IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 350 of 1993 Reserved on: 18.8.2008 Date of decision: 22.08.2008 State of H.P. ... Appellant Versus Ramesh Kumar and Ors. … Respondents Coram : The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant: Mr. R.M. Bisht, Deputy Advocate General. For the respondent: Mr. Karan Kanwar vice Mr. Deepak Kaushal, Advocate. Per V.K. Ahuja , J.: This is an appeal filed by the State of H.P. against the judgment of the Court of learned Judicial Magistrate Ist Class, Court No.II, Paonta Sahib, dated 22.10.1992, vide which the respondents were acquitted of the charge framed against them under Sections 382, 323, 325 read with Section 34 I.P.C. Briefly stated, the facts of the case are that on 13.11.1987, a statement was made by Umesh Jung at Civil Hospital Paonta Sahib before a Police Officer under Section 154 Cr.P.C. In the said statement, the complainant alleged that on the previous day at about 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 8.15 PM, he was going on a scooter and on way there was house of one Sehjor. When he crossed the house of Sehjor, one Ashok and Yashpal were taking liquor and they also called him and after sometime Ramesh Kumar alias Chhotar and Faquiria also came there and they started taking liquor. After sometime, an altercation took place in regard to some Panchayat election. Ashok caught hold of him from behind and Ramesh gave a blow with a bottle on his head, while Yashpal and Faquiria also gave beatings to him. He suffered injuries on his head, left eye and other parts of the body and became unconscious. When he regained consciousness, he found his golden ring, Rs.2780/- and one double barrel gun, which he was carrying missing. Thereafter, his father and brother came to the spot and brought him to Civil Hospital Paonta Sahib. On his statement, a case was registered and after investigation, the challan was filed before the trial Court who tried the respondents leading to their acquittal. We have heard the learned counsel for the parties and have gone through the record. The submissions made by the learned Deputy Advocate General, for the State, were that the evidence led by the prosecution was sufficient to prove the guilt of the respondents but the findings recorded by the learned trial Court to the contrary can be termed as perverse calling for an interference by this Court. On a perusal of the evidence led by the prosecution, it is clear that the prosecution had examined PW-1 Sehjor in whose house the occurrence had taken place. He stated that the complainant and others were taking liquor and after sometime they started quarrelling. He had 3 gone to the other room and they were giving blows with bottles to each other. He stated that Chhatar gave a blow of bottle on the head of Munna who is also known as Umesh Jung. However, a perusal of Ext. PW4/A, statement made under Section 154 Cr.P.C., shows that this blow was given by Ramesh Kumar. He stated that Munna fell, became unconscious and others did not say anything and they left the place. He asked his servant Dhanvir to look after Umesh Jung and made a telephone call to call the father of Umesh. The said Dhanvir, servant of PW-1, has been examined as PW-5. He stated that Pradhan Munna came there. Thereafter, Chhotar came there referring to accused Yashpal and they started eating and drinking. He further stated that an altercation took place between Munna and Chhotar. Chhotar caught hold of Munna from his neck and started giving beatings to him. Then Chhotar gave a blow of an empty bottle on the head of Munna, which is contrary to the report made to the police that this blow was given by Ramesh. He also stated that accused Chhotar took out currency notes from the pocket of Munna Pradhan which were 100 rupees notes. PW-2 Roshan Lal has stated that he had gone to the house of Sehjor where Ashok and Yashpal were having liquor there and then Munna also came there and after sometime Faquiria and Chhotar came and started taking liquor. There were some altercation and Chhotar told Munna that he had abused Faquiria and then Chhotar caught hold of Umesh from his neck and gave a blow of empty bottle on the head of Umesh. This is also contrary to the report lodged with the police. He stated that the head of Umesh started bleeding and has not stated anything else. PW-3 Sunder 4 Singh when examined turned hostile and had not supported the story of the prosecution. A perusal of the statement of the Medical Officer PW-9 Dr. G.P. Diwedi shows that there were six injuries on the person of the injured, while in the evidence it has only come up that one injury was caused on the head with a bottle and there is no mention of the other injuries. There is nothing on record to show as to why the complaint/injured Umesh Jung was not examined and even in the judgment, it appears that the learned trial Court had not mentioned about the non-examination of said Umesh Jung nor the reasons have been recorded. The learned trial Court has referred to the contradictions in the statements of these material witnesses in regard to the fact as to who had given the injury on the head of injured Umesh Jung. The learned trial Court had also referred to report Ext.PW4/A, in which all the facts were mentioned but the names of the eye witnesses present were not mentioned therein. Out of the persons who were taking liquor at that time, none has been examined to substantiate the story of the prosecution or the statement of the injured Umesh Jung. It was also observed that there is nothing on record to show that the particular accused who gave blow was also known as Chhotar as has come up in the evidence. The learned trial Court has also observed that the Medical Officer has observed that injuries No. 5 and 6 mentioned in MLC Ext.PW9/A cannot be caused by an empty bottle. Thus, it was concluded that the medical evidence has not corroborated the ocular version of the prosecution case. This fact should have been mentioned as to why Umesh Jung was not examined who was very material. 5 However, the net result of the discussion is that the statements of the prosecution witnesses suffer from contradictions which cannot be termed as minor and the guilt of the respondents was not proved beyond any reasonable doubt. The final findings recorded by the learned trial Court leading to the acquittal of the respondents cannot be said to be perverse calling for an interference by this Court and as such, there is no merit in the appeal filed by the appellant, which is dismissed accordingly. The bail bonds furnished by the respondents stand discharged forthwith. ( Deepak Gupta ) Judge ( V.K. Ahuja ) August 22, 2008 Judge (BSS) 6