IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 75 of 2004 Date of decision: 12.8.2010 State of H.P. ... Appellant Versus Jai Parkash … Respondent Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant: Mr. Vikas Rathore, Deputy Advocate General. For the respondent: Mr. Vijay Verma vice Mr. Sanjeev Sharma, Advocate. V.K. Ahuja , J. (Oral): 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 Additional Chief Judicial Magistrate, Kasauli at Solan, dated 31.5.2003, vide which the respondent was acquitted of the charge framed against him under Sections 451, 323, 325 and 506 I.P.C. 2. Briefly stated, the facts of the case are that on 31.8.1998, at about 1.10 P.M., a report was lodged with the police by one Prem Chand that on the previous night i.e. on 30.8.1998, at about 7.00 P.M., when he returned from his fields, he found his step- mother Leela Devi lying unconscious in the courtyard and blood was oozing out of her mouth. He was informed by his step-sisters Mina 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 Devi, aged about 12 years and Chetna Devi, aged about 9 years, that sometime back Kaku, respondent, had come to their courtyard and had given beatings to his mother. He took her to the Police Station, lodged the report and the injured was medically examined and after investigation, the challan was filed as against the respondent under the above sections, who was tried by the learned trial Court leading to his acquittal. 3. I have heard learned counsel for the parties and have gone through the record of the case. 4. On appraisal of the evidence led by the prosecution, it is clear that the complaint in question was lodged with the police by Prem Chand, step-son of the injured Smt. Leela Devi. He had not witnessed the occurrence nor he alleged so in the complaint and even in his statement in Court, he stated that he had not seen the accused at the spot nor had witnessed the occurrence. His version was based upon when he learnt from his step-sister Mina Devi. Therefore, his statement is not very material in regard to the occurrence in question. 5. Coming to the prosecution evidence, complainant Leela Devi has been examined as PW-5, who has stated that she was present in her house when she was called by the respondent and he asked her as to why she had not come to work in his fields. She stated that she was ill and, therefore, could not come and he started misbehaving with her. Thereafter he picked up a bamboo stick and gave a blow on her mouth and she became unconscious. It may be that her daughters had raised hue and cry and they may have taken her to District Hospital. It is clear from perusal of her statement that she only stated about one blow having been given with a bamboo stick 3 on her mouth and has not stated about the other injuries having been inflicted upon her person by the respondent. She also does not state that any threat was given to her by the respondent at that time. She also does not state when her two daughters came with her or her two daughters had witnessed the occurrence. 6. Out of two daughters named by her son in the report lodged with the police, Mina Devi has been examined as PW-1. In her statement, she has stated that the respondent came and called her mother by name and enquired as to why she had not come to work on that day. Her mother asked the respondent to talk properly and he gave beatings to her mother. She stated that firstly the blows were given with fist and thereafter with Danda and then he ran away. Her mother became unconscious and blood also oozed out from her mouth. She stated about the fist blows having been given by the respondent, about which complainant Smt. Leela Devi as PW-5 has not stated anything. She stated about the blow having been given with danda, while the complainant herself has stated that it was given with bamboo stick. She was confronted with her earlier statement, in which she had not mentioned about the blow having been given with danda. She had also made improvement in regard to the fact that her mother had asked the respondent to behave properly. It was not alleged in the report lodged with the police. She admits that there are 5-6 houses in front of their house and including those houses, 20-25 persons are living in village and in case one raises the voice, they can hear. The other daughter, namely, Chetna Devi, was given up by the prosecution being repetitive in nature and of same sequence. There were two eye witnesses only. Apart from the 4 complainant herself, the statement of other eye witness should have been recorded and she could not have been given up to avoid repetition. In view of the fact that there were only two eye witnesses and PW-1 Mina Devi also did not state as to how she reached the spot or she had gone alongwith mother or had reached the spot when her mother raised hue and cry. 7. From the above discussion, it is clear that the complainant states that one blow was given with stick on her mouth, whereas only eye witness examined as PW-1 had stated that blows were given with fist as well as with danda. There is nothing as to the number of blows given by the respondent over the person of the complainant in the statement of PW-1. The Medical Officer PW-2 Dr. Mohinder Lal who examined the injured and issued MLC, has stated that there was one bruise on forehead. Multiple abrasion on the face and there was bleeding from mouth also. Thus, the Medical Officer does not corroborate the ocular version given by the complainant and her daughter and number of injuries found on the person of the injured were more than as had been stated by the complainant herself. 8. From the above discussion, it is clear that complainant solitary statement is not such which stands duly corroborated by the statement of her daughter PW-1 and there is variation in the medical evidence and the ocular version as has come up on record. In the absence of any other witness having been supported the prosecution case, the guilt of the respondent cannot be said to have been established beyond any reasonable doubt. A specific suggestion was made to PW-1 Mina Devi that there was a dispute in regard to 5 payment and she denied her knowledge in this regard and the possibility of false implication in such circumstances cannot be ruled out. In view of the above discussion, it is clear that the final conclusion drawn by the learned trial Court that the prosecution has failed to prove its case beyond any reasonable doubt cannot be said to be perverse, calling for an interference by this Court. 9. In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the appellant, which is dismissed. The bail bonds furnished by the respondent shall stand discharged. ( V.K. Ahuja ), August 12, 2010 Judge (BSS) 6