HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No. 541 of 2001 Decided on: 23.7.2008 State of Himachal Pradesh ………Appellant. Versus Kissu and another ……Respondents. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the appellant: Ms.Shubh Mahajan, Deputy Advocate General. For the respondents: None. V.K. Ahuja, J (Oral): This is an appeal filed by the State of H.P. against the judgment of the court of learned Chief Judicial Magistrate, Chamba, dated 8.6.2000, vide which the respondents were acquitted of the charge framed against them under Sections 452, 325 and 506 read with Section 34 IPC. Briefly stated the facts of the case are that on 9.7.1995, at 8.30 a.m., a report was lodged with the police by PW-1 Goru that on the previous night i.e. on the night intervening 8/9.7.1995, he was sleeping in his house alongwith his wife and at about 1.30 a.m., both the respondents alongwith one Hardeu case _______ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - to his house. He woke up on hearing noise and all the persons appeared to be under the influence of liquor. They started giving abuses to him and respondent No.2 Pano gave a blow with a danda over the left side of his head and respondent Kissu gave a blow over his left shoulder and Hardeu gave a blow with fist over his mouth and his one tooth was broken. He stated that he raised an alarm but since there are no houses near the place of occurrence, he was rescued by his wife PW-2 Himati and his son PW-3 Amin Chand. On this report, a case was registered leading to the investigation and filing of the challan before the learned trial Court, who tried the respondents leading to their acquittal. I have heard the learned counsel for the parties and have gone through the record of the case. On appraisal of the record of the case, it is clear that the complainant PW-1 Goru was present in his house when both the respondents and one Hardeu trespassed his house and gave beatings to him. According to his statement, respondent Kissu gave a blow with a wood over his head and respondent Pano also gave a blow with fist. He, however, stated that another fist blow was given by Hardeu and his one tooth was broken. He further stated that he was rescued by his wife and son. In his cross examination, he has clearly stated that he had lodged the report as against Hardeu also since he had broken his tooth but it is surprising that the police has not arrayed the said Hardeu as accused after conclusion of the investigation. The grievous injury leading to the breaking of the tooth of the complainant was caused by Hardeu, who is not arrayed as an accused and, therefore, both the respondents cannot be held liable under Section 325 read with Section 34 IPC qua having caused the said injury since the main accused who caused the said injury was not arrayed as an accused. - 3 - Moreover, in his statement as PW-1, he has stated that the blow was given over his head by Kissu with wood and Pano gave blows with fist over his head and he suffered injuries. However, a perusal of the report lodged by him with the police Ext.PW-1/A shows that the blow over his person was given by Kissu accused with danda, which is contrary to the version given by the complainant in the court. PW-2 Himati, wife of the complainant, has stated that both the respondents came to their house with one Hardeu and gave beatings to her husband and Hardeu gave a blow with fist with which the tooth of her husband was broken. She further stated that both the respondents gave lathi blow on the head of her husband, which is not exactly the statement of PW-1, who has stated differently, as discussed above. PW-3 Amin Chand stated that both the respondents entered their house, gave blows on the person of his father and his tooth was broken and his father suffered an injury on his head. He did not state specifically that the injury on the head of his father was inflicted by the respondents only but he stated that these were inflicted by both the respondents and Hardeu. Therefore, it is clear form the above discussion that the statements of the principal witnesses do not corroborate the testimony of one another. Moreover, it is in evidence that when the injured was taken to the hospital, he was got examined firstly from a Medical Officer Dr.Vijay Kumar, but the said Doctor was never examined by the prosecution as witness in the court to prove the injuries on the person of the injured. He was a material witness who could have deposed in regard to the injuries firstly noticed by him. Therefore, the MLC given by Dr.Vijay Kumar cannot be looked into in evidence since it has not been - 4 - proved either from the statement of the said Medical Officer or from the statement of PW-5 Dr.Lokinder, who subsequently examined the injured. The prosecution only examined Dr.Lokinder, a Dental Surgeon, who proved the MLC Ext.PW-5/A but he was examined to prove the dental injuries suffered by the injured and not the other injuries about which he has not stated specifically nor he was competent to depose. Therefore, the medical evidence produced by the prosecution does not corroborate the statement of the complainant and other two members of his family who were the only eye witnesses of the occurrence. The statement of PW-1 shows that there are no houses near the place of occurrence, as reported by him, but it has come up in the evidence of his brother PW-4 Chamaru Ram that his house is just opposite to the house of the complainant/injured and he has not stated anything in regard to the fact that he went to the spot or had gone to the spot on hearing the cries of the complainant or his family members. Therefore, the net result of the above discussion is that the statements of the three eye witnesses examined in the case cannot be said to be such which can be relied upon so as to hold that the prosecution has proved its case beyond any reasonable doubt to hold that the findings recorded by the learned trial Court are perverse calling 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/State, which is dismissed accordingly. The bail bonds furnished by the respondents shall stand discharged. (V.K. Ahuja), July 23, 2008 Judge. (TILAK)