IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 51 of 2002. Judgement reserved on: 25.2.2009. Date of decision: 27.2.2009. State of Himachal Pradesh ….. Appellant. Vs. Ishwari Dutt Sharma & ors. …. 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 Respondents : Mr. Dinesh Thakur, Advocate. Kuldip Singh, Judge. This appeal has been directed against the judgement dated 3.8.2001 passed by learned Addl. Chief Judicial Magistrate, Rohru in Criminal Case No. 108-2 of 1999/ 11-2 of 1997, acquitting the respondents, under Sections 325 read with Section 34 IPC. 2. The facts of the case in brief are that PW 1 Rameshwar Singh lodged FIR No. 184, dated 1.9.1996 Ex. PW 10/D against the respondents that they had given him beatings on 25.8.1996. The complainant was medically examined. On completion of investigation, challan was presented against the respondents and were charged under Section 325 read with Section 34 IPC. The Whether the reporters of the local papers may be allowed to see the Judgment? …2… respondents pleaded not guilty. The prosecution has examined ten witnesses and produced documents. The statements of respondents were recorded under Section 313 Cr.P.C. The learned Addl. Chief Judicial Magistrate gave benefit of doubt and acquitted the respondents on 3.8.2001, hence this appeal by the State. 3. I have heard Mr. A.K. Bansal, learned Additional Advocate General for the appellant and Mr. Dinesh Thakur, Advocate appearing on behalf of the respondents and gone through the record. On behalf of the appellant, it has been submitted that medical examination of the complainant reveals so many injuries on the person of the complainant. There was enmity between the parties. At the place of occurrence, there was no other person and in these circumstances, the testimony of PW 1 Rameshwar Singh complainant injured is sufficient for proving the charge against the respondents. This apart, the prosecution has also led other evidence to bring home the charge. On behalf of the respondents, it has been submitted that the prosecution has miserably failed to prove the charge against the respondents. In view of previous enmity between the parties, the statement of complainant is not enough to convict the respondents. There is no corroboration to the statement of PW 1 who is an interested witness. The learned Addl. Chief Judicial Magistrate has taken a possible view from the evidence on record, and, therefore, in appeal unless the view taken by the court below is perverse, the appellate court would not convict the respondents merely on the ground that other view is possible. …3… 4. PW 1 Rameshwar Singh has stated that on 25.8.1996, he had seen four masons working on the roof of the house of Ishwari Dutt, when he reached the boundary of his own field, Ved Parkash and Satya Parkash sons of Ishwari Dutt caught and slapped him as well as pulled his hairs. A danda blow was given on his back and he became unconscious. He regained consciousness, but by that time the respondents had left the place. He was carrying sugar in one bag and was holding an umbrella in his hand at that time. He left the place and reached the house of Gulat Ram and narrated the incident to him. Malak Ram and Fagnu also met him on the way, he narrated the incident to them also. He ultimately reached Parsa curve where PWD labour was working. Sukhdev Pradhan, Het Ram, Vidya Dutt and Satish came to his house. He narrated the incident to them also. He lodged written report Ex. PW 1/A. He remained admitted in the hospital for two days. In I.G.M.C., Shimla, X-ray was conducted and fracture was detected in his finger. In cross examination, he has stated that he does not know the masons, who were working on the roof of the house of Ishwari Dutt. The two accused gave him beatings for some time and thereafter Ishwari Dutt gave danda blow, which caused injuries on his body, blood oozed out from the injuries and fell on the clothes, which he was wearing. The blood stained clothes were not handed over to police nor danda was given to police. He has stated that civil litigation between them was pending. 5. PW 2 Chet Ram is the father of the complainant, but he is not an eye witness to the incident. PW 3 Sukhdev has stated that on his asking, Rameshwar Singh had told him that he was given …4… beatings by Ishwari Dutt. In cross examination, he has stated that he does not know how many persons gave beatings to Rameshwar Singh. PW 4 Kuldev has stated that wife of Rameshwar Singh told him that sons of Ishwari Dutt had given beatings to her husband. In cross examination he has stated that he has not seen any marks of injuries on the person of Rameshwar nor Rameshwar Singh had shown any injury to him. PW 5 Gulat Ram did not support the prosecution and he was declared hostile. He was cross examined by the prosecution, but nothing favourable to the prosecution was extracted in his cross examination. PW 6 Dr. P.C. Gupta, Radiologist, Civil Hospital, Rohru has proved report Ex. PW 6/A, X- ray films Ex. PW 6/B, Ex. PW 6/C and Ex. PW 6/D. 6. PW 7 Dr. Sunil Sharma examined Rameshwar Singh on 25.8.1996 and issued MLC Ex. PW 7/A. He referred the patient to I.G.M.C., Shimla on the request of the patient. On seeing X-ray slip, he made endorsement about the report, whereby no evidence of fracture has been made. He proved report Ex. PW 7/C. PW 8 Dr.L.R.Verma, Assistant Professor Orthopedics, I.G.M.C., Shimla has examined Rameshwar Singh. In routine, X-ray for left thumb was advised which revealed fracture base terminal phalanx of thumb. He has proved report Ex. PW 8/A and treatment slip Ex. PW 8/B. PW 9 Devi Saran has stated that he laid the roof of house of Ishwari Dutt about three years ago and nothing happened in his presence. He did not support the prosecution. He was declared hostile and cross examined by the prosecution. In the cross examination, nothing favourable to the prosecution was extracted. PW 10 Chet Ram is the …5… Investigating Officer. He has stated that during investigation, nothing was revealed with which weapon the beatings were given. The respondents in their statements, under Section 313 Cr.P.C., denied the prosecution case. 7. It has come on record that the parties were in litigation prior to the alleged incident dated 25.8.1996. PW 1 Rameshwar Singh has supported his case. There is substance in the contention of the learned counsel for the respondents that this is not a case of the type where sole testimony of injured is sufficient to convict the respondents. In view of past enmity some assurance/ corroboration from independent witnesses is necessary. The complainant has stated that two sons of respondent No.1 slapped him and pulled his hairs and Ishwari Dutt gave beatings with danda. He has also stated that blood had fallen on his clothes, but no such clothes were recovered during investigation nor danda allegedly used for giving beatings to the complainant was recovered. The first person to whom the incident was narrated by the complainant was Gulat Ram, but he did not support the prosecution. The other two persons Malak Ram and Fagnu to whom the incident was also narrated by the complainant were not examined. PW 3 Sukhdev has stated that on his asking Rameshwar Singh told him that Ishwari Dutt gave him beating. He has nowhere stated that respondents No. 2 and 3 who are the sons of Ishwari Dutt also gave beatings to Rameshwar Singh. PW 4 Kuldev has stated that wife of Rameshwar Singh had told him that sons of Ishwari Dutt gave beatings to her husband. PW 9 Devi Saran, who was working on the roof of house of Ishwari Dutt on that …6… date did not support the prosecution. There is thus material contradictions in the statements of the prosecution witnesses. The medical evidence is of no help to the prosecution in absence of proof who gave beatings to PW 1 Rameshwar Singh. The prosecution has failed to prove the charge against the respondent beyond reasonable doubt. The learned Additional Chief Judicial Magistrate has rightly given benefit of doubt to the respondents. The view taken by the court below in acquitting the respondents is possible on the basis of material on record. The appellate court will not reverse the acquittal simply on the ground that other view is also possible from the record. It is not a case where sole testimony of the injured is enough to convict the respondents. There is no corroboration on material particulars to the statement of PW 1. In these circumstances, the conviction cannot be recorded simply on the statement of PW 1. 8. No other point was urged. 9. The result of the above discussion, the appeal fails and is accordingly dismissed. The bail bonds of the respondents are discharged. February 27, 2009. ( Kuldip Singh ) (Hem) Judge.