IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No. 674 of 2002. Judgment reserved on 22.5.2009 Date of decision: 25.5.2009 __________________________________________________ State of H.P. …….Appellant Vs. Sudershan Kumar .. Respondent. ______________________________________________________ Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellant : Mr. Anshul Bansal, Additional Advocate General. For the Respondent : Mr. Dinesh Thakur, Advocate Kuldip Singh, Judge The State has come in appeal against judgment dated 26.6.2002 passed by learned Chief Judicial Magistrate, District Kinnaur at Recong Peo in Criminal Case No.64-2 of 1999 acquitting the respondent for offence punishable under Sections 452, 324 and 323 IPC. 2. The prosecution case, in brief, is that PW-1. Devi Singh by written complaint dated 15.3.1999 Ex.PW-1/A informed the incharge, police post, Bhava Nagar that on 15.3.1999 at about 9.30 p.m. he was in his quarter along with his family. In the meantime an unknown person by breaking the windowpane tried to enter the room, he shouted and the said unknown person fled away. The complainant went out side, in the meantime the same person came by climbing the stairs. He caught hold the Whether the reporters of the local papers may be allowed to see the Judgment?Yes 2 complainant with the intention to beat him. The complainant got released himself and ran into his room but that man followed him. He was holding wooden hammer with which that man started striking the complainant. The two sisters of the complainant were in the house. Leela Devi sister and Bimla Devi wife of the complainant suffered injuries on their heads due to wooden hammer blows given by that unknown person. The complainant also sustained injuries on his head with hammer blows. The said unknown person caught hold nine months old child Kulbhushan of the complainant in his hands and with intention to kill the child tried to throw the child on the floor but somehow the complainant party got released the child from that unknown person, but the child also sustained injuries on his forehead. On hearing the cries of the complainant, Ram Lal, Bharat Singh and Chander Sen reached the spot. On enquiry the unknown person disclosed his name Darshan Singh. 3. On the basis of written complaint, FIR Ex.PW-8/A was registered. The injured were got medically examined, spot map was prepared, recoveries of wooden hammer, broken windowpane were made. The accused was also got medically examined, photographs were taken on the spot, statements of witnesses were recorded and on completion of investigation, challan was presented in the Court. The respondent was charged for offence punishable under Sections 452, 324 and 323 IPC, to which he pleaded not guilty and claimed trial. The prosecution has examined eight witnesses and placed on record some documents. The statement of respondent was recorded under Section 313 Cr.P.C. , he denied the prosecution case and led no evidence in 3 defence. The learned Chief Judicial Magistrate acquitted the respondent as noticed above, hence this appeal. 4. Heard and perused the record. Mr. Anshul Bansal, learned Addl. Advocate General has submitted that the Court below has erred in acquitting the respondent, there is overwhelming evidence on record to show that respondent has committed the offence for which he was charged. The learned Chief Judicial Magistrate has not properly appreciated the evidence on record and has erred in acquitting the respondent. The learned counsel for the respondent has supported the impugned judgment. He has submitted that the Court below after due appreciation of evidence on record has acquitted the respondent and no fault can be found with the judgment of acquittal of the Court below. 5. Ex.PW-1/A is the initial version given by PW-1 to the police. In Ex.PW-1/A it has been stated that Leela Devi sister , Bimla Devi wife of the complainant sustained injuries on their heads with hammer blows given by the respondent. In Ex.PW-1/A it has further been stated that the respondent tried to throw Kulbhushan nine months child of the complainant on floor with the intention to kill him. On hearing his cries Ram Lal, Bharat Singh and Chander Sen reached the spot. The respondent on enquiry disclosed his name Darshan Singh. In Ex.PW- 1/A it has not been stated that respondent sustained injuries on his person. It has also not been stated in Ex.PW-1/A why respondent entered in the house of the complainant. 6. PW-1 Devi Singh complainant has stated that on 15.3.1999 at about 9.30 p.m. he was sitting in his quarter at Bhava Nagar along with his family. In the meantime an unknown person by breaking the windowpane tried to enter the room. He got hold the complainant with 4 the intention to beat him. He got released himself and ran into his room but that man followed him. He was holding wooden hammer with which that man started striking him. Leela Devi sister and Bimla Devi wife of the complainant suffered injuries on their heads due to wooden hammer blows given by that unknown person. On hearing his cries Ram Lal, Bharat Singh and Chander Sen reached the spot. In cross-examination he has stated that his quarter was in ground floor and the building was two storey PW-2 Dr. B.S. Negi has stated that on 15.3.1999 he had examined Devi Singh, Bimla Devi, Leela Devi, Kulbhushan and issued MLCs Ex.PW-2/A, Ex.PW-2/B, Ex.PW-2/C and Ex.PW-2/D. He also examined Sudershan Kumar and issued MLC Ex.PW-2/E. PW-3 Anil Kumar is the photographer who has proved the photographs Ex.P-1, Ex.P-2 and Ex.P-3. PW-4 Ram Parkash has stated that when he reached the house of Devi Singh he was told that his family members have been taken to hospital. Later on Devi Singh told him that respondent had given beatings to his child. He did not support the prosecution and was cross-examined by the prosecution. 7. PW-5 Ram Lal has stated that when he reached the house of the complainant the respondent was locked by other neighbours. He has not stated anything regarding the beatings given by respondent to the complainant party. Bharat Singh came in his presence, others did not come in the presence of the witness. PW-6 Hardayal Singh has stated that on 15.3.1999 he was informed by PW-1 that one person entered in their house and gave them beatings. PW-7 Leela Devi is the sister of PW-1, she has stated that on 15.3.1999 at about 9/9.30 p.m. , respondent entered in the house of complainant, he gave beatings to her and her sister-in-law. She has not stated that the respondent had given 5 beatings with wooden hammer to PW-1 or respondent tried to throw Kulbhushan on the floor. PW-8 S.I. Om Chand is the investigating officer. 8. The prosecution case is that at the time of incident complainant, his two sisters, wife and nine months old child Kulbhushan of the complainant were in the house. Ram Lal, Bharat Singh and Chander Sen came on the spot after hearing the cries of complainant. The complainant has supported his version but statement of PW-7 Leela Devi sister of complainant is not matching with the statement of complainant on material particulars. The complainant has stated that the beatings were given by respondent with wooden hammer but this has not been stated by PW-7. The complainant has stated that the respondent tried to throw Kulbhushan on the floor but again PW-7 Leela Devi has not stated so. PW-4 Ram Parkash has stated nothing about the actual incident. PW-5 Ram Lal has not stated anything regarding the beatings. PW-6 Hardayal Singh is not again an eye witness, according to him information of the beatings was given to him by PW-1. The prosecution has not examined wife and second sister of the complainant. PW-2 Dr. B.S. Negi has examined respondent and issued MLC Ex.PW-2/E. There is no explanation how the respondent had received on his person various injuries mentioned in MLC Ex.PW-2/E. The prosecution has not disclosed any motive of respondent to enter the quarter of complainant. The learned Chief Judicial Magistrate has recorded a finding against the prosecution. The view taken by the Court below in the impugned judgment emerges from the evidence on record. It is settled proposition of law that simply because other view is possible is no ground to convert the acquittal into conviction. The prosecution 6 has failed to make out any case for interference. Resultantly, appeal fails and is accordingly dismissed. Bail bonds discharged. ( Kuldip Singh) Judge May 25, 2009 (sks)