1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Revision No. 60 of 2006. Judgment reserved on : 04.11.2011. Date of decision: 06.12.2011 Balak Ram. ......Petitioner. Versus State of Himachal Pradesh. ......Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the Petitioner : Mr.B.R.Kashyap, Advocate. For the Respondent : Ms. Ruma Kaushik, Additional Advocate General. Kuldip Singh , Judge. The convict has come in revision against judgment dated 21.04.2006 passed by Sessions Judge, Shimla, in Criminal Appeal No. 22-S/10 of 2005, affirming judgment dated 23/25.05.2005 (wrongly stated 20/25.05.2005) passed by Judicial Magistrate Ist Class, Court No. II, Shimla, in Criminal Case No. 240/2 of 2002. 2. The prosecution case, in brief, is that PW-1 Mast Ram, complainant, lodged rapat No. 6 Ex. PW4/A dated 28.08.2002 at Police Post, Sunni, on that basis FIR Ex. PW6/A had been registered at Police Station, Dhalli. It has been alleged that on 28.08.2002 at about 11.00 a.m., the complainant had gone to Electricity Rest House,Chaba, for bringing milk, it was raining at that time. The path was flooded, he was picking up stones from the path, petitioner came with stick and gave 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes 2 a blow on the head of the complainant with stick and then on his left leg and thereafter on his right hand. It has been alleged that blood started oozing out, complainant fell down on the road and the assailant ran away from the spot. The complainant became unconscious. On regaining consciousness, the complainant went to his home, disclosed the matter to his wife and his mother. The mother of the complainant made a telephonic call to the elder brother of the complainant. The complainant was medically examined, MLC Ex. PW7/A of the complainant was obtained. The X-ray report Ex. PW5/A of the complainant was procured. 3. On completion of the investigation, challan was submitted, charge for offences punishable under Sections 323, 325 IPC was framed against the petitioner, who pleaded not guilty and claimed trial. The prosecution has examined 8 witnesses and produced some documents. The statement of petitioner was recorded under Section 313 Cr.P.C., he denied the prosecution case but led no evidence in defence. On conclusion of trial, the Magistrate convicted the petitioner for offences punishable under Sections 323, 325 IPC. The petitioner was sentenced to undergo rigorous imprisonment for three months under Section 325 IPC and to pay fine in the sum of `1,000/-. The petitioner was also sentenced to suffer simple imprisonment for one month under Section 323 IPC. In default of payment of fine, the petitioner was directed to undergo simple imprisonment for 15 days. The sentences were ordered to run concurrently. 4. In appeal, Sessions Judge, on 21.04.2006 dismissed the appeal, hence present revision. I have heard learned counsel for the 3 petitioner and learned Additional Advocate General for respondent and have also gone through the record. It has been submitted on behalf of the petitioner that two Courts below have mis-construed and mis-interpreted the evidence on record and erred in convicting and sentencing the petitioner. The submission has been made for setting aside conviction and sentence of the petitioner. The learned Additional Advocate General has supported the impugned judgment and has submitted that the two Courts below have properly appreciated the evidence on record. The petitioner has miserably failed to make out a case for interference. 5. PW-1 Mast Ram has stated that on 28.08.2002 at about 11.00 a.m., he had gone to Rest House for taking milk. On the way, he started removing stones which had fallen from his boundary wall due to rain. Balak Ram came and with the stick hit him on the head, second blow he gave on his left leg and third blow on his right hand. The blood oozed out. The accused ran away. He raised cries, fell down and became unconscious. On regaining consciousness, he went to his home, he narrated the incident to his wife and sister-in-law. In cross-examination, he has stated that when accused gave 'danda' blow on his head, then his umbrella had broken. He went to the police post after arrival of his brother Nokh Ram. He submitted written complaint at police post which has not been shown to him. The blood fell on his clothes. The house of the accused is just below his house and house of Nokh Ram brother of accused is adjacent to his house. 6. PW-2 Smt. Gurmeeta wife of Mast Ram has stated that on 28.08.2002, her husband came house crying, blood was oozing out from his head. There were injuries on the hands. He told that accused 4 had given him beatings. In cross-examination, she has stated that no beatings took place in her presence. PW-3 Nokh Ram has stated that on 28.08.2002, he received telephonic call from his house disclosing that accused had given beatings to his brother on the way. He came to home and found injuries on the person of Mast Ram, blood was oozing. The police took into possession 'danda' Ex. P-1. In cross-examination, he has stated that no beatings were administered in his presence. 7. PW-5 doctor Jatin Thakur has stated that Mast Ram was referred by Medical Officer, Causality, for X-ray of right hand. X-ray film is Ex. P-1. As per report, patient had suffered fracture in right hand as per Ex. PW5/A. PW-6 ASI Anil Kumar has proved FIR Ex. PW6/A. He has proved spot map Ex.PW6/B. On 15.09.2002, Balak Ram produced 'danda' Ex. P-1. In cross-examination, he has stated that Mast Ram had not stated anything regarding umbrella. He has not taken into possession clothes of Mast Ram. 8. PW-7 doctor Mangla Sood has proved MLC Ex. PW7/A of Mast Ram. The injuries No. 1 and 2 were found simple and injury No.3 grievous. PW-8 Tej Ram did not support the prosecution case and was declared hostile. He denied that memo Ex. Pws1/A of 'danda' was prepared, but he admitted his signatures on Ex. PW1/A. In the statement under Section 313 Cr.P.C., the petitioner has denied the prosecution case. 9. Ex.PW4/A is the copy of rapat No. 6 dated 28.08.2002 got recorded by Mast Ram at police post, Sunni. In Ex. PW4/A, it has been stated that complainant cried on the spot. He became unconscious, regained consciousness, went home and narrated the incident to his 5 wife, sister-in-law and mother. PW-2 Smt. Gurmeeta has not stated that Mast Ram told her that he became unconscious nor she has stated whether accused gave beatings to Mast Ram in what manner and how many blows were inflicted by the accused and on which part of the body of Mast Ram. Ex. PW4/A has been recorded on the oral report of Mast Ram. PW-1 Mast Ram in his statement has stated that he had given written complaint at police post, but no such written complaint has been produced by the prosecution. Mast Ram has stated that when petitioner gave 'danda' blow even his umbrella had also broken, but no such umbrella has been taken into possession and produced in the Court. Similarly, Mast Ram has stated that blood fell on his clothes, but those clothes were also not taken into possession. The Investigating Officer PW-6 ASI Anil Kumar has given the explanation that clothes were not taken into possession as the blood had washed due to rain, but Mast Ram has not stated that blood fallen on his clothes had washed due to rain. 10. Ex. PW6/B is the spot map. Mark-X is the place where alleged beatings were given to Mast Ram. On one side of Mark-X is the house of Mast Ram shown by Mark-B and on the other side of Mark-X is the house of accused. The place of occurrence Mark-X is not far away from Mark-B house of Mast Ram. It is surprising that when beatings were given and Mast Ram cried, nobody heard and responded from the house shown at Mark-B. It is not the prosecution case that if one is given beatings at point-X and he cries, then such cries are not audible in the house situate at Mark-B. 11. The motive is not always relevant in criminal case, but sometimes it has significance. The prosecution has not projected the case 6 that there was an altercation between Mast Ram and accused before the occurrence nor it is the prosecution case that there was previous enmity between Mast Ram and accused. It has not been shown by the prosecution what was the reason for accused to give beatings to Mast Ram at the relevant time. It is nobody's case that Mast Ram was tampering the boundary wall of accused or he was removing the stones belonging to accused. The prosecution has not come forward with the real story. The genesis of the occurrence does not appear to be true. There is nothing on record why petitioner without any rhyme or reason gave beatings to Mast Ram. 12. PW-2 wife of Mast Ram and PW-3 brother of Mast Ram have not stated that at the relevant time it was raining. Mast Ram has sustained injuries. PW-7 doctor Mangla Sood has stated that injuries can be caused by fall on hard surface. The written complaint submitted by Mast Ram at police post, his first version regarding the occurrence has not come on record, umbrella of Mast Ram which was allegedly broken due to the impact of 'danda' has not been taken into possession, so also blood stained clothes of Mast Ram. Nobody came to the rescue of Mast Ram when he was allegedly given beatings. PW-2 has not stated how the occurrence took place though PW-1 claims that he had narrated the incident to her. 13. The prosecution has failed to prove the case against the petitioner beyond reasonable doubt. The two Courts below have mis- construed and mis-interpreted the evidence on record. The inference drawn by two Courts below from the evidence on record is not sustainable. The petitioner is entitled to benefit of doubt. The impugned 7 judgment is liable to set-aside. 14. In view of above discussion, revision is allowed, judgment dated 21.04.2006 passed by Sessions Judge, Shimla,in Criminal Appeal No. 22-S/10 of 2005, affirming judgment dated 23/25.05.2005 passed by Judicial Magistrate Ist Class, Court No. II, Shimla, in Criminal Case No. 240/2 of 2002 is set aside. The petitioner is acquitted of the charge for offences punishable under Sections 323, 325 IPC, fine amount if deposited by the petitioner be refunded to him. His bail bonds are discharged. ( Kuldip Singh ), Judge. December 6, 2011. (Krt)