IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 590 of 2003 Date of decision: 23.09.2010 State of H.P. … Appellant Versus Suresh Kumar … Respondent Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant: Mr. J.S. Guleria, Assistant Advocate General. For the respondent: Mr. Virender Singh Rathore, Advocate. V.K. Ahuja , J. (Oral): This is an appeal filed by the Sate of H.P. under Section 378 Cr.P.C. against the judgment of the Court of learned Additional Sessions Jude (II), Kangra at Dharamshala, dated 7.10.2003, vide which he set aside the judgment passed by the learned Judicial Magistrate First Class, Dharamshala, dated 7.7.2001, vide which he had held respondent Suresh Kumar guilty under Sections 325 and 323 read with Section 34 I.P.C. and had convicted him to R.I. for three months and fine of Rs.500/- and in default of payment of fine, he was to further undergo S.I. for one month, under Section 325 I.P.C. and R.I. for two months and fine of Rs.250/- and in default of payment of fine, he was to further undergo S.I. for 15 days, under Section 323 I.P.C. 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 2. Briefly stated, the facts of the case are that a report was lodged with the police by one Kali Dass on 6.7.2000 at about 10.35 P.M., in which he alleged that his house is situated near the National Highway. In front of his house, at about 8.30 P.M., a bus of J & K transport stopped and in the mean time, he went for toilet outside his house and he saw that some persons were hurling abuses to the driver. He saw that those persons were respondents Piar Chand, Suresh Kumar accompanied by two other persons, were arguing with the driver of the bus and were giving abuses. He asked them not to raise abuses since he is living nearby. At this instance, Suresh Kumar asked him as to why he is intervening and gave him fist blows and resultantly, his two teeth were broken. He further stated that the occurrence was witnessed by his son Munish Kumar, his brother Suresh Kumar and nephew Rajesh Kumar. On this report, a case was registered. After medical examination and on completion of the investigation, the challan was filed before the Court of learned Judicial Magistrate First Class, Dharamshala, who tried the respondent including other accused persons, but convicted the respondent Suresh Kumar, as detailed above and the other accused persons were acquitted. However, on appeal, the appeal was accepted by the learned Additional Sessions Judge, Dharamshala and he acquitted the respondent Suresh Kumar of the charge framed against him. 3. I have heard learned counsel for the parties and have gone through the record of the case. 4. On appraisal of the evidence led by the prosecution, it is clear that it had examined seven witnesses to substantiate its case 3 and the statements of complainant and other two eye witnesses can be said to be most material. 5. PW-2 Kali Dass, complainant, has stated that when he came out, he saw that Piar Chand, Suresh Kumar, Sample and Pradeep were abusing the driver. He asked them not to abuse since his house was nearby and at this instance, Suresh Kumar, respondent, gave him fist blows and his two teeth were broken. He further stated that blood started oozing out. He called his son Amnish Kumar, who came there and his brother and nephew also came there. He further stated that accused were also giving blows to him. He identified the accused persons present in Court except Piar Chand, whose presence was exempted. In cross-examination, he has admitted that he was not knowing the accused persons nor had any friendly relation or enmity with them. He admitted that several persons from the village and nearby area had gathered there at that time. He denied the suggestion that they gave beatings to the respondents at that time and they suffered serious injuries. 6. PW-3 Rajesh Kumar, nephew of the complainant, has stated that he heard the noise at the road and came out and found that Suresh Kumar and Kali Dass were quarrelling. Kali Dass was being given beatings by the respondents. He alongwith his uncle Suresh and son of his uncle Amnish Kumar rescued Kali Dass. He stated that he has seen the accused persons present in Court except Piar Singh, whose presence was exempted. In cross-examination, he clearly admitted that blow on the person of Kali Dass was not given in his presence. He learnt from his uncle that a quarrel had taken place. He stated that he was knowing the accused persons. He admitted 4 that all the persons voluntarily accompanied them to Police Station. He denied the suggestion that Suresh Kumar suffered injuries at that time and denied his knowledge in case any report was lodged by the accused persons. He denied the suggestion that the case was falsely made out. He also admitted that near the Bus Stand, there are houses at some distance. 7. PW-5 Suresh Kumar, nephew of the complainant, has stated that when he came out, he saw that Suresh Kumar, Pradeep Kumar, Piare Lal and Sample were giving beatings to Kali Dass. He and other persons rescued the complainant and they took the accused persons in a Van to the Police Station. He stated that when he came out, all accused persons were giving beatings to the complainant and blood was oozing out from the mouth of Kali Dass, who told him that he has been given blow by Suresh Kumar. In cross-examination, he admitted that he had not seen the accused persons prior to that date. However, he stated that one accused was studying with Rajesh earlier. He admitted that it was dark at that time. He had not seen the accused persons quarrelling with the driver or giving abuses. He admitted that they were not given beatings by any of the accused persons. This is the main evidence led by the prosecution. 8. PW-1 Dr. Mohan Chauhan examined injured Kali Dass and observed the following injuries on his person:- “1. There was contusion at the lateral canthiss of lt. eye 1 x 1cm in size sphered in shape dusky blue in colour. 2. Broken up of lower two teeth lt. side 3rd and 4th number. There was blackish red sluff un-organised 5 loss there in the gum sockets of broken teeth. Other teeth were already missing and there was a contusion in the inner side of lower lip.” 9. He had proved the MLC Ext.PW1/A and stated that opinion in regard to Injury No. 2 can be given by the Dental Surgeon only. The Dental Surgeon was not examined to prove his opinion in regard to dental injury suffered by the complainant. The Medical Officer admitted in cross-examination that Injury No. 1 can be caused by fall on hard surface. He also admitted that he has clearly stated that the other teeth of the injured were missing already. In such circumstances, it was necessary that the Dental Surgeon should have been examined to prove that these injuries were caused at that time and that the teeth had not fallen naturally. 10. From the above discussion, it is clear that the genesis of the occurrence is not clear as to why the complainant came out and the injuries were inflicted upon him since he had never given the reason for the quarrel in between the accused persons and driver of the bus. The said driver of the bus for whom the complainant fought and took the courage to confront the respondents, has neither been examined by the prosecution nor associated during the investigation of the case. The other passengers, if any, in the bus were also not examined or persons from the nearby shops or the houses were not associated since the occurrence had taken place in the National Highway. Moreover, PW-7 Investigating Officer Shyam Parshad H.C., has admitted that at that time the accused persons also lodged an FIR, but he admitted that he had not investigated into that FIR at the pressure of his Senior Officers. This clearly shows that true facts 6 have not been brought on record. He admitted that the case was not investigated at the instance of the Senior Officers and, therefore, the genesis of the occurrence is not clear as to how the quarrel started and as to whether the respondents including the complainant suffered injuries or not. Medical certificates of the injured respondent, if any, were not proved on record including the FIR in question, which could have made the facts clear. Keeping in view the fact that the case rests upon the solitary statement of the complainant in regard to injuries suffered by him and in view of the infirmities in the statements of the prosecution witnesses, it cannot be said that the guilt of the respondent was established beyond any reasonable doubt and the findings recorded by the learned Additional Sessions Judge cannot be said to be perverse calling for an interference by this Court. 11. In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the appellant, which is dismissed. The bail bonds furnished by the respondent shall stand discharged. ( V.K. Ahuja ), September 23, 2010 Judge (BSS) 7