IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.M.P.(M) No. 241 of 2011. Decided on: June 13, 2011. __________________________________________________________________ State of Himachal Pradesh. ..Appellant/Petitioner. Versus Mohit @ Sunny & others. …..Respondents. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? No. For the appellant : Mr. A.K.Bansal, Addl. Advocate General. For the respondents : None. ______________________________________________________________ SURINDER SINGH,J (oral): Cr.M.P.(M) No. 241 of 2011. Heard and gone through the record. 2. The acquittal of the respondents, for the offences punishable under Sections 323 and 325 read with Section 34 of the Indian Penal Code has been challenged by the State and the present application has been moved seeking leave to appeal. 3. Originally, the prosecution case has been that on 4th March, 2007, at about 4.30 p.m., Whether reporters of the Local papers are allowed to see the judgment? - 2 - respondent Rakesh Kumar was in inebriated condition, being intoxicated. It was a “Holi” festival and the musical sound was being played in his place at a high pitch. Further around 5 p.m., respondent Rakesh Kumar is alleged to have removed the fence of the land of the complainant. In the meantime, respondent Charan Dass also came there and hit PW1 Raman Kumar on his head, with the result, he fell unconscious. Later, he reported the matter to police and stated the above facts and disclosed that his mother was also beaten up by the respondents. Both of them were got medically examined and the injury on the left shoulder of the mother of the complaint Amriti Devi (PW8) was got x-rayed and it was detected fracture of left clavicle. 4. PW1 Raman Kumar lodged the report to the police during the midnight, which culminated into the present FIR. Police started investigation and recovered danda, produced by PW8 Amriti Devi. - 3 - 5. Police presented the challan in the Court against the respondents. Respondents were charge-sheeted, tried and acquitted by the learned trial Court after noting the material contradictions and also the fact that when the complainant was examined by PW9 Dr.B.S. Rana, he had disclosed that the injury sustained by him on account of fall from a height, but later on he was again brought by the police with a different history, as stated above with respect to the same injuries. 6. PW1 Raman Kumar stated that he was attacked by Rakesh respondent, who was intoxicated. He dealt a danda blow on his head, thereafter he became unconscious. He was brought to the hospital, but Medico Legal Certificate Ext.PW9/A does not reveal any injury on his head. Further his statement has also become doubtful in view of the note appended by PW9 (Doctor) in his MLC that said Raman Kumar was also brought at 4 p.m. on 4th March, 2007 for medical examination and at that time, he gave history of a fall from a height - 4 - and later on during the intervening night of 4th/ 5th March, 2007, he was brought again with respect to the same injury for his medical examination at 12.15 a.m. and then he disclosed about the history of giving beatings to him by the respondents. Therefore, his testimony is not worth inspiring confidence. 7. Further PW8 Amriti Devi, stated that because of the injury sustained by PW-1 Raman Kumar, the blood oozed out and his clothes were smeared with blood, whereas PW1 Raman Kumar did not make even a fleeting reference about it nor blood stained clothes were ever taken by the police. It is also pertinent to note that when after sustaining the injury by the complainant, as stated by him, he fell unconscious and later on taken to hospital, how he could know about the beatings having been given by the respondents to his mother (PW8), regarding which he made a reference while reporting the matter to the police. 8. According to complainant, Shuger Ram (PW3) and Sanjiv Kumar (PW4) were the eye - 5 - witnesses of the alleged incident, but none of them have supported the prosecution case. The statement of PW2 Suman, the sister of Raman Kumar is also contradictory. Therefore, in these circumstances, the place, time and the manner in which the occurrence had taken place has not been proved by the prosecution by leading a cogent and convincing evidence, as such, the judgment of acquittal cannot be interfered with, hence leave to appeal is declined. 9. Send down the records. (Surinder Singh), Judge. June 13, 2011. (Pds)