Between vs Salpur
2021 Latest Caselaw 4019 HP

                           1

IN THE HIGH COURT OF HIMACHAL PRADESH AT
                 SHIMLA
            ON THE 20th DAY OF AUGUST, 2021




                                                    .

                       BEFORE
      HON'BLE MR. JUSTICE ANOOP CHITKARA





            CRIMINAL APPEAL No. 412 of 2010
Between:-
STATE OF HIMACHAL PRADESH




                                                ....APPELLANT
(BY MR. NAND LAL THAKUR, ADDITIONAL
ADVOCATE GENERAL WITH MR. RAM LAL

THAKUR, ASSISTANT ADVOCATE GENERAL)

                         AND

SALPUR



S/O LATE SHRI BESRU RAM,
R/O DEUNDI, P.O. PEKHA,




TEHSIL CHIRGAON,
DISTRICT SHIMLA, H.P.





                                           ....RESPONDENT.

(BY MR. V.S. CHAUHAN, SENIOR ADVOCATE





WITH MR. RAJUL CHAUHAN, ADVOCATE)

RESERVED ON :19.08.2021
DECIDED ON : 20.08.2021




                                   ::: Downloaded on - 31/01/2022 22:55:13 :::CIS
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     This appeal coming on for final hearing this day, the Court
passed the following:
                          JUDGMENT

.

FIR NUMBER 84/08, dated 26.11.2008, Police Station Chirgaon, District Shimla, H.P., under

Section 341, 323, 325 of IPC.

    TRIAL    COURT Case No.93/2 of 2009, decided on




                   23.03.2010,     by     learned Judicial
    CASE NO.
                   Magistrate First Class, Court No.2,
                   Rohru, District Shimla.

         CHARGES & TRIAL COURT'S VERDICT


    Accused Salpur Sections     341, 323, Accused acquitted



                   325 IPC

The case of the prosecution, based upon the investigation

conducted and as testified by PW-10, investigator HC Kewal Ram is as follows:

" On 26th December, 2008, Smt.Twar Mani (PW-1), visited police station and lodged a complaint. She alleged that her son Mukesh Kumar (PW-2) was stopped by Salpur accused and he threw a stick on him and made him fall on a stone due to which his

six front teeth broken. Based on such information FIR Ex.PW-1/A captioned above was registered."

.

2. The investigator conducted the investigation and prepared a spot map Ex.PW-10/A. He also took photographs of

the spot on official camera, which were tendered in evidence Ex.PA-1 to PA-3. The investigator also seized the shirt worn by Mukesh PW-2. The investigator noticed that blood had oozed

out from his mouth, which was cleaned by a white coloured cloth. Such cloth was also taken into possession and later on

tendered in evidence as Ex.PX. The investigator also procured

Medico-Legal Certificate Ex.PW-8/A, X-ray Ex.PW-8/B and opinion of the dentist Ex.PW-9/A. After completion of the

investigation, Shri Ram Fal Yadav, approved the challan and launched prosecution against the accused Salpur.

3. Vide order dated 30th July, 2009, learned Judicial

Magistrate 2nd Class, Court No.2, Rohru, District Shimla framed charge against the accused for commission of offences under

Section 341, 323, 325 IPC. The accused did not plead guilty and claimed trial.

4. During the trial, the prosecution examined accused Mukesh Kumar, as PW-2, who at that time was a child aged 11 years, his mother Smt. Twar Mani as PW-1, doctors, who has

examined him, other witnesses of the spot and the investigator. After completion of the evidence, the incriminating circumstances appearing against the accused were put to him

.

under Section 313 Cr.P.C. The accused denied all the allegations as incorrect and explained that the witnesses were

interested. He further made a statement that the child had fallen on his own when he tried to run away from the spot.

5. I have heard learned counsel for the parties and gone through the record.

6.

Mr. Ram Lal Thakur, learned Assistant Advocate

General has based his arguments on paragraphs 6, 7 and 8 of the

grounds of appeal. He further argued that PW-1, Twar Mani was witness of the incident and learned Court below has not

appreciated the evidence in a proper way.

7. Mr. V.S. Chauhan, learned Senior Advocate assisted by

Mr. Rajul Chauhan, Advocate appearing for the respondent

argued that the child had sustained injuries due to a fall, as a result of which his first set of teeth got broken. Learned counsel

stated that the injured did not fall because of any role of the accused.

ANALYSIS AND REASONINGS.

8. The injured appeared in the Court as PW-2. Learned Court tried to ascertain his mental caliber and took his statement on oath. The injured Mukesh PW-2 along with his younger

.

brother Ashish and sister Hem Lata were playing with Suresh Kumar, who is son of the accused. Suresh Kumar slapped

Ashish and also hit him with stone. Ashish complained about this to Mukesh and then Mukesh slapped Suresh. After that Suresh went to his father and he came at the spot carrying a stick

with him and gave him beatings with the stick. Due to the impact of the sticks, he fell on the stone and broke his teeth. In

the meantime, his sister Hem Lata, came towards him. He stated

that the accused has hit him on his leg due to which he had fallen down. Because his mouth had hit against a stone as such

his six teeth were broken and blood oozed out of his mouth. He also proved his blood stained shirt as Ex.P-1, which was taken

into possession vide memo Ex.PW-1/B. He also proved Danda

Ex.P-2, with which the accused inflicted blow on him. In the cross-examination, the boy admitted that Suresh has beaten his

younger brother Ashish in his absence. When he slapped Suresh, he started crying and called his father. When they noticed Salpur reaching at the spot, then he along with his brother started running away from there. He denied that he fell

down while running and stated that in fact the accused had given him a stick blow.

.

9. Hem Lata sister of the injured Mukesh testified as PW-3. She at the time of incident was 14 years of age and at the time of

examination was 15 years. She stated that children were playing in courtyard. Mukesh, Ashish and Suresh were also playing. In the meantime Suresh slapped Ashish and then Ashish

complained Mukesh about the same. Subsequently, Mukesh slapped Suresh and Suresh called his father. After that accused,

father of Suresh Kumar, came to the spot. He had stick with

him. He threw stick on Mukesh and hit him on his back, due to which he fell down on a stone and broke his teeth. In cross-

examination 20-25 children were playing at that time. She further admitted that on noticing the accused coming to the spot,

Mukesh started running away due to fear. However, accused

threw stick on him.

10. Another spot witness is PW-4 Veena, who, at that time

was 26 years of age. She stated that on the date and time of incident, she was in the veranda of her house. On hearing commotion, she peeped outside and noticed that the accused was in the courtyard and he had a stick in his hand. However, she stated that she neither saw him throwing the stick nor with the

stick hitting the child. When she reached the spot, she found blood was oozing out from the mouth of the Mukesh. She stated that Mukesh told her that accused had thrown stick towards him.

.

11. PW-5 Smt. Raj Kumari, also testified that she has seen accused Salpur running after the children and the injured falling

down. She also stated that the accused had thrown stick on the child due to which he fell down.

12. PW-6 Laiq Ram, aged 38 years also stated in the same terms.

13.

In this entire evidence the statement of Mukesh Kumar is

most relevant. Learned trial court found him to be a competent

witness and after that examined him. He specifically stated that the accused had thrown stick on his leg. However, this has been

contradicted by other prosecution witnesses, i.e. PW-5, who said that the accused has thrown stick on his back. Similarly, his

sister Kumari Hem Lata, also deposed that the stick was hit on

his back. It is admitted case of the prosecution that injured broke his teeth due to falling on the stone. The question for

consideration before this Court is whether the child fell because of the impact of stick or because he got scared after receiving slap from the accused and on seeing the accused approaching, he was running away from the spot. Given the contradiction in the statement of the injured and statement of his sister and other

witnesses that the stick hit which part of the body, it appears that the injured was running from the spot and due to which he fell down. As far as the theory of the stick hitting the injured is

.

concerned, there is contradiction and it cannot be believed. Thus the prosecution has failed to prove its case beyond all reasonable

doubts.

14. I have gone through the judgment passed by the learned trial Court, which is well reasoned and calls for no interference.

15.

Given above, the appeal fails and the same is

accordingly dismissed.

                                           (Anoop Chitkara)
August 20, 2021(ps)                             Judge