IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 709 of 2001. Date of decision: 17.10.2008. State of H.P. ... Appellant Versus Raj Kumar and others … Respondents Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant: Mrs. Shubh Mahajan, Deputy Advocate General. For the respondents: None for the respondents. V.K. Ahuja, J. (Oral): This appeal has been filed by the State of H.P. under Section 378 Cr.P.C. against the judgment of the Court of learned Chief Judicial Magistrate, Hamirpur, dated 18.6.2001, vide which the respondents were acquitted of the charge framed against them under Sections 324, 323 read with Section 34 I.P.C. Briefly stated the facts of the case are that on 14.7.1998, at about 11.30PM, a report was lodged with the police by one Usha Devi that today at about 7.00PM, Raj Kumar came to her house and told her that she should remove the flowers planted there and started removing them. His son Rakesh Kumar was accompanying him. She and her sister Sushma Kumari told them that this place belongs to them and as to why they are removing the plants, on which Raj Kumar, his wife Asha Devi and his son Rakesh Kumar started beating them with Danda, Darat and Chappal. She suffered injuries on her right arm and on both legs, while her sister Sushma suffered injuries on her head. They raised an alarm, 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - on which Gita Devi and Sukha Devi came to the spot and accused persons ran away from the spot. On this report, a case was registered and after investigation, the challan was filed before the learned trial Court who tried the respondents as mentioned above leading to their acquittal. I have heard Mrs. Shubh Mahajan, learned Deputy Advocate General, for the State and have gone through the record. On a perusal of the record, it is clear that there is a statement of PW-1 Usha Rani, complainant, who has stated that Raj Kumar gave a blow with Darat on her right arm and blood oozed out and two stitches had to be applied. She further stated that the remaining accused gave blows with lathis and she suffered injuries on her legs and respondent Rajesh gave blows with shoes. Her sister also sustained injuries, which were not specified by her as to who inflicted injuries on her and on which part of the body. She further stated that on hearing their cries, Gita Devi and Sukha Devi reached the spot. Her statement clearly shows that the occurrence took place outside their house where they had planted flowers, while PW-2 Smt. Sukha Devi has clearly stated that the occurrence took place inside the house. PW-1 admitted in her cross-examination that Sukha Devi was her Bhabi (sister-in-law). She also admitted that a case has been filed by Sukha Devi in which she and her sister are witnesses. She further stated that in case the accused persons leave possession, there will be no dispute, which suggests that they are not in possession of the land where the flowers had been grown and the dispute is mainly in regard to the possession. In the cross- examination, she came up with the plea that she was not inflicted one blow with Darat but 2 or 3 blows were given with Darat. PW-2 Smt. Sukha Devi has stated that she reached the spot on hearing an alarm and the quarrel had taken place inside the house and blows were inflicted which were not visible and a blow with Darat was given on the person of - 3 - Usha Devi by Raj Kumar. The statement of the complainant shows that these were not injuries which were not visible but blood had oozed out from the injuries inflicted with a blow by Raj Kumar on her right arm. In cross-examination, she clearly stated that when she reached the spot, the quarrel had already taken place and the accused had left for their house, which clearly shows that she had not witnessed the occurrence. She admitted that she had also filed a case against the accused persons in which Usha and her sister are witnesses which shows her interestedness in the case. The sister of complainant Usha Rani, namely, Sushma Kumari who also allegedly suffered injuries has been examined as PW-6, who stated that the beatings were given with Chappal, Danda and Darat. Accused Raj Kumar was having a Darat with which he inflicted blow on the right arm but she did not specify who suffered the injury. She has stated that none had seen the occurrence, meaning thereby she ruled out the possibility of witnesses PW-2 Sukha Devi and Gita Devi having witnessed the occurrence. She further stated that on hearing cries Sukha Devi and Gita came and they saw the accused. She was confronted with her police statement in which she had not mentioned that she had suffered injuries on her head. She stated that the quarrel took place for 2-2½ hours, which is contrary to the statement of complainant PW-1, who stated that the quarrel continued for about half an hour. She also admitted that Sukha Devi was related to them. Coming to the medical evidence, PW-5 Dr. Rajinder Minhas who examined both the injured, has mentioned about the incised wound on the right forearm below elbow of PW-1 Usha Rani. He also referred to some contusions on the right knee and other parts of the body which injuries were simple in nature. He admitted that Injury No. 1 was possible with Darat. However, in cross-examination he has stated that this injury - 4 - was superficial in nature, which is contrary to the version of the complainant that the blood had oozed out because of the injury caused with Darat. The Medical Officer has also opined that Injury No.1 is possible by fall on hard surface on sharp object as it was superficial and remaining injuries on the persons of both the injured are also possible by multiple fall on hard surface. He stated that he had not seen any blood stained clothes. From the above discussion of the evidence, it is clear that the relation in between the parties are strained and there is a dispute in regard to the possession. The statement of PW-1 Usha Rani and that of her sister have not been fully corroborated by the medical evidence as discussed above. Out of the two witnesses who are alleged to have seen the occurrence one PW-2 Smt. Sukha Devi was examined, whose statement does not prove that she has seen the occurrence and she is an interested whiteness. The other eye witness Gita Devi was a material witness but she was given up by the prosecution for the reasons best known to them. Keeping in view the contradictions in the prosecution case and the enmity in between the parties, the learned trial Court had concluded that the prosecution had failed to prove their case beyond any reasonable doubt, which findings cannot be said to be perverse. In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the appellant, which is dismissed accordingly. Bail bonds furnished by the respondents stand discharged forthwith. (V.K. Ahuja), October 17, 2008 Judge (BSS) - 5 -