IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 307 of 2001 Date of decision: 24.04.2008 State of Himachal Pradesh ... Appellant Versus Bhopinder Singh & Ors. … Respondents Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant: Mr. J.S. Guleria, Law Officer. For the respondents: Mr. G.D. Verma, Senior Advocate with Mr. Romesh Verma, Advocate. V.K. Ahuja , J. (Oral): This is an appeal filed by the State of H.P. against the judgment of the Court of learned Additional Chief Judicial Magistrate, Rohru, dated 9.1.2001, vide which the respondents were acquitted of the charge framed against them under Sections 325, 324 and 323 read with Section 34 I.P.C. Briefly stated the facts of the case are that on 12.9.1999, at about 5.00PM, complainant Sagarpuri made a report to the police to the effect that on that day, in the morning, she and her daughter were working in their fields and they heard some noise coming from their house. They went towards their house and found that respondent 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 Bhopinder Singh accompanied by two other persons were beating her sons. She tried to save her sons and accused Bhopinder Singh gave a blow with a knife on her left arm. Injuries were caused to her sons. On this report, a rapat was entered by the police and after investigation, the challan was filed before the learned trial Court who tried the respondents leading to their acquittal. I have heard learned counsel for the parties and have also gone through the record. On a perusal of the record of the case, it is clear that the prosecution has examined the complainant/injured Smt. Sagarpuri (PW-1), her two sons PW-5 Sushil Kumar and PW-7 Rakesh who both suffered injuries in that quarrel. The prosecution also examined two independent eye witnesses PW-2 Smt. Ramila and her husband PW-6 Man Singh. A perusal of the judgment shows that the learned trial Court only made a reference to the statement of PW-3 Asha Devi and two independent eye witnesses namely PW-2 Smt. Ramila and PW-6 Man Singh. There was no reference at all in the judgment to the testimony of two sons of the complainant, namely, PW-5 Sushil Kumar and PW-7 Rakesh, as to why their statements were referred is not clear when they also suffered injuries and their MLCs Ext.PW7/A and PW8/A were also proved in evidence. There is no reference at all to the medical evidence on record consisting of the statements of two Medical Officers PW-8 Dr. M.K. Dixit and PW-9 Dr. P.C. Gupta. It is surprising that the learned trial Court did not think it necessary to consider the testimony of two injured/ eye witnesses and the medical evidence proved in regard to the injuries 3 sustained by them as well as complainant/injured PW-1. Once the learned trial Court did not discuss the whole evidence oral as well as medical, the judgment can be termed as perverse. There can be no decision without referring to the record and the statements of these witnesses were very material and it should have been discussed by the learned trial Court. Apart from the above, a perusal of the trial Court judgment shows that it had not referred to the discrepancies in rapat No. 9 dated 12.9.1999 and another rapat No. 9 dated 13.9.1999 lodged by her. Reference has been made by the learned trial Court only to the discrepancies in the report lodged by her and, therefore, could not made by her in well but they are not material until and unless it was proved that this statement was also signed by the complainant. A perusal of the statement of M.C. examined to prove the report does not show that the statement made by the complainant was also signed by her at that time. Moreover, no benefit can be taken by the accused persons of the discrepancies made in Court as compared to the earlier statement until and unless, the complainant is confronted with the statement made by her in the rapat and the statement made by the complainant and, therefore, this cannot be termed as legal and accordingly, the case deserves to be remanded back to the learned trial Court for fresh decision. I accordingly hold that the judgment passed by the trial Court can be said to be perverse and the case is remanded back to trial Court for fresh decision according to law. The prosecution is at liberty to file an application for re- examination of any witness including the M.C. to prove the rapat and the signatures of the complainant, if any, and the learned trial Court is also at 4 liberty to examine any witness as a Court witness to clear the controversy regarding rapat lodged by the complainant whether it bears the signatures of the complainant, in case it deems necessary for just decision of the case. In case any application is filed for re-examination of the witnesses by either of the parties that shall be disposed of by the learned trial Court in accordance with law. In case no applications are filed for re- examination and no witnesses are re-examined, the Court will proceed further with the case after hearing both the parties. In case any of the witnesses are re-examined, then statements under Section 313 Cr.P.C. of the accused persons shall be recorded and an opportunity of defence evidence shall be given again, if any, as per law. The case shall be decided afresh by the learned trial Court. In view of the fact that the case relates to the year 1999, the learned trial Court shall take steps to dispose of the case on or before 31st July, 2008. The respondents through their counsel are directed to appear before the learned trial Court on 15th May, 2008. A copy of the judgment alongwith the record of the case be sent to the learned trial Court. The appeal is accordingly allowed. It is clarified that any observation made while deciding the above appeal shall not be construed as an opinion on the merits of the case. ( V.K. Ahuja ) April 24, 2008 Judge (BSS) 5