IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No.376 of 2001 Date of decision: 10.11.2008 State of Himachal Pradesh Appellant Versus Sudershan Kumar Respondent Coram The Hon’ble Mr. Justice V.K.Ahuja, J. Whether approved for reporting1? No. For the appellant: Ms. Subh Mahajan, Dy. Advocate General. For the respondent: Mr.Vinod Thakur, Advocate. V.K.Ahuja, J. This is an appeal filed by the State of Himachal Pradesh against the judgment of the learned Judicial Magistrate, Ist Class (II) Dharamshala dated 8.3.2001 vide which the respondent was acquitted of the charge framed against him under Sections 325/323 IPC. Briefly stated, the facts of the case are that on 11.2.2000 at about 12.00 noon, a report was lodged with the police by one Rasila Ram that in the morning at about 7.30 AM when he came from his house towards Dharamshala and was waiting for the bus, respondent came from Dari side and asked him as to why he was staring at him. The complaiant told him that he was not staring at him. At this, the respondent started abusing him and pushed him with his umbrella. Thereafter, the respondent went towards the shop of Rakesh Kumar and the complainant followed him where the respondent hit his right hand with the umbrella and gave fist blows on his mouth and nose. Thereafter, the complainant proceeded Whether the reporters of Local Papers may be allowed to see the Judgment? Yes. 2 towards his house and the respondent followed him and hurled abuses to him as well as his family members. Thereafter, the complainant went to the District Hospital and thereafter lodged the present complainant on the basis of which the case was registered and after investigation the challan was filed before the learned trial Court who tried the respondent leading to his acquittal. I have heard the learned Dy. Advocate General for the State/ appellant and Mr. Vinod Thakur, learned counsel for the respondent. It is clear from the perusal of the complaint lodged by the complainant that he had alleged that the respondent pushed him with umbrella and thereafter he proceeded towards the shop of Rakesh Kumar and the complainant followed him where he was hit with his umbrella on his right hand and was also given fist blow on his mouth and nose. The complainant, when he appeared as PW-1, had not stated in the manner in which the occurrence had taken place as alleged in the complaint. However, he should have been confronted with the report lodged by him with the police so that any benefit could have been taken by the respondent. However, this fact could not be ignored that the complainant has stated in his statement that when he was standing near the shop of Rakesh and the moment he crossed the respondent, he hit his right hand with his umbrella and gave first blow on his mouth and nose with his other hand. The complainant has specifically stated that he was rescued by Rakesh Kumar and other persons standing there. The presence of Rakesh Kumar at that time was clearly established from the statement of the complainant made in Court as well as in the report lodged by him. However, the said Rakesh Kumar when examined in the Court has stated that no occurrence took place in his presence. He was declared hostile and was allowed to be cross- 3 examined by the learned P.P. However, nothing was brought on record to show as to why this witness would depose falsely in favour of the accused and as against the complainant. The complainant alleged that some other persons were also present who were not named by him, however, the prosecution examined one Kishori Lal PW-2, as an eye-witness but he also did not support the prosecution case. He also turned hostile and was cross-examined by the learned APP but nothing was also brought from his cross-examination as to why he would depose falsely in favour of the accused and as against the complainant. Thus, the solitary statement of the complainant has not been corroborated by the two witnesses who were present at the spot. It is not the case where no eye witnesses were present and therefore, the solitary statement has to be considered as to whether it was sufficient or not to prove the guilt of the respondent. It is a case where witnesses were present and both the eye witnesses were examined on oath but they did not support the prosecution case. Apart from the above, it has come up in the statement of the complainant that the respondent is having his house adjacent to his house and he had a dispute with him in regard to water as well as he had objected to the accused connecting his electric wire through his land. He admitted that he was not in speaking terms with the accused for the last about 2-3 years and as such there was enmity between the accused and the complainant, and the possibility of falsely implicating the accused cannot be ruled out in view of the fact that the complainant’s version has not been corroborated by the eye witnesses. A perusal of the statement of PW-7 Dr. Ajay Datta, Medical Officer shows that he has proved the MLC Ex.PW-8/A of R.R.Kaushal in which the history given by the complainant was being beaten up by someone at ITI Bus Stand. He did not mention 4 that he was told by he complainant about the name of the assailant or that the injury was inflicted with umbrella and with fists. In view of the fact that this was the first version given by the complainant to the Medical Officer on the first opportunity available to him and he did not mention the name of the accused or the weapon of offence it casts a doubt on his version now given in the Court. Keeping in view the contradictions in the statements of the witnesses and the infirmity in the prosecution case, the learned trial Court had concluded that the prosecution had failed to prove its case beyond any reasonable doubt and the respondent cannot be held guilty and, as such, I do not find any reason to hold that the findings of the learned trial Court are perverse calling for an interference by this Court. In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the appellant which is dismissed accordingly. The bail bonds furnished are discharged. 10th November, 2008. (V.K.Ahuja),J. (sds)