Devyani Sharma, Advocate. Kuldip Singh, Judge. The State has come in appeal against the judgement dated 1.12.2000 passed by the learned Addl. Chief Judicial Magistrate, Nurpur in Criminal Case No. 125-II/97. 2. The prosecution case, in brief, is that PW 2 Shanti Devi complainant reported the matter to police, which was entered as rapat No. 14 dated 11.9.1996 in rojnamcha, thereupon FIR Ex. PW 4/B was registered at Police Station, Nurpur. The further case of the prosecution is that Vikoo son of complainant had been lopping mulberry branches by climbing on the tree on 11.9.1996 at about 8.00 a.m., Karam Chand pelted stones on him. Vikoo started crying and on hearing his cries, complainant reached the spot. She asked Karam Chand and Harbans who are real brothers, they replied that Whether the reporters of the local papers may be allowed to see the Judgment?Yes …2… Vikoo was lopping the branches of their mulberry tree. The complainant asked them to get the demarcation from the Patwari. On this, both brothers pelted stones on her. Ram Singh, Gurcharan and Sewa also came there and they also started pelting stones on her. Chhindo tenant of the complainant came on the spot alongwith Rattan Chand husband of the complainant, who intervened and saved the complainant. She sustained injuries on her left hand and other parts of the body. 3. The complainant was medically examined vide MLC Ex. PW 1/A, site plan Ex. PW 6/B was prepared, statements of the witnesses were recorded. On completion of investigation, challan was presented against the respondents. The respondents were prosecuted for offence punishable under Section 325 read with Section 34 IPC. The prosecution has examined six witnesses and has also placed on record some documents. The respondents in their statements under Section 313 Cr.P.C. denied the prosecution case. The learned Additional Chief Judicial Magistrate acquitted the respondents vide impugned judgement, hence appeal by the State. 4. Heard and perused the record. PW 1 Dr. D.R.Diyal has proved MLC Ex. PW 1/A of Shanti Devi. In cross-examination, he has stated that the injuries could be caused by fall on hard surface. PW 2 Shanti Devi complainant has stated that on 11.9.1996 at about 8 a.m. her son Vikoo was lopping mulberry branches by climbing on the tree. Karam Chand, Harbans, Karmu, Balbir, Sewa, Gurcharan, Ram Singh came there and asked her son to come down from the tree and gave beatings to him. He raised alarm, then she went to the spot, …3… Karam hit her with stones on her left arm. Thereafter her husband came and rescued her, Chhindo also came on the spot. In cross- examination, she has stated that she had filed 3-4 civil suits against the respondents. In the police, she got recorded that Karmu sat on the chest of Vikoo. She became unconscious. 5. PW 3 Jatinder Kumar son of complainant has stated that on 11.9.1996 at about 8 a.m. Karam Chand, Balbir and Harbans came to beat him when he was lopping the tree. The respondents pelted stones on him as well as on his mother. Later on Sewa Singh, Gurcharan, Ram Singh came on the spot, they also gave beatings to them. The stones pelted by Karam Chand hit on the arm of his mother. Rattan Chand his father and Chhindo Devi also came there, who was also beaten by the respondents. The respondents threatened them to do away with their lives. PW 4 Hassan Ali has proved rapat Ex. PW 4/A and FIR Ex. PW 4/B. PW 5 Rattan Chand has stated that on 11.9.1996 his son Vikoo was lopping mulberry tree at about 8.00 a.m., Harbans, Karmu and Balbir Singh came there and asked his son to come down from the tree and gave beatings to him. Gurcharan Singh and Sewa Singh also came there and supplied stones to other respondents. He and Chhindo Devi saved his son from the accused, whosoever intervened to save Vikoo, respondents pelted stones on him. In cross-examination, he has stated that he had filed seven suits against the respondents. PW 6 SI Megh Nath is the Investigating Officer. 6. The complainant in FIR Ex. PW 4/B has stated that her son was lopping branches of mulberry tree by climbing on the tree, …4… Karam Chand pelted stones on him. On hearing his cries, complainant reached the spot. It has also been stated in the FIR that Ram Singh, Gurcharan Singh, Sewa Singh came on the spot and they also pelted stones on her. Rattan Chand husband of the complainant and Chhindo tenant came to the spot. She sustained injuries on her left hand and other parts of the body. PW 2 Shanti Devi in the court has stated that when her son Vikoo was lopping mulberry branches by climbing on the tree, Karam Chand, Harbans , Balbir, Gurcharan Singh, Sewa Singh, Ram Singh came there and asked her son to come down from the tree and gave beatings to him. This part of the statement of complainant is in contradiction to her statement in FIR wherein she has stated that when her son was on the tree and lopping branches, at that time itself the stones were pelted on him, but in the court she has stated that her son was asked to come down from the tree and was given beatings. The complainant in the court has named seven persons who gave beatings to her son but only three out of them were prosecuted. In the court, she has stated that Karam Chand sat on the chest of Vikoo and she became unconscious, but in the FIR she has not stated so. The complainant has admitted that 3-4 civil suits were filed by her against the respondents. 7. PW 3 Jatinder Kumar son of the complainant has stated that Karam Chand, Balbir and Harbans came to beat him when he was lopping the tree. They pelted stones on him as well as on his mother. Sewa Singh, Gurcharan Singh, Ram Singh came on the spot later on and also gave beatings to them. Only Karam Chand, Sewa …5… Singh and Harbans Singh were prosecuted on the basis of FIR Ex. PW 4/B. This proves that even police did not accept the version of the complainant, her son and husband as to actually who gave beatings. PW 3 has also stated that even Chhindo Devi was given beatings but this has not been stated by PW 1 complainant. The allegations of threat extended by respondents to the complainant party that they would do away with their lives have also not been proved by legal evidence, moreover, such allegations are vague. 8. PW 5 Rattan Chand has stated that he had filed seven suits against the respondents. The stones which were allegedly pelted by the respondents on the complainant party have not been recovered and produced in the court. PW 1 Dr. D.R.Diyal has stated that injuries noticed by him in the MLC Ex. PW 1/A could be caused by fall on hard surface. The learned Additional Chief Judicial Magistrate has properly appreciated the material on record in acquitting the respondents. The view taken by learned Additional Chief Judicial Magistrate in the impugned judgement is possible and it cannot be said to be either perverse or not inconsonance with the evidence on record. No case for interference has been made out. Resultantly, appeal fails and is accordingly dismissed. The bail bonds of the respondents are discharged. 9. Before parting with the judgement, it has come to my notice that in para-2 of the impugned judgement, it has been stated that accused were summoned and charged for the commission of offence punishable under Section 61(1)(a) of the Punjab Excise Act, 1914 as applicable to the State of Himachal Pradesh. The case …6… against the respondents is for the commission of offence punishable under Section 325 read with Section 34 IPC. The learned Addl. Chief Judicial Magistrate in para-2 of the impugned judgement has carelessly stated the facts, which are not on record of the file. Similarly again in the charge framed against the respondent in the heading notice of accusation has been mentioned. May 19, 2009. ( Kuldip Singh ), (Hem) Judge.