IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 283 of 2004. Decided on: December 7, 2010. ___________________________________________________________ State of Himachal Pradesh. …. Appellant. Versus Duni Chand. ….. Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? For the appellant : Mr. Vikas Rathore, Dy. Advocate General. For the respondent : Mr. Ashish Verma, Advocate, vice Mr. Anuj Nag, Advocate. _______________________________________________________ SURINDER SINGH,J (oral): 1. In Criminal Case No.65-II/2003 decided on 15.3.2004, respondent was charge-sheeted, tried and acquitted by the learned trial Court, for the offences punishable under Sections 325 and 506 of the Indian Penal Code, hence the State has challenged his acquittal in this appeal. 2. Heard and gone through the record. 3. In short, the prosecution case can be stated thus. On 25th January, 2003, at about 9.30 p.m. the Whether reporters of the Local papers are allowed to see the judgment? - 2 - complainant Yash Pal was busy in conversation on the telephone with his friend while present in the Filling station, where he was employed. Respondent was residing in his house adjacent to it. The conversation of the complainant with his friend was audible to the respondent. His friend asked him as to what programme was going on nearby. In reply, he told him that some programme was going in the house of ‘Gaddies’. On this, the respondent came to him and asked as to why he was calling Gaddi to him and started fisticuffing and kicking him. He also dealt a blow which landed on the left side of his face, with the result his central incisor allegedly got fractured. Complainant was rescued by PW2 Nand Kishore and PW3 Subhash Chand. While leaving the place, respondent is alleged to have threatened the complainant with dire consequences. 4. Next day, the matter was reported to police in Police Post, Yol. The injured was got medically examined. The Medico Legal Certificate is Ex.PW4/A. He was advised X-ray. As per report of the X-ray, the tooth from the upper jaw was missing, - 3 - to which the complainant brought in a small bottle and produced it to police. Thus, a case under the aforesaid sections fell upon the respondent, accordingly challan was prepared and presented in the Court for his trial. 5. At the end of trial, respondent was acquitted for the aforesaid offences, on the grounds of delay in lodging the FIR and contradictions in the statements of the prosecution witnesses. 6. At the very outset, I would like to say that if the incident in question stands proved, the delay of few hours or a day in lodging the FIR is immaterial. 7. PW1 Yash Pal while substantiating his case, stated that on hearing conversation as aforesaid, respondent came to him and asked as to whom, he was addressing the Gaddi and gave beatings to him in the presence of PW2 Nand Kishore and PW3 Subhash Chand, who were the co-employees in the same Filling Station, with the result his central incisor got fractured. He also substantiated his report Ex.PW1/A and this fact was also corroborated by PWs 2 and 3 aforesaid in material particulars. Minor contradiction in the statement of - 4 - PW3 Nand Kishore is with respect to his previous statement to the extent that there is no mention in the said statement given to the police that the complainant had run away towards Jhuggis, where he hid himself, otherwise, he fully corroborates the case of the injured. 8. Even PW4 Dr. Sangeet Sharma affirmed the version of injured with respect to missing of his tooth. According to him, there was no fresh bleeding or laceration and no other corresponding injury. He found 3mm deep socket with a traumatic bite in relation to upper interior teeth, thus he referred him for the X-ray and on the perusal of the X-ray, he opined that he did not see any bony socket where that tooth was found missing, however in his opinion this injury was grievous in nature. Since there was no corresponding injury on or inside the lips, therefore, it cannot be said that the tooth got fractured due to some external force. However, there was a traumatic bite, which was not explained by said doctor. 9. Further there is no evidence regarding criminal intimidation etc. as alleged. Therefore, in my - 5 - opinion for the above reasons, the offence under Sections 325 for causing grievous hurt to the complainant as also Section 506 of the Indian Penal Code in absence of any cogent evidence with respect to threats as alleged, are not made out, but however, it stands established on record that the respondent had assaulted the complainant and given him beatings and this fact stands fully corroborated by the statements of PWs 2 and 3 above. Thus, the respondent is held guilty under Section 323 of the Indian Penal Code, accordingly his acquittal being perverse is set-aside. 10. The respondent is an ex-serviceman, discharged on medical grounds from Military service. The certificates of the service are Exts.D1 and D2. At the time of alleged occurrence, respondent was 60 years of age. Therefore, in the circumstances aforesaid, instead of passing the substantive sentence against him, he is given the benefit of Section 3 of the Probation of Offenders Act. Ordered accordingly. - 6 - 11. In view of the above, the appeal filed by the State is allowed to the above extent. The matter stands disposed of. 12. Send down the records. December 7, 2010. (Surinder Singh), (Pds) Judge.