1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No. 91 of 2002. Date of decision: 12.3.2009 State of H.P. …….Appellant Vs. Surinder Kumar & others ….. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellant : Mr. A.K. Bansal, Additional Advocate General. For the Respondents : None Kuldip Singh, Judge (Oral) The State has filed this appeal against the judgment of acquittal recorded by learned Judicial Magistrate Ist Class(1), Dharamshala on 6.10.2001 in Crl. Case No.40-II/01 under Sections 323, 325 read with section 34 IPC. 2. The prosecution case, in brief, is that PW-3 Sudesh Kumari complainant on 8.6.2001 at about 7.45 a.m. in village Bhanala was sweeping her courtyard and her husband was in the fields. The respondent No.1 who is the brother-in-law of the complainant came in the courtyard and started abusing the complainant. The respondent No.1 asked the complainant why her husband had blocked the flow of water to his fields. The complainant asked respondent No.1 why he had been abusing her. In the meantime Satya Devi respondent No.3 and Whether the reporters of the local papers may be allowed to see the Judgment? 2 Sunita Kumari respondent No.2 mother-in-law and sister-in-law of the complainant respectively reached the spot and started beating the complainant, who fell down and one tooth of her lower jaw was broken. The matter was reported to police vide rapat Ex.PW-6/A and thereafter FIR Ex.PW-7/A was registered. The injured was medically examined, spot map Ex.PW-7/B was prepared. On completion of investigation challan was presented against the respondents in the Court and they were charged under sections 323, 325 read with section 34 IPC, to which they pleaded not guilty and claimed trial. The prosecution has examined eight witnesses and produced some documents. The statements of respondents were recorded under Section 313 Cr.P.C., they denied the prosecution case. The learned Judicial Magistrate acquitted the respondents, hence this appeal. 3. I have heard Mr. Anshul Bansal, learned Addl. Advocate General for the State and have gone through the record, none appeared on behalf of the respondents. It has been submitted on behalf of the State that the prosecution has examined eight witnesses to bring home the charge. The prosecution has proved the case against the respondents by leading oral and documentary evidence including the statements of two doctors. The learned Judicial Magistrate has not properly appreciated the evidence on record and has erred in acquitting the respondents. 4. Ex.PW-6/A is the rapat No.11 dated 8.6.2001, which was got recorded at about 2.45 p.m. by PW-3 and her husband Ashok Kumar accompanied her to the police station for reporting the matter. In Ex.PW-6/A, it has been stated that on 8.6.2001 at about 7.45 a.m. 3 the complainant was sweeping her courtyard, her husband was in the fields. Surinder Kumar her brother-in-law came there and started abusing her. The complainant asked him why he had abused her. On this Satya Devi and Sunita Devi came there and all of the three started beating complainant and one tooth of her lower jaw was broken. She became unconscious, her daughter provided water to her and then she revived. She took broken tooth with her at the time of the reporting the matter. Ex.PW-7/B is the site plan showing the house of one Faquir Chand at point-D. Ex.PW-1/A is the MLC of Sudesh Kumari who was examined at 4.15 p.m. on 8.6.2001. In Ex.PW-1/A, the doctor has found a red bluish contusion on right leg and missing and broken tooth of lower jaw with no injury to outer and inner lip. The injury No.1 was found simple. The patient was referred to Dental Surgeon. In Ex.PW- 2/A, the doctor noticed the condition of the socket of the mouth of the complainant and observed that oral hygiene was poor. 5. PW-1 Dr. Mohan Chaudhary has proved MLC Ex.PW-1/A of the complainant. PW-2 Dr. Raman Vaid has proved MLC Ex.PW-2/A. In cross-examination he has admitted that if a person is given a fist blow which breaks the tooth of said person then he will also sustain an injury on inner and outer lip. In MLC Ex. PW-2/A there is no such injury. PW-3 Sudesh Kumari complainant has stated that on 9th of the month at about 8 a.m. she was sweeping her room, her brother-in-law came there and they started beating her. They gave beatings to her with fist blows. She fell down and her one tooth was broken, her daughter gave her water. Thereafter she came to police station alongwith her husband and lodged the report. She was medically 4 examined. She identified her tooth Ex.P-1. In cross-examination she has stated that she was medically examined on 9th of the month. She has admitted that Surinder Kumar has one hand only. She has denied that she sustained injury due to fall. 6. PW-4 Akshu Kumari is the daughter of complainant. On the date of making the statement she was 11 years of age. She has also given the date of occurrence 9th of the month. She has stated that her uncle, aunt and grand mother gave beatings to her mother and one tooth of her mother was broken. In cross-examination she has stated that she has stated whatever her mother had told her. PW-5 Mohinder Singh was the SHO at the relevant time who prepared the site plan and is a formal witness. PW-6 Kuljeet Singh MC, Police Station, Shahpur has proved report Ex.PW-6/A. PW-7 Madan Lal is the Investigating Officer and has proved FIR Ex.PW-7/A and site plan Ex.PW-7/B. In cross-examination he has admitted that he has not examined any witness from nearby and examined only the persons from the complainant’s family. PW-8 Kamal Kishore has stated that on 9.6.2001 MHC had sent him for medical examination of Sudesh Kumari. In rapat Ex.PW-6/A the complainant has stated that occurrence took place when she was sweeping her courtyard but as PW-3 the complainant has stated that occurrence took place when she was sweeping her room. In site plan Ex.PW-7/B the alleged occurrence took place on the varanda at point–A. In the site plan courtyard of the complainant has been shown separately. At point-D in the site plan there is a house of one Faquir Chand which is nearby but no explanation has been given why no one was examined from the house 5 of Faquir Chand. It has been mentioned in Ex.PW-7/B that the house of Faquir Chand was locked but whether it was locked on the date of occurrence or at the time of preparation of site plan that has not been explained. The complainant has nowhere stated that house of Faquir Chand was locked at the time of alleged occurrence. 7. PW-3 and PW-4 have stated that occurrence took place on 9th of the month but as per rapat Ex.PW-6/A the occurrence had taken place on 8.6.2001. PW-4 is a child witness and in her statement she has stated that she deposed whatever was told to her by her mother. PW-7 HC Madan Lal has admitted in his cross-examination that he has not associated any person from nearby the place of occurrence. He has not stated that there was no abadi nearby. The doctors have not found any injury on the inner or outer side of the lip in MLC Ex.PW-1/A and Ex.PW-2/A. PW-2 Raman Vaid has stated that in case a person is hit by a fist blow then he will sustain injuries both inside and outside the lip. In MLC Ex.PW-2/A oral hygiene of the complainant was found poor. In Ex.PW-6/A the complainant has stated that her brother-in-law Surinder Kumar abused her and thereafter all the respondents gave beatings to the complainant but in her statement in the Court she has not stated that her brother-in-law abused her. There are material contradictions in the statements of prosecution witnesses. In case the tooth of the complainant was broken due to the beatings of respondents then why she did not suffer any injury either out side or inside the lip that has not been explained. The learned Court below has rightly appreciated the material on record and highlighted contradictions in the case. The learned Court below has taken a possible view from the 6 material on record and the prosecution has failed to point out any illegality in the impugned judgment. Resultantly, appeal is dismissed. Bail bonds discharged. ( Kuldip Singh) Judge March 13, 2009 (sks)