IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 512 of 2002 Date of Decision 18th August, 2011 ________________________________________________________ State of H.P. ….Appellant Versus Prem Chand ….Respondent. ________________________________________________________ Coram The Hon’ble Mr. Justice R.B. Misra, J. The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 Yes ________________________________________________________ For the Appellant: Mr. Rajinder Dogra, Additional Advocate General. For the Respondent: Mr. J.R. Poswal, Advocate. __________________________________________________________________ (Dev Darshan Sud) J. The State challenges the judgment of the learned Judicial Magistrate Ist Class, Nurpur acquitting the respondent for offences under Sections 324 and 326 of the Indian Penal Code (hereinafter referred to as the IPC). 2. The prosecution case in brief is that on 4.10.1995 Rapat No. 14 was registered with the police whereupon ASI Ramesh Chand alongwith other police personnel went to the Civil Hospital, Nurpur where Mangat Ram complainant in his 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes 2 statement under Section 154 of Cr.P.C. Ext.PW10/A stated that he was butcher by profession residing in village Baduhi. On 4.10.1995 at around 12 Noon when he was sitting in the courtyard of the Shiv Mandir alongwith PW1 Babu Ram, accused Prem Chand came there armed with a Trishool. He asked them to get out from the temple and started abusing them in filthy language. The complainant asked him not to abuse them at which the accused became incensed and attacked him with Trishool inflicting injuries on his back, left leg and left arm and the wounds started bleeding. The complainant grappled with the accused, disarmed him and threw the Trishool on the ground. Babu Ram PW1 intervened and saved him from the clutches of the accused. He was examined by PW7 Dr. Sanjay Mahajan, who found the following injuries on his person: (i) 3 cm x 1 cm lacerated wound with underline muscles also ruptured, fresh bleeding was present; (ii) An incised wound 2x1 cm on interior aspect of left leg about 10 cm from knee joint. (iii) An incised wound elliptical in shape 3x1 cm on lateral aspect of left elbow joint; (iv) 3x1 cm elliptical with clean edges wound about 4 cm below left renal angle/on the back. Fresh bleeding from the wound was present. 3. In order to prove its case, the prosecution has examined ten witnesses in all. Complainant Mangat Ram appeared as PW3. He states in his evidence that he is butcher by profession. On 4.10.1995 at around 12 Noon he was sitting under the shade of a Khair tree alongwith Babu Ram. At that time, the accused came there on a bicycle. He was holding a Trishool in his 3 hand. He started shouting that they should get out from there and started hurling filthy abuses. He says that he asked him (accused) not to abuse them and requested him with folded hands to desist from this behavior. The accused then struck him on his leg, arms and head with the Trishool, whereby he sustained injuries which started bleeding. Babu Ram intervened and saved him from further brutal assault. He says that he had no enmity or differences with the accused at any prior point of time. He says that he went to Tilak Hospital, Pathankot for his treatment. In his cross examination, he says that near the tree there is a Kutia (hut) of one Baba, which is at the distance of 3-4 yards. The Dhuna of the Mandir is about 2 metres from the spot where he was sitting. The spot where he was assaulted with the Trishool is at about 2-2 ½ yards from the Dhuna. At the time when he was assaulted the Baba was present in his Kutia. The suggestion of the defence was that these people were drinking liquor at the time when they were told to leave the temple. He admitted that the accused had tea with the Baba in his Kutia. It was suggested to this witness that they were asked to leave the temple because he and PW1 Babu Ram were drinking there and both Babu Ram and he told him to join the party and when the accused protested he was told that if he had any problem he should join them in the party as drinking was a pleasurable experience. The suggestion was further that the complainant forcibly tried to make the accused drink from the plastic container of liquor and he was pushed by him. Another suggestion given to him was that he alongwith Babu Ram had chased the accused inside the temple, who, in order to save 4 himself ran inside, closed the doors and the complainant and Babu Ram PW1 dashed into the iron grill of the door. 4. PW1 Babu Ram who was present with the complainant on that day, states that on 4.10.1995 he and the complainant PW3 Mangat Ram were sitting under the Khair tree in the temple complex at around 11.30 AM. At that time, one Dalip Chand came there and stated that he was going to take a bath in bauri (water tank). In the temple, Prem Singh and one another person were sitting in one room. They were having tea. At around 12 Noon when Dalip Singh came after the bath, accused Prem Singh also reached there and started abusing PW3 Mangat Ram. He started leaving the place alongwith Mangat Ram and Dalip so that no unpleasant incident occurs. There was Trishool lying near the Dhuna. Prem Singh picked it up and assaulted PW3 Mangat Ram with it, causing injuries on his back, legs and head. He then ran towards the Shiv Ki Pindi and slipped on the stairs, fell down and injured his head. He identified the Trishool as Ext.P-1 with which the accused had assaulted PW3 Mangat Ram. He stated in his cross examination that at the time of incident, Dalip Singh, Tilak Raj PW2 and Ratani Devi were present. He denied the suggestion that they were not present at that time. He also admitted that Prem Chand accused had told the complainant that he was a habitual drunker and should not come to the temple. He admits that accused is Shiv Bhagat. 5. PW2 Tilak Raj corroborates both these witnesses and states that on the relevant day and time, at around 12 Noon he had gone to the temple to take bath in the bouri situated near the temple. Both the complainant and PW1 Babu Ram were 5 sitting under a Khair tree. Dalip was also taking the bath in the bouri. Prem Chand accused came there and started abusing both PW3 Mangat Ram and PW1 Babu Ram. Babu Ram and Dalip Chand intervened at which the accused picked up a Trishool lying near the Dhuna and assaulted Mangat Ram on his back and left leg. He received a number of injuries and started bleeding. He identified the accused in the Court. He denied the suggestion that both Babu Ram and Mangat Ram complainant tried to make the accused drink liquor forcibly and assaulted and injured the accused with a kara (iron bangle) which the complainant was wearing. The case of this witness was one of the clear denial in cross examination. 6. The learned trial Court on a consideration of the evidence on record found that offence has not been proved against the accused. To arrive at this conclusion, the learned trial Court holds that on the particular day what is established on record is that there is some altercation between complainant Mangat Ram PW3 and the accused and that both have sustained injuries. The complainant did not state in FIR Ext.PW10/A about any injury suffered by the accused. The Court noticed that it was the duty of the prosecution to satisfy the Court as to under what circumstances, the accused had sustained injuries. The non- explanation of these injuries will be fatal to the case of prosecution. 7. Secondly the Court holds that Ratni, Dalip Singh and Prem Dass were other witnesses who were present at the place of incident have not been produced coupled with the fact that admitted case of the prosecution is that Baba was also in his 6 Kutia who was withheld as a witness by the prosecution. In these circumstances, an adverse inference was drawn against the prosecution. One last fact which was considered by the learned trial Court was that though PW7 Dr. Sanjay Mahajan has opined that he has given the opinion regarding injury No. 4, after he had referred the injured to the Zonal Hospital, Dharamshala, but the accused did not go there, rather he choose to be treated at Tilak hospital in Pathankot. A conjoint effect of all these facts was that the prosecution case has become highly doubtful. 8. At this juncture, we have considered the evidence of PW9 Dr. Tilak Raj who states that he is the Professor of Tilak Hospital, Pathankot. He proved on record Ext.PW9/A which shows that injury on the abdomen caused by perforation was dangerous to life. He referred to injury No. 4 on the MLC Ext.PW7/A. 9. Adverting to the first circumstance, which has been taken by the learned trial Court that injury has not been explained, the law on this point is now well settled. It is not necessary for every injury to be explained by the prosecution but only those which are serious in nature. (See State of Gujarat vs. Bai Fatima and another, AIR 1975 SC 1478, Lakshmi Singh and others vs. State of Bihar, AIR 1976 SC 2263. The principle has been reiterated in Rizan and another vs. State of Chhattisgarh through the Chief Secretary, Govt. of Chhattisgarh, Raipur, Chhattisgarh (2003) 2 SCC 661 and Amar Malla and others vs. State of Tripura, (2002) 7 SCC 91). 10. Adverting to Ext.PW7/B what we find is that two simple injuries have been found on the accused which are purported to have been caused by a blunt weapon. We find that 7 PW2 Babu Ram states in his evidence that these were caused when he slipped on the stairs of the temple. It is not every injury which is required to be explained by the prosecution but only those which are serious in nature. On the aspect of withholding material witnesses, all that we need say is that it is open for the prosecution to examine those of the witnesses who are necessary for the purpose of unfolding its case. Only because the other witnesses have been dropped and the injured has been examined, is itself not a ground for drawing an adverse inference under Section 114 (g) of the Indian Evidence Act. (See Darya Singh vs. State of Punjab, AIT 1965 SC 328 and Karnesh Kumar Singh vs. State of U.P., AIR 1968, SC 1402). We also find that law is now well settled that version of the incident given by a person with respect to injury suffered by him in the occurrence is to be considered in its true perspective and cannot be doubted. (See Ramaswami Ayyangar and others vs. State of Tamil Nadu, AIR 1976 SC 2027). We also note that even the evidence of the injured has been corroborated on all material aspects of the case by PW1 Babu Ram and PW2 Tilak Raj who were present at the spot and intervened in the fight/assault and described the incident in a vivid detail. We also find that the learned trial Court has gone awry on the findings rendered by it by ignoring the evidence of the witnesses of the prosecution. It is the quality and not the quantity of the evidence which is relevant. On the other aspect that it was mandatory for the injured to have obtained the opinion from the Zonal Hospital at Dharamshala and should not have gone to Pathankot for treatment by a private doctor, all that we need say is that it was for the Court to decide the nature 8 and quality of the medical treatment to be received by the injured. The evidence of PW9 Dr. Tilak Raj could have been rejected in case as it was established on record that it was not reliable and had been procured. We find no such fact having been established on record. 11. On the last contention, that this Court should not interfere in the judgment of acquittal and when there are two views possible, the view favourable to the accused should and ought to be adopted, what we find is that this is one case where the favourable view in favour of the accused is not possible as the complainant has been brutally assaulted by the accused. In these facts and circumstances of the case, if viewed from any angle we hold that the learned trial Court was in grave error in acquitting the accused for offences as charged. We therefore reverse the judgment of the learned trial Court and hold the accused guilty of the offence under Section 324 IPC. 12. On the quantum of sentencing all that we need say is that inexorable delays in Criminal Justice System sometimes weighs with the conscience of the Courts as to whether the sentence of incarceration is called for. True that the incident had occurred in the year 1999 and we are called upon to judge the incident in the year 2011 after a period of more than thirteen years, but in the facts and circumstances of the case we deem it proper to impose a fine of ` 60,000/- on the respondent which amount shall be paid by him on or before 31st March, 2012 failing which the accused shall be taken into custody and shall undergo sentence of rigorous imprisonment for one year and fine of ` 5000/-, in default thereof, further rigorous imprisonment for 15 9 days. The amount of fine as imposed by us shall be deposited before the learned trial Court and on such deposit being made, it would be paid to the complainant. Appeal stands disposed of. (R.B. Misra) Judge August 18, 2011 (Dev Darshan Sud), ms Judge