IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 118 of 2003. Judgement reserved on: 9.11.2009. Date of decision: 21.12.2009. State of H.P. ….. Appellant. Vs. Vinod Kumar & 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 with Mr. R.P.Singh, Assistant Advocate General. For the Respondent : Mr. Deepak Kaushal, Advocate. Kuldip Singh, Judge. This appeal has been directed against the judgement dated 31.10.2002 passed by learned Judicial Magistrate Ist Class, Dehra in Criminal Case No. 178-II/2000/99 acquitting the respondents for offence punishable, under Sections 452, 323, 341, 504, 506-1 read with Section 34 IPC. 2. The prosecution case in brief is that PW 1 Rattan Chand complainant submitted an application Ex. PA to SHO Jawalamukhi that on 13.5.1999 at about 6.30 p.m., at place Sudhangal near flour mill of Piar Chand accused Vinod Kumar wrongly restrained him and Whether the reporters of the local papers may be allowed to see the Judgment? …2… asked him to pay thrashing charges of wheat. The complainant disclosed to accused Vinod Kumar that he had already paid the thrashing charges to his father, Vinod Kumar all of a sudden started beating the complainant and abused him. The complainant rushed to his house and narrated the incident to his wife Prem Lata and his brother Sanjay Kumar. At about 8.30 p.m., all accused in furtherance of their common intention entered in the house of complainant at village Luthan and voluntarily caused hurt to complainant, his wife Prem Lata and brother Sanjay Kumar. Vinod Kumar gave beatings with kudal to his brother, who fell unconscious and other accused gave beatings with dandas. On raising alarm neighbours came to the spot and rescued the complainant and his family. 3. On the basis of application submitted by the complainant, FIR Ex. PW 8/A was registered. The complainant, his wife and brother were got medically examined. The case was partly investigated by Rajinder Singh, recoveries of kudal, danda, blood stained shirt were made. The case was also investigated by PW 10 Vimukat Rajan. On completion of investigation, challan was presented in the court. The accused were charged for offence punishable under Sections 452, 323, 341, 504, 506-1 read with Section 34 IPC. The prosecution has examined ten witnesses and has also placed on record some documents. The statements of respondents were recorded, under Section 313 Cr.P.C., they denied the prosecution case. The respondents led no evidence in defence. The learned Judicial Magistrate acquitted the respondents on 31.10.2002, hence the State has come in appeal. …3… 4. I have heard Mr. A.K. Bansal, learned Additional Advocate General with Mr. R.P.Singh, Assistant Advocate General for the appellant and Mr. Deepak Kaushal, learned counsel for the respondents and have also gone through the record. On behalf of the appellant, it has been submitted that learned Judicial Magistrate has not properly appreciated the evidence on record. The prosecution has proved the case against the respondents beyond reasonable doubt. The acquittal of the respondents is not in accordance with proved case on record. The learned Additional Advocate General has prayed for setting aside impugned judgement of acquittal and conviction of respondents. The learned counsel appearing on behalf of the respondents has supported the impugned judgement and has submitted that learned Judicial Magistrate has properly appreciated the evidence on record. He has prayed for dismissal of the appeal. 5. Ex. PA is the application dated 13.5.1999 submitted by PW 1 complainant to SHO Jawalamukhi. In Ex. PA, it has been stated that at about 6.30 p.m. on 13.5.1999 the complainant was coming from Nadaun, Vinod Kumar met him at Sudhangal near the flour mill of Piar Singh, who asked the complainant why he has not paid the thrashing charges, the complainant told him that he has already paid the thrashing charges to his father. Vinod Kumar started abusing the complainant, he also started beating him. At about 8.30 p.m. all of a sudden accused attacked them, Sanjay Kumar was given kudal blow on his head and he became unconscious. Thereafter, the assailants attacked the complainant, his wife and the entire family and gave them beatings with danda and fist blows as a result of …4… which his wife sustained injury on the arm and child on the hand. They raised alarm and the neighbours rescued them. The assailants had even broken the blades of ceiling fan as well as the cot. 6. Ex. PW 8/A is the site plan, Ex. PW 2/A is the MLC of Rattan Chand, Ex. PW 2/B MLC of Prem Lata and Ex. PW 2/C MLC of Sanjay Kumar. The injured were examined by the doctor on 14.5.1999 at 2.00 a.m. In MLC Ex. PW 2/A and MLC Ex. PW 2/B the probable duration of injuries has been given within twelve hours, whereas in the MLC of Sanjay Kumar the probable duration of injuries has been given within twenty- four hours on 14.8.1999 noon. In all MLCs the nature of injuries have been opined to be simple. Ex. PB is the recovery memo of kudal, danda and blood stained shirt. 7. PW 1 has supported the prosecution case in the examination-in-chief. He has stated that Piar Singh was on the spot. They have no quarrel with Piar Singh. He had gone to Police Station alongwith Jagdish, Flatu and Vikram Chand, who were also present on the spot. In application Ex. PA, he got recorded that accused had left behind kudal and danda. Vinod had brought kudal, the other accused were having dandas. In the complaint, he got recorded which weapon of offence was brought by whom. Only one danda was given to the police and other danda was broken during the process of beating. The recovery memo was signed by Bittu. The quarrel took place at once only near the flour mill of Piar Singh. The vest was also stained with blood, which was torn by the accused. 8. PW 2 Dr. K.K. Rattan has proved MLCs Ex. PW 2/A, Ex. PW 2/B and Ex. PW 2/C. In cross-examination, he has stated …5… that there was no blood on chest and vest of Rattan. It cannot be said that the injuries could be caused specifically with Ex. P-1. The injuries can be caused by fall. PW 3 Jagdish Chand has stated that Rattan Chand had produced Ex. P-3, which was taken into possession vide memo Ex. PB. Kudal and danda were not produced in his presence. He does not know anything about the quarrel dated 13.5.1999. He did not support the prosecution and was cross- examined by the prosecution. In cross-examination, he has stated that he signed Ex. PB without reading. In cross-examination conducted by defence he has stated that he and Rattan Chand are from one community and Rattan Chand is his cousin. 9. PW 4 Smt. Prem Lata has stated that on 13.5.1999, Vinod Kumar had slapped her husband on the shop. He gave 3-4 slaps inside the shop, her husband thereafter came to home and narrated the incident to her. Vinod Kumar at about 8.30 p.m. came alongwith other accused in her house, Vinod Kumar was holding kudal and hit Sanjay Kumar on his head. He also hit her with kudal on her arm. Sanjay Kumar snatched the kudal from Vinod, Happy gave beatings to her husband with danda and abused her. They raised alarm and many villagers came there, accused ran away from the spot. She was medically examined and other injured were also examined. Next day, police came and her husband produced one kudal, two dandas and blood stained shirt of Sanjay, which were recovered vide memo Ex. PB. In cross-examination, she has stated that there are 10-12 houses near to their house at a distance of 15-20 yards. Jagdish Chand was on the spot when accused gave beatings. …6… 10. PW 5 Biptu has stated that on 13.5.1999 at about 8,10 p.m., he was in the house of Rattan Chand, no accused was present there. He did not support the prosecution and was declared hostile. He denied that on seeing him all accused ran away from the spot. In the cross-examination conducted by the defence, he has stated that Rattan and his family never disclosed him that they were beaten. PW 6 Sanjay has stated that on 13.5.1999 at about 6.00 p.m, his brother told that he had been beaten by the accused in the shop. He was sleeping on the cot, Vinod came there, Prem Lata and Varinder were also present. Vinod was holding a kudal and hit the witness and he became unconscious. Thereafter he does not know what happened. When he regained consciousness, he saw accused giving beatings to his brother, sister-in-law and Varinder. At the time of beatings, Biptu and Kesari were in the room. 11. PW 7 Varinder Singh aged 10 years has stated that on 13.5.1999 at about 8.30 p.m. Vinod gave kudal blow on the head of Sanjay and he became unconscious, accused gave beatings to his parents as well as to the witness. Many people gathered on the spot after hearing the cries. In cross-examination, he has stated that his father had gone to Nadaun and reached home at 8.30 p.m. PW 8 ASI Rajinder Singh has partly investigated the case. He has proved FIR Ex. PW 8/B. PW 9 HC Kuldip Chand has stated that on receipt of application Ex. PA, he recorded the FIR Ex. PW 8/B. PW 10 Vimukat Rajan has stated that on 22.5.1999 he had received the file. He only arrested the accused. In the statement, under Section 313 Cr.P.C., the accused have denied the prosecution case. …7… 12. In Ex. PA PW 1 Rattan Chand complainant has stated that accused had given beatings to the complainant, his wife and Sanjay. PW 1 in the court has stated that Piar Singh, Jagdish, Flatu and Vikram Chand were on the spot. He has also stated that vest was stained with blood, which was torn by the accused. PW 2 Dr. K.K.Rattan, who examined the injured has stated that there was no blood on the chest and vest of Rattan Chand. The doctor has not ruled out possibility that injuries can be caused by fall. The doctor in the MLC Ex. PW 2/C of Sanjay Kumar has given the probable duration of injuries within 24 hours as on 14.8.1999. The MLC Ex. PW 2/C was issued on 14.5.1999. The date 14.8.1999 is apparently wrong. Therefore even if some allowance is given for mentioning wrong date, but the doctor has clearly given the probable duration of the injuries within 24 hours. Sanjay Kumar was examined by the doctor on 14.5.1999 at 2.00 a.m. In other MLCs of the complainant and his wife the probable duration of injuries has been given 12 hours. This discrepancy has not been explained by the prosecution. 13. PW 2 Jagdish Chand has not supported the prosecution case. PW 4 Smt. Prem Lata wife of the complainant has stated that Vinod Kumar hit her with kudal on her arm. In Ex. PA the complainant has stated that Sanjay Kumar was given kudal blow on his head and he became unconscious. Thereafter the assailants attacked the complainant, his wife and entire family and gave them beatings with danda and fist blows. PW 1 has thus contradicted PW 4 Smt. Prem Lata in Ex. PA that kudal blow was given on the arm of PW 4 Smt. …8… Prem Lata as stated by her. PW 4 has stated that many villagers had come on the spot when the complainant party was attacked by the assailants. PW 5 Biptu has stated that on 13.5.1999 at about 8, 10 p.m. he was present in the house of Rattan Chand and no accused was there. He did not support the prosecution. 14. PW 7 Varinder Singh is a child witness and is the son of complainant, therefore, his testimony is to be considered in the light of the fact that he is a child witness and possibility cannot be ruled out that he made the statement under the influence of his parents. PW 6 Sanjay has stated that Vinod had hit him with kudal and he became unconscious. Thereafter he does not know what happened. He has stated that at that time Biptu and Kesari were in the room. Biptu has not supported the prosecution and Kesari has not been examined. The prosecution case has been supported by PW 1 complainant, PW 4 Smt. Prem Lata, PW 6 Sanjay and PW 7 Varinder Singh, who are from one family and interested persons. 15. The independent witnesses PW 3 Jagdish Chand, PW 5 Biptu have not supported the prosecution case. The other independent witness, such as Piar Chand, Kesari have not been examined. It has come in evidence that there are several houses near the house of complainant, but no-one from those houses has supported the prosecution case. The learned Judicial Magistrate has taken a possible view from the evidence on record when he acquitted the respondents. It has not been pointed out in appeal that learned Judicial Magistrate has ignored some material evidence or relied on some inadmissible evidence. The conclusion drawn by the learned …9… Judicial Magistrate emerges from the evidence. In appeal, acquittal cannot be converted into conviction unless perversity in the impugned judgement is established which the prosecution has failed to establish. 16. There is no merit in the appeal, which is accordingly dismissed. The bail bonds of the respondents are discharged. December 21, 2009. ( Kuldip Singh ), (Hem) Judge.