IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No. 738 of 2000. Judgment reserved on: 15.5.2008 Date of decision: 19.5.2008 State of H.P. …….Appellant Vs. Guddu alias Som Dutt …. Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellant : Mr. A.K. Bansal, Addl. Advocate General. For the Respondent : Mr. Rupinder Singh, Advocate. Kuldip Singh, Judge. The State has come in appeal against the judgment dated 15.9.1998 passed by learned Sub Divisional Judicial Magistrate, Rajgarh, Camp at Sarahan, District Sirmaur, acquitting respondent under Sections 325, 447 and 506 IPC in Criminal Case No.55/2 of 1996 arising out of FIR No.27/96 registered at Police Station, Pachhad, District Sirmaur. 2. The prosecution case in brief is that PW-4 Sunder Singh on 1.5.1996 at about 7.30 pm had gone to the house of his nephew PW-3 Rattan Lal at Kalaghat. PW-4, PW-3, Moli Devi and Devinder Singh were talking in the courtyard of PW-3 Rattan Lal. The respondent came there and started throwing stones. He asked them Whether the reporters of the local papers may be allowed to see the Judgment? Yes …2… to come out, PW-4 Sunder Singh came out and requested the respondent not to throw stones. The respondent continued to throw stones and one stone hit left foot of PW-4 Sunder Singh. The respondent came armed with stick Ex.P-1 and asked Sunder Singh why he had prevented him from throwing the stones. The respondent started giving beatings to Sunder Singh due to which he suffered injuries on his right wrist and legs. Sunder Singh was saved by PW-3 Rattan Lal , Moli Devi and Devinder Singh. The matter was reported to Police station, Solan where an entry Ex.P-1 was made on daily diary. Sunder Singh was medically examined by PW-1 Dr. S.L. Verma who found injuries on his person and issued MLC Ex.PW-1/A. PW-2 Dr. B.K. Bhardwaj after examining X-rays Ex.P-2 and Ex.P-3 found a fracture at lower end of ulna etc. PW-5 ASI Purshotam Lal recorded the statement under Section 154 Cr.P.C. Ex.PW-4/A of PW- 4 Sunder Singh and sent it to Police Station where FIR Ex.PW-6/A was registered. The investigation was conducted by PW-6 SHO Sant Ram who prepared site plan Ex.PW-6/B. The respondent produced stick Ex.P-1. On completion of investigation challan was presented in the Court. The respondent was charged under Sections 325, 447 and 506 IPC, to which he pleaded not guilty and claimed trial. The prosecution examined six witnesses and produced documents. The statement of respondent was recorded under Section 313 Cr.P.C. in which he has stated that due to enmity he has been implicated in the case. No defence evidence was led by him. The learned trial Magistrate acquitted the respondent as noticed above, hence appeal by the State. …3… 3. I have heard Mr. A.K. Bansal, learned Addl. Advocate General for the State and Mr. Rupinder Singh, learned counsel for the respondent and gone through the record. The learned Addl. Advocate General has submitted that the learned trial Magistrate has not appreciated the evidence on record properly. The acquittal of respondent by learned trial Magistrate is due to misinterpretation of the evidence on record. The prosecution has proved the case beyond reasonable doubt against the respondent. Therefore, learned Addl. Advocate General has urged for setting aside the impugned judgment. Per contra learned counsel representing the respondent has supported the impugned judgment and has submitted that the learned trial Magistrate has properly appreciated the material on record. The judgment of acquittal recorded by learned trial Magistrate is just and proper. 4. PW-4 Sunder Singh in his statement has stated that stones were thrown by respondent on him and as a result of which he sustained injuries on his left foot but MLC Ex.PW-1/A does not corroborate the statement of PW-4 Sunder Singh. The investigating officer did not recover any stone from the place of occurrence allegedly thrown by respondent on Sunder Singh causing injuries to him. PW-4 has also stated that he was given beatings by respondent with stick Ex.P-1. He was rescued by Jia Ram and Ravinder. In cross-examination he has stated that incident took place on 1.5.1996 and he went for lodging the report on 2.5.1996 at Solan from there he was sent to Sarahan . The stick blows were given to him on the passage leading to the courtyard. It was dark at that time and due to …4… darkness it was not possible to identify a person. PW-3 Rattan Lal has stated that on 1.5.1996 at about 7.30 PM his uncle Sunder Singh was sitting in the verandah, he and his wife Moli Devi were cooking food in the kitchen. In the meantime respondent started pelting stones at his house. Sunder Singh came out of the Verandah and asked respondent not to throw stones. The respondent came with stick and started beating Sunder Singh in front of room of Vidya Dutt which caused injuries on his arm and legs. He and his wife saved Sunder Singh from respondent. In cross-examination he has stated that he and his wife were inside their house at the time of occurrence and respondent gave beatings to Sunder Singh on the back side of his house. PW-2 Dr. B.K. Bhardwaj has found fracture at lower end of ulna etc. as per his report Ex.PW-2/A after examination of X-ray etc. of Sunder Singh. PW-1 Dr. S.L. Verma examined Sunder Singh and has issued MLC Ex.PW-1/A. The other witnesses examined by the prosecution are formal. But the prosecution has failed to prove that the injuries found on the person of Sunder Singh were caused by respondent. PW-3 and PW-4 are not corroborating each other on material particulars. PW-3 has not stated that stones were thrown by the respondent in his courtyard. He has stated that beatings were given to Sunder Singh by respondent on the back side of his house in front of the room of Vidya Dutt. PW-3 is a close relative of PW-4 Sunder Singh. It is not safe to rely on his testimony, more particularly when it has come on record that Jia Ram and Ravinder were present on the spot who have not been examined by the prosecution nor any explanation has been given why these persons …5… were not examined. Similarly, no explanation has been given why Vidya Dutt or any other person from his house was not examined. PW-4 has stated that it was not possible to identify a person at the time of incident due to darkness. Therefore, it can be safely inferred that PW-3 and PW-4 were not in a position to identify the person who allegedly threw stones and gave beatings to Sunder Singh 5. The learned trial Magistrate has properly appreciated the material on record and has drawn inference which emerges from the evidence on record of the case. The prosecution has failed to make out any case to show that the inference drawn by the learned trial Magistrate from the evidence on record is wrong. This Court while sitting in appeal is to consider whether view taken by learned trial Magistrate is possible or not. It cannot be said that conclusion drawn by learned trial Magistrate is perverse. No case for interference has been made out, resultantly, appeal fails and is accordingly dismissed. Bail bonds discharged. ( Kuldip Singh ) Judge. May 19, 2008 (sks)