HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No.: 193 of 2002 Decided on: 19.12.2008. State of Himachal Pradesh ………Appellant. Versus Mohan Lal ………Respondent. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the appellant: Ms.Shubh Mahajan, Deputy Advocate General. For the respondent: Mr.S.D. Gill, Advocate. V.K. Ahuja, J (Oral): This is an appeal filed by the State of H.P. against the judgment of the court of learned Chief Judicial Magistrate, Shimla, dated 31.10.2001, vide which the respondent was acquitted of the charge framed against him under Sections 341 and 332 of the IPC. The prosecution story in brief is that on 17.10.1998, at about 6.20 p.m., a rapat was lodged with the police by one Shri Dalip Sharma that he was working as a Lecturer in Government College, Sanjauli. He alleged that the examinations were going on in the College and he was working as an Assistant Superintendent. The paper of B.A. (III) was going on, which was in between 2.00 p.m. to 5.00 p.m. and during duty, he caught Mohan Singh respondent, who was copying. He made out a case and sent the same to the Principal. At about 5.35 p.m., he was coming back out of the College towards his quarter alongwith his colleagues, namely, Chet Ram and Joginder Singh. Respondent _______ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - came there alongwith 2-3 other boys and stopped him and started giving beatings to him with fists and thereafter the respondent snatched umbrella, which was in the hand of the complainant and gave beatings to him with it. His colleagues saved him and the respondent alongwith his companions ran away from the spot. On this report, a case was registered and after investigation, the challan was filed as against the respondent, who was tried by the learned trial Court leading to his acquittal. I have heard the learned counsel for the parties and have gone through the record of the case. On appraisal of the record of the case, it is clear that to substantiate their case, the prosecution had examined 7 witnesses in all. The statement of the complainant and two other eye witnesses examined by the prosecution can be said to be material and these statements need to be appreciated whether they prove the guilt of the respondent or not. PW-1 Dalip Sharma, the complainant, has stated that in the afternoon, he had apprehended the respondent copying, made a case against him and sent the report to the Principal. After 5.00 p.m., when the paper was over, he was coming back out of the gate of the College alongwith one Chet Ram and Goverdhan at about 5.30 p.m. when the respondent came with two boys, misbehaved with him, snatched the umbrella from his hand and gave beatings to him with the umbrella and he was rescued by his colleagues. The complainant also gave reasons for the beatings given to him by the respondent that he had made out a case of copying against the respondent during day time. He stated that he suffered injuries on his left hand also and lodged the report with the police, who came to the spot and recovered the umbrella on the next day from the bushes, which was identified by him. - 3 - PW-3 Chet Ram, an independent witness and also a Lecturer in the College, has stated that he was going alongwith the complainant at 5.30 p.m. and he stated that the respondent came with two other boys, snatched the umbrella and started giving beatings to the complainant. He rescued the complainant and the respondent ran away from the spot after throwing the umbrella in the bushes. He also stated that the complainant had apprehended the respondent copying during day time and had made out a case and for this reason, the beatings were given to the complainant. PW-5 Goverdhan Dass, Lab Attendant in the College, has also supported the statement of the complainant and other witness in regard to material particulars of the occurrence. The statements of other witnesses are not material except the testimony of PW-4 Shri S.K. Dhawan, Principal, who has proved the documents pertaining to the appointment letter, service book and examination duty certificate in regard to the complainant. The first point raised by the learned counsel for the respondent was that the complainant was not on duty on that day since there is a cutting in the certificate proved in evidence by PW-4 S.K. Dhawan. He has also contended that at the time of occurrence, the respondent was not performing any public duty. In so far as the cutting is concerned, as has come up in the testimony of PW-4 Shri S.K.Dhawan, Principal of the College, the same is not very material when the certificate was issued and the oral evidence led by the prosecution consisting the statements of the complainant and two other witnesses and that of PW-4 Shri S.K. Dhawan, Principal, clearly proves that the complainant was on duty in the examination during day time. To my mind, the said certificate is also not very material since, in my opinion, the complainant was not performing any - 4 - duty when the occurrence took place and, therefore, that part of the evidence is not very material. However, the material evidence does prove the cause of beatings given by the respondent to the complainant, which has not been rebutted by the respondent to be incorrect. The respondent has not led any evidence that he had no reason to give beatings to the complainant since he was not apprehended while copying or no case was made out against him by the complainant and no report was made to the Principal at any time. Coming to the evidence in regard to the wrongful restraint, the evidence led by the prosecution is in regard to the beatings given by the respondent with fists and umbrella and there is no specific evidence on record that the complainant was also wrongfully restrained. Therefore, in my opinion, charge under Section 341 IPC cannot be said to have been proved. However, the evidence led by the prosecution proves that simple injuries were caused on the person of the complainant by the respondent and there are no material contradictions in the statements of the complainant and two other witnesses in regard to this fact that the beatings were given by the respondent with fists/umbrella, which part of the evidence finds corroboration from the testimony of PW-2 Dr.R.K. Abhay, who had examined the complainant and issued the medical certificate. He had admitted that the complainant was having three injuries on his person. The first was a contusion, the second was abrasion and the third injury was also an abrasion. PW-2 Dr.R.K. Abhay has stated that injury No.1 can be caused with fist blow and injuries No.2 and 3 can be caused with umbrella. The learned counsel for the respondent wanted to take benefit out of an admission made in cross examination by PW-4 Goverdhan Dass that at the time of rescue, the complainant had fallen on the metalled road. This itself is not - 5 - sufficient to hold that the complainant has suffered injuries in this manner since there were no particular suggestions made to the complainant and other witnesses and the admissions made by them in this regard. Apart from the above, there is nothing in the cross examination of the complainant or two other witnesses or the Principal of the College PW-4 Shri S.K. Dhawan that they had any enmity or reason to falsely implicate the respondent. Once the complainant, who is a Lecturer, had no enmity with the respondent, there was no occasion for him to falsely implicate the respondent. In regard to the question as to why the other two persons accompanying the respondent were not made accused, it is on record that the complainant was not knowing those persons and, therefore, could not tell the identity of those two persons. It was for the prosecution to establish the identity of those two other persons and make them as accused, but in so far as the part played by the respondent is concerned, it is clear that he had given beatings to the complainant on which point there are no contradictions in the testimony of eye witnesses. From the above discussion of the evidence, it is clear that only one inference could have been drawn from the evidence and that is that the respondent gave beatings, caused simple injuries on the person of the complainant and it was the only conclusion that could have been drawn from the evidence. No two views are possible from the evidence and, therefore, the view taken by the learned trial Court in not holding the respondent guilty of the charge under Section 323 of the IPC can be said to be perverse calling for an interference by this Court. The power of this Court are not restricted and it can come to a different conclusion, while appreciating the evidence, once it is found that the view taken by the learned trial Court was perverse. - 6 - In view of the above discussion, the appeal filed by the State of H.P. is accepted and the respondent is held guilty under Section 323 of the IPC. However, I am not inclined to consider the question as to the sentence to be imposed upon the respondent since it is for the learned trial Court to consider as to what sentence should be imposed upon the respondent after recording his statement in regard to punishment to be imposed upon him. It is for the learned trial Court, in its wisdom, to consider the question of applicability of the provisions of Probation of Offenders Act to the facts of the case and, therefore, the case is being sent back to the learned trial Court to consider the question of awarding the sentence or grant the benefit of probation, if the learned trial Court deems it necessary in view of the facts of the case. In case the provisions of Section 4 of the Probation of Offenders Act are attracted to the facts of the case, the learned trial Court shall consider this question and in case it deems it necessary that these provisions apply, a report of the Probation Officer has to be called, as per the law laid down in this regard. The respondent, through his counsel, is directed to put in appearance before the learned trial Court on 2.1.2009 and it shall proceed with the case, as directed above. In case the respondent does not put in appearance before the learned trial Court, it shall be for the learned trial Court to secure his presence by issuance of bailable or non- bailable warrants, as deemed necessary. The appeal stands disposed of accordingly. December 19, 2008. (V.K. Ahuja), (TILAK) Judge.