HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No. : 569 of 2002 Decided on: 9.3.2010 State of H.P. ……… Appellant. Versus Ramesh Chand and others ………Respondents. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the Appellant: Mr.Vikas Rathour, Deputy Advocate General. For respondent No.1: Mr.Avneesh Bhardwaj, Advocate. For respondent No.2: Mr.M.S. Guleria, Advocate. V.K. Ahuja, J.(Oral): This is an appeal filed by the appellant against the judgment of the court of the learned Additional Chief Judicial Magistrate, Court No.I, Shimla, dated 1.3.2002, vide which he acquitted the respondents of the charge framed against them under Sections 147, 325, 323 read with Section 149 of the IPC. Briefly stated the facts of the case are that a statement was made by Shri Vijay Kohli under Section 154 of the Cr.P.C. on 30.6.1996 at 2.00 p.m. before the police in which he alleged that today at about 11.00 a.m., he alongwith his wife, were present in their house and was standing at the terrace. Two persons, namely, Ramesh Chand and Rahul Bhargwa, alongwith two other persons, came there and they called him on which he went down. Thereafter, beatings were ___________________________________________ Whether reporters of local newspapers may be allowed to see the judgment? Yes. - 2 - given to him by Ramesh Chand, Rahul as also by others, with stones, fists and the complainant was also thrown on the ground. On hearing his cries, his wife came to the spot, who was also given beatings with stones etc. The accused persons also gave a threat to take his life. He also alleged about a dispute in regard to house which had been allegedly purchased by him. On this report, a case was registered and after medical examination of the complainant and his wife and after investigation, the challan was filed before the learned trial Court, who tried the respondents, as detailed above, leading to their acquittal. I have heard the learned Deputy Advocate General for the appellant and the learned counsel for respondents No.1 and 2 and have gone through the record of the case. On appraisal of the record of the case, it is clear that the prosecution case mainly rests upon the statement of the complainant, his wife, their daughter and one Surender Kumar. The complainant Vijay Kumar has been examined as PW-2. A perusal of his statement shows that he stated that he saw the accused persons Ramesh and Rahul standing outside his house alongwith some other persons, who signaled him and he went down, was given beatings by the accused persons, who also gave abuses to him. He stated that he was thrown on the ground and was given beatings. On hearing his cries, his wife came to the spot and tried to rescue him and the accused persons also gave beatings to her. He stated that a fist blow was given by accused Rahul as a result of which his tooth was broken at that time, which fell - 3 - on the spot and the same was taken in possession by the police. He was not confronted with his statement under Section 154 of the Cr.P.C. Ext.PW-2/C in which there were no specific allegation in regard to the fist blow having been given by Rahul leading to the breaking of his tooth. He should have been confronted with the said report. The complainant admits that the report was lodged by him and it bears his signatures. Therefore, his statement becomes doubtful to some extent. Apart from the above, he has clearly stated that the broken tooth was taken in possession by the police, but the same has not been produced during the trial of the case or shown to the Medical Officer. He stated that the occurrence was witnessed by his daughter Ranjita Kohli, who has been examined by the prosecution as PW-5, who corroborated the statement of the complainant PW-2 to some extent, but her presence was not stated by PW-1 Vinod Kohli, wife of the complainant, that she was present at the spot and had witnessed the occurrence. Therefore, her statement becomes doubtful. PW-1 Vinod Kohli, wife of the complainant, came up with the statement that the occurrence was witnessed by one Surender Bhasin, but his presence has not been stated by PW-2 complainant Vijay Kumar, husband of PW-1 Vinod Kohli. Therefore, the presence of the said Surender Bhasin also becomes doubtful, who has also been examined by the prosecution as PW-4, who has nowhere stated that he had witnessed the occurrence. His statement rather shows that he came to the spot after some time and saw the complainant and - 4 - his wife both in an injured condition. On enquiry, he was told about the occurrence. Therefore, his statement cannot be termed as that of an eye witness or that of an independent witness. A perusal of the MLC of the complainant shows that there is no specific mention that there was a blow on his jaw, as a result of which, his one tooth had broken. The Medical Officer has only mentioned that there was extraction, which may be natural or otherwise, and that he has not referred to any injury leading to the breaking of the tooth. Moreover, the Medical Officer has not stated in the history of the case that he was told by the injured that his one tooth was broken as a result of the fist blow given to him. The learned counsel for respondent No.2 had also pointed out, during the course of arguments, that the prosecution had not examined the Radiologist and the X-ray report has also not been proved and, therefore, the charge under Section 325 of the IPC was not established. A perusal of the record shows that the case was referred to the Radiologist and X-ray examination of the injured was also done, but these reports have not been proved nor the Radiologist has been examined. Reliance was placed by the learned counsel for the respondent upon a decision in P.Johnson and others versus State of Kerala, 1998 Cri.L.J.3651, wherein also there was non-examination of the doctor, who took X-ray, and non-production of X-ray reports. It was observed that the criminal liability under Section 325 - 5 - or 326 of the IPC could not be said to have been established. This decision applies to the facts of the present case. Apart from the above, it has been observed by the learned trial Court from the evidence produced by the prosecution that the identity of other five accused persons was not established since they were not known to the complainant or his wife, who admitted this fact, and no identification parade has taken place during the investigation of the case. The complainant and his wife only knew respondents No.1 and 2 but the other respondents were not known to them and in the absence of the fact that they were not known to the complainant or his wife, identification parade was necessary to establish the identity of the remaining accused persons. The mere fact that they were seen on the day of occurrence and that in the court is not sufficient to prove the identity of the other accused persons. Moreover, the part played by the respondents cannot be separated to hold respondents No.1 and 2 only liable for the offence with which they have been charge sheeted. Therefore, the findings recorded by the learned trial Court cannot be said to be perverse calling for an interference by this Court. In view of the above discussion, I hold that there is no merit in the appeal filed by the appellant, which is dismissed accordingly. The bail bonds furnished by the respondents shall stand discharged. March 9, 2010. (V.K. Ahuja), (TILAK) Judge