` IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 255 of 2005 Decided on: 27 .12. 2011 ____________________________________________________ State of Himachal Pradesh ……..Appellant. Versus Sh. Jugal Kishore, son of Sh. Krishan Chand, R/o Mhalla Maihli Gait Phagwara, Distt. Kapurthala (PB) at present partner of M/s Anupam Coffee House, Kandaghat, Distt. Solan, H.P. …..Respondent. Appeal under Section 378 of the Code of Criminal Procedure against the impugned judgment of acquittal dated 7.12.2004, passed by the ld. Addl. Sessions Judge, Solan, H.P. in Crl. Appeal No.17-K/10 of 2003, under Sections 452/325/323 IPC read with Section 34 IPC. Coram Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting1? For the appellant : Mr. A.K. Bansal, Additional Advocate General. For the respondent : Mr. Inderjeet Singh Narwal, Advocate vice Mr. Rajpal Thakur, Advocate. _______________________________________________________ SURINDER SINGH, J (oral): The State has challenged the acquittal of the respondent passed by the Ld. Sessions Judge in Criminal Appeal No.17-K/10 of 2003, Whether reporters of the Local papers are allowed to see the judgment? - 2 - decided on 7.12.2004 whereby the judgment of conviction and sentence passed by the learned trial Court in Cr. Case No.24/2 of 1999 dated 30.8.2003 for the offences punishable under Sections 452,323 and 325 of the Indian Penal Code was set aside. 2. Sh. A.K. Bansal, learned Additional Advocate General vehemently argued that the learned trial Court had rightly convicted and sentenced the respondent but the learned Appellate Court on the re-appraisal of the evidence wrongly acquitted the accused on identification and so called minor contradictions which otherwise are not there. It is also submitted that the very presence of the respondent stands established by the presence of injuries on his person, as noticed by PW-6 Dr. N.K. Gupta, which were minor in nature and the prosecution was not obliged to explain it. 3. Contra, learned counsel for the respondent supported the impugned judgment. - 3 - 4. Precisely, the case of the prosecution is that on 16.11.1998 at around 8:00 PM, complainant Rajeev Sharma, Advocate was present in Richi Restaurant owned by Sh. Nand Kishore and Anil. After about 10/15 minutes, the complainant aforesaid came out of the said restaurant and the respondent who was having the shop adjacent to it in a fit of intoxication, passed sarcastic remarks against the complainant and hurled abuses. 5. The complainant informed police telephonically from out side and returned to the said restaurant. He occupied the seat beside Jatinder Bhardwaj and PW-3 Sunil Tripathi sharing a common table. The respondent alongwith his two sons is alleged to have entered in the restaurant, caught hold of the complainant and roughed him up. He is also alleged to have given kicks and fist blows in the presence of one Sh. Ramesh Kumar. By this, he sustained injuries on his mouth and teeth got dislocated. - 4 - 6. Vijay Kumar, SHO reached the spot, recorded the statement of the complainant (Ex.PW1-/A) under Section 154 of the Code of Criminal Procedure, which culminated into FIR Ex.PA for the offences punishable under Sections 452, 323, 504 and 506 read with Section 34 of the Indian Penal Code. 7. The complainant was got medically examined. His Medico Legal Certificates are Ex.PW5/A and Ex.PW6/A, 8. In the said incident the accused is also alleged to have suffered minor injuries. His Medico Legal Certificate is Ex.PW6/C. Police thereafter effected some recoveries and recorded the statements of the witnesses. 9. After completing the Challan, it was presented in the Court for trial of the respondent/accused. Since, one of the injury was opined to be grievous i.e. dis-location of the tooth, as such, offence under Section 325 of the Indian Penal Code was also added. 10. The respondent alongwith Anupam Sharma and Vivek Sharma were arrayed as the - 5 - accused in the Challan. All the three accused persons were charge-sheeted for the offences aforesaid and at the end of the trial accused persons were convicted but Anupam Sharma and Vivek Sharma were granted the benefit of doubt under Section 4 of the Probation of Offenders Act, 1958, whereas respondent was convicted and sentenced to undergo simple imprisonment for two years and to pay a fine of `.5,000 and in default of making payment of fine to undergo simple imprisonment for six months under Section 452 of the Indian Penal Code, rigorous imprisonment for two years and to pay a fine of `.5,000/-and in default of payment of fine simple imprisonment for six months under Section, 325 and simple imprisonment for three months under Section 323 of the Indian Penal Code. 11. Feeling aggrieved and dissatisfied by the impugned judgment of conviction and sentence, the respondent filed an appeal before the Court of Sessions, which was allowed and he was acquitted after re- - 6 - appreciating the evidence. Hence, the State is in appeal. 12. In so far as the respondent is concerned, the statement of the complainant as witness assumes importance. Though, he was declared hostile on other part but he admitted that there was tenancy dispute inter-se Ved Parkash and Jugal Kishore and he was representing Ved Parkash in the Court. Qua the incident, he stated in examination-in-chief that Jugal Kishore called his sons and told them to set the complainant right, but he told the respondent not to hurl abuses and tried to inform police telephonically. He also stated that Anupam and some other persons threatened him with dire consequences. Thereafter, he went to the shop of a goldsmith from where he made a telephonic call to the police. No sooner did he occupy the place in the shop of Nand Kishore, Anupam and his sons entered the shop and gave beatings to him. Pertinently he did not implicate the respondent and his statement suffers from two important - 7 - factors. In the complaint, he stated that he was beaten up in Richi Restaurant and when he was examined in the Court he stated that at that time he was sitting in the shop of goldsmith. Secondly, he stated before the Court having been beaten by Anupam and his sons, whereas in FIR he alleged to have been given beatings by the respondent and his sons. These are material contradictions which goes to the root of the case. Whereas PW-2 Anil Sharma though stated that the respondent and his sons had given beatings to the complainant but this statement goes contradictory to the version of complainant himself, but however with respect to the recovery, he turned hostile. He further stated that when he reached the spot, Jetinder Bhardwaj, Sunil Tripathi and complainant were present at the spot and no other person was present except them. PW-3 Sunil Tripathi also stated of having been given beatings by the respondent in the Richi Restaurant. Thus the situs of the incident stands totally changed. Not - 8 - only this he has another story to tell. He stated that when he alongwith complainant was sitting in the shop of Halwai, the complainant was given beatings. Thus the place of incident has been changed by all the witnesses according to their suitablility. Further, none of the witnesses stated that the accused had also sustained injuries on his person. As to how the injuries were sustained by the respondent, is also not explained. 13. Therefore, for the aforesaid reasons, the findings of acquittal as recorded by the learned Additional Sessions Judge, are borne out from the record thus call for no interference. As such, the State appeal merits dismissal and is accordingly dismissed. 14. The respondent is discharged of his bail bonds entered upon by him at any time during the proceedings of this case. 15. Send down the records. 27th December, 2011 (Surinder Singh), K. Sharma Judge. - 9 -