IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No. 709 of 2000. Judgment reserved on: 17.7.2008 Date of decision: 18.7.2008 State of H.P. …….Appellant Vs. Balbir Singh alias Balli and Ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. Ansul Bansal, Addl. Advocate General. For the Respondents : None. Kuldip Singh, Judge. The State has come in appeal against the judgment dated 9.2.2000 passed by learned Chief Judicial Magistrate, Sirmaur, District at Nahan in Cr. Case No.45/2 of 1997, acquitting respondents under Sections 147, 148, 451, 323, 325 and 506 IPC . 2. The prosecution case in brief is that on 13.9.1997 respondents formed unlawful assembly with intent to intimidate and assault the complainant Raj Kumar, his father Bhangi Ram and voluntarily gave severe beatings to Raj Kumar and his father Bhangi Whether the reporters of the local papers may be allowed to see the Judgment? Yes …2… Ram, with the result that Raj Kumar sustained simple injuries and Bhangi Ram simple and grievous injuries. The respondents also criminally intimated the complainant and his family members with dire consequences. The report of the incident was lodged at Police Station Nahan and thereupon FIR Ex.P-10 was registered. The investigation was done by PW-11 Prem Dass, who visited the spot and prepared site plan Ex.PW-11/A. The injured were got medically examined. The doctor issued MLC Ex.PA of complainant Raj Kumar and Ex.PB of Bhangi Ram. Injured Bhangi Ram was subjected to X-ray examination and X-ray report was also obtained, which revealed fracture of left hand. The recoveries were made. On completion of investigation challan was filed in the Court. The respondents were charged for commission of offence punishable under Sections 147,323, 325, 506 read with Section 149 IPC, to which they pleaded not guilty and claimed trial. The prosecution has examined 11 witnesses. The statements of respondents were recorded under Section 313 Cr.P.C. They pleaded their innocence. The respondents examined DW-1 Balbir Singh and DW-2 Kuldeep Singh. After conclusion of the trial, learned Chief Judicial Magistrate acquitted the respondents, hence this appeal by State. 3. I have heard Mr. Ansul Bansal , learned Addl. Advocate General for the State and gone through the record. None appeared on behalf of the respondents despite service. Learned Addl. Advocate General has submitted that prosecution has proved case beyond reasonable doubt against the respondents. MLCs Ex.PA, Ex.PB, X-ray report Ex.P-9 coupled with statements of doctors and …3… other prosecution witnesses, it has been proved on record that respondents have committed offence, for which they were charged. The learned Chief Judicial Magistrate has not properly appreciated the material on record and has erred in acquitting the respondents. 4. In order to appreciate the contentions of learned Addl. Advocate General, it is necessary to refer to prosecution evidence. PW-1 Shamsher Mohd. is a witness of recovery and not an eye witness. In cross-examination he has stated that complainant Raj Kumar and respondents are in litigation in civil Court. PW-2 Rajinder Singh has stated that he had come to village Kaulanwala Bhood and Som Dutt was also with him. At about 9 PM, many people had gathered in the courtyard of Raj Kumar, accused Balbir was also there and he had laid down Raj Kumar. The other accused Om Lal, Jhori, Raj Kumar, Omi, Sheela Devi and Jagat Singh were also there. The accused were giving beatings to Bhangi Ram and Raj Kumar with dandas. He separated Raj Kumar and Bhangi from accused. In cross-examination he has stated that a cross case regarding this very incident is pending against him, Som Dutt, Raj Kumar, Bhangi Ram, Om Wati and Darshani Devi. He has denied that in the incident Balbir and his wife sustained injuries. PW-3 Ram Chander was declared hostile. He was cross-examined by the prosecution, however, on material particulars regarding the actual incident the prosecution could not extract anything from this witness. In the cross-examination conducted by the defence, he has stated that Satpal son of Bhangi Ram is in police and at that time he was posted at Police Station, Nahan. PW-4 Dr. Anil Gupta has stated …4… that he examined Raj Kumar on 14.9.1997 and issued MLC Ex.PA which bears his signature. He has also examined Bhangi Ram on the same date and issued MLC Ex.PB, which bears his signature. He has stated that injuries on the person of Raj Kumar and Bhangi Ram could be caused by dandas Ex.P-5, Ex.P-6 and Ex.P-7. In cross- examination he has stated that injuries No.2 and 3 on the person of Raj Kumar and injuries No.2 and 3 on the person of Bhangi Ram could be caused by fall on a hard surface. The remaining injuries can not be caused by fall on a hard surface. 5. PW-5 Darshani Devi mother of complainant Raj Kumar has stated that accused Balli gave beatings to her son Raj Kumar and other accused Balbir, Sohan Lal, Raj Kumar, Mohan Lal, Ram Lal, Jagat Ram and Sheela Devi were also there. Bhangi Ram intervened to save his son Raj Kumar but accused gave beatings to her son and husband. The accused gave beatings with lathies. In cross- examination, she has stated that they have land dispute with accused. Satpal her son is in police and was posted in police station, Nahan. 6. PW-6 Dr. G. Narang has proved X-ray films Ex.P-8 and report Ex.P-9 pertaining to Bangi Ram. PW-7 Bhangi Ram has stated that on 13.9.1997 at about 9 PM he saw Balli alias Balbir holding his son Raj Kumar from neck and was giving beatings to him and was also abusing him. In the meantime Omi, Mohan Lal, Jagat Singh, Raju and wife of Balbir Singh came there. Raju, Mohan Lal and Omi were armed with lathies and they started beating him and he suffered injuries, his son also suffered injuries due to beatings given …5… by the accused. Somi and Rajinder saved them from accused. He was medically examined. In cross-examination he has stated that initially on the spot Balbir and his wife were there. Other persons came there after about 10 minutes. He denied for want of knowledge that Raj Kumar initially started quarrel with Balbir and his wife. He has stated that they had land dispute with respondents. He has also stated that regarding this very incident wife of Balbir reported the matter and they are facing trial in the Court. 7. PW-8 Raj Kumar has stated that on 13.9.1997 at about 9 or 9.30 PM he was sitting in the courtyard where Balbir came and caught hold him from neck and pulled him down and started beating him, his aunt (chachi) raised alarm, on this his mother and father reached there. In the meantime Mohan Lal, Raju alias Raj Kumar, Omi, Jagat Singh, Johri, wife of Balbir Singh also came there. They were armed with dandas. They gave beatings to him and his father with dandas and other accused gave beatings to them with fist blows. Rajinder and Somi came on the spot who rescued them from the accused. The report was made to the police on the next day vide FIR Ex.P-10. In cross-examination he has stated that Balbir at that time was all alone. He has stated that against them also a case has been registered. He has denied that they have implicated the accused with the help of his brother who is in police. 8. PW-11 Prem Dass is the investigating officer who has stated that accused had lodged an FIR against the complainant. In his investigation it had come that complainant Raj Kumar gave beatings to accused Balbir and his wife and also abused them and …6… the family members of the complainant were also involved. He has denied that at the instance of Satpal he has not joined independent witnesses and he joined only relatives of the complainant in the investigation. 9. FIR Ex. DA of the cross case was lodged by Balbir Singh accused. Ex. DB is the MLC of Balbir Singh and Ex.DC is the MLC of Sheela Devi wife of Balbir Singh in the cross case. It has come on record that Satpal brother of complainant was posted at Police Station, Nahan at the relevant time. The defence of the accused is that the complainant party was aggressor and in fact the complainant party had given beatings to the accused and MLCs Ex.DB, Ex. DC prove this fact but despite that the complainant party managed to get the case registered against the accused with the help of Satpal brother of the complainant. PW-3 Ram Chander and PW-9 Tota Ram independent witnesses have not supported the prosecution case. They were declared hostile. The other witnesses examined by the prosecution are relatives of the complainant party or their close friends. PW-11 Prem Dass, investigating officer has stated that during investigation it had come that complainant Raj Kumar had given beatings to Balbir Singh and his wife, he also abused them and family members of the complainant were also involved. In the evidence led by the prosecution, there are material contradictions. PW-2 has stated that Balbir had laid down Raj Kumar on the ground and the other accused were giving beatings to Raj Kumar and Bhangi Ram with dandas. He has stated that Som Dutt was also present there. PW-5 Darshani Devi has stated that Balli had given beatings …7… to Raj Kumar and other accused Balbir, Sohan Lal, Raj Kumar, Mohan Lal, Ram Lal, Jagat Ram and Sheela Devi were also there. She has stated that accused gave beatings to his son and husband with lathies. She has not stated that PW-2 Rajinder Singh or Som Dutt were present there and PW-2 Rajinder Singh rescued Raj Kumar her son from accused. Som Dutt has not been examined by the prosecution. PW-7 Bhangi Ram has stated that Balli alias Balbir caught hold her son Raj Kumar from neck, gave beatings and abused him. PW-5 has not stated that Balbir alias Balli caught hold Raj Kumar from neck and abused him. PW-8 Raj Kumar has stated that Balbir Singh accused came in his courtyard, caught hold him from neck, pulled him down and started beating him, his aunt raised alarm and then his mother and father came there. In the meantime other accused also came there. This has not been stated by PW-2 Rajinder. 10. The accused in their statements under Section 313 Cr.P.C. have denied the prosecution case. PW 3 and PW 9 independent witnesses have not supported the prosecution case. It has come on record that on the spot there were shops, but no other independent witnesses from the shops or from that area were associated in the investigation and examined in the case by the prosecution. The prosecution has not given explanation why such witnesses were not joined in the investigation and examined in the court. The presence of PW-2 Rajinder Singh on the spot at the time of incident is otherwise doubtful inasmuch as version of the incident …8… given by him is not in consonance with the versions given by PW-5, PW-7 and PW-8. 11. It has come on record that Satpal brother of the complainant was posted at Police Station, Nahan at the relevant time. PW-11 has specifically stated that Raj Kumar had given beatings to Balbir Singh and his wife, injuries on the person of Balbir Singh and his wife have otherwise been proved by their MLCs Ex.DB, Ex.DC. PW-8 has denied that Balbir and his wife were given beatings and they sustained injuries, but this version of PW-8 is falsified by the statement of PW-11 as well as MLCs Ex.DB, Ex.DC of Balbir Singh and his wife respectively. It has also come on record that litigation was going on between complainant party and accused regarding some property. In these circumstances, possibility can not be ruled out that accused were falsely implicated in the case. The learned Chief Judicial Magistrate has rightly appreciated the material on record which emerges from the evidence. This Court in appeal will not reverse the acquittal simply on the ground that other view is possible unless it is demonstrated that view taken by the Court below is perverse and is not at all possible from the material on record but the present case does not fall in that category. No case for interference has been made out. Resultantly, the appeal is dismissed. The bail bonds are discharged. ( Kuldip Singh ) Judge. July 18, 2007 (sks)