Whether reporters of local papers may be allowed to see the judgment? Yes. IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.525 of 2001. Dated of Decision: July 02, 2008. --------------------------------------------------------------------------------------------------- State of H.P. …… Appellant. Versus Ashwani Kumar. ……. Respondent. Coram The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting? Yes. For the Appellant : Mr. J.S. Guleria, Law Officer. For the Respondent : Mr. Neeraj Sharma, Advocate vice Mr. Jagdish Vats, Advocate. Surinder Singh,J (oral) : The respondent was tried and acquitted for the offences under Sections 323, 325 and 506 of the Indian Penal Code, by the learned Judicial Magistrate Ist Class, Bilaspur. The State felt aggrieved by the impugned judgment, as such filed the instant appeal. Precisely, the respondent was put on trial on the allegations that the complainant Piar Singh, a Barber by profession was running his Barber-shop at Lakhanpur in front of police line, Bilaspur. On 18.6.1998 around 8 P.M., he was standing in the backside of his house and looking towards his retaining wall, in the meantime, the respondent alongwith two other companions came there in the fit of intoxication. Respondent told him that a civil suit with respect to the retaining wall was already decided by the court and what for the complainant was looking at the retaining wall and why he was standing there. On the reply given by the complainant, respondent got infuriated and picked up the handle of a Gainti lying on the - 2 - spot and hit on his right side of the hip and left elbow. The companions of the respondent caught hold of the complainant and respondent gave fisticuffs and kick blows. The complainant raised hue and cry, which attracted Jeet Ram (PW8). He came to the spot and relieved the complainant from the clutches of the respondent and his companions. In this process, his shirt and under vest were torn off and he had lost amount of Rs.400/- which he could not find due to darkness. It was also alleged that while fleeing from the spot, the respondent and his companion threatened him with dire consequences. During the same night around 10.05 p.m., the complainant lodged a report Ex.PW1/A. He was medically examined by PW5 Dr. A.K. Sharma and found the following injuries on his person:- “1. Abrasion reddish in colour, slight bleeding on the right of face of angle of nostril. 2cm x ½ cm in size. 2. Two small abrasions on left forearm posteriolateral aspect. 3. Two small abrasions reddish in colour on left side of chest back side at the level of 12th rib. 4. Tenderness on the right side of chest at the level of 2nd intercostals joint. 5. Tenderness on left gluteal region. 6. Abrasion small positive on left leg 2 cm above the lateral mallows of left ankle joint bleeding positive.” The injuries No.3 and 4 were X-rayed to rule out the fracture. On the perusal of the X-ray of the hip joint, the doctor found the evidence of dislocation; hence it was opined to be grievous in nature. All the injuries were caused within three hours from his examination with blunt weapon. He also issued Medico Legal Certificate Ex.PW5/A. The police visited the spot and prepared the site plan Ex.PW11/A and took into possession the handle of gainti, vide memo Ex.PW8/A. The statements of the witnesses were recorded and after the completion of the challan, it was presented in the court for trial. - 3 - The respondent was charge-sheeted for the offences aforesaid, to which he pleaded not guilty and claimed trial. The prosecution examined its witnesses and the statement of respondent under Section 313 Cr.P.C. was also recorded. At the end of the trial, he was acquitted, on the grounds that the evidence of the prosecution was discrepant and self contradictory, there was civil and criminal litigation going on between the parties showing the enmity between them, the defence was probablised, complainant might have a fall and the alleged eye witness did not say about having given any beatings to the complainant. In appeal, Shri J.S. Guleria, learned Law Officer has argued that the learned trial court did not appreciate the evidence in right perspective and if the statement of the injured and the alleged eye witness are properly looked into, there are grounds for conversion of the acquittal into conviction. On the other hand, Shri Neeraj Sharma, learned counsel for the respondent has supported the findings of the acquittal recorded by the learned trial court. I have given careful consideration to the rival contentions of the parties and have reappraised the evidence on record. In my opinion, the view taken by the learned trial court is possible. As a matter of fact, in his report Ex.PW1/A, the complainant has alleged to have been given beatings by the respondent and his companions, whose names have not been mentioned in the FIR nor so stated during the trial of this case. He has named Jeet Ram (PW10) as an eye witness. A perusal of his statement does not reveal that the respondent had given beatings to the complainant alongwith his associates. According to him, he got attracted by noise coming from the house of the complainant. When he reached there, he saw that the respondent was abusing and dragging the complainant. He was having a gainti in his hand. He did not say that the respondent was having any handle of the gainti with him. He had relieved the complainant from the - 4 - clutches of the respondent. In his cross-examination, he has categorically stated that there was no other person on the spot, who had arrived there before he reached nor anybody came thereafter. He has also stated that the respondent did not hit the complainant with the ‘gainti’ in his presence nor such ‘gainiti’ or its handle was shown during the trial of the case. PW3 Premi Devi is the wife of the complainant. Her presence has not been shown on the spot in the FIR or by the PW10 aforesaid. Complainant Piar Singh (PW2) has denied any litigation with respect to the path existing near the wall which ended in to compromise, but on the other hand, his wife Premi Devi has admitted this fact in her cross- examination. The complainant and his wife admitted that the brother of the complainant is in the police department, however, it is denied that in connivance with him a false case has been foisted upon the respondent. PW10 as well as wife of the complainant have admitted that on the day of alleged occurrence, it was raining, but they have denied that the complainant had a fall from the slippery retaining-wall where he was standing. However, according to Dr. A.K. Sharma (PW5), the injuries in question can be caused by an accidental fall. PW11 SI Des Raj has denied the suggestion that he did not investigate the case in the proper manner, but from the record, it is evident that he did not try to find out whether the story given by the complainant about other two companions with the respondent was correct, who were also involved in the alleged occurrence. What were their names and addresses? There is no explanation on record as to why they were not brought to book. On the other hand, PW10 Jeet Ram, an alleged eye witness does not say anything about their presence. In the FIR, the complainant has stated that the companions of the respondent have fled away when the alleged eye witness came to the spot, but as PW2, he deposed that when he raised hue and cry, they had fled away. - 5 - In the light of the above contradictions and the litigation between the complainant and the respondent, the statement of PW2 Piar Singh cannot be relied upon. Therefore, the evidence of the prosecution does not prove the charge against the respondent beyond a reasonable doubt. The findings of acquittal are borne out from the evidence on record. I do not find any perversity in the impugned judgment of acquittal, accordingly the appeal filed by the State is dismissed. The respondent is discharged of his bail bonds entered upon by him at any stage during the proceedings of the case. Send down the records. July 02, 2008. (Surinder Singh) (Pds) Judge.