IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Criminal Appeal No. 369 of 2002. Judgment reserved on : 29.4.2009. Date of decision: 30.4.2009. Balkrishan Thakur & another .…Appellants. Versus Vikash alias Ranu & another ....Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? No. For the Appellant : Mr. S.K. Sood, Advocate. For the Respondents : Mr. Tek Chand Sharma Advocate for respondent No.1. Mr. Ramesh Thakur, Assistant Advocate General for respondent No.2. __________________________________________________________ Kuldip Singh, Judge The appellants have come in appeal against judgment dated 16.11.2001 passed by the learned Judicial Magistrate, 1st Class, Court No.(V), Shimla in Private Complaint No. 236-2 of 1999/1998 acquitting the respondent No.1 for offence punishable under Sections 323 and 506 IPC. The complaint was filed under Sections 323, 324, 430 & 506 IPC. The notice of accusation was put to the respondent No.1 under Sections 323 and 506 IPC. The learned Judicial Magistrate in the impugned judgment has wrongly referred Sections 324, 430 in paragraphs 3 and 17 of the impugned judgment. 2. The facts, in brief, are that appellants had filed complaint ______________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? 2 against respondent No.1 that on 13.4.1998 at 8.30 a.m., the dirty water was flowing into the house of the complainant through broken pipes, the respondent No.1 was requested to look into the matter. The respondent No.1 instead of getting pipe repaired attacked the complainants with Danda. The complainant No.1 sustained injury on a finger of a right hand and complainant No.2 sustained injury on the scalp. Parveen Kumar, Krishan Kumar rushed to the spot and they saved the complainants. Leela Devi and Pawan Kumar were also present and they also intervened. The respondent No.1 threatened the complainants that he would finish them along with their family in case report was lodged with the police. The complainants went to Police Station, Boileauganj for lodging the FIR but the police official who was present at Police Station, Boileauganj directed the complainant No.1 to lodge the complaint at Police Post, Jutog. Accordingly, rapat No. 14 was lodged at Police Post, Jutogh on 13.4.1998. The complainants were sent for medical examination and they were examined by the doctor. The complainant no.2 was referred to IGMC, Shimla on 16.4.1998, where she was examined. On 22.4.1998, the complainant No.1 had visited Police Post, Jutogh to enquire about the case. He was told that a case under Sections 107, 150 Cr.P.C. was presented before the Sub Divisional Magistrate (Rural), Shimla. The Sub Divisional Magistrate returned the case to the police on the ground that the case involved penal provisions and would be dealt with by the Judicial Magistrate. The police did not take any action thereafter, only a distorted version of the complaint was reported in rapat No.4 dated 13.4.1998. 3. The preliminary evidence was recorded and thereafter, the learned Judicial Magistrate issued process to the respondent No.1 under Sections 323, 506 IPC. Notice of accusation was put to the respondent No.1 under Sections 323, 506 IPC to which he pleaded not guilty and claimed trial. The complainants have examined six witnesses in order to prove the case and have placed some documents on record. The 3 statement of respondent No.1 was recorded under Sections 313 Cr.P.C., he denied the case of the complainants. The defence has examined two witnesses. The learned Judicial Magistrate, ultimately acquitted the respondent No.1, hence this appeal. 4. Heard and perused the record. The learned counsel for the appellants has submitted that the learned Judicial Magistrate has mis-construed and mis-interpreted the material on record and has erred in acquitting the respondent No.1. The learned counsel for the respondentNo.1 has supported the impugned judgment and has prayed for dismissal of the appeal. 5. CW-1 Dr. D.C.Chauhan, has stated that on 13.4.1998 he had examined Balkrishan and issued MLC Ex.CW-3/A. In cross- examination, he has stated that all the injuries can be caused due to fall on hard irregular surface. CW-2 Dr. Madhuri has stated that on 13.4.1998 she examined Kamla Devi and issued MLC Ex.CW-5/A. In cross-examination, she denied that the injuries can be caused by fall. CW-3 constable Anil Kumar has proved the copy of roznamcha Ex. CW-1/A. 6. CW-4 Balkrishan has stated that on 13.4.1998 at 8.30 a.m. Vikas gave danda blow on the head of his wife, the witness also suffered injury on his right hand. Parveen Sharma, Krishan, Leela Devi and Pawan were on the spot. They rescued him from the clutches of the respondent No.1. The police at Boileauganj asked them to report at Police Post, Jutogh. They were medically examined and MLCs were taken by the police. Police did not take any action against respondent No.1. In cross- examination, he has stated that house of Kapoor,Shandil and Mohan Lal are adjacent to his house. There are other houses at a distance of 15 – 20 yards. The police recorded his statement of its own and not as per his statement. The portion ‘A’ to ‘A’ in Ex.CW-1/A was not made by him. The portion A to A of complaint Ex.D-1 was not written at his instance. 4 7. CW-5 Kamla Devi has stated that on 13.4.1998 at about 8.30 a.m., the respondent No.1 had given danda blow on her head and on the hand of her husband. They were rescued by Parveen Sharma, Pawan Kumar, Leela Devi and Krishan Kumar. They went to Police Station, Boileauganj but they were told to report at Police Post, Jutogh. She was medically examined vide MLC Ex.CW-5/A. She was referred to IGMC on 16.4.1998. The medical slips are Ex.CW-2/A and Ex.CW-2/B. In cross- examination, she has stated that respondent No.1 was holding a danda in his hand. 5 – 6 persons were standing there but none of them received any injury. She never reported to the police that she was hit by some pointed weapon. 8. CW-6 Parveen has stated that in April 1998 he was residing at Totu. On 13.4.1998 at 8.30 a.m. he heard the noise and the parties were having altercation, lateron respondent No.1 hit on the head of Kamla Devi and on the hand of Balkrishan. Krishan was with him, he tried to separate them but respondent No.1 ran away from the spot. In cross-examination, he has stated that nothing happened before he reached the spot. There were 10 – 12 people on the spot in addition to the witnesses, he can’t tell the names of such persons. The respondent No.1 was having nothing when he reached the spot. The respondent No.1 brought the danda. 9. Ex.CW-1/A is the rapat No.4 dated 13.4.1998 which was recorded at the instance of Balkrishan. In Ex.CW-1/A, it has been stated that on 13.4.1998 at 8.30 a.m. the complainant asked the son of Usha Devi to repair the pipe to stop the leakage of water, on this Vikas came in rage and with some pointed weapon he attacked the complainant and his wife and also pelted stones on them. They were rescued by Leela Devi and Pawan Kumar. He sustained injury on left hand fingers and his wife on scalp. In complaint, the appellants have stated that occurrence took place in presence of Pawan Kumar, Krishan Kumar, Leela and Parveen Kumar. In complaint, the complainants have stated that they were attacked with 5 danda. There is no reference of pelting of stones and pointed weapon in the complaint used by the respondent No.1. The complainants in Ex.CW- 1/A have stated that incident was witnessed by Leela Devi and Pawan Kumar. There is material contradiction regarding persons present on the spot in the complaint filed in the Court and rapat Ex.CW-1/A which is first version which was given by appellant No.1 to the police. The appellants have made improvements in the complaint and except alleged eye witness CW-6 Parveen, no other independent witness was examined by the appellants. CW-6 Parveen Kumar has stated that Krishan was with him and he has not stated that Leela Devi was on the spot. He has also not stated that he and Leela Devi intervened and saved the appellants. CW-6 has stated that respondent No.1 after the incident ran away from the spot which was not stated by CW-4 and CW-5. CW-6 has stated that when he reached the spot, the respondent No.1 was having nothing with him and he took danda from nearby. This is not the appellants’ case in the complaint. The appellants’ case initially before the police was that they were hit by some pointed weapon but in complaint, they said that they were attacked by respondent No.1 with danda. CW-4 in his statement in the Court has even stated that portion ‘A’ to ‘A’ in complaint Ex.D-1 was not written on his instructions. CW-4 is not reliable inasmuch as he is not admitting the portion A to A of the complaint which is signed by him and filed in the Court. 10. CW-1 Dr. D.C.Chauhan has stated that injuries found by him in MLC Ex.CW-3/A are possible by way of fall. It is also the case of the appellants that they reported the matter initially at Police Station, Boileauganj but they were directed to lodge report at Police Post, Jutogh and accordingly report was lodged at Police Post, Jutogh. CW-4 is not an illiterate person. It is not believable that he came to Police Station, Boileauganj for lodging the report and on the direction of police he reported the matter at Police Post, Jutogh. It is also the case of the appellants that 6 police thereafter did not pursue the case. There is nothing on record that appellants brought to the notice of the higher police authorities regarding the inaction of the police for not registering an FIR. The incident allegedly took place on 13.4.1998 and the complaint was filed in the Court `on 10.7.1998 after about three months. It appears the complaint has been filed after deliberations. In any case the complainants have miserably failed to prove the case against the respondent No.1. The learned Judicial Magistrate has rightly appreciated the evidence and the view taken by him is possible from the material on record. The appellants have failed to make out a case that impugned judgment is perverse and the view taken by the learned Judicial Magistrate does not emerge from the evidence on record. In appeal merely because other view is possible, is no ground for converting acquittal into conviction. 11. The result of the above discussion, the appeal fails and is accordingly dismissed. The bail bonds are discharged. April 30, 2009. ( Kuldip Singh ), (GR) Judge.