IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Criminal Appeal No. 544 of 2002. Judgment reserved on :5.5.2009. Date of decision: 6.5.2009. State of Himachal pradesh .…Appellant. Vs Prabhu Dayal and others. ....Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? No. For the Appellant : Mr. Anshul Bansal, Addl. Advocate General. For the Respondents : Mr. Shrawan Dogra, Advocate. __________________________________________________________ Kuldip Singh, Judge The State has come in appeal against judgment dated 2.3.2002 passed by the learned Additional Chief Judicial Magistrate, Ghumarwin in case No.10/1 of 1997 acquitting the respondents under Sections 323, 324, 325 read with Section 34 IPC. 2. The prosecution case, in brief, is that PW-1 Narainu Ram vide rapat No.13 on 16.10.1996 reported at Police Station, Talai that at about 5.P.M. on that date, he went to his field, the goats of respondent No.1 were grazing in that field. He cleared the field from the goats and when he reached the backyard of his house then Prabhu Dayal his wife Satya Devi respondent No.2, daughter Meera respondent No.3 and respondent No.4 Munshi Ram came there. Prabhu Dayal asked him why he did not allow the goats to graze, Prabhu Dayal attacked the complainant ______________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes 2 with an axe on right arm, Munshi Ram gave drat blow which he stopped by his hands as a result of which, he sustained injuries on his both arms. Satya Devi and Meera gave beatings to the complainant with kicks and fist blows. He sustained injury on his tooth also. On raising alarm, his daughter- in-law Meera Devi came on the spot, who was also given beatings by all the four accused. The daughter-in-law of the complainant sustained injuries on her head. The villagers in the meantime came on the spot and on seeing them, the respondents ran away from the spot. On this, FIR Ex.PW-1/A was registered at Police Station, Talai. The injured Meera and Narainu were examined by the doctor. The spot map was prepared, recoveries were made and the statements of witnesses were recorded. On completion of investigation, challan was presented in the court and the charge was framed against the respondents for offence punishable under Sections 323, 324, 325 read with Section 34 IPC to which respondents pleaded not guilty. The prosecution has examined eight witnesses and produced some documents on record. The statements of respondents were recorded under Sections 313 Cr.P.C., they denied the prosecution case and were acquitted by the learned Additional Chief Judicial Magistrate, hence this appeal by the State. 3. I have heard Mr. Anshul Bansal, learned Additional Advocate General for the appellant and Mr. Shrawan Dogra, Advocate, learned counsel for the respondents and have also gone through the record. Mr. Bansal has submitted that the learned Additional Chief Judicial Magistrate has not properly appreciated the material on record and has erred in acquitting the respondents, the prosecution has proved the case beyond reasonable doubt against the respondents by leading oral and documentary evidence. Mr. Shrawan Dogra, learned counsel for the respondents has supported the impugned judgment and has prayed for dismissal of the appeal. 3 4. PW-1 reported the matter vide rapat No.13 and thereupon FIR Ex.PW-1/A was recorded. PW-1 Narainu Ram has stated that Prabhu Dayal, Satya Devi, Meera Devi were grazing goats on forest land which was allotted by the Forest Department to the complainant. He asked them why they were grazing goats in that field. On this, all the accused attacked him, Prabhu Dayal was holding an axe, Munshi Ram a drat, Satya Devi and Meera Devi were holding dandas. Prabhu Dayal gave an axe blow on his arm, Munshi Ram gave drat blow also on his arm. Meera and other accused gave danda blows. On raising alarm, his daughter-in-law Meera came on the spot. Munshi Ram gave drat blow on the head of his daughter-in-law. Bali Ram and Lekh Ram came on the spot after hearing alarm and rescued the complainant party. The accused ran away from the spot. He handed over blood smeared clothes to the police vide Ex.PW-1/A. The axe, drat and dandas were handed over to police vide memo Ex.PW-1/B. In cross-examination, he has stated that he had filed complaint against Prabhu Dayal and Satya Devi in the Court of SDM regarding path and water. He went to the police station in the van of Pradhan Budhi Ram, only driver was with him. The portion ‘A’ to ‘A’ of the statement Ex.PW-1/A was not given by him to the police. He disclosed the names of Lekh Ram and Bali Ram witnesses when he reported the matter. The houses of Sher Singh and Prabhu Dayal are nearby. He became unconscious after receiving the blow of axe and came in sense after half an hour. Lekh Ram and Bali Ram had appeared his witnesses in other cases also. 5. PW-2 Meera Devi has stated that on 6.10.1996 Prabhu Dayal etc. were grazing goats in their field, her father-in-law objected. On this, accused started beating her father-in-law, she heard the cries and went to the spot. The accused were beating her father-in-law, she intervened and she was also given beatings. She received injury on the head, Lekh Ram and Bali Ram rescued them. Thereafter report was lodged. In cross- examination, she has stated that the quarrel was over when villagers came 4 on the spot and accused were not there. She was given beatings by Prabhu Dayal, Meera and Satya. 6. PW-3 Bali Ram has stated that on 10.6.1996 when they reached the spot, Munshi Ram had given drat blow to Meera, Prabhu Dayal gave axe blow to Narainu. They reached the spot on hearing the cries. He and Lekh Ram rescued the complainant party. In cross-examination, he has stated that he appeared as witness of Narainu earlier also. Narainu was lying unconscious so also Meera Devi. The houses of Prabhu , Sher Singh and Hari Ram are nearer to the house of Narainu in comparison to their house. 7. PW-4 Lekh Ram has stated that the accused were equipped with axe etc but no blow was given by them to the complainant party in his presence. He was not declared hostile by the prosecution. PW-5 Hari Ram has stated that nothing was produced by accused in his presence. He did not support the prosecution and was cross-examined. PW-6 Dr. N.K.Sankhyan has stated that on 7.10.1996 x-ray examination of Narainu was conducted by him and he found fracture of right forearm. PW-7 Budhi Singh is a witness of recovery memo Ex.PW-1/B and memo Ex.PW-1/A. PW-8 Dr. Sanjay Dhiman has issued MLC Ex.PW-8/A of Narainu and MLC Ex.PW-8/B of Meera. In defence Ex.DA, Ex.DB, mark A.B ,C, X, Y, Z were tendered by the learned counsel for the accused. The accused denied the prosecution case in their statements recorded under Section 313 Cr.P.C. 8. PW-1 Narainu in his first version to the police has stated that when he reached the backyard of his house after clearing the field from the goats the accused came there and they asked him why he did not allow the goats to graze, Prabhu Dayal attacked the complainant with an axe, Munshi Ram with drat, Satya Devi and Meera gave beatings to him with kicks and fist blows. He sustained injury on the tooth. But in his statement in the Court, he has stated that Prabhu Dayal, Satya Devi and Meera were grazing the goats on his land. He asked them why they were grazing goats 5 in that field. The version of the PW-1 in the court is not in consonance with his version which he gave to the police. In the Court, he has not stated that occurrence took place in the backyard of his house when he had already cleared his field from the goats. The statement in the Court of PW- 1 indicates that occurrence took place in the field. In the Court, he has not stated that he sustained injury on his tooth also. Before the police, he has stated that Satya and Meera gave beatings to the complainant with kicks and fist blows. He has not stated that Satya Devi and Meera were holding dandas with them. In the court, he has stated that Meera and other accused (Satya Devi) gave danda blows. PW-1 Narainu has not stated before the police that drat blow was given on the head of Meera Devi by Munshi Ram. But in the Court, he has stated that Munshi Ram gave drat blow on the head of his daughter-in-law. Before the police, he has not stated that Bali Ram and Lekh Ram came on the spot and rescued the complainant party. In the Court, the complainant has stated that Bali Ram and Lekh Ram rescued them. PW-1 Narainu has stated that Lekh Ram and Bali Ram had appeared his witness in other cases also. 9. It has come on record that houses of Sher Singh etc. are nearby. PW-4 Lekh Ram has stated that accused were equipped with axe etc. but no blow was given by them to the complainant party in his presence. He has thus contradicted PW-1 Narainu. PW-3 Bali Ram has stated that Narainu and Meera Devi were lying unconscious. PW-1 in his statement to the police has not stated so but in Court he has stated that only he became unconscious. He has not stated that PW-2 Meera Devi had also become unconscious. PW-2 Meera Devi has not stated that PW-1 Narainu as well as she became unconscious. PW-3 and PW-4 in view of the admitted stand of PW-1 Narainu cannot be said to be independent witnesses. They are stock witnesses of PW-1. The prosecution has not given any explanation why independent persons though available were not examined in the Court. 6 10. The injuries found on the persons of Narainu and Meera Devi are not enough to connect the accused with the commission of offence. PW-2 Meera Devi has stated that when villagers came on the spot, the quarrel was over. PW-1 has stated that he went to the police station in the van of Pradhan Budhi Ram and the driver of the van was with him. The prosecution has not examined driver of the van so as to elicit from him what was the stand of PW-1 Narainu immediately after the alleged occurrence. The learned Additional Chief Judicial Magistrate has rightly appreciated the material on record and noticed various contradictions, improvements, variations in the prosecution case in the Court vis-à-vis the initial statement of PW-1 Narainu unfolding the manner in which occurrence allegedly took place. The view taken by the learned Additional Chief Judicial Magistrate emerges from the evidence on record. It cannot be said that the impugned judgment is perverse. It is well settled that in appeal merely other view is possible, is no ground to convert the acquittal into conviction. The prosecution has miserably failed to make out a case for interference. 11. No other point was urged. 12. The result of the above discussion, the appeal fails and is accordingly dismissed. The bail bonds are discharged. May 6, 2009. ( Kuldip Singh ), (GR) Judge.