IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.Revision No.179 of 2004. Judgment Reserved on: 01.04.2011 Date of decision: 17.06.2011. Sukh Dev and Another … …Petitioners Versus State of H.P. & Others … …Respondents Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 No. For the Petitioners: Mr.J.R. Poswal, Advocate. For Respondent 1: Mr.P.K. Sharma, Additional Advocate General with Ms.Shubh Mahajan, Deputy Advocate General. For Respondents 2 & 3: None. Dev Darshan Sud,J. This revision petition is directed against the judgment of the learned Sessions Judge acquitting respondents No.2 and 3 for offences under Section 307 read with Section 34 of the IPC. 2. Respondents No.2 and 3 herein were the accused before the learned Sessions Court. They were committed for trial by learned Chief Judicial Magistrate, Bilaspur by an order dated 3.9.1999 to stand trial for offences as noticed. 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 3. In a nut shell the prosecution case is that the complainant Sanjiv Kumar PW-1 son of Shri Sukh Dev PW-6, who was aged about 11 years at the time of the occurrence of incident, was studying in 6th standard. On 8.4.1996 when the injured Sanjiv Kumar, PW-1, went outside his house to urinate and while he was actually relieving himself, the accused-respondents pelted stones at him from the roof injuring him and he passed out. He was carried inside by his grandmother PW-2 Geeta Devi and her husband Nandu Ram, grandfather of the injured. The injured PW-1 Sanjiv Kumar was taken to the District Hospital, Bilaspur, where PW-7 Dr.S.P. Barmani examined him at around 10.15 P.M. on 8.4.1996. He had telephonically informed the local police regarding a medico legal case admitted to the hospital whereupon PW-14 ASI Jerm Singh reached the hospital and filed application Ex.PW-14/H before the Medical Officer requesting him to certify as to whether the injured was fit enough to make a statement. The application bears the remarks “patient is fit to give his statement”. It is signed on 8.4.1996 at 11.55 P.M. He was thereafter treated at Indira Gandhi Medical College and Hospital, Shimla, where surgery was carried out on the fracture of his skull by Professor K.S. Rana, Head of the Department of Neurosurgery. 4. On the evidence on record, the learned Court acquitted the accused holding (a) that there are contradictions rather material contradictions in the 3 case which go to the very root and foundation and the statement made by PW-1 Sanjiv Kumar injured is in direct opposition to the statement Ex.D-1 made by him in Civil Suit instituted by them against the respondents for recovery of damages. 5. I am not delving into the entire evidence as it is the authenticity of statement of PW-1/A which is required to be adjudicated. This statement is the basis for registration of the FIR Ex.PW-14/B on 9.4.1996 at around 1.30 A.M. Adverting to Ex.PW-14/H, the Investigating Officer PW-14 ASI Jerm Singh has been unable to identify this doctor. 6. Turning to the other evidence which is Ex.D-1 statement made on oath by the injured herein, stating that after being injured with the stones hurled at him by the defendants therein, he states in his examination-in-chief that after being hit with the stone he lost consciousness. On second day he was taken to IGMC, Shimla. In his cross-examination he states that it was after two days after the admission in the hospital that he regained consciousness. He volunteered that he had regained consciousness in the first hospital but besides that he does not know what has happened. It is this conflict which requires to be resolved in the present case. 7. Learned counsel appearing for the petitioner herein urges that the learned Court below has misread the evidence of the witnesses, more especially of the 4 complainant, PW-2 Smt.Geeta Devi and PW-3 Ram Parkash who have in no uncertain terms stated that they had seen the accused-respondents pelting stones at the complainant, petitioner herein. He submits that they have not been contradicted in material particulars and in this event, there is perversity in the appreciation of evidence. 8. Learned counsel urges that the seriousness of the nature of the injuries is writ large as would be plain and evident from the medical evidence on record, namely, PW-7 Dr.S.P. Barmani, PW-8, Dr.N.K. Sankhyan and PW-9 Dr.Kashmir Singh Rana, Professor and Head of Department, Neurosurgery, IGMC, Shimla. He submits that there is no evidence on record to establish the plea of the respondents herein under Section 313 Cr.P.C. stating that the case has been foisted on them because of enmity. 9. I have given my careful consideration to the submissions made by learned counsel for the petitioner as also the State. There is no explanation as to why Ex.D-1, which is also statement made on oath, which has been made by the injured PW-1 Sanjiv Kumar in Civil Proceedings claiming damages, as to why it has been stated therein that he regained consciousness only after two days of the injury. Again, on Ex.PW-14/H the learned Court rightly holds that there is no identification of the doctor who had stated that the petitioner was fit to make a statement. 5 10. It is now by well settled that where there are two views possible in a case arising out of the acquittal, the appellate/revisional Court will adopt a view which favours the accused. Having held that the contradictions are material in nature, I find the case of the prosecution not proved. This revision petition is accordingly rejected. The findings in this revision petition or before the learned trial Court do not in any manner determine the final liability of the respondents herein in any civil action or other action which may be brought against them. June 17, 2011. (Dev Darshan Sud) (aks) Judge.