IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 187 of 2005 Date of Decision : December 22, 2011 State of H.P. Appellant Versus Sh. Loka Nand, son of Sh. Badri Dutt, Resident of Village Karyali, Tehsil Suni, Distt. Shimla, H.P. Accused/Respondent Appeal under Section 378 of the Code of Criminal Procedure against the impugned judgment of acquittal dated 5.11.2004, passed by the Ld. Addl. Sessions Judge, Fast Track Court, Shimla, H.P. in S. Trial No. 24-S/7 of 2004/2003, under Sections 451 and 307 IPC. Coram: The Hon’ble Mr. Justice R. B. Misra, Judge The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes. For the appellant : Mr. Rajinder Dogra, Addl. Advocate General for the appellant/State. For the respondent : Mr. Neeraj Sharma, Advocate, vice Mr. Vinay Thakur, Advocate, for the respondent-accused. Justice Sanjay Karol, J. (Oral) For an offence, which is alleged to have been committed on 1.10.2001, accused was put to trial. In terms of judgment dated Whether reports of Local Papers may be allowed to see the judgment? 2 5.11.2004, passed by the learned Addl. Sessions Judge, Fast Track Court, Shimla, H.P. in Sessions Trial No. 24-S/7 of 2004/2003, titled as State of Himachal Pradesh versus Sh. Loka Nand, accused stands acquitted of the charged offences. 2. It is the case of the prosecution that on 1.10.2001, at about 3.00 p.m. when complainant Sh. Puran Chand (PW-3) was walking through the compound of accused Loka Nand, some altercation took place between them. Accused gave blows with the handle of an axe on the arm and leg of the complainant. PW-3 narrated the incident to Sh. Nikka Ram (PW-4) and Sh. Hukami Ram (PW-2). Statement (Ext. PE) dated 2.10.2001, under Section 154 Cr. P.C. was got recorded by the complainant (PW-3) on the basis of which F.I.R. No. 230 of 2001 (Ext. PF), dated 2.10.2001, under Sections 307 and 451 IPC was registered at Police Station Dhalli, Distt. Shimla by SI- Jagdish Chand (PW-6). Complainant was given immediate medical aid and then taken to the hospital at Sunni, where he was referred to I.G.M.C. Shimla, where he was examined by Dr. Yashpal (PW-1) who issued MLC (Ext. PB). Complainant was further referred for treatment to P.G.I., Chandigarh for obtaining report of the Radiological and Neuro Surgical Departments. Report (Ext. PA) revealed that complainant suffered head injury which would have resulted into permanent disability. ASI-Anil Kumar (PW-9) investigated the matter, prepared site plan (Ext. PK), recovered weapon of offence, i.e. danda (Ext. P2) and blood stained shirt (Ext. P4) and vest (Ext. P5) belonging to the complainant. With the 3 completion of investigation challan was presented in the Court for trial. 3. Accused was charged for having committed offences punishable under Sections 451 and 307 of the Indian Penal Code to which he did not plead guilty and claimed trial. 4. In order to prove its case prosecution examined nine witnesses and the statement of the accused under Section 313 Cr. P.C. was also recorded. 5. The Court below acquitted the accused. Hence the present appeal. 6. From the testimony of Dr. Yashpal (PW-1) and medical record i.e. MLC (Ext. PB) and report (Ext. PA) it is clear that the complainant (PW-3) received the following injuries:- “List of Injuries: i) Lacerated wound on the right side of head frontal bone 2 X 0.5 cm in size. ii) Abrasion on the right led 1 X 3 cm in size reddish in colour. iii) Contusion on the right leg 3 X 4 cm in size reddish in colour.” However, this fact by itself would not establish guilt of the accused particularly when the Doctor clarified in his cross examination that injuries mentioned in MLC (Ext. PB) do not appear to have been caused with weapon Ext. P-2. 7. There is no eye witness to the incident. In order to prove the guilt of the accused, prosecution has relied upon testimonies of the non official witnesses, i.e. the complainant Sh. Puran Chand (PW-3), 4 Sh. Hukami Ram (PW-2), Sh. Nikka Ram (PW-4) and Smt. Leela Sharma (PW-5). Having carefully scrutinized the testimonies of these witnesses and more particularly that of the complainant we find that prosecution has not been able to prove the guilt of the accused beyond reasonable doubt. Complainant appears to be a quarrelsome person who is undergoing treatment for mental illness. There are glaring contradictions and unexplainable missing gaps. Their testimonies particularly that of PW-3 do not inspire confidence. They do not appear to have deposed truthfully. Statements lack coherence. 8. No doubt PW-3 in his examination-in-chief has deposed that accused hit him with the handle of the axe on the arm and the leg for the reason that he had inquired as to why accused had tied his bullocks on the passage of the compound, but then he shatters the prosecution case by deposing that Ext. P-2 is not the one with which he was given blows by the accused. Ext. P-2 is not the axe. But then where is it? The alleged weapon of offence was not even shown to this witness in the Court. Further in cross examination he states that “It is correct that Gram Panchayat Karyali had made complaints against me at police post Suni that I unnecessarily indulge in violence and on such complaints I had also been called to the police post. The police had asked me not to repeat such behaviour”. 9. It appears that he is otherwise a person who indulges in quarrels in the village. He admits that not only he indulges into quarrels with other persons but also suspects others and it is for this 5 reason that he had been taken to a Doctor at Dharampur, where, as has come on record, he was undertaking treatment for mental illness. He further admits that the accused did not have any talk/exchange of words with him. This is in contradiction to his earlier statement wherein he states that “we had quarreled with each other”. He further admits that the accused had not snatched danda from him. Significantly he admits that he himself had taken the danda from the spot. Now if this were so, then why is it that he did not produce the same before the police? Also he admits to have fallen on the ground at a place where there were stones. Possibility of sustaining injuries on account of the same cannot be ruled out. 10. This witness does not state as to who appeared at the spot immediately after the occurrence of the incident or who administered first aid and took him to the hospital at Sunni. Now Sh. Nikka Ram (PW-4) only states that at about 6.00 – 7.00 p.m. complainant came to his house crying that he sustained injury on his head. Quarrel had taken place between him and the accused in which process he was hit by the accused with a danda. So he is not an eye witness. What really transpired at the spot is thus not clear. Further this witness informed Sh. Hukami Ram (PW-2) who visited the spot later. Significantly this witness admits that “the mental condition of Puran Chand was not normal and for this reason he was in the habit of unnecessarily taking quarrels with others and also use to become violent”. This witness does not refer to the injuries 6 caused with the wooden portion of the axe. To the same effect is the testimony of neighbour Smt. Leela Sharma (PW-5). 11. Sh. Hukami Ram (PW-2) is not an eye witness. He simply took PW-3 to the hospital for medical treatment. Even this witness admits that for several years mental condition of the complainant is not stable and as such he is being given treatment by the Doctor at Dharampur. 12. As such it cannot be said that prosecution has been able to bring home the guilt of the accused. 13. There is no evidence with regard to the charge under Section 451 IPC. None of the witnesses have deposed that accused committed house trespass with an intention of committing an offence punishable with imprisonment. It also cannot be said that accused, with intention or knowledge had committed an act which would have caused death. The Apex Court in Sagayam versus State of Karnataka, (2000) 4 SCC 454 has held that:- “To justify conviction under Section 307 IPC, it is not essential that bodily injury capable of causing death should have been inflicted. An attempt in order to be criminal need not be the penultimate act foreboding death. It is sufficient in law if there is present an intent coupled with some overt act in execution thereof, such act being proximate to the crime intended and if the attempt has gone so far that it would have been complete but for the extraneous intervention which frustrated its consummation. There are different stages in a crime. First, the intention to commit it; second, the 7 preparation to commit it; third, an attempt to commit it. If at the third stage, the attempt fails, the crime is not complete but the law punishes for attempting the same. An attempt to commit crime must be distinguished from an intent to commit it or preparation of its commission.” None of the ingredients so as to constitute an offence under Section 307 IPC have been proved/established by the prosecution. 14. The accused has had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down in Mohammed Ankoos and others versus 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 22, 2011 (PK)