IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.A No.353 of 2002 Date of decision : March 26, 2009 State of H.P. …Appellant. Versus Surjan Singh and others …Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. P.M. Negi, Deputy Advocate General, and Mr. Ramesh Thakur, Assistant Advocate General. For the Respondents : Mr. Sanjeev Kuthiala, Advocate. Surjit Singh, J ( Oral ) Present appeal by the State is directed against the judgment of the first Appellate Court, i.e. the Court of Additional Sessions Judge, whereby appeal of the respondents against the order of their conviction for offences, under Sections 325 and 323, read with Section 34 of the Indian Penal Code, has been accepted and they are acquitted of the said offences. 2. Relevant facts are that PW-5 Tara Devi lodged a report with the police that on 30th November, 1995, around 8 a.m., respondent Surinder Kumar started digging a portion of her courtyard, comprising of Khasra No.12/48, and when she objected to that, he started shouting at her and in the meanwhile other three respondents came armed with dandas and started giving beating to her and her son Ram Singh (PW- Whether reporters of the local papers may be allowed to see the judgment? …2… 6). They raised alarm, on hearing which Dalipa, husband of PW-5 Tara Devi, came out. He too was assaulted and inflicted some injuries. Incident was seen by PW-8 Sarishta Devi and PW-7 Ishwar Dass. They came to the spot and rescued the injured. 3. Police investigated the case. Tara Devi (PW-5), her son Ram Singh (PW-6) and her husband Dalipa, were got medically examined. Injuries were found on the persons of all of them. PW-5 Tara Devi was having fracture of her nasal bone also, besides some simple injuries. Similarly, her son Ram Singh had a fracture of his ulna, in addition to some simple hurts. Dalipa had only simple injuries. 4. All the respondents were charged with offences, under Sections 325 and 323, read with Section 34 of the Indian Penal Code. On their pleading not guilty, they were put on trial. At the end of trial, they were held guilty for offences, under Sections 325 and 323, read with Section 34 of the Indian Penal Code, but released on furnishing bonds, for keeping peace and of being good behaviour, for a period of two years. They were also ordered to pay compensation to the tune of Rs.1,000/- to each of the grievously injured persons, namely Tara Devi and Ram Singh, and a sum of Rs.500/- to injured Dalipa, who sustained only simple injuries. 5. In appeal, learned Additional Sessions Judge set aside the conviction of the respondents. Reasons given by the first Appellate Court are that PW-7 Ishwar Dass, one of the alleged independent witnesses, is in fact not an independent …3… witness, as he had been litigating with one of the respondents, namely Surjan Ram, in a number of cases and that though the other independent witness, namely PW-8 Sarishta Devi, did support the prosecution version, there is contradiction in the testimony of the injured themselves, which renders the prosecution version doubtful. The contradiction noticed by the learned Appellate Court is that while injured PW-5 Tara Devi stated that her son-in-law Sukh Dev, who is working as Head Constable in the Police Department, was not present at her house, when the incident took place, her son, PW-6 Ram Singh, admits his presence. Another reason given by the first Appellate Court, for accepting the appeal, is that there were two-three women on the spot, per testimony of PW-7 Ishwar Dass, who were also involved in the scuffle and possibility could not be ruled out that the injured sustained the injuries at the hands of those two-three women. 6. Reasons given by the learned first Appellate Court are not supported by the evidence on record and, hence, they are imaginary. When the learned first Appellate Court observed that PW-7 Ishwar Dass was probably not present on the spot and that he had come forward to support the prosecution only on account of litigation with one of the respondents, i.e. Surjan Ram, no weightage ought to have been given to his statement that two-three women were there and they were scuffling with the injured. The contradiction pointed out by the learned First Appellate Court, in the statements of the two injured witnesses, is of little consequence. Presence or absence of Sukh Dev, the …4… son-in-law of PW-5 Tara Devi, in no way affects the testimony of PW-5 Tara Devi and her son PW-6 Ram Singh, as also the medical evidence corroborating their testimony. 7. In view of the abovestated position, appeal is accepted, impugned judgment of the first Appellate Court is set aside and, as a consequence thereof, the judgment of the trial Court is restored. Appeal stands disposed of accordingly. March 26, 2009(sd) ( Surjit Singh ), J