IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Criminal Appeal No. 69 of 2002. Reserved on : 06.03.2009. Date of Decision: 13.03.2009. State of Himachal Pradesh …Appellant. Versus Kewal Singh & another ..Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? No For the Appellant : Mr. Anshul Bansal, Additional Advocate General. For the respondents : Mr. R.K.Gautam, Senior Advocate with Ms. Radhika Gautam, Advocate. __________________________________________________________ Kuldip Singh, Judge The acquittal of respondents has been challenged in this appeal which has been filed by the State against the judgment dated 14.6.2001 of learned Sub Divisional Judicial Magistrate, Nalagarh, District Solan, H.P. in Criminal case No.89/2 of 1998 acquitting the respondents under Sections 325, 506 I.P.C. 2. The brief facts are that PW-1 Rajinder Singh on 15.2.1998 at about 7.35 P.M. submitted an application Ex. PW-1/A at Police Post, Jogon and on that basis rapat No.12 dated 15.2.1998 Ex.PW-6/A was recorded and there upon F.I.R. Ex. PW-7/A came to be registered at Police Station, ______________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 Nalagarh on 17.2.1998 under Sections 325, 34 I.P.C. 3. The prosecution case further is that on 15.2.1998 at about 6.20 P.M. respondents gave beatings to PW-2 Sikander Kaur, mother of PW-1 Rajinder Singh. Kewal Singh pushed Sikander Kaur, threw her in the field and gave fist blows on her teeth as a result of which her two teeth were broken which caused profuse bleeding. The respondents abused Sikander Kaur, Piara Singh asked his son to kill Sikander Kaur. This was witnessed by PW-3 Narinder Kaur, sister of the complainant who was working in a nearby field and she rescued Smt. Sikander Kaur from the clutches of the respondents. 4. Piara Singh earlier attacked the buffalo of complainant party with an axe and inflicted deep injury. The matter was reported to the then President Dayal Singh and the spot was got inspected. Piara Singh has five sons who generally quarrel with the family of the complainant. On this, police came into motion, an application Ex.PW-9/A was submitted for medical examination of the injured and then Smt. Sikander Kaur was medically examined on 15.2.1998 at about 8.15 P.M. and M.L.C. Ex.PW- 5/A was issued by the doctor. The Dental Surgeon also gave opinion and the nature of injuries were found grievous. In these circumstances, F.I.R. was registered on 17.2.1998. The broken tooth Ex. P-1 was recovered vide Ex.PW-1/B, spot map Ex.PW-9/B was prepared. On completion of investigation, challan was presented and the respondents were charged for offence punishable under Sections 325, 506 I.P.C. They pleaded not guilty. The prosecution has examined nine witnesses. The respondents were examined under Section 313 Cr.P.C., they denied the prosecution case. DW-1 Dayal Singh was examined in defence. The learned Sub Divisional Judicial Magistrate, ultimately acquitted the respondents, hence this appeal. 3 5. I have heard Mr. Anshul Bansal, learned Additional Advocate General for the State and Mr. R.K.Gautam, Senior Advocate for the respondents and have gone through the record. On behalf of the State, it has been submitted that the prosecution has proved the case, injured PW-2 Sikander Kaur has supported the prosecution case in its entirety. There is no reason to disbelieve her. The medical evidence has also supported the prosecution case. In brief, it has been submitted on behalf of the State that the acquittal of the respondents recorded by the learned Sub Divisional Judicial Magistrate is wrong and does not emerge from the evidence on record. The learned counsel for the respondents has submitted that there are material contradictions in the prosecution story. The medical evidence is not in consonance with the ocular version. It is admitted case of the prosecution that relation between the parties were not cordial. The learned Sub Divisional Judicial Magistrate has taken a possible view from the evidence. The learned Senior Advocate appearing on behalf of the respondents has relied Ghurey Lal Vs. State of Uttar Pradesh (2008) 10, SCC 450 in support of his submission that the acquittal recorded by the trial Court should not be interfered with unless it is totally perverse or wholly unsustainable, which in the present case the prosecution has miserably failed to establish. He has supported the impugned judgment. 6. PW-1 Rajinder Singh has stated that on 15.2.1998 he had gone to High School, Jogon where his younger sister Narender Kaur at about 7.00 P.M. told him that Kewal Singh and Piara Singh had given beatings to their mother in the fields. He returned to his home where his mother narrated him the incident. Kewal Singh initially pelted stones and then pushed his mother and threw her in the field. He sat on the chest of his mother and gave fist blows on her face, Piara Singh was also standing there and asked Kewal Singh to kill Sikander Kaur. They abused his mother. On hearing cries of his mother, his younger sister came on the spot 4 and asked the accused to spare her mother. He went to the Police Station along with his mother and lodged complaint Ex.PW-1/A, his mother was medically examined. He identified broken tooth Ex.P-1 of his mother. In cross-examination, he has stated that after about 14 fields, there is a colony of Harijans and also of Pandits. The houses of Arjun Singh and Bawa Singh are located after about 20 – 25 fields, opposite to their house after crossing the road, there are 10 – 12 houses of Rajputs. The place of occurrence is after 10 – 12 fields from Jogon. In complaint Ex.PW-1/A, he had written that two teeth had broken but in medical, it was found that one tooth was broken and two developed mobility. The blood fell on his mother’s clothes which were not recovered by the police and at the time of medical, the said tooth was in the mouth. He denied that false complaint was lodged by him. 7. PW-2 Sikander Kaur has stated that on 15.2.1998 she was cutting grass in her fields, Kewal Singh and Piara Singh came there. Kewal Singh started pelting stones, she objected and on this, both accused started pelting stones. In the beginning, Kewal Singh caught hold of her arms and pushed her, he sat on her chest and gave 4 – 5 blows on her arm and face, as a result of which, her tooth was broken. Piara Singh was shouting to kill her. Her younger daughter on hearing her cries came on the spot and rescued her. Thereupon her son came and a written complaint was lodged with the police. She was medically examined. She handed over her broken tooth Ex.P-1 to the police. In cross-examination, she has stated that there are abadis after 10 – 12 fields from the place of occurrence. She cried for about ten minutes but none came there. Kewal Singh gave about 10 fist blows. Her broken tooth was lodged in her mouth itself and the injury was profusely bleeding as a result of which her clothes got stained. She had shown the clothes to the police. Doctor took out the broken tooth from the mouth. The police on the spot enquired about the tooth and she handed over the tooth. 5 8. PW-3 Narinder Kaur has stated that on 15.2.1998 at about 6.20 P.M. she was extracting grass from the field. In another field down below, her mother was extracting grass. She heard the cries and she came down and saw Kewal Singh giving beatings and Piara Singh was saying to kill her. Kewal Singh was giving fist blows and as a result of which, the tooth was broken. She asked to leave her mother. She came to her house with mother. She brought her brother who had gone in the High School and narrated him the entire story. The police took the tooth in possession. In cross-examination, she has stated that occurrence continued for about 10 minutes. In cross-examination, she has stated that 2 – 3 blows were given in her presence. The police came on the spot on third day. 9. PW-4 Dr. Poonam Jain, Dental Surgeon has stated that on a reference made by Dr. Kuldeep Singh, P.H.C. Jogon, she gave opinion regarding the dental injury of Sikander Kaur, her opinion is on the back of M.L.C. which bears her signatures. In cross-examination, she has stated that broken tooth was not shown to her at the time of examination. PW-5 Dr. Kuldeep Singh has stated that on 15.2.1998 he had examined Sikander Kaur and issued MLC Ex.PW-5/A. In cross-examination, he has stated that the broken tooth was not shown to him by the injured at the time of examination. He has stated that possibility of injury on both lips cannot be ruled out in case teeth are broken by fist blows. 10. PW-6 Bhag Singh has proved rapat No.12 Ex.PW-6/A as well as rapat No.8 Ex.PW-6/B and rapat No.3 Ex.PW-6/C and is a formal witness. PW-7 Rikhi Ram has proved F.I.R. Ex.PW-7/A. PW-8 Bhag Singh is again a witness with respect to Ex.PW-6/A, Ex.PW-6/B and Ex. PW-6/C and is a formal witness. PW-9 Ranjeet Singh is the Investigating Officer and has stated that Sikander Kaur had not told him that her tooth was broken. Sikander Kaur had brought the tooth when she came along with complainant at the time of lodging of the report. 6 11. DW-1 Dayal Singh S/o Sh. Basant Singh has stated that on 15.2.1998 at about 6.30 P.M. he was called by the sister of Rajinder Singh who told that Piara Singh and Kewal Singh etc. were abusing. Dayal Singh S/o Sh. Sant Singh was also called. They called Rajinder Singh, his family and accused on the road. They asked why they were abusing. In the meantime, Rajinder Singh pounced upon Kewal Singh and Piara Singh. Piara Singh had operated his eye, he received injury on his eye, Rajinder Singh gave fist blow to Piara Singh. Two – Three persons intervened when Rajinder Singh pounced, nobody told regarding any injury. 12. It has come in the evidence that near the place of occurrence, there are abadis. According to the prosecution, the occurrence continued for about ten minutes. PW-2 Smt. Sikander Kaur has stated that Kewal Singh initially pelted stones, he then threw her in the field, sat on her chest and gave fist blows, as a result of which her tooth was broken. She cried for help and then PW-3 Narinder Kaur came on the spot and rescued her. PW-1 Rajinder Singh, son of the injured PW-2 Sikander Kaur, is not an eye witness. In written complaint Ex.PW-1/A, it has been clearly stated that two teeth of Sikander Kaur were broken. But during trial only one tooth Ex.P-1 was produced, what happened to second tooth that has not been explained. It has also come in evidence that according to the prosecution, lot of blood came out from the mouth of Sikander Kaur from the injury and fell on the clothes of Sikander Kaur but again the blood stained clothes were not recovered by the police nor any explanation for not recovering blood stained clothes of Sikander Kaur has been given. PW-3 has not stated that Kewal Singh gave fist blows to her mother while sitting on her chest. In MLC Ex.PW-5/A, no common injury on both the lips has been shown. PW-5 Dr. Kuldeep Singh has stated that possibility of injury on both lips cannot be ruled out in case the teeth are broken by fist blow. In Ex.PW-5/A, some injuries were found on the right shoulder, right thigh and right lower leg. The prosecution case is that Kewal Singh sat on the chest 7 of Sikander Kaur and gave many fist blows on her face. The injuries on the shoulder, thigh and leg on the person of Sikander Kaur how inflicted, have not been explained. In case many fist blows were given on the face of Sikander Kaur, then there should have been corresponding extensive injuries on her face but in M.L.C. extensive damage or injuries on the face of Sikander Kaur have not been recorded. No injury on the chest of Sikander Kaur has been shown in the M.L.C. PW-4 Dr. Poonam Jain who examined Smt.Sikander Kaur, has stated that her opinion is given on the reverse of the M.L.C. Ex.PW-5/A, but said opinion has not been exhibited and therefore, it has not been proved. 13. There is contradiction regarding the fact whether broken tooth of Sikander Kaur was lying lodged in the mouth or it was actually came out when alleged fist blows were given by Kewal Singh. PW-1 Rajinder Singh has stated that at the time of medical examination of Sikander Kaur, the tooth was lying lodged in the mouth of Smt. Sikander Kaur. PW-2 has also stated that her broken tooth was lodged in her mouth. PW-4 Dr. Poonam Jain has stated that broken tooth was not shown to her at the time of examination. In these circumstances, the recovery of tooth Ex.P-1 vide recovery memo Ex.PW-1/B is suspicious. In Ex.PW-1/A, there is no mention that stones were pelted by respondents on PW-2 before fist blows were given to her which broke her tooth. There is also no mention in Ex. PW-1/A that Kewal Singh sat on the chest of Sikander Kaur and gave fist blows to her. There is variation in the prosecution story before the police and in the Court. 14. The prosecution has not joined independent witnesses during investigation nor independent witnesses have been examined in the Court even though, it has come on record that there are abadis near the place of occurrence. The complainant PW-1 himself has come forward with the plea that there is previous enmity between the parties. In these circumstances, the statements of PW-1 and PW-3 who are the son and 8 daughter of PW-2 injured are to be scrutinized with extra caution. The learned Sub Divisional Judicial Magistrate has rightly appreciated the material on record. There is substance in the submission of the learned counsel for the respondents that in view of Ghurey Lal Supra the acquittal recorded by the trial Court should not be interfered with unless it is totally perverse or wholly unsustainable. The prosecution has miserably failed to prove that the acquittal recorded by the learned Sub Divisional Judicial Magistrate is perverse or the view taken by the Court below does not at all emerge from the evidence on record. This Court in appeal will not reverse the acquittal merely on the ground that the other view is also possible. No case for interference has been made out, resultantly, the appeal is liable to be dismissed and is accordingly dismissed. The bail bonds are discharged. ( Kuldip Singh ), Judge. March 13, 2009. (GR)