IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No. 507 of 2002. Date of decision: 11.5.2009 __________________________________________________ State of H.P. …….Appellant Vs. Prem Chand & Ors. .. Respondents ______________________________________________________ Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellant : Mr. Anshul Bansal, Additional Advocate General. For the Respondents : Mr. Rakesh Jaswal, Advocate. Kuldip Singh, Judg(Oral) The State has come in appeal against the judgment dated 6.10.1999 passed by learned Judicial Magistrate Ist Class , Nurpur in Cr. Case Challan No.72-II/96, acquitting the respondents for offence punishable under Sections 147, 149, 452 and 323 IPC. 2. The prosecution case in brief is that PW-1 Duni Chand on 17.5.1995 had lodged an FIR Ex.PW-1/A stating therein that when he along with his wife Simro Devi, daughter Ranjana and son Sanjeev were sleeping in the room, they heard foot steps out side the house and they woke up. He saw Prem Chand, his wife Pushpa, son Gogi and daughters Manju and Anju inside the room. All the accused attacked them. It was around 11 p.m. Gogi and Prem Chand dragged him from the cot and took him out side and gave him beatings. Gogi was having a grip and Prem Chand was holding a torch. Pushpa and Whether the reporters of the local papers may be allowed to see the Judgment?Yes 2 Bhontu dragged his wife Simro Devi from the cot and gave her beatings inside with kicks and fist blows, they took her out and abused her. He, his wife, parents and children raised an alarm. On this his brother Harbans Lal, Birbal Chowkidar, Chuni Lal and many others came on the spot and saved them. Prem Chand and his wife levelled false allegations against him that they have done something to their daughters Manju by witch-craft. The accused with their common object trespassed into the house and gave beatings to him and his wife. The household articles during this process scattered here and there and even a cot had been broken. Duni Chand was medically examined vide MLC Ex.PW- 4/A, spot map Ex.PW-7/A was prepared, torch, one vest, one V-shape slipper were taken into possession. The statements of the witnesses were recorded and on completion of investigation, challan was presented The accused were charged for offence punishable under sections 147, 149, 452 and 323 IPC, to which they pleaded not guilty and claimed trial. The prosecution has examined seven witnesses and has placed on record some documents. The statements of respondents were recorded under Section 313 Cr.P.C., they denied the prosecution case. The learned Judicial Magistrate acquitted the respondents on 6.10.1999, hence present appeal. 3. I have heard Mr. Anshul Bansal, learned Addl. Advocate General for the appellant and Mr. Rakesh Jaswal Advocate, learned counsel for the respondents and have also gone through the record. The learned Addl. Advocate General has submitted that the prosecution has proved the case against the respondents. The learned Judicial Magistrate has not properly appreciated the evidence on record and has erred in acquitting the respondents. The learned counsel for the 3 respondents has submitted that learned Judicial Magistrate has properly appreciated the evidence on record. The prosecution has not led any independent witness even though the prosecution has come forward with the case that many persons had witnessed the alleged occurrence. The learned Judicial Magistrate has rightly appreciated the material on record. 4. PW-1 Duni Chand has stated that the accused entered into his room and gave beatings to him and his wife Simro Devi. Prem Chand was holding torch and Gogi was having slipper. He raised alarm and on this his brothers Desh Raj and Harbans Lal came on the spot. He reported the matter to the police on 17.7.95 and lodged FIR Ex.PW- 1/A. The accused had broken their cot. He was medically examined. In cross-examination he has stated that Gogi was holding slipper but he was confronted with Ex.PW-1/A where it was not so recorded. Harbans Lal is his real brother. He has denied that torch, vest, and slipper do not belong to the accused. He has stated that Sali Ram, Jaishi Ram and Shamsher Singh are his neighbors. He has stated that only Harbans Lal and Birbal came on the spot. Prem Chand had given beatings to him with torch and Gogi with slipper. Pushpa gave beatings to Simro Devi with kick blows and she sustained injuries on her person. The fight continued for 30 to 45 minutes. 5. PW-2 Simro Devi has stated that on 16.7.1995 at about 11.30 p.m. the accused entered in their room and started beatings. In the process one T.V. and cot were broken. The incident was seen by Chuni Lal and Harbans who intervened and saved them. Desh Raj also came there. In cross-examination she has stated that she does not 4 remember with which articles she was given beatings. She handed over the broken T.V. and cot to the police. 6. PW-3 Harbans Lal has stated that he was sleeping in his room on 16.7.1995 and heard noise. He came out side and saw that accused Gogi, his father and other accused caught hold PW-2 his sister- in-law. Gogi and his father were pulling PW-1 out side and the accused were giving beatings to the family of the complainant. In cross- examination he has stated that Chuni Lal was present on the spot. Duni Chand was giving beatings with torch and Gogi gave beatings with belt or with some other object. Dr. Sanjay K. Mahajan examined Duni Chand and issued MLC Ex.PW-4/A. PW-5 Desh Raj has stated that the police took into possession slipper Ex.P-1, vest Ex.P-2 and torch Ex.P-3 vide memo Ex.PW-5/A. 7. PW-6 Jodha Mal 3rd Battalion, Pandoh has proved FIR Ex.PW-1/A. PW-7 Inspector Raghubir is the investigating officer, he prepared site plan Ex.PW-7/A and recorded the statements of the witnesses. He has stated that broken cot and T.V. were not handed over by Simro Devi during investigation. The respondents in their statements under Section 313 Cr.P.C. denied the prosecution case. 8. The prosecution case is that not only Duni Chand but Simro Devi and others were given beatings by the respondents. The prosecution has placed on record MLC Ex.PW-4/A of Duni Chand but no explanation has been given why the other members of the family of Duni Chand were not medically examined even though the case of the prosecution is that all of them were given beatings. In FIR Ex.PW-1/A there is no reference that respondents had left torch, one vest, one V-shape slipper but in the Court the complainant party has taken the 5 stand that assailants had left one torch, one V-shape slipper and vest. It has been stated that one cot and one T.V. were broken when respondents entered into the house of the complainant party and gave beatings to them but no such broken T.V. or cot were recovered and produced in the Court in evidence. It has come in the evidence that many persons had gathered on the spot at the time of incident but the prosecution has examined only Harbans Lal real brother of complainant. PW-5 Desh Raj has stated nothing about the actual incident. It has also come in evidence that many houses are there on the spot but no independent person was associated and examined in the Court in support of the prosecution case. It appears that parties do not have cordial relations. The prosecution has relied MLC Ex.PW-4/A of PW-1 Duni Chand. No doubt in MLC Ex.PW-1/A some injuries were found on the person of Duni Chand but those injuries themselves do no connect the respondents with the commission of the offence. The prosecution has miserably failed to prove the case against the respondents by leading cogent and reliable evidence. The prosecution has miserably failed to connect the respondents with torch, vest and slipper allegedly used for the commission of offence. PW-1 in the Court has stated nothing about the grip which Gogi was allegedly carrying as per FIR Ex.PW-1/A. 9. The learned Judicial Magistrate has rightly appreciated the material on record by closely scrutinizing the evidence. The view taken by the learned Judicial Magistrate emerges from the evidence on record. There is no perversity in the impugned judgment. The prosecution has miserably failed to show that the view taken by learned Judicial Magistrate is perverse or is otherwise not at all possible from the 6 evidence on record. No case for interference is made out. Resultantly, appeal fails and is accordingly dismissed. Bail bonds discharged. ( Kuldip Singh) Judge May 11, 2009 (sks)