IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 690 of 2000. Judgement reserved on: 13.5.2008. Date of decision: 15.5.2008. State of H.P. ….. Appellant. Vs. Sant Lal …. Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellant : Ms. Subh Mahajan, Deputy Advocate General. For the Respondent : Mr. Baldev Singh, Advocate. Kuldip Singh, Judge. This appeal has been directed against the judgement, dated 20.7.2000 passed by learned Sub Divisional Judicial Magistrate, Rampur Bushahr, District Shimla in case No. 100-2 of 98, acquitting the respondent for offence punishable, under Sections 452, 323, 325, 506 IPC, arising out of FIR No. 134 of 1998, registered at Police Station, Rampur Bushahr. 2. The prosecution case in brief is that on 8.8.1998 at about 8.30 p.m. PW 1 Joginder Singh complainant reported at Police Station, Rampur Bushahr that on 7.8.1998 he went to Khuni Panoli for loading the truck and in the night at about 11.30 p.m. he returned Whether the reporters of the local papers may be allowed to see the Judgment? …2… home. Man Bahadur, Chowkidar told him that at about 6.30 p.m. in the evening Sant Lal came in the verandah of the house under the influence of liquor and gave beatings to his father with Danda. He rushed to verandah and found his father lying there in an injured condition. It was night, therefore, he could not take his father to the hospital. He took PW 4 Kalam Singh for lodging the report at Police Station and accordingly FIR No. 134 of 1998 was registered. PW 7 HC Balbir Singh went to the spot, prepared site plan Ex. PW 7/A and took into possession Danda, vide seizure memo Ex. PW 4/A. He also took photographs of the spot. The injured was got medically examined vide MLC Ex. PW 5/A. During investigation, involvement of Sant Lal accused was established. On completion of the investigation, challan was presented in the court, under Sections 452, 323, 325 and 506 IPC against the respondent. The respondent was accordingly charged to which he pleaded not guilty and claimed trial. The prosecution has examined seven witnesses to bring home the charge, statement of respondent was recorded, under Section 313 Cr.P.C., wherein he pleaded his innocence. The respondent did not lead any evidence in defence. The learned trial Magistrate acquitted the respondent, as noticed above, hence the State has filed the appeal. 3. I have heard Ms. Subh Mahajan, learned Deputy Advocate General for the State and Mr. Baldev Singh, learned counsel for the respondent and gone through the record. The learned Deputy Advocate General has submitted that the learned trial Magistrate has not properly appreciated the evidence on record, …3… inasmuch as injured PW 2 Chain Ram and PW 3 Dhankali together with other evidence on record have proved the prosecution case. There is no reason to disbelieve the statement of the injured. The learned counsel representing the respondent has supported the impugned judgement and has submitted that possible view has been taken by the learned Magistrate, which is not perverse and, therefore, in appeal this court will not substitute its view even if from evidence another view is possible, unless the view taken by learned Magistrate does not emerge from the record. 4. PW 1 Joginder Singh is the complainant at whose instance FIR Ex. PW 1/A was recorded. He has also proved broken pieces Ex. P 1 to Ex. P 3 of Danda, which was allegedly used by the respondent for beating PW 2 Chain Ram. PW 1 is not an eye witness, therefore, prosecution cannot take much advantage from his statement. PW 2 Chain Ram has stated that at about 7.00 or 7.30 p.m. on 7.8.1998, he was sitting in the verandah of his house alongwith Ram Singh and Dhankali, in the meantime respondent came there and he (respondent) had some altercation with him. The respondent took a Danda from a stack and prepared himself for attacking him. The wife of respondent and Dhankali took him to other side but after pushing his wife he came in the verandah and gave a Danda blow to him. The first blow of Danda landed on his hand. Thereafter he gave two-three blows on his head and blood started oozing out from the head. In the process Danda was broken and he became unconscious. The pieces of Danda are Ex. P 1 to Ex. P 3. He identified cap Ex. P 4, shirt Ex. P 5 and Pajama Ex. P 6. The …4… incident was witnessed by Dhankali, Ram Singh, Dalo Gorkha and Man Bahadur. There is a house of Budhi Ram nearby, but he does not reside there. In cross examination, he has stated that police of its own took into possession Danda and he did not hand over the Danda to the police. The Danda was broken due to the impact of the blow which respondent had given to him. 5. PW 3 Dhankali has stated that for the last 12 years, she is working in the orchard of Chain Ram. She has stated that last year at about 7.30 p.m., Chain Ram and respondent had altercation. The respondent had given two-three Danda blows on the head of Chain Ram, as a result of which blood started oozing out from the injuries and the old man became unconscious. The Danda was broken into three pieces. In cross examination she has stated that Danda broke down when it struck on the head of Chain Ram. 6. PW 4 Kalam is not an eye witness, therefore, his statement is not of much significance to the case of the prosecution. PW 5 Dr. R.G. Negi has proved MLC Ex. PW 5/A of Chain Ram. He has stated that injury No. 1 was grievous, whereas injuries No. 2, 3 and 4 were simple. He has given probable duration of injuries 24 hours. In cross examination, he has stated that injuries mentioned in the MLC by him can be caused by fall on the hard surface from height. PW 6 HC Devi Singh has proved FIR Ex. PW 1/A. PW 7 HC Balbir Singh, Investigating Officer has proved the site plan Ex. PW 7/A. He has stated that injured was got medically examined on 9.8.1998. He has stated that incident took place at about 6.30 p.m. …5… 7. PW 2 Chain Ram and PW 3 Dhankali have stated that respondent gave two-three Danda blows on the person of injured Chain Ram and Danda was broken into pieces Ex. P 1 to Ex. P 3 when it struck on the head of Chain Ram. The photographs of broken Danda are Ex. D 1 to Ex. D 3. The perusal of these photographs would show that Danda in question was quite heavy. PW 3 has stated that Danda was broken into pieces when its blow landed on the head of Chain Ram. This is not believable. In case Danda broke due to the impact of blow as claimed by the prosecution then the resultant injuries on the head of the injured would have been very serious and not as claimed by the prosecution and reflected in the MLC Ex. PW 5/A. PW 2 has not stated that he was wearing cap Ex. P 4, shirt Ex. P 5 and Pajama Ex. P 6 at the time of incident. There is no Chemical Examiner report regarding the blood stains on the clothes which Chain Ram was allegedly wearing at the time of incident. No dried blood was collected from the spot by the Investigating Officer. The pieces of Danda were not produced during the investigation either by the respondent or by the injured or complainant. It has come in evidence that police of its own collected Danda pieces which was allegedly broken during the incident. It has also come on record that Ram Singh was present on the spot, he has not been examined by the prosecution. 8. PW 2 Chain Ram has stated that there is a house of Budhi Ram nearby, but no attempt was made by the prosecution to show whether on that date Budhi Ram was present in his house or not so as to examine some independent witness in the case. All the …6… witnesses of the incident examined by the prosecution are somehow connected with Chain Ram. PW 5 Dr. R.G. Negi has examined PW 2 on 9.8.1998 at 12.50 p.m. and in his statement he has given the duration of injuries 24 hours, that means according to doctor the incident took place in between 12.50 p.m. on 9.8.1998 and 12.50 p.m. on 8.8.1998. The prosecution case is that incident took place at about 7.00 or 7.30 p.m. on 7.8.1998. This has clearly demolished the case of the prosecution. The learned trial Magistrate has taken a possible view from the material on record, which is not perverse. The prosecution has failed to make out a case for interference or to show that the inference drawn by the learned trial Magistrate on the record is not at all possible. 9. As a result of above discussion, the appeal fails and the same is accordingly dismissed. May 15, 2008. ( Kuldip Singh ) (Hem) Judge.