HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No. : 725 of 1996 Decided on: 25.5.2010 State of Himachal Pradesh ……… Appellant. Versus Balibahadar and others ………Respondents. Coram: The Hon’ble Mr.Justice R.B. Misra, Judge. The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the Appellant: Mr.Rajinder Dogra, Additional Advocate General, & Mr.Anil Jaswal, Deputy Advocate General. For the respondents: Mr.B.S. Thakur, Advocate. Per V.K. Ahuja, J.(Oral): This is an appeal filed by the State of Himachal Pradesh under Section 378 of the Cr.P.C. against the judgment of the court of learned Sessions Judge, Mandi, Kullu & Lahaul-Spiti Districts at Mandi, vide which the respondents were acquitted of the charges framed against them under Sections 147, 149, 307 and 323 of the Indian Penal Code. 2. Briefly stated the facts of the case are that on 8.11.1993, at about 9.00 p.m., the complainant Amar Singh accompanied by one Baldev Singh were going back and when they reached near Majhwari, respondents were sitting by the side of the road. Respondent Balibahadar asked the complainant as ___________________________________________ Whether reporters of local newspapers may be allowed to see the judgment? Yes. - 2 - to fromwhere he was coming and where he was going. On this, altercation took place and respondent Balibahadar who was having a drat in his hand, gave two blows over the head of the complainant Amar Singh. Gian Chand was having a saria with which he inflicted blows on the person of the complainant while other accused persons, namely, Roshan Lal and Rakesh Kumar gave beatings to him with dandas and fists. The said Baldev Singh, who was accompanying the complainant, tried to rescue him, who was also given blows with dandas, legs and fists and he suffered injuries. The complainant alleged that in this process, he also lost Rs.6,000/-, which he was having in his pocket. On this report, the case was registered. The complainant was medically examined. After investigation, the challan was filed before the court of the learned Sub Divisional Judicial Magistrate, Sarkaghat, who committed the case to the court of the learned Sessions Judge. The learned Sessions Judge tried the respondents, as detailed above, leading to their acquittal. 3. We have heard the learned Additional Advocate General for the State and the learned counsel for the respondents and have gone through the record of the case. 4. On appraisal of the evidence led by the prosecution, it is clear that they examined 8 witnesses in all to substantiate their case. Out of these witnesses, the statements of the complainant Amar Singh, who has been examined as PW-1 and that of Baldev Singh, the other injured, who has been examined as PW-3, can be said to be material, apart from the statement of the Medical Officer PW-2. - 3 - 5. A perusal of the statement of PW-2 Dr.Arun Kumar, who examined the injured on 9.11.1993, at 9.15 a.m., shows that he found the following injuries on the person of Amar Singh: “1) A lacerated wound present on the centre of the scalp 8” above the right pinna of the ear sized 6” x 2 c.m. X skin deep. Blood was oozing at the site of the injury. 2) A lacerated wound present parallel to the injury No.1 sized 3” x 3 c.m. X skin deep. 3) Contusion present on the right shoulder posterior aspect sized 4” X skin deep. 4) Lacerated wound present on upper part of the right pinna of the ear sized 2” x 1 c.m. X skin deep. 5) Abrasion present on the right iliac region 3” above right iliac crest sized 2 c-m, X skin deep. 6) Abrasion present 6 inches below the left knee joint sized 2 c.m. X 1 c.m. X skin deep. 7) Contusion present in the right thigh medial aspect sized 2 c.m. X skin deep. He was advised X-Ray of the skull, A.P./lateral/view.” He also opined that there was a hairline fracture on the skull and the said injury was found to be grievous. Injuries No.1 and 2 were found to be dangerous to life. The rest of the injuries were simple in nature. He issued MLC Ext.PB in this regard. He also stated that injuries No.1 and 2 could be caused by a sharp edged weapon like sickle (drat). The other injuries are possible by rods and dandas. 6. A perusal of the MLC shows that the medical examination of the injured was conducted on 9.11.1993 at 9.15 a.m. The X-ray of the skull was advised. After X-ray examination on 11.11.1993, the Medical Officer observed no signs of fracture in X-ray No.83. However, he observed that - 4 - all the above injuries, specially injuries No.1 and 2, might have become injurious to the brain of the injured. He had specifically opined that all these injuries i.e. injuries No.1 to 7 were simple and there were no signs of fracture. However, after four days, he gave his opinion on the basis of the X-ray that there is hairline fracture seen and it was a grievous injury. Thus, it is clear that the Medical Officer has given different versions at different times and his statement also cannot be relied upon accordingly. 7. Coming to the statement of PW-1 Amar Singh, injured, in his report lodged with the police he stated that five persons were present at the spot. Two of the injuries with drat were attributed to Balibahadar, while two injuries were attributed to Gian Chand with iron rod. He also alleged that other two persons, namely, Roshan Lal and Rakesh Kumar inflicted danda blows and blows with legs and fists on his person. However, when the complainant appeared in the witness box as PW-1, he changed the sequence of events and stated that accused Balibahadar, Rakesh Kumar and Gian Chand and Raj started beating Baldev Singh. This was never alleged by him in the complaint lodged with the police as to how the occurrence started. Moreover, he further stated that the accused present in court hit his head with drat, but he did not name the person who gave the blow with drat. He did not attribute the injury with iron rod to any of the accused, but stated that all were having rods. He further stated that he was crying while Baldev Singh raised hue and cry. Thereafter, he fell down and the accused persons ran away from the spot. Thus, it is clear from a perusal of the - 5 - statement of the complainant PW-1 that he had changed the sequence of events leading to the injuries having been inflicted upon his person and he was specific that firstly Baldev Singh was given blows and thereafter he received the injuries. 8. PW-3 Baldev Singh, the alleged eye witness who also suffered injuries as per the complainant PW-1 Amar Singh, clearly stated that he did not see Amar Singh being given beatings by the accused persons, but he heard the cries “Mar Diya”. He further stated that he saw Amar Singh after some time, who had injuries on his head, abdomen and on the chest. In cross examination, he is specific that he got rid of the above accused persons after they pounced upon the complainant Amar Singh. The complainant PW-1 Amar Singh had specifically stated that firstly the injuries were inflicted on the person of Baldev Singh, but in his statement as PW-3 Baldev Singh has clearly stated that it is incorrect that he was given beatings, meaning thereby that no beatings were given to him. He further stated that the accused Rakesh was not present there, which had been so stated by PW-1 Amar Singh, complainant, who has specifically named Rakesh Kumar also being amongst the persons present at that time. Moreover, PW-1 Amar Singh has alleged that the occurrence started when the accused persons enquired from him as to where they were going, whereas PW-3 Baldev Singh has stated that they enquired from the accused as to how they were sitting at the spot. PW-3 Baldev Singh is specific that no injuries were inflicted on his person, though the case of the complainant is that the said Baldev Singh was with him and - 6 - firstly the injuries were inflicted upon Baldev Singh and thereafter he got the injuries. The statements of other witnesses who came to the spot on hearing the cries are not material since they had reached the spot afterwards. 9. From the above discussion, it is very much clear that the complainant, as per the Medical officer, had suffered 7 injuries on his person, which have not been detailed by the complainant as to which of the accused persons inflicted the same upon him and the number of injuries also. On the other hand, the complainant’s own statement is not in accordance with the report lodged by him and the same is not corroborated by the only independent and eye witness examined in this case i.e. PW-3 Baldev Singh. Keeping in view the fact that the solitary statement of the complainant has not been corroborated by the testimony of PW- 3 Baldev Singh as to who inflicted the injuries as well as about the presence of the accused persons at the spot, the view taken by the learned trial Court on the basis of the evidence led by the prosecution cannot be said to be perverse calling for an interference by this Court. 10. In view of the above discussion, we accordingly hold that there is no merit in the appeal filed by the appellant, which is liable to be dismissed and the same is dismissed accordingly. The bail bonds furnished by the respondents shall stand discharge. (R.B. Misra), Judge. May 25, 2010. (V.K. Ahuja), (TILAK) Judge