IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 163 of 2003 Reserved on: 22.11.2011 Date of decision: 24.11.2011 State of H.P. ... Appellant Versus Nasib Singh … Respondent Coram : The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice V.K. Ahuja, Judge. No. Whether approved for reporting?1 For the appellant: Mr. Rajesh Mandhotra, Deputy Advocate General. For the respondent: Mr. Sanjay Jaswal, Advocate. Per V.K. Ahuja , J.: This is an appeal filed by the State of H.P. under Section 378 Cr.P.C. against the judgment of the Court of learned Sessions Judge, Kangra, dated 14.11.2002, vide which he accepted the appeal filed by the respondent against his conviction and acquitted the respondent of the charge framed against him under Section 326 I.P.C. 2. Briefly stated, the facts of the case are that on 6.8.1996, at 9.35 P.M., a statement under Section 154 Cr.P.C. was made to the police by one Mohinder Singh alleging that he runs a shop in the bazaar. At about 8.00 P.M., he had gone to urinate and when he came back, he saw Nasib Singh respondent on his 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 scooter, which was parked in front of his shop. The said Nasib Singh called him and he went near him and the respondent gave a blow with a sharp edged weapon. He raised an alarm and Kewal Singh and Bihari Lal came there and the respondent ran away. It was alleged that the occurrence was witnessed by both the witnesses. It was also alleged that Nasib Singh had a grievance again him since he has lost the election and as such, he has been inflicted injuries on the head, left arm and other parts of his body. On this report, a case was registered and after investigation, the challan was filed before the learned Judicial Magistrate Ist Class, Dharamshala under Section 326 I.PC. The respondent was tried by the learned Judicial Magistrate Ist Class, leading to his conviction under Section 326 I.P.C. for a term of two years rigorous imprisonment and fine of ` 2000/-. In default, the respondent was to undergo simple imprisonment for two months. 3. On appeal, the said conviction was set aside by the learned Sessions Judge, vide his impugned judgment and the respondent was acquitted of the charge framed against him. 4. We have heard the learned counsel for the parties and have gone through the record of the case. 5. On appraisal of the evidence led by the prosecution, it is clear that the first version given by the complainant/injured to police was vide Ext. PW2/A, in which he had alleged that when he went near the respondent since he had called him, the respondent gave him a blow with a sharp edged weapon and he raised an alarm and witnesses Kewal Singh and Bihari Lal came there, who saw the occurrence. He further alleged that injuries 3 were inflicted on his head, left arm and other parts of the body with a sharp edged weapon. He did not name the weapon used by the respondent at that time. It is also clear that when he himself had gone near the respondent, who inflicted injuries on his person it was quite apparent that the injured had an opportunity to see as to with which weapon he had been inflicted injuries not one, but two and on other parts of his body also. Therefore, it cannot be said that he had no occasion to see the weapon at that time. 6. The said complainant has been examined as PW-1, who stated about the allegations and stated that he was given the blow from the back side on his head, meaning thereby that he was not able to see the appellant or the weapon used. Out of the two independent witnesses, Kewal Singh has been examined as PW-3, who stated that he was sitting in his shop and he heard a noise and when he came out, he saw Mohinder Singh crying “Maar Diya-Maar Diya”. He further stated that the accused was giving beatings to Mohinder Singh and the accused was having a sharp edged weapon like Ext. P-1. He thereafter ran away from the spot. He stated that his shop is at a distance of 5-7 shops from the shop of Mohinder Singh. He stated that Ext. P-1 is like a knife and it was told to him by the police about the weapon. The prosecution has not examined Bihari Lal as the other eye witness, but has examined one Bihari Lal as PW-5, who stated that he is a witness to the recovery of chappal, shirt etc. and has not stated anything about the occurrence. In MLC Ext.PW1/A, information given by the injured to the police was allegedly beaten with big 4 sword and there was cutting prior to the word ‘Sword’ and it appears as ‘Kirpan’. It is clear that the injured had himself mentioned the weapon as Sword and it was not mentioned as to who had given him beatings. In the opinion given by the Medical Officer, he had opined that Injury No. 2 can be caused by Darat and thereafter opined that it can be caused by a big sword and during the statement it was brought on record that it was a Darat, but PW-3 had mentioned the weapon as like a knife. In view of the fact that already in the immediate version given to the Medical Officer neither the weapon was correctly mentioned nor name of assailant was mentioned and keeping in view the fact that the prosecution had not examined other material witness, who was also an eye witness to the occurrence, the learned Sessions Judge had come to the conclusion that the guilt of the respondent cannot be said to have been established beyond any reasonable doubt. The said conclusion arrived at by the learned Sessions Judge cannot be said to be perverse calling for an interference by this Court. 7. In view of the above discussion, we accordingly hold that there is no merit in the appeal filed by the appellant, which is dismissed accordingly. The bail bonds furnished by the respondent shall stand discharged forthwith. ( Deepak Gupta ), J. November 24, 2011 ( V.K. Ahuja ), J. (BSS)