IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 27 of 2001 Date of decision: 28.5.2008 State of H.P. Appellant Versus Devinder Singh & Ors. Respondents Coram The Hon’ble Mr. Justice V.K. Ahuja, J. Whether approved for reporting1? No. For the appellant: Mr. J.S. Guleria, Law Officer, For the respondents: Mr. Vinay Thakur, Advocate. V.K.Ahuja, J. (Oral): This is an appeal filed by the State of H.P. against the judgment of the Court of learned Additional Chief Judicial Magistrate, Rohru dated 19.3.1999, vide which the respondents were acquitted of the charge framed against them under Section 325 read with Sections 34 and 506 I.P.C. Briefly stated the facts of the case are that on 21.3.1996, at about 3.10 P.M., a report was lodged with the police by one Mukand Lal that at about 12.30 during day time when he was working in his orchard, respondents came there, started arguing with him as to why he had a quarrel with some persons known to them on the previous day. It was alleged that thereafter the respondents gave beatings to the complainant with legs and fists. The complainant became unconscious Whether the reporters of Local Papers may be allowed to see the Judgment? Yes. 2 and one stone blow was given on his mouth and he suffered injuries. Thereafter, the father of the complainant came there, took him to Police Station and a report was lodged with the police. After investigation, the Challan was filed as against the respondents who were tried by the learned trial Court leading to their acquittal. I have heard learned counsel for the parties and have gone through the record. On a perusal of the report of the case, it is clear that the main witnesses to the prosecution story can be said to be PW-1 Mukand Lal , complainant/injured and two Medical Officers, who had examined the injured. The statement of father of the injured who came to spot subsequently, namely, PW-2 Kamla Nand cannot be said to be material since he had clearly stated that he did not see any injuries being inflicted upon the person of his son, though he had stated that he came to the spot and the accused/respondents ran away from the spot. The prosecution had also examined another brother of complainant as PW-7 Brij Lal, who allegedly stated that a judicial confession was made by the respondents having given beatings to his brother, but that evidence is not relevant since he has mentioned the date of occurrence as 21.6.1996, whereas the date of occurrence is 21.3.1996 and in the cross-examination, he has mentioned that date of occurrence is known to him, but his statement does not prove that any extra judicial confession was made by the respondents on the same day, therefore, his statement cannot be said to be material. Coming to the statement of PW-1 Mukand Lal in the FIR lodged, he had stated that all the blows have been given by the respondents with legs and fists and one stone blow on his mouth, but he did not state as to who gave that blow on his mouth. However, when he 3 appeared in the witness box, he changed the prosecution story and never stated that any blow was given to him with legs and fists. He came with the plea that the respondents attacked him with wood and stones and one stone hit his mouth resulting in breaking of six teeth. He was confronted with the allegations made in the FIR in which he had stated that blows have been given with legs and fists and he had nowhere stated that blows were given by Rajender accused. In his cross-examination, he came up with the plea that three of the accused were having stones and blow on his mouth was given by accused Rajender. He had also stated that Devinder was having a wood in his hand and this version given by him in regard to the occurrence or beatings is entirely different from the one as mentioned in FIR with which he was confronted. He did not allege that his teeth were broken which numbered six. Coming to the statement of complainant/injured, it cannot be said that injury in question on his mouth was inflicted by Rajender as stated by him in Court since he had stated in the FIR that the injury was given on his mouth by one of the accused not named since he had alleged that he became unconscious at that time. Therefore, the assistance of Section 34 I.P.C. cannot be taken either to hold the accused Rajender as guilty or other accused persons having inflicted the injury infurtherance of their common intention since there are no allegations that other accused persons instigated the said accused to cause the injury on the person of the complainant with a stone. In regard to the injuries also Medical Officer Dr. Satish Rathore who was examined as PW-4 had not stated in regard to any of the injuries inflicted with stones since the complainant in his cross-examination had stated that he suffered injuries on the back side, but these do not 4 find corroboration from the statement of PW-4 who had referred to the injuries of the mouth only. PW-4 who firstly examined the injured had stated that there was an injury on the mouth joining the cheek and there was a cut and lacerated wound on the inner side of the right cheek. This Medical Officer came up with a specific statement that this injury was not possible with a stone which clearly does not corroborate the statement of the injured. He further stated that said injury can be by any instrument or any device which must have been very small radious so that particular portion was touched. He admitted the suggestion that injuries found on the person of patient can be caused due to self infliction, though he denied that these are possible by falling or striking against some hard surface. He also stated that these injuries can be caused due to some wooden or iron road, whereas the case of the injured is that he suffered injury with a stone. The other Medical Officer PW-5 Dr. Rita Negi who appears to be a Dental Surgeon and had examined the injured and stated about the injuries. According to her opinion, six teeth were fractured and as such, the injury was declared grievous. She stated that three crowns of teeth were brought for comparison the same with the teeth present in the mouth of complainant, but in her statement she had clearly stated that three crowns of teeth Exts. PA,PB and PC are the same which were brought to her by the police, may not be of the same person. She further stated that these teeth were fractured till cervical end. All six crown of teeth were missing and out of three crowns of teeth had been produced. She further stated that previously four teeth were missing but it is not clear that this reference was made to four other teeth in the mouth of injured or out of six teeth which were fractured at that time. 5 The statement of complainant/injured can be said to be sufficient to prove the guilt in such a case of injury. But in case there is due corroboration from the medical evidence but it is not so in the present case. Therefore, the medical evidence does not fully corroborate the statement of the complainant who himself has changed the statement made at that time. Non-examination of PW Kalmu does not effect the merits of the case in any manner since she was at quite a distance, as per evidence. The statement of complainant Mukand Lal cannot be said to such leading to findings that the prosecution has been able to prove their case beyond any reasonable doubt. The findings recorded by the learned trial Court cannot be said to be 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. Bail bonds furnished by the respondents shall stand discharged. May 28, 2008 ( V.K. Ahuja ) (BSS) Judge 6