1 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. A. No. 619 of 2002. Date of decision: June 23, 2009 _________________________________________________ State of HP …Appellant. Versus Charan Dass @ Charanu …Respondent Coram: The Hon’ble Mr.Justice R.B.Misra , Judge. Whether approved for reporting? For the Appellant: Mr. P.K. Sharma, Addl. A.G with Mr. P.M. Negi, Deputy Advocate General. For the Respondent: Ms. Anjali Soni Verma, Advocate. R.B. Misra, Judge (Oral) Heard. The present criminal appeal has been preferred consequent upon the grant of leave under section 378(3) of Code of Criminal Procedure, in reference to the judgment dated 10.5.2002, whereby learned Chief Judicial Magistrate, Kangra at Dharamshala has acquitted the alleged accused, respondent herein, in reference to criminal case No. 36-II/2001, for the alleged offences under 338 IPC. 2. In order to adjudicate the present criminal appeal, it is necessary to give brief facts of the case. It appears that Smt. Salochna Devi, wife of Dheer Sing, resident of village Tatwani, Police Station, Shahpur, went to her parents house, situated at village Naddi. On 22.1.2001, when she was sitting inside the house of her father at village Naddi, accused was firing at sparrows with 2 his air gun outside the house, due to pallet fired by the accused she sustained injuries on the lip and upper jaw, as a result of which her tooth was dislocated. Whereas, as per prosecution case, the alleged accused was firing at sparrow with air gun outside the house and by chance a pallet fire hit Smt. Salochna Devi, victim on her lip and upper jaw. Thereafter, the accused continued to file with his air gun. 3. On 23.1.2001 Salochna Devi went to Police Post and had lodged report and statement of Salochna Devi was recorded by the police. The case was investigated by ASI, Chain Lal of Police Post, Forseythganj. Salocana Devi was medically examined by the doctors at Zonal Hospital, Dharamshala and as per the doctors, second incisor of upper jaw of Salochna Devi was dislocated and there was also lacerated wound on her upper lip. On completion of investigation, challan under section 325 IPC was prepared and a case was sent for trial against the alleged respondent-accused. 4. Prosecution in order to prove its case, has examined as many 7 witnesses, whereas the alleged accused has denied the prosecution case in his testimony recorded under section 313 Cr.P.C. 5. Point No. 1 was considered for determination and was answered as ‘No’ and respondent-accused was acquitted accordingly. 6. PW 1 Dr. Miss. Neelam Mehta and Dr. PW-4 Dr. Sangeet Sharma conducted medical examination of the injuries sustained by Salochna Devi. As per their opinion, there was lacerated wound on the right upper lip and the right second incisor 3 was fractured and the injury on the person of Salochna Devi was serious in nature. 7. PW-2, Charan Dass is witness of recovery memo Ex.PW6/A, who, however, had categorically stated that no gun was taken into possession by the police in his presence. PW-2 was declared hostile. 8. PW-3, Constable Janam Singh, at that relevant time, was posted at Police Post Forseythganj and had recorded the statement of Salochna Devi. 9. PW-6, ASI, Chain Lal conducted the investigation of the case and had also made investigation after reaching the spot and prepared the site plan and on 31.1.201 had recovered the air gun Ex P-1. 10. As per testimony of PW-7, Rajinder Singh, police had recovered the gun and prepared the recovery memo. 11. PW-5, the victim, Salochna Devi is the most material witness who had deposed that on the fateful day while she was sitting in the house of her father at village Naddi, accused entered the room with air gun and sat on the chair, loaded the gun and thereafter aimed at her with the air gun. She covered her face with a blanket and after 15-20 minutes, accused fired with his air gun on her and the pallet hit her lip and also dislocated one tooth. Next day, she was brought to the hospital and then she lodged report with the police. 12. Learned trial court has found contradictions and inconsistencies in the testimony of PW-5, so much so when Salochna Devi had filed report has reported in rapat Roznamcha that while she was sitting in the room and the accused was firing 4 with his air gun at the sparrow outside the house and per change a pallet hit on her lip and upper jaw and thus she sustained injury and her upper incisor was dislocated. Whereas she introduced a new story in her statement and deposed that the accused entered inside the room, sat on a chair, loaded the air gun and then fired on her after 15-20 minutes. So the statement of PW-5, victim, is entirely inconsistent and contradictory with the facts reported by her in the FIR. The learned trial court has, therefore, rightly disbelieved the testimony of PW-5 and it inspired no confidence and was treated as not reliable. According to the trial court, the prosecution case has become doubtful. So keeping in view the entire facts and circumstances, the trial court has found that the prosecution has failed to prove its case beyond reasonable doubt. 13. After going through the testimony of prosecution witnesses and materials on record and keeping in view the statement of PW-5, I am of the view that in the statement of PW-5, victim, there are inconsistencies and contradictions, therefore, the view taken by the learned trial court is rightly correct. In view of the above stated position, I see no merit in the present appeal. The same is, therefore, dismissed. June 23,,2009(sl) ( R.B. Misra), Judge.