IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Criminal Appeal No. 59 of 2002. Reserved on : 03.03.2009. Date of Decision: 06.03.2009. State of Himachal Pradesh …Appellant. Versus Pawan Kumar ..Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? For the Appellant : Mr. Anshul Bansal, Additional Advocate General. For the respondent : Mr. Himmat Negi, Advocate vice Mr. Ajay Sharma, Advocate. __________________________________________________________ Kuldip Singh, Judge The respondent was prosecuted for offences punishable under Sections 323 / 325 I.P.C., but acquitted by the learned Additional Chief Judicial Magistrate, Dehra, District Kangra, H.P. in Criminal Case No. 158-II/1996 decided on 05.07.2001. 2. The prosecution case, in brief, is that PW-5 Raj Kumari complainant on 18.6.1995 at 1.15 p.m. reported at Police Post, Khundia District Kangra vide Ext. PW-5/A that on 17.6.1995 at about 8 /9 water was running from the broken pipe, she asked her brother-in-law Pawan Kumar to connect the pipe so that all could take water, but he did not oblige her. On this, she asked her son Jasbir to connect the pipe, ______________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? 2 thereafter, she took two - three buckets of water, Pawan Kumar also took two – three buckets of water. Pawan Kumar stopped the flow of water by inserting wooden piece in the pipe, she asked him why he has done so. He started abusing her. She was washing utensils in the courtyard, Pawan Kumar came with a danda and started beating her and she sustained injuries on her head, back, left shoulder and right arm. On hearing her cries, her father-in-law came out, others also rushed to the spot but Pawan Kumar after throwing the stick, ran away from the spot. She took the stick and kept in her house. On the basis of report Ext.PW-5/A, F.I.R. Ext.PW-8/A came to be registered at Police Station, Jawalamukhi on 19.6.1995. The complainant was got medically examined, recoveries were made. On completion of investigation, the challan was presented in the Court. The respondent was charged for offences punishable under Sections 323, 325 IPC to which he pleaded not guilty and claimed trial. The prosecution has examined eight witnesses and produced documents. The statement of respondent was recorded under Section 313 Cr.P.C., who denied the prosecution case. The learned Additional Chief Judicial Magistrate, acquitted the respondent, hence this appeal. 3. I have heard Mr. Anshul Bansal, learned Additional Advocate General for the State and Mr. Himmat Negi, Advocate vice Mr. Ajay Sharma, Advocate, learned counsel for the respondent and have gone through the record. On behalf of the State, it has been submitted that the prosecution has led positive evidence in the form of statements of PW-2 Rangila Ram, PW-5 Raj Kumari, PW-6 Dhian Singh, PW-3 Dr. D.B.Rana and other oral and documentary evidence on record to bring home the charge. PW-5 is the victim and the learned Court below has 3 erred in not believing her. There is no plausible reason on record to dis- believe her statement. PW-2 and PW-6 are the other natural witnesses who have supported the case. The learned Additional Chief Judicial Magistrate has not properly appreciated the material on record and has erred in acquitting the respondent. On behalf of the respondent, it has been submitted that the prosecution case is highly suspicious, the complainant herself has made improvement in her statement. There are contradictions on material points in the statements of prosecution witnesses. It has come on record that independent witnesses were available on the spot but for the reasons best known to the prosecution, those were not associated during investigation nor examined in the Court. The learned Additional Chief Judicial Magistrate has taken a possible view on the basis of the material on record and no error can be found in the judgment of acquittal recorded by the Court below. 4. PW-1 Amar Singh was produced by the prosecution in order to prove the recovery of the stick but he did not support the prosecution and was declared hostile. PW-2 Rangila Ram is the father- in-law of the complainant. He has stated that on 17.6.1995 at about 8 / 9 he was taking his meals in the kitchen, Raj Kumari had gone to take water from the public tap. Raj Kumari and Pawan Kumar had some quarrel. Raj Kumari was cleaning utensils in her courtyard, Pawan came there along with danda which he had brought from his house and gave beatings to Raj Kumari with danda, who raised hue and cry, he and his son Dhian Singh rescued her from the accused. Thereafter, accused threw the danda on the spot and ran away which was taken away by Raj Kumari. In cross-examination, he has stated that the land of the accused at Belna since long is in his possession. He has denied that for the last 6 4 – 7 years the accused had been requesting him to vacate that land. The houses of Rasila Ram and Duni Chand are adjacent to his house. He had not gone to the public tap. At the time of occurrence, there were 5 - 7 persons on the spot who had seen the occurrence. Khundia Police Post is at a distance of 6 – 7 Kilometers from their village and there is a bus service to Khundia after every hour. On the date of occurrence, they called their neighbourers and accused told that he would bear expenses of treatment, when he refused to get the treatment then they reported the matter to police. PW-3 Dr. D.B. Rana, Medical Officer has stated that on 18.6.1995 at 3.20 P.M. he examined Raj Kumari, gave the opinion of X-ray film Ext.PW-3/B as Ext.PW-3/C and issued M.L.C. Ext.PW-3/D. In cross-examination, he has stated that two injuries found on the person of Raj Kumari can be caused due to fall from a danga. He found injury No.1 on right arm in upper 1/3rd area and injury No.2 over left infrascapular region. PW-4 Jalim Mehra is the Radiographer and is a formal witness. 5. PW-5 Raj Kumari, complainant supported the prosecution case and has also stated that she got the pipe connected through her son Jasbir. The accused took some buckets of water. She had kept her bucket under the tap but accused threw her bucket in the field, she objected to this but accused started abusing. He inserted a wooden piece in the pipe and stopped the flow of water. She asked why he had stopped the flow of water, he uttered filthy abuses. She was cleaning utensils in the courtyard, accused came there with danda Ex.P - 1 which he took out from the bed of her another brother-in-law which was put there for climbing of creepers. He gave 3 danda blows on her head, 5 – 6 blows on her back, 5 – 6 blows on her shoulder and 3 – 4 blows on her right arm. She raised hue and cry and on hearing this, her father-in- law Rangila Ram came out. On seeing him, the accused ran away after 5 throwing the danda on the spot. She took the danda and kept in her house. In cross-examination, she has admitted previous enmity with the accused. She has stated that she sustained injuries on her head and both shoulders, blood came out from the shoulder injuries. 6. PW-6 Dhian Singh has stated that Pawan Kumar came in the court-yard where his sister-in-law was cleaning the utensils and gave her beatings with danda on her arm and threw the danda there. He and his father Rangila Ram, rushed for the rescue of PW-5 but accused after throwing danda left the spot and danda was taken away by his father. PW-7 Surinder Singh is a formal witness to the effect that report Ext.PW- 5/A was sent to Police Station, Jawalamukhi for registration of the case. PW-8 Jagdish Chand, S.H.O. has stated that on receipt of report Ext.PW-5/A, F.I.R. Ext.PW-8/A was registered. On completion of investigation, he prepared the challan. 7. In report Ext.PW-5/A, it has been stated that complainant took 2/3 buckets of water and Pawan Kumar also took 2/3 buckets of water. Thereafter, Pawan Kumar blocked the flow of water by inserting wooden piece in the water pipe. This was objected by the complainant. Pawan Kumar gave beatings to the complainant in her courtyard when she was cleaning utensils. On hearing cries of the complainant, her father-in-law came out but Pawan Kumar left the place and after throwing the danda on the spot, which PW-5 took and kept inside her house. In her statement in the Court as PW-5, the complainant has made improvement in her statement. In the Court, she has stated that she had kept her bucket under the tap which accused threw in the field, she objected and thereafter, the remaining part of the occurrence took place. This part of the statement of PW-5 is in contradiction to her report Ext. PW-5/A which she lodged with the police. In Ext.PW-5/A, she has nowhere stated that her bucket was thrown by 6 the accused in the field. In report Ext.PW-5/A, the complainant has stated that accused brought the danda. PW-2 Rangila Ram has stated that accused brought danda from his house but PW-5 in the Court has stated that accused brought danda by pulling it from the bed of her another brother-in-law which he had kept in the bed for climbing of creepers. 8. There are material contradictions in the prosecution case. PW-5 has stated that accused has given number of blows of danda on her head, back, both shoulders and arm. The danda blows allegedly given by the accused on the person of PW-5 are not in consonance with the medical evidence. PW-3 Dr. D.B.Rana has stated that two injuries can be caused due to fall from a danga. The doctor was referring to the injuries mentioned in the M.L.C. of PW-5 Raj Kumari. PW-2 has stated that on hearing the cries of Raj Kumari, he and his son Dhian Singh rescued her. In report Ext. PW-5/A the complainant has stated that on hearing her cries, her father-in-law came out and on seeing him, Pawan Kumar left the place. She has nowhere stated that Dhian Singh also came on the spot. PW-6 Dhian Singh has stated that Pawan Kumar gave danda blows on her arm. This is in contradiction to the statement of PW-5 who has stated that the accused had given danda blows on her different parts of the body. PW-6 has stated that danda was thrown by the accused in the courtyard which was taken away by his father. PW-2 and PW-5 have stated that the danda was taken away by the complainant. 9. The occurrence took place at about 8 / 9 A.M. on 17.6.1995 but the report was made to the police on 18.6.1995 at 1.15 P.M. It has come on record that from the village of the complainant, there is bus service after every one hour to Khundia where the Police Post is located. The prosecution has not given any sound explanation for the delay caused in reporting the matter to police. The learned trial 7 Court has rightly appreciated the material on record in acquitting the respondent. It is settled proposition of law that appellate Court will not reverse the finding of acquittal merely on the ground that other view is also possible. No case for interference has been made out, resultantly, the appeal fails and is accordingly dismissed. Bail bonds discharged. ( Kuldip Singh ), Judge. March 6, 2009. (GR)