IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 555 of 2002. Date of decision: 20.12.2011 State of H.P. ….. Appellant. Vs. 1. Sh. Vinod Kumar s/o Sh. Sant Ram, Caste Rajput r/o Lower Harabagh, P.S. Jogindernagar, Distt. Mandi. 2. Ravinder Singh, s/o Sh. Khajan Singh, Caste Rajput r/o Makdaina, P.S. Jogindernagar, Distt. Mandi. …. Respondents. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant : Mr. R. K. Sharma, Sr. Addl.A. G. For the respondents : M/s. Dharamvir Sharma and G. K. Nadda, Advocates. Justice Sanjay Karol J. (Oral). For an offence, which is alleged to have been committed on 6.12.1997, accused were put to trial. In terms of judgment dated 13.6.2002 passed by learned Sessions Judge, Mandi, in Sessions Trial No. 16 of 1998 titled as State of H.P. vs. Vinod Kumar & Anr., accused stands acquitted of the charged offences. 2. It is the case of prosecution that in the year 1997 building of a school was being constructed in village Dugh Whether the reporters of the local papers may be allowed to see the Judgment? 2 Panjagana under the supervision of Pradhan of the Panchayat, namely, Sh. Devinder Kumar (PW-7). Construction of the same was objected to by Smt. Sharda Devi, who claimed to be an allottee of the land over which such building was being constructed. She partly demolished the construction raised by the Panchayat. Nevertheless construction work continued and panchayat formed a team to keep a vigil and watch the construction carried out during the night hours. S/Sh. Karam Singh (PW-1), Ramesh Chand (PW-2) and Uttam Chand (PW-3) were deputed to keep vigil of such construction. On 6th December, 1997, at about 9.30 p.m. while these persons were sitting at the site of construction, accused Vinod Kumar and Ravinder Singh came armed with iron rod. Accused Ravinder Singh started demolishing the construction and accused Vinod Kumar gave blows with iron rod to Sh. Karam Singh (PW-1) on his shoulder, Sh. Ramesh Chand (PW-2) on his chest and Sh. Uttam Chand (PW-3) on his left shoulder. Sh. Karam Singh rushed to the house of Jai Singh, which was nearby, where celebrations of marriage of his son were going on. There Sh. Karam Singh narrated the incident to his father Sh. Sukhdev (PW-6), who along with Birkhu Devi, Ramkali, Kamla, Sukhdev and 4-5 other persons came to the spot alongwith him. There they found S/Sh. Ramesh Chand and Uttam Chand lying in an injured condition. Seeing the rescue party, both the accused ran away from the spot. Thereafter injured were carried out to the 3 police station where Karam Singh (PW-1) lodged a complaint (Ext.PW-1/A) on the basis of which F.I.R. No. 177/97 (Ext.PW- 1/A), dated 7.12.1997 under Sections 323, 506, 427,34 IPC was registered at Police Station, Jogindernagar by ASI Parkash Chand (PW-10). Investigation was carried out both by PW-10 and ASI Balbir Singh (PW-13). Injured were sent for medical examination where Dr. Sunil Thakur (PW-4) and Dr. Hari Singh (PW-5) examined them and submitted their reports (Ext.PW-4/A to Ext.PW-4/C). Weapon of offence i.e. iron rod Ext.P-3 was recovered by the police pursuant to disclosure statement (Ext.PW-13/B) made by accused Vinod Kumar. Blood stained clothes i.e. shirt (Ext.P-1) and banyan (Ext.P-2) of the injured were also recovered. Police got the damage of the school building assessed through Sh. Amar Chand (PW-11) who prepared his report (Ext.PW-11/B). With the completion of investigation challan was presented in the Court for trial. 3. Accused were charged for having committed offences punishable under Sections 307, 427, 323, 506 all read with Section 34 of the Indian Penal Code, to which they did not plead guilty and claimed trial. 4. In order to prove its case prosecution examined as many as 14 witnesses and the statements of the accused under Section 313 Cr.PC were also recorded, in which accused Vinod Kumar took the following defence : “The witnesses have deposed falsely. A quarrel took place in my house on 6.12.97 with Ram, Uttam and some 4 other boys. They gave beatings to me and my mother and we lodged complaint with the police.” He also stepped into the witness box. 5. The Court below acquitted the accused of the charged offences on the ground that self serving statements of prosecution witnesses, being contradictory on material points, do not inspire confidence; prosecution concealed the factum of lodging of FIR by the accused against the complainant party, which was much prior to registration of the instant FIR; prosecution failed to explain the injuries sustained by accused Vinod Kumar and his mother Sharda Devi. 6. Heard learned counsel for the parties and also perused the record. 7. In the instant case, we find that defence taken by the accused appears to be probable. Both PW-10 & PW-13 admit that prior to registration of the instant FIR (Ext.PW-1/A) dated 7.12.1997, which is timed as 5-15 a.m., Smt. Sharda Devi and accused had already lodged an FIR on 6.12.1997 at 11.30 p.m.. Accused and his mother were also got medically examined since they were injured and during investigation police had also recovered stones, earth and broken slates from the house of Smt. Sharda Devi. Now in the instant case prosecution has not satisfactorily explained the injuries sustained by the accused and his mother and had also not disclosed the outcome of the 5 said proceedings till the time, PW-10 stepped into the witness box and was cross-examined by the accused. 8. Witnesses of the complainant party, i.e. PW-1, PW-2, PW- 3 & PW-6 as also PW-13 admit that there is a private hospital just at a distance of 200 mtrs. from the spot of occurrence of the incident. Police Station is at a longer distance. Alleged incident took place at about 9.30 p.m.. First reaction of any person would have been to immediately take the injured to the nearest hospital and not wait for more than 8 hours to report the matter to the police and then get themselves medically examined. Circumstances render the prosecution version to be extremely doubtful. It shakes the very foundation of the prosecution story. 9. Now PW-7 admits that there was prior litigation between Sharda Devi, who claimed the land over which construction was being raised to have been allotted by the Government in her favour. He states that only when the stay granted by the competent authority from carrying any construction stood vacated did the panchayat take steps for raising construction. He further states that prior to occurrence of the incident, he had himself got the land demarcated from the Revenue Authorities and had also made a complaint, about the past history of Sharda Devi and the accused demolishing the construction raised by the panchayat to the concerned SHO who in fact had asked him to carry on with the construction work. Now this version of the Pradhan stands totally belied by the police officials who in no 6 uncertain terms have deposed that no such complaint was ever lodged in writing by the Pradhan, or for that matter there was no occasion for the police to have advised the Pradhan to carry on with the construction work. 10. Testimony of the Pradhan in any event does not inspire confidence. He states that he had engaged the victims on daily wages for keeping vigil on the day of occurrence of the incident. There is no documentary evidence to corroborate this fact. Pradhan could not state as to whether any such endeavour, of forming vigil party was made prior to or after the occurrence of the incident in question. Then why was it so done on this particular day. That apart, version of Pradhan that he had himself got the land demarcated from the revenue officials stands belied by Sh. Prem Chand (PW-8), Kanungo of the area, who simply states that he only prepared a tatima (revenue map) and did not carry out any demarcation, as superior authorities had not directed him to do so and that he had also not associated Sharda Devi in this process. 11. The Court below has held that possibility of connivance of all concerned, including prosecution witnesses, in lodging false proceedings cannot be ruled out. In this regard, we find the following findings and observations to be correct: “40. In regard to the injuries on the person of the two other injured namely Karam Singh and Uttam Chand there was only injury on the shoulder which was simple and caused with blunt weapon. This 7 Medical Officer had also proved, the Medical Certificate of Vinod Kumar as Ex.D-1 and that of Smt. Sharda Devi as Ex.D-2. A perusal of these certificates shows that Vinod Kumar had received seven injuries which were contusions and one laceration while Smt. Sharda had received lacerated wound caused with blunt weapon. Accused Vinod Kumar and his mother were examined at 12.30 A.M. and 12.45 A.M. on 7.12.97 before even the report has been lodged by the complainant party in this case. On the other hand the injured persons had been examined on 7.12.97 in between 7 A.M. to 7.45. A.M. It is surprising that the accused Vinod Kumar and his mother were examined earlier and the complainant party was examined at a later time but the number given there on the bound register are different since Vinod Kumar was examined at serial No. 4 of the bound register, but Ramesh Chand who was examined at 7.00 A.M. at serial No. 1 and similarly Karam Singh was examined at 7.30 A.M. vide serial No. 2 of the M.L.C prior to issuance of the certificate to Vinod Kumar. Similarly Certificate of Uttam Chand examined at 7.45 A.M is at Sr. No. 3 and the Medical Officer was not able to state as to how the M.L.C of Vinod Kumar examined prior to all these 3 injures was at Serial No.4. This clearly shows that attempts were made to make some changes on blank form may have been left but the facts have been proved in the court which clearly show that no reliance can be placed on the prosecution story and the Medical Officer surprisingly was not able to offer any plausible explanation for this lapse. The possibility of his connivance in this whole show and subsequent lodging of the report on learning that a case has already been registered and attempts to make out a 8 false case cannot be ruled out. All these factors are sufficient to show that no reliance can be placed upon the testimony of the injured persons or the medical certificate proved in evidence keeping in view the infirmities in the prosecution case. The complainant party has admitted that a case is pending against them filed by Sharda Devi though he stated that it was not in regard to the same occurrence but it can be in regard to the report lodged by her son. It is in the evidence that report lodged by her resulted in the cancellation of the case as has come up in the evidence of P.W.10 A.S.I Parkash Chand that the case filed by Sharda Devi was cancelled but it does not lead to the inference that it was a false case until and unless the cancellation report was proved on record or the complaint filed by her had resulted in the court coming to the conclusion that it was false case.” 12. Prosecution could not show as to in what manner such findings of facts are false, erroneous or perverse. 13. That apart, we find testimonies of the complainant’s witnesses not to inspire confidence. They have made improvements/exaggerations. The defence of the accused as suggested to the prosecution witnesses is that complainant party along with co-villagers attacked him and his mother Sharda Devi by throwing stones. This incident took place in the house of the accused which is not far off from the place where the alleged incident took place. As has already been noticed prosecution has failed to explain the injuries sustained by the accused and his 9 mother. There are certain embellishments in their testimonies rendering these witnesses to be untrustworthy. 14. Significantly in Court Sh. Karam Singh does not name Ravinder Singh to be one of the assailants. He refers to one Devinder Singh who is not an accused. Ravinder Singh is accused No.2. Even ignoring this fact, we find his testimony not to be worthy of credence. He states that after accused Vinod Kumar hit him with the iron rod he cried and went to the house of Jai Singh where several persons were present in the marriage celebrations of son of Jai Singh. Birkhu Devi, Ramkali, Kamla, Sukhdev (PW-6) and 4-5 other persons accompanied him to the spot along with other villagers. Now significantly none of these persons except PW-6 have been examined in Court. Examination of independent witnesses, in the instant case, was necessary for the reason that the conduct of this witness is quite unnatural and his version is shaky, unbelievable and full of embellishments. Why would he leave the spot for help particularly when he had two companions with himself. He does not state as to whether they intervened or not. He also does not state that accused had given beatings to his companions. According to the prosecution accused were two and complainant party were three in number. This witness further states that adjoining to the place of occurrence, there is house of Dola Ram. Also there is Dr. Singla’s Hospital where 8-9 persons work. He claims to have raised cries but police did not associate any one of the neighbours nor did 10 prosecution examined them in Court. He admits his version that accused was accompanied by two other persons not to have been correctly recorded by the police in his statement (Ext.PW- 1/A). He improves such statement by stating that such of these one or two persons were in fact his own people and due to darkness he mistook that, companions of the accused were in fact demolishing the construction of the wall raised by the panchayat. Now this totally shatters the prosecution case. Surprisingly he does not remember names of these persons who were present at the spot. 15. Version of PW-2 & PW-3 is also to the said effect but we find that there are various contradictions in the statements. PW- 1 & PW-2 mentions presence of one or two persons at the spot but PW-3 refers to 6-7 persons. Further according to PW-1, accused straightway started giving beatings whereas according to PW-2 & PW-3, certain talks took place between them and the accused which resulted into scuffle and thereafter they were given beatings by accused Vinod Kumar. Further according to PW-1, accused were accompanied by one Devinder Singh whereas PW-2 & PW-3 categorically state that they could not identify other persons accompanying the accused. This further shatters the prosecution case qua identity of the accused persons. Admittedly no test identification parade was carried out during investigation. Then on what basis was accused Ravinder Singh implicated in the present proceedings. 11 16. Further PW-6, duly supported by PW-1, states that when he reached at the spot he found PW-2 & PW-3 lying injured on the ground. He first carried the injured home and after some time to the Police Station where FIR was lodged and then only they were medically examined. PW-1 also states that 18-19 persons had accompanied them to the police station but he does not state that Pradhan was one of them. But Pradhan (PW-7) states that after he was informed about the incident he visited the spot and then took the injured to the police station with himself. Noticeably PW-6 does not record presence of the Pradhan which version also stands corroborated by PW-10 who states that Pradhan reached the police station much after the victims had lodged FIR. Now which version is true is not discernible from record. To us it appears that all have not come out with whole truth. Independent persons have not been examined by the prosecution. Significantly none of the injured state that accused Vinod Kumar had inflicted blows with the iron rod in the presence of each other. 17. With regard to the medical evidence, with approval, we reproduce the findings returned by learned Trial Court: “39. Coming to the medical evidence, according to the opinion of P.W- 4 Dr. Sunil Thakur there were 3 lacerated wounds on the person of Ramesh Chand and as discussed above P.W-2 Ramesh Chand has stated only about one injury with sariya inflicted by Vinod Kumar on his chest and back the Injury on the person of Ramesh Chand on the palm of right hand for which 12 there was no reference in the statement of P.W. 2 Ramesh Chand. According to this Medical Officer this injury was grievous and dangerous to life but no radiologist has been examined who may have given any opinion in regard to this injury. The only other witness examined is P.W.5 Hari Singh Radiographer only who has proved the X-Ray Ex.PW-5/A but this X- Ray does not contain the opinion of Radiologist or any other Medical Officer who may have opined that this injury was grievous in nature. The mere exhibiting of the original X Ray in itself is not sufficient to hold that this injury was grievous in nature until and unless the opinion had been given and proved from the testimony of the Radiologist who may have gone through the X Ray and given his opinion. Therefore, the statement of this Medical Officer or the case of the police that this injury was grievous or dangerous to life cannot be believed.” 18. Thus prosecution has not been able to prove that the accused, with common intention or knowledge had committed an act to cause death of injured Ramesh Chand or had committed mischief by causing damage to the construction raised by the school or that they had voluntarily caused hurt to victims Ramesh Chand, Uttam Chand and Karam Singh or criminally intimidated and threatened them to do away with their lives. 19. Prosecution has failed to bring home the guilt of the accused by leading clear, cogent and convincing evidence. 20. Accused have had the advantage of having been acquitted by the Court below. Keeping in view the principles laid down in 13 Mohammed Ankoos and others vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. ( Justice R. B. Misra ) Judge (Justice Sanjay Karol) Judge December 20, 2011 (rana)