IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 716 of 2001. Date of decision: 24.10.2008. State of H.P. ... Appellant Versus Manjit @ Manju & Ors. … Respondents Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant: Mrs. Shubh Mahajan, Deputy Advocate General. For the respondents: Mr. S.D. Vasudeva, Advocate. V.K. Ahuja, J.: This is an appeal filed by the State of Himachal Pradesh against the judgment of the Court of learned Judicial Magistrate Ist Class, Dhramshala, dated 15.9.2001, vide which the respondents were acquitted of the charge framed against them under Sections 342, 341, 325 read with Section 34 I.P.C. Briefly stated, the facts of the case are on 10.6.2000, a report was lodged with the police by one Sushil Kumar that he is studying in Senior Secondary School, Dharamshala in +2 and had failed. On 8.6.2000, he had gone to the school to collect his marks sheet and when he was going through Kachahri Bazaar, near the shop of Raju Dry Cleaner, respondents met him, caught hold of him and started giving beatings to him with fists. It was further alleged that Manju and Sher Singh had caught hold of him and Sia gave fist blows on his mouth and his one tooth was broken. He was taken to a private Doctor at Kotwali 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - and the Doctor asked them to bring the broken tooth. Thereafter, the respondents again took him to the place of occurrence in the vehicle, brought him back to Pawna Clinic where Doctor was not available and from there he was taken to Skoh and then to the house of Sia and confined him in a room. Today the respondents have left him in a Maruti Van at Kachahri Adda and the complainant came back to his house and lodged report. It was also alleged that when he was given beatings by respondents one Harbans Lal had also seen him at Kachahri Adda. On this report, a case was registered and after investigation, the challan was filed as against the respondents, who were tried by the learned trial Court under the Sections mentioned above leading to their acquittal. I have heard learned counsel for the parties and have gone through the record. On a perusal of the record of the case, it is clear that the prosecution had examined ten witnesses to substantiate their case. The most material witness can be said to be PW-1 Sushil Kumar, who has stated that the respondents met him near Dry Cleaner shop, gave beatings to him and then took him in a taxi to Skoh and then to Kotwali. He did not state that any blow was given over his mouth and his tooth was broken. He further stated that the respondents had asked the Doctor at Kotwali to fix the tooth and they took him to Pawna Clinic and the Doctor asked them to bring the broken tooth. They again went in a taxi to bring the tooth and the Doctor told them that since the tooth has broken from middle, it cannot be refixed. From there the respondents took him to Gaggal and then to the house of Sia and he was left after three days at Kachahri Adda and then he went to his house, told the facts to the family members and lodged the report. He also identified the tooth which was broken by the respondents. He further came up with the plea - 3 - that the accused persons also got a telephonic call made at his residence. He admitted in cross-examination that the respondents are neither his class-fellows nor they are from his village. He also stated that they were not known to him earlier nor he has any enmity with them. He admitted that at the spot where he was given beatings, there is a house, there is Dharamshala to Gaggal Main road where remains rush and the Police Station is at a distance of hardly ½ KM. He further stated that at the time when he reached Kachahri Adda where he had been given beatings, he was accompanied by his friends Vijay, Amit and Sham. A perusal of the report lodged by him shows that it was no where alleged that he was accompanied by three persons and had rather named Harbans Lal, a shopkeeper, who had seen the occurrence. Out of these persons named by him in the report or in Court, the prosecution had examined Amit Kumar as PW-3. He simply stated that Sushil Kumar had failed and met him in the bus and had not accompanied him. He was declared hostile and was allowed to be cross-examined by the learned A.P.P. for the State and nothing has come up on record to hold that he has deposed falsely. The other two witnesses named by him or Harbans Lal named in FIR were not examined by the prosecution. Apart from the above, the prosecution had examined PW-4 Om Parkash, father of the complainant, who had stated that Sushil Kumar had gone to take the marks list and he gave a telephone call that he has been taken by his friends and he returned home after three days with a broken tooth. PW-5 Smt. Chetna who is running a Dental Clinic, had stated that some boys came to her and told that Sushil was there brother who has fell from the bus and has broken one tooth. She checked Sushil Kumar, got his x-ray and issued a prescription slip but they never again to her shop. She stated that all the boys looked to be friends and had not told her about any quarrel. PW-6 Dr. S. Chakrawatti examined the injured and issued MLC - 4 - and had stated about the first incisor absent. He stated that the tooth can be broken by fall on hard surface. PW-7 Dr. Santosh Mahajan had examined the injured and found one tooth missing but no active bleeding was present. There was no injury to corresponding tissue and adjacent teeth. He also admitted that the tooth can be broken by fall on hard surface. The statements of other witnesses are not material. Coming to the evidence led by the prosecution, it is clear that the injured was given beatings in day time at a busy place where the persons were available and no witness has been examined to substantiate the statement of the complainant that he was given beatings in which his tooth was broken. The complainant is taken to two Medical Officers for refixing of the tooth but none of them have stated that the complainant appeared to have been brought forcibly. He named three persons as eye witnesses in his statement in Court, while names one person having witnessed the occurrence in his report to the police. Out of these four persons, only one was examined who did not substantiate his version as mentioned above. The complainant was allegedly taken to the house of Sia and kept there on the night of 8th and 9th, and he is made free on the 10th morning. The Investigating Officer surprisingly prepared the site plan of the place where the beating were allegedly given, but he does not make any efforts to prepare the site plan of the house where the complainant was kept for two days and as to whether there were any houses and does not associate any persons from the nearby houses which could prove that the complainant was wrongfully confined for two days. The site plan of the said place was required to be proved on record so that the Court could infer if it was an isolated place or a busy place and whether the complainant could have been confined there or not. In his statement as PW-9 ASI Surinder Singh also does not state anything about the place where the complainant was allegedly kept - 5 - for two days and does not state anything that he associated nearby neighbourers or not or verified the facts if the complainant was kept there or not. But simply on the basis of the statement of the complainant, he filed the charge sheet under Section 342 I.P.C. The above discussion clearly leads to the inference that the findings of acquittal recorded by the learned trial Court cannot be said to be perverse in view of the evidence led by the prosecution and those findings do not call for an interference by this Court. 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 respondents shall stand discharged. (V.K. Ahuja), October 24, 2008 Judge (BSS)