IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Criminal Revision No. 69 of 2004 Date of Decision: 14th September,2010 __________________________________________________________ Prakash Chand & others ….Petitioners. Versus State of HP ….Respondent. ___________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 ___________________________________________________________ For the Petitioners: Mr. Sanjeev Kuthiala, Advocate For the Respondent: Mr. P.K. Sharma, Addl. Advocate General with Ms. Shubh Mahajan, Deputy Advocate General. __________________________________________________________ Dev Darshan Sud, J (oral). The petitioners are aggrieved by the judgment and sentence passed by the two Courts below, convicting them for offences under Section 326 read with Section 34 IPC. Lashkari Ram one of the petitioners was aged 85 years at the time of his conviction. 2. The brief facts of the prosecution case are that on 21.2.1997 around 1 P.M. accused persons/petitioners were loping the branches of one tree in the fields of Hardai PW2, mother-in-law of injured Vidya Sagar, PW1. Vidya Sagar and his wife PW3 Anita asked them to desist from these activites. but Parkash Chand pushed Vidya Sagar and inflicted 1 Whether Reporters of Local Papers may be allowed to see the judgment?. 2 injuries on him with an axe, which he was carrying. It is also alleged that Hardai was set upon by the accused and beaten up. On hearing their cries, PW4 Jagan Nath, PW7 Kanta and Gangi Devi reached the spot and rescued them. PW1 Vidya Sagar was thereafter taken to the hospital, where PW8 Dr. Virender Thakur medically examined him and found injuries on his body, i.e. incised wound 10 xmx 5 cm bone deep eliplical in shape on the lateral aspect of left ankle joint, edges and margins were incised and bleeding profusely. He also found left tales bone dislocated from the ankle joint. Injury No. 1 was opined by him to be grievous. The other injured Hardai was examined by Dr. Vanita Chandel, who opined that these injuries were because of periodentibs, as she was suffering from this disease. This fact is corroborated by PW11 Dr. Raman Bhagat. 3. The learned trial court, relying upon the evidence of PW1 Vidya Sagar, as corroborated by PW2 Hardai, PW4 Jagan Nath, PW6 Kanta Devi and PW8 Dr. Virender Thakur, held that grievous injuries had infact been inflicted by the accused. So far as these purported injuries to Hardai are concerned, the learned trial Court held that evidence on record does not establish it. The Court, therefore, sentenced all the accused under Section 326 read with Section 34 IPC. 4. While convicting them, Court holds that since Lashkari was aged 85 years and Nirmla Devi, Sheetla Devi were women, it sentenced them to imprisonment till rising of the Court and fine of Rs. 1,000/- each and in default of payment of fine to undergo simple imprisonment for 15 days each. Out of the fine amount so realized, Rs. 5000/-was to be paid, as compensation to Vidya Sagar. 5. An appeal preferred before the Fast Track Court, Mandi was dismissed. Before the learned Appellate Court, it was urged that Jagan Nath PW4 who is alleged to be an eye witness has not supported the case 3 of prosecution and therefore, no reliance could be placed on his testimony or of PW1 Vidya Sagar and PW3 Anita. It was submitted that he was named in the FIR and his testimony is vital to the case. 6. While considering this plea, the learned Appellate Court, holds that irrespective of the fact whether Jagan Nath PW4 had supported the case of prosecution or not, PW6 Ganga Devi and PW7 Kanta Devi independent eye witnesses of the occurrence, who also corroborated the statements of injured Vidya Sagar and his wife Anita Devi. The Court then holds that the occurrence is corroborated by the testimony of PW8 Dr. Virender Thakur, who has proved the injuries on the left ankle of PW1 Vidya Sagar, and the circumstances on the record, including the fact that the incident was supposed to have occurred around 1 PM, and the injured having been immediately rushed to the hospital where he was examined around 3 P.M. on the same day and it was also taken as a fact for strengthening the case of prosecution. The appeal was dismissed and the plea for leniency was also rejected by the learned Appellate Court. 7. Learned counsel appearing for the petitioners urges that the judgments of the Courts below are required to be set aside as the evidence of PW1 Vidya Sagar, PW2 Hardai, PW3 Anita Devi could not be relied upon as they were interested witnesses and wanted to wreak vengeance on the petitioner and rake up a civil dispute under the camouflage of seeking protection of the criminal law. He submits that the injuries purportedly suffered by PW1 Vidya Sagar were not caused by axe Ext.P1 which fact stands admitted by the Doctor. 8. I am unable to accept this submission. If the statement of PW8 Dr. Virender Thakur is to be read as a whole, it is proved by him that the injuries could be caused probably with Ext.P1. His opinion was conclusive that such injuries could not be caused by a fall. The learned 4 trial Court as also the Appellate Court had discussed this aspect of this case in detail and I do not find any illegality in appreciation of evidence. On the question as to whether evidence of the injured and his family members can be relied upon, the mere fact that there was enmity between two groups cannot be a ground for rejection of their testimonies. (See Kallu @ Masih and others vs. State of M.P. (2006) 10 SCC 313). The method of appreciation of evidence has been laid down by the Supreme Court in C. Magesh and others Vs. State of Karnataka (2010) 5 SCC 645. I find that the learned trial Court is not in breach of principles as laid down. 9. On the question of sentencing, I see no reason to interfere with the sentence imposed upon the petitioners Lashkri, Nirmla and Sheetla who were sentenced only till rising of the Court. Turning to the sentence imposed upon Parkash Chand, he was the person, who was armed with an axe and delivered the blow to Vidya Sagar. Lawlessness cannot be tolerated under any circumstance. This Court is considering this case after a considerable lapse of time but that by itself is not sufficient to show any leniency in the matter of punishment to the accused, who did not hesitate in inflicting the grievous injuries by means of an axe. In the facts and circumstances of the case, the interest of justice will be served in case the sentence of rigorous imprisonment awarded to Parkash Chand is reduced to six months. I have already held that sentences imposed upon other accused are light and cannot be interfered with. Bail bonds furnished by the petitioners are cancelled. A direction is issued to the trial Court to ensure that the sentence is executed forthwith. Petition stands disposed of. (Dev Darshan Sud) Judge September 14, 2010(ms) 5 September 14, 2010(ms)