IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 495 of 2002. Judgement reserved on: 9.4.2009. Date of decision: 21.4.2009. State of H.P. ….. Appellant. Vs. Swatantar Singh & ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the appellant : Mr. A.K. Bansal, Addl. Advocate General. For the respondents : Mr. Anup Chitkara, Advocate. Kuldip Singh, Judge. The respondents were prosecuted for offence, punishable under Sections 451, 323, 506 read with Section 34 IPC and were acquitted by learned Judicial Magistrate Ist Class, Manali, Distt. Kullu, in Criminal Case No. 81-1/99 / 125-II/2000 on 7.3.2002. 2. The prosecution case, in brief, is that the statement Ex. PA of PW 2 Sohan Singh was recorded under Section 154 Cr,P.C. The complainant in his statement, under Section 154 Cr.P.C. has stated that on 3.1.1999 at about 9.30 a.m. when he was attending his apple trees in the orchard, Nishant came in the orchard and started fiddling with his fence, he asked him not to fiddle with the fence, on this Nishant gave a fist blow on his face, Swatantar Singh also came there and separated the complainant and Nishant. Thereafter Whether the reporters of the local papers may be allowed to see the Judgment? …2… Nishant and Swatantar Singh left for their homes and the complainant also came in his home. Nishant and Swatantar Singh are the nephews of the complainant. Both the parties have joint land and house. The complainant was in the verandah of his house, Nishant, Swatantar Singh, Pawan Kumar all sons of Lal Singh and their mother Guddi Devi were also there. Nishant gave fist blow on the mouth of the complainant, as a result of which two teeth of lower jaw of the complainant were broken and four teeth developed mobility. All the above said persons had scuffle with the complainant. Jiwan, Hukam Chand Chauhan, Mangal Chand and other villagers intervened and saved the complainant. In the orchard, Shalini younger daughter of the complainant and a labourer were present. On this, FIR Ex. PC was registered, site plan was prepared and recoveries were made. The statements of witnesses were recorded. The injured was medically examined on 3.1.1999 vide MLC Ex. PW 1/A. On completion of investigation, challan was presented against the respondents, who were charged for having committed offence, punishable under Sections 451, 323, 506 read with Section 34 IPC, to which respondents pleaded not guilty and claimed trial. The prosecution has examined nine witnesses and produced some documents. The statements of respondents were recorded, under Section 313 Cr.P.C., they denied the prosecution case. The learned Judicial Magistrate acquitted the respondents, hence this appeal. 3. I have heard learned Additional Advocate General for the State and Mr. Anup Chitkara, learned counsel for the respondents and have also gone through the record. The learned Additional …3… Advocate General has submitted that learned Judicial Magistrate has not properly appreciated the material on record and has erred in acquitting the respondents even though the prosecution has proved the case against the respondents beyond reasonable doubt. The learned counsel for the respondents has submitted that learned Judicial Magistrate has properly appreciated the material on record and has rightly acquitted the respondents. The alleged occurrence took place on 3.1.1999. The statement of PW 1 Sohan Singh Ex.PA, under Section 154 Cr.P.C. was recorded on 9.1.1999 and thereafter FIR Ex.PC was recorded on 9.1.1999. There is unexplained delay of six days in registering the case. The learned counsel for the respondents has relied Mahmood & anr. Vs. State of U.P. AIR 2008 SC 515, in support of his submission regarding delay in lodging the FIR. There is no perversity in the impugned judgement. He has prayed for dismissal of the appeal. 4. PW 1 Dr. Manohar Lal has stated that he had examined Sohan Singh on 3.1.1999 and issued MLC Ex. PW 1/A. In cross- examination, he has stated that injured was brought to Primary Health Centre by a police official. He has also stated that possibility of injuries sustained by fall on sharp object cannot be ruled out. PW 2 Sohan Singh has stated that on 3.1.1999 at about 9.00 a.m., Nishant came in his field and started removing the fence, he objected. On this, Nishant gave 3-4 blows on his mouth. In the meantime, Swatantar Kumar came on the spot and he separated both of them and they left the place and he remained in his field. They threatened to kill him. The incident was seen by his Gorkha servant and younger …4… daughter. He came to his house at about 11.00 a.m. and was in his verandah. He narrated the incident to his wife. She asked Nishant, Swatantar, Gudi Devi and Pawan about the beatings, thereupon all of them came in his verandah and gave beatings to him and his wife with hands and kick blows, as a result of which his two teeth were broken and four developed mobility. At the time of beating, they were pulling him towards their courtyard but by that time villagers such as Mangal Chand, Hukam Chand, Jiwan and others came and rescued him from them. He narrated the incident to his father, who took him to police post and reported the matter. The police got him medically examined in the hospital. He was also medically examined at Kullu by Dentist. The report which was lodged with the police is Ex. PA. In cross-examination, he has stated that there was infection in his mouth and he got removed some teeth, he has 15-16 teeth. Their father is owner of the entire property. The blood fell on his clothes when his teeth were broken. He told police that Gudi Devi and Pawan Kumar laid him on the floor. When Mangal Chand, Hukam Chand etc. came, at that time the accused were giving beatings and his servant Gianinder was also there. 5. PW 3 Hukam Chand has stated that on 3.1.1999 at about 11.30 a.m. the family of Lal Singh as well as Sohan Singh, his wife were having altercation. Sohan Singh had shown two broken teeth to him. In cross-examination, he has stated that no beating took place in his presence. PW 4 Gianinder Thakur has stated that on 3.1.1999 he was working with Sohan Singh and on that date at about 9.00 a.m. Nishant came and started removing fence of Sohan Singh …5… to which Sohan Singh objected. On this, Nishant gave blow on the head of Sohan Singh. After about one hour they were sitting in the verandah for taking meals, the complainant narrated the story to his wife, who asked Nishant why he had given beatings to the complainant. On this, accused Swatantar pulled the hairs of the wife of the complainant. Nishant and Pawan gave fist blows to the complainant as a result of which his two teeth came out. In cross- examination, he has stated that teeth of Sohan Singh were broken by Gudi Devi, Pawan and Nishant. Sohan Singh fell with his face striking the ground. Nishant gave many fist blows. 6. PW 5 Begma Devi wife of the complainant has stated that on 3.1.1999 at about 11 a.m. her husband told her in the verandah that Nishant gave him two slaps when the complainant stopped him from removing the fence. She asked the accused why they had given beatings to their uncle (the complainant), on this, all accused came in her verandah, Swatantar pulled her hairs, Gianinder was present on the spot. Hukam Chand, Mangal Chand and others also came there. The beatings were given in the verandah but they dragged them outside. She did not receive any injury but her husband lost his two teeth and four developed mobility. PW 6 Mangal Chand has stated that on 3.1.1999 at about 11.00 a.m., the accused were quarreling with Sohan Singh and his wife, Nishant gave fist blows to Sohan Singh, as a result of which his two teeth were broken. In cross-examination, he has admitted that Sohan Singh was a witness in a case filed by Lal Chand against his mother Nazi. PW 7 Amarbir is the father of Sohan Singh complainant. He is not an eye …6… witness to the occurrence. PW 8 K.S.Negi had examined Sohan Singh on 4.1.1999 and found injuries on the person of Sohan Singh but he has not referred to any MLC of Sohan Singh in his statement. PW 9 ASI Dagu Ram is the Investigating Officer. In cross examination, PW 9 has shown his ignorance that on 3.1.1999 Sohan Singh lodged some report. He has stated that he does not know that on 3.1.1999 Sohan Singh was medically examined. He has stated that when a person is to be medically examined than a report before that is required to be recorded in the police station or at police post. 7. The alleged occurrence took place on 3.1.1999 and the statement Ex.PA of PW 2 Sohan Singh complainant under Section 154 Cr.P.C. was recorded on 9.1.1999. The complainant was examined on 3.1.1999 by PW 1 who issued MLC Ex. PW 1/A. PW 9 ASI Dagu Ram has stated that before medical of a person, report in the police station or at police post is required to be recorded. He has also stated that he does not know whether any report was lodged by Sohan Singh on 3.1.1999. At the time of examination of Sohan Singh by the doctor one Sunil No. 42 constable had accompanied Sohan Singh. PW 2 Sohan Singh has stated that he reported the matter at police post and thereafter police got conducted his medical examination at Nagar hospital. It is thus clear that some report was lodged by PW 2 at police post but no such report was brought on record. The statement of PW 2 under Section 154 Cr.P.C. was recorded on 9.1.1999 after six days of the alleged occurrence. It has been submitted on behalf of the appellant that before that the parties were in the process of settling the dispute, therefore, statement under …7… Section 154 Cr.P.C. was recorded on 9.1.1999 and the case was registered. In MLC Ex. PW 1/A, there is reference of two broken teeth. It appears that copy of MLC was obtained on or about 4.1.1999 after final medical opinion given by the dental doctor. The explanation given by the prosecution for not registering the case is not believable. In Mahmood & anr. Vs. State of U.P. (supra), the Hon’ble Supreme Court has held that delay in lodging the FIR may result in embellishment, which is a creature of an after thought. In the present case, the alleged occurrence took place on 3.1.1999 and the FIR was registered on 9.1.1999. There is unexplained delay of six days which creates suspicion in the prosecution case. 8. PW 2 in his statement Ex. PA before the police has stated that land and houses of the parties are joint, and, therefore, the respondents have equal right in the property, hence offence under Section 451 IPC is not made out. PW 3 Hukam Chand has stated that beatings did not take place in his presence. In fact when he reached the spot, the parties were just having altercation. PW 4 Gianinder Thakur was the servant of complainant at the relevant time, who has stated that on 3.1.1999 at about 9.00 a.m. Nishant gave blow on the head of complainant, whereas complainant contradicted Gianinder Thakur when he has stated that at that time Nishant gave fist blow on his mouth. PW 4 has stated that Swatantar pulled the hairs of the wife of complainant and Nishant as well as Pawan gave fist blows to Sohan Singh and had broken his two teeth. PW 2 in his statement Ex. PA has not stated that any fist blow was given by Pawan Kumar or Swatantar pulled the hairs of his wife. Thus PW 4 …8… Gianinder has stated something, which is not even the case of complainant PW 2, and, therefore, PW 4 cannot be relied. 9. PW 5 Begma Devi is the wife of complainant. She has stated that accused gave beatings to them and dragged them outside the house. This is not the case of the complainant. She has not stated that teeth of her husband came out due to the blows given by Nishant or anybody else specifically. Therefore, on material points she has contradicted the complainant. PW 6 Mangal Chand has stated that Nishant gave fist blows to Sohan Singh, as a result of which two teeth were broken. In cross examination, he has stated that Nishant gave 8-10 blows, whereas PW 2 complainant has stated that Nishant had given one fist blow on his mouth. PW 1 and PW 8 have nowhere stated that two teeth of the complainant were in fact broken due to fist blows. PW 8 has stated that injuries found on the person of Sohan Singh could be caused due to fall on a hard surface, similarly PW 1 Dr. Manohar Lal has stated that injuries could be caused by fall. PW 2 in his statement before the police as well as in his statement in the court has not stated that hairs of his wife were pulled by Swatantar, but PW 4 Gianinder in contradiction to this has stated that hairs of the wife of complainant were pulled by Swatantar. PW 2 has stated that blood fell on his clothes but no such clothes were recovered and produced in the court. 10. PW 6 Mangal Chand in his cross examination has admitted that Sohan Singh was a witness in the case filed by Lal Chand against his mother Nazi, Lal Chand or Lal Singh is none-else but the father of respondents No. 1, 3 and 4 and husband of …9… respondent No.2, hence PW 6 is not an independent witness. It has come on record that several persons had gathered on the spot at the time of alleged occurrence but independent persons were not associated during investigation or examined by the prosecution in the court. The learned Judicial Magistrate has appreciated the material on record rightly. The view taken by the learned Magistrate in the impugned judgement while acquitting the respondents is possible. There is no perversity in the impugned judgement. No case for interference is made out by the prosecution. 11. Resultantly, the appeal fails and is accordingly dismissed. The bail bonds of the respondents are discharged. April 21, 2009. ( Kuldip Singh ), (Hem) Judge.