IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 314 of 2002. Date of decision: 07.01.2009 State of H.P. ... Appellant Versus Ajay Kumar @ Aju … Respondent Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant: Ms. Shubh Mahajan, Deputy Advocate General. For the respondent: Mr. Sanjay Dutt Vasudeva, Advocate. V.K. Ahuja, J. (Oral): This is an appeal filed by the State of H.P under Section 378 Cr.P.C. against the judgment of the Court of learned Judicial Magistrate Ist Class, Dharamshala, Court No.1, dated 24.12.2001, vide which the respondent was acquitted of the charge framed against him under Sections 451 and 323 I.P.C. Briefly stated, the facts of the case are that on receipt of an information, a Police Officer went to C.H.C. Shahpur and recorded the statement of complainant Smt. Sarla Devi under Section 154 Cr.P.C. In her statement, she alleged that on the previous evening, at about 10.00 P.M., when she was watching T.V. and her husband had gone out to toilet, their nephew Ajay Kumar came inside the verandah, gave a slap to her husband, who asked him as to who had opened the Arla, meant for closing the entry of cattle. When she enquired from the 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - respondent as to why he had given slap blow to her husband, the respondent gave a fist blow on her chest and also hit her head with a chair lying nearby. She also suffered injuries on her nose and on her left eye. She was pushed and she fell down. When her children and her husband tried to save her, they were also given beatings by the respondent. She raised an alarm and many persons came to their house and the respondent ran away from the spot. On this report, a case was registered and after investigation, the challan was filed as against the respondent before the learned trial Court, who tried the respondent, leading to his acquittal. I have heard the learned counsel for the parties and have gone through the record. On appraisal of the record of the case, it is clear that the prosecution had examined nine witnesses. The statements of the complainant and her husband can be said to be most material. PW-2 Smt. Sarla Devi, complainant, herself, had stated that when her husband enquired as to who had opened the Arla, the respondent came in the door, gave a blow to her husband and when she asked, he gave blows to her with fists and hit her head with a chair. She suffered injuries on her chest, head and eye. When her husband and children tried to rescue her, they were again given beatings. She also stated that many persons came to the spot and the respondent ran away from the spot. In cross-examination, she has admitted that she is the aunt of the respondent and they have a common house, verandah and courtyard and both the parties are using the courtyard and there is no separate entrance. This clearly suggests that entry of the respondent in the house and verandah cannot be termed as trespass since both the parties are using the verandah as well as the courtyard. In cross- - 3 - examination, she has clearly stated that no quarrel took place, though the other party was planning for the same. There is no ambiguity in the suggestion, which has been correctly written, which clearly suggests that no occurrence had taken place and her admission in this regard is sufficient to demolish her case. PW-5 Multan Singh, her husband, had also stated that when she enquired about the removal of the Arla, the respondent gave beatings to his wife and to him and threw her on the ground. He also stated about the blow given on the person of his wife with a chair by the respondent. He admits that he also suffered injuries, but he did not undergo any medical examination as admitted by him for the reasons best known to him. He admitted the jointness of the verandah, though stated that courtyard is separate, which is contrary to the version of PW-2 Smt. Sarla Devi. He also admits that many persons came to the spot and he has named some of them as Chhanga, Firoj Singh’s wife and Mohinder. Out of the persons named by him, the said Mohinder Singh has been examined as PW-6, who stated that he had not witnessed the occurrence, but he had been called from his house subsequently by Multan Singh on the plea that his wife had been beaten by the respondent, which is contrary to the version of PW-5 Multan Singh that this witness had come to the spot at that time apart from other persons. The other persons named by him have not been examined and, therefore, the learned trial Court was left with the solitary statement of Multan Singh not corroborated by PW-2 Smt. Sarla Devi, who rather stated that no quarrel had taken place. The medical examination of the complainant was conducted by PW-3 Dr. Mohan Chaudhary, who proves three injuries on the person of the complainant of nasal bridge, left side of nasal crest and on the chest. But he stated - 4 - that there were no injuries on the head. It was the case of the prosecution that blow on the head was given with a chair by the respondent. Therefore, the medical evidence also does not corroborate the prosecution case. Keeping in view the infirmities in the prosecution case, the final findings recorded by the learned trial Court holding that the prosecution has failed to prove their case beyond any reasonable doubt, cannot be termed as perverse calling for an interference by this Court. In view of the above discussion, I hold that there is no merit in the appeal filed by the appellant, which is dismissed accordingly. Bail bonds furnished by the respondent shall stand discharged forthwith. (V.K. Ahuja), January 07, 2009 Judge (BSS) - 5 -