IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Criminal Appeal No. 372 of 2002. Decided on : 19.3.2009. State of Himachal Pradesh …Appellant. Versus Bhoom Bhadur & Another ..Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? No. For the Appellant : Mr. Anshul Bansal, Additional Advocate General. For the respondents : Mr. Virender Thakur, Advocate, for respondent No.1. Mr. Ravinder Thakur, Advocate, for respondent No. 2. __________________________________________________________ Kuldip Singh, Judge (Oral) This appeal has been directed against the judgment of acquittal dated 21.12.2001 passed in Criminal Case No. 172 /2 of 1998 by the learned Chief Judicial Magistrate, Solan, acquitting the respondents under Sections 341, 323, 506 read with Section 34 of IPC. 2. The prosecution case, in brief, is that PW-2 Vikrant Gupta on 18.5.1998 made a statement Ex. PW-2/A under Section 154 Cr.P.C. and on that basis F.I.R. Ex.PA came to be registered at Police Station, Solan. Further case of the prosecution is that on 18.5.1998, Vikrant Gupta was going with his friend PW-4 Puneet Sharma at Tank Road, Solan near ______________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes. 2 Narsingh Mandir, the respondents restrained him on the way and asked the complainant why he told his sister that respondents demanded money. The respondents without waiting any reply from complainant removed their belts and gave beatings to the complainant with the belts and he was saved by his friend Puneet Sharma. The complainant was medically examined and simple injuries were found on his person. On completion of investigation, challan was presented against the respondents, notice of accusation was put to the respondents under Sections 341, 323, 506 read with Section 34 IPC. They pleaded not guilty. The prosecution has examined six witnesses and placed on record some documents. The respondents were examined under Section 313 Cr..P.C. They denied the prosecution case. The learned Chief Judicial Magistrate, acquitted the respondents, hence this appeal. 3. I have heard Mr. Anshul Bansal, learned Additional Advocate General for the State and Mr. Virender Thakur, Advocate learned counsel for respondent No.1 and Mr. Ravinder Thakur, Advocate, learned counsel for respondent No.2 and have also gone through the record. Mr. Anshul Bansal, learned Additional Advocate General for the State has submitted that the prosecution has proved the case against the respondents beyond reasonable doubt but the learned Chief Judicial Magistrate has erred in law in acquitting the respondents. The grievance of the State is that the learned Chief Judicial Magistrate has not properly appreciated the material on record. The learned counsel for the respondents have supported the impugned judgment and have submitted that no fault can be found with the judgment of acquittal recorded by the learned Court below. 4. Ex.PW-2/A is the statement of PW-2 Vikrant Gupta recorded under Section 154 Cr.P.C., Ex. PA is the copy of FIR registered at Police Station, Solan. The complainant in his statement Ex.PW-2/A has not identified the respondents. He has however, stated that he was rescued by 3 his friend Puneet Sharma. Ex.PW-6/B is the site plan in which place of occurrence has been shown beyond curve in front of Hateshwari Knitwear shop at point ‘D’. Shivam Beauty Parlour has been shown at point ‘C’ in site plan Ex.PW-6/B. Ex.PW-1/A is the MLC of Vikrant Gupta. PW-2 Vikrant Gupta has stated in his cross-examination that occurrence took place about 10 – 15 feet from Narsingh Temple and one shop was open at that time and the shopkeeper was in the shop, many people were coming and going on the road. Fight continued for about 5 - 10 minutes. He did not know the respondents, H.C. Sodhi Ram disclosed the names of the respondents. Many students were ahead of him and many students were coming behind him. He met Puneet Sharma in the school and not thereafter. He has also stated that he had disclosed the names of respondents in his statement Ex.PW-2/A. He was saved by the shopkeeper and other people who were on the road. He has also stated that he knew the persons by name who gave beatings to him. He has stated that many people had gathered on the spot and, therefore, he cannot say who gave beatings to him. 5. PW-4 Puneet Sharma was declared hostile and was cross- examined by the prosecution. In the cross-examination conducted on behalf of the respondents, he has stated that at that time many people were crossing the road and he did not ask any helpfrom such people. No doubt, in MLC Ex.PW-1/A some injuries were noticed but the question is whether the prosecution has established the case against the respondents. PW-2 Vikrant Gupta has stated in so many words in his statement that he cannot say who gave beatings to him. He has also stated in his statement that he knew the persons by name who gave beatings to him. But surprisingly, in his statement Ex.PW-2/A, he did not disclose the names of persons who gave beatings to him. 6. It has come on record that many persons were on the road where the occurrence alleged to have taken place, but those persons were 4 not associated in the investigation nor such persons have been examined in the Court. PW-4 Puneet Sharma is a friend of the complainant and, therefore, it is not safe to rely upon his statement. It has come in evidence that alleged occurrence took place near the Beauty Parlour and a shop but none was examined from the shop and Beauty Parlour. The complainant has also stated that the names of the respondents were disclosed to him by H.C. Sodhi Ram. The complainant has taken wavering, contradictory stand in his statement. The statement made by the complainant in the Court on material particular differs from his statement which was made to the police vide Ex.PW-2/A. Ex.PW-1/A MLC of the complainant is of no help in absence of proof who gave the beatings to the complainant. 7. The learned Chief Judicial Magistrate has rightly appreciated the material and taken a possible view from the evidence which has come on record. It cannot be said that the conclusion drawn by the learned Chief Judicial Magistrate is perverse or is not at all possible. This Court in appeal will not convert the acquittal into conviction merely on the ground that other view is also possible unless it is shown by the prosecution that the conclusion drawn by the Court below is perverse and suffers from illegality. The prosecution has failed to make out a case for conviction, resultantly, the appeal fails and is accordingly dismissed. Bail bonds are discharged. ( Kuldip Singh ) Judge. March 19, 2009. (GR)