IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No.24 of 2008 and Cr.Appeal No.10 of 2008 Date of decision: 8.5.2008 State of H.P. …….Petitioner Vs. Uttam Singh & another …. 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 : Ms. Ritta Goswami, Advocate. Kuldip Singh, Judge.(Oral) The State has filed this petition for seeking leave to file appeal against the judgment of acquittal dated 6.9.2005 passed by learned Sub Divisional Judicial Magistrate, Karsog, in Police Challan No.62-2 of 2005 under Sections 323, 325 read with section 34 IPC. 2. The prosecution case in brief is that PW-2 Karam Dass complainant on 29.6.2005 at about 7.30 a.m. was constructing a retaining wall near his house. The respondents- accused went there and asked the complainant why he was constructing a retaining wall on their land. The complainant told them that he was constructing retaining wall on his own land, on Whether the reporters of the local papers may be allowed to see the Judgment? Yes …2… this respondent No.1 gave drat blow on the left leg of the complainant and respondent No.2 gave beatings to complainant with danda which caused simple and grievous injuries on the person of the complainant. On hearing the cries of the complainant his brother PW-3 Dharam Dass came to the spot and saved the complainant. The matter was reported to the police. The complainant was medically examined and Dr. D.S. Bilwaria issued MLC Ex.PW-1/A. The complainant was referred to Indira Gandhi Medical College, Shimla where medical history Ex.PW-5/A of the complainant was also taken by the prosecution. During investigation site plan Ex.PW-7/B was prepared, drat Ex.PA and danda Ex.PB were also taken into possession. On completion of investigation challan was presented in the Court and the charge was framed against the accused, to which they pleaded not guilty and claimed trial. The prosecution examined seven witnesses. Statements of accused under Section 313 Cr.P.C. were recorded, in which they pleaded their innocence. They did not lead any defence evidence. The learned trial Magistrate acquitted the accused on 6.9.2005, hence the State has filed this petition for leave to file appeal. 3. Heard Mr. A.K. Bansal, learned Addl. Advocate General for the State and Ms. Ritta Goswami, learned counsel for the respondents and gone through the record. PW-2 Karam Dass complainant has stated that on 29.6.2005 at about 7.30 a.m. he was constructing a retaining wall in front of his house. The accused came there and stated that the land on which he …3… was raising construction belongs to them. Uttam Singh gave drat blow on his left leg and Fula Devi wife of Uttam Singh gave danda blow on his back and arms. On hearing his cries his brother PW-3 Dharam Dass came on the spot, who saved him from the accused. On 17.7.2005, police visited the spot and took into possession drat Ex.PA and danda Ex.PB. The learned trial Magistrate in the impugned judgment has noticed that PW-3 Dharam Dass has admitted in his cross-examination that accused had not given beatings to the complainant with drat and danda in his presence. The complainant has admitted that house of one Jindu Ram is situated near the place of occurrence but no explanation has been given by prosecution why said Jindu Ram has not been examined. PW-1 Dr. D.S. Bilwaria has proved MLC Ex.PW-1/A, according to him injury No.1 was grievous and injury No.2. simple. The doctor has admitted in cross-examination that injuries mentioned in MLC Ex.PW-1/A can be caused to a person, if he naturally falls on some pointed object. PW-5 Dr. Desh Raj has stated that complainant remained under his treatment and he has proved case summary Ex.PW-5/A. PW-5 has also admitted that injuries found on the person of complainant can be caused by fall in the field while doing work. The learned trial Magistrate has also noticed that drat Ex.PA and danda Ex.PB were not taken into possession in presence of local witnesses nor those were sealed. According to learned Magistrate the recovery of drat and danda is doubtful. The prosecution has not examined any independent witness, in order to prove the case. PW-3 Dharam Dass has not …4… supported the prosecution. It is not safe to rely on statement of PW-2 Karam Dass complainant in absence of corroboration on material particulars. The doctors have already stated that the injuries found on the person of complainant can be caused by fall. The learned trial Magistrate has taken a possible view on the basis of material discussed by him in the judgment dated 6.9.2007. No case for grant of leave to file appeal has been made out. Resultantly, leave to appeal is rejected. 4. Cr. Appeal No.10 of 2008 In view of refusal of the grant of leave to file appeal, the appeal is rendered infructuous. ( Kuldip Singh ) Judge. May 8, 2008 (sks)