IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 452 of 2001. Judgement reserved on: 24.7.2008. Date of decision: July 25, 2008. State of H.P. ….. Appellant. Vs. Makholi Ram & anr. …. respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. A.K. Bansal, Addl. Advocate General. For the Respondent : Mr. Surinder Saklani, Advocate vice Mr. Ajay Sharma, Advocate. Kuldip Singh, Judge. This appeal has been directed against judgement, dated 11.5.2001 passed by learned Judicial Magistrate Ist Class (I), Dharamshala, in Criminal Case No. 16-II/2000, acquitting the respondents under Section 325 IPC read with Section 34 IPC. 2. The prosecution case in brief is that PW 10 Naresh Kumar, real brother of PW 1 Rakesh Kumar complainant on 29.8.1999 at 12.30 mid night left his house. At about 4.00 a.m. Makholi Ram accused No. 1 came in the house of complainant and disclosed that Naresh Kumar is at his house and on this complainant went to the house of accused alongwith Pradhan of Gram Panchayat Whether the reporters of the local papers may be allowed to see the Judgment? …2… and found his brother Naresh Kumar with injuries on his person. The injured was tied with a rope at the spot, the rope was untied and several injuries were found on the person of the injured. Naresh Kumar was brought to the house of complainant where first aid was given by Dr. Kishori Lal, a private practitioner. Thereafter complainant alongwith Naresh Kumar went to the Police Station and reported the matter and an FIR mark – X was registered. Naresh Kumar was medically examined. The statements of the witnesses were recorded. On completion of investigation, challan was presented in the court and the accused were charged under Section 325 read with 34 IPC. The accused pleaded not guilty, the prosecution examined eleven witnesses, the statements of the accused were recorded under Section 313 Cr.P.C., they pleaded their innocence. No evidence in defence was led by the accused. The learned trial Magistrate on conclusion of the trial, acquitted the accused, hence the present appeal by the State. 3. I have heard the learned Additional Advocate General for the appellant and Mr. Surinder Saklani, Advocate appearing on behalf of the learned counsel for the respondents and gone through the record. The learned Additional Advocate General has submitted that injuries were found on the person of Naresh Kumar, who was found in an injured condition in the house of the accused. The prosecution has proved the case against the accused by leading oral as well as documentary evidence. It is for the accused also to explain how the injured was found in the courtyard of their residence with injuries on his person. It has been submitted that learned trial court …3… has not properly appreciated the evidence on record and has erred in acquitting the accused. On the contrary, learned counsel for the accused has supported the acquittal of the accused recorded by learned trial Magistrate. He has submitted that there is no eye witness in the present case. He has emphasized what to talk of other evidence even injured PW 10 has not supported the prosecution case. He has submitted for maintaining the acquittal of the accused. 4. PW 1 Rakesh Kumar brother of injured PW 10 Naresh Kumar has stated that on 30.8.1999 at about 4 a.m. Makholi Ram accused came to their house and told that Naresh Kumar is lying in his house. On this, PW 1 went to the house of Makholi Ram with him and found that the hands and feet of his brother were tied and there were injuries on his person. He went to Pradhan, thereafter the Pradhan and ward Panch Kaushalya Devi came to the house of accused alongwith PW 1. At that time his brother was unconscious. He was not in a position to move about, therefore, he was lifted on a cot. PW 1 is not an eye witness of the incident. He has denied that Naresh Kumar sustained injuries during night when he was committing theft and ran away and had a fall in the process. 5. PW 2 Sarup Singh is the Pradhan of village Durgella. He saw Naresh Kumar smeared with blood in the courtyard of Makholi Ram accused tied with ropes. Makholi Ram accused on inquiry told him that injured had come during night. In cross examination, he has stated that he had not seen who gave beatings to Naresh alias Bitu. PW 3 Amin Chand has stated that he heard the noise during night and saw that Bitu was tied with rope in a corner of …4… the courtyard and he was lying there. He did not support the prosecution and was declared hostile. He was cross examined by the prosecution, but nothing favourable to the prosecution was extracted. PW 4 Dr. N.S. Bedi, has stated that he examined Naresh Kumar on 30.8.1999 at 6.15 p.m. and issued MLC Ex. PW 4/A. He has stated that except injury No. 2, all injuries shown in the MLC Ex. PW 4/A are simple. In cross examination, he has stated that if a person in a running condition strikes against bush having blunt object then injury No. 2 could be caused. The other injuries can be caused to a person while crossing hard surface. 6. PW 5 Mehar Singh did not support the prosecution and was declared hostile. He was cross examined by the prosecution but nothing favourable was extracted by the prosecution in his cross examination. PW 6 Dr. R.K. Sharma, Eye Specialist had examined Naresh Kumar and found grievous injury in the right eye of the injured. He issued report Ex. PW 6/A. In cross examination, he has stated that if a person falls on bushes then he can sustain such injuries. PW 7 Kaushalya Devi is the ward Panch of Durgella ward. She has stated that on 29.8.1999, she alongwith Pradhan Sarup Singh had gone to the house of accused Makholi Ram. She found Naresh Kumar in the courtyard and his hands and feet were tied, he was smeared with blood. Makholi Ram at that time told her that somebody had thrown him in his courtyard. She did not support the prosecution and was declared hostile. She is also not an eye witness. PW 8 Jallu Ram also did not support the prosecution and was declared hostile. In the cross examination conducted on behalf …5… of the accused, he has stated that Makholi Ram and Pradhan are not on good terms as Makholi Ram opposed the Pradhan in the election. PW 9 SI Kushal Kumar has only presented the challan after completion of investigation. 7. PW 10 Naresh Kumar has stated that he had mental problem and was mentally disturbed and therefore, he reached the house of Makholi Ram during night. He became unconscious there. He does not know who gave him beatings. He regained consciousness in the hospital at Dharamshala. He even now does not know who gave him the beatings. He was taken to Mental Hospital, Amritsar where he remained admitted for about one week. In cross examination, he has stated that he had not gone to the house of Makholi Ram. PW 11 Des Raj Head Constable has conducted the investigation of the case. In cross examination, he has stated that he did not record the statement of Naresh Kumar during investigation as he was mentally insane at that time. The injured and the accused have houses opposite to each other. 8. There is no eye witness in the case. PW 10 Naresh Kumar injured has not stated that the beatings were given to him by the accused. The maximum which has come in the prosecution evidence is that the injured was found in the courtyard of Makholi Ram accused where he was tied with rope. It has come in evidence that at that time injured Naresh Kumar was not mentally fit. He left his house at about 12.30 mid night. It emerges from the cross examination of the prosecution witnesses that Naresh Kumar had sustained injuries on his person when he ran away while committing …6… theft. PW 4 Dr. N.S. Bedi and PW 6 Dr. R.K. Sharma have not ruled out the possibility that injuries sustained by injured Naresh Kumar could be caused by striking against bushes and coming in contact with hard surface. PW 10 himself has admitted that he was not keeping mentally fit at the relevant time. It has not been proved on record who tied hands and feet of Naresh Kumar. The accused have taken stand that some unknown person had thrown Naresh Kumar in their courtyard. Makholi Ram accused himself informed PW 1 about the condition of Naresh Kumar at 4.00 a.m. on 30.8.1999. The possibility cannot be ruled out that some unknown person had thrown PW 10 after tying in injured condition in the courtyard of accused. The prosecution has failed to prove case against accused beyond reasonable doubt, and therefore, accused are entitled to benefit of doubt. Simply because the injured was found in the courtyard of Makholi Ram accused, it cannot be said that accused gave beatings to Naresh Kumar as a result of which he sustained injuries on his person. PW 8 Jallu Ram has stated that Makholi Ram accused and Pradhan Sarup Singh are not on good terms. Makholi Ram accused had contested election against Pradhan Sarup Singh. The learned Judicial Magistrate has rightly appreciated the material on record. The view taken by the learned Magistrate emerges from the evidence on record. No case for interference has been made out in the appeal. 9. Resultantly, the appeal is dismissed. The bail bonds of the respondents stand discharged. July 25, 2008. ( Kuldip Singh ) (Hem) Judge.