IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No. : 185 of 2001. Reserved on: 22.02.2011. Decided on: 26.04.2011. _________________________________________________________ State of Himachal Pradesh. …Appellant. -Versus- Roshan Singh and others. …Respondents. Coram: The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. __________________________________________________________ For the appellant : Mr. R.K. Sharma, Senior Additional Advocate General with Mr. Rajinder Dogra, Additional Advocate General. For the respondents : Mr. Vinay Thakur, Advocate. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: State has filed this appeal against the judgment dated 02.12.2000, passed by the learned Sessions Judge, Hamirpur in Sessions Case No. 20 of 1998. 2. Case of the prosecution, in a nut-shell, is that F.I.R. No. 11 of 1998 was registered at Police Station, Hamirpur under Punjab Excise Act. The investigation was carried out by PW-8 Shri Mehar Chand, ASI Police Station Hamirpur. He came to know that a person named Badda, who was an accused in F.I.R. No. 10 of 1997, under Section 324 of the Indian Penal Code, was hiding in the house of accused Roshan Singh. Mehar Chand (PW-8) accompanied by Constables Manoj Kumar, Balbinder Singh and Nand Lal, resident of Village Badu and Sanjeev Patial, 1 Whether the reporters of the local papers may be allowed to see the judgment? No. - 2 - resident of village Mohin, District Hamirpur, proceeded to the house of Roshan Singh. On reaching at the house of Roshan Singh, Shri Mehar Chand called him out of his house. On hearing the call of Shri Mehar Chand, Roshan Singh came out of his house. Constable Manoj Kumar asked Roshan Singh that whether a person by the name of Badda was hiding in the house alongwith his accomplices. At that time, three persons, all of a sudden, came out of the house of Roshan Singh. One of them was wielding a darat. The other two were carrying lathis in their hands. Roshan Singh also picked up a lathi, which was lying nearby that place. Thereafter, all the three persons, who were wielding lathis, started beating Manoj Kumar. But, Constable Manoj Kumar repelled the attack of lathis with his arm. In the meantime, accused Vijay Kumar tried to hit Constable Manoj Kumar with drat with an intention to kill him. The said attempt was foiled of by Manoj Kumar by turning his head on the other side. In that process, the drat hit on the back side of his head. Two of the accused ran away under the cover of darkness. The other two, Vijay Kumar and Roshan Singh were apprehended on the spot by Constable Balwinder, Nand Lal and Sanjeev Patial. Later on, the names of the persons, who had run away from that place, were revealed to be Surinder Rana alias Ballu and Sandeep Kumar alias Badda. The statement of Manoj Kumar (PW-2) was recorded under Section 154 of the Criminal Procedure Code, on the basis of which, F.I.R. No. 12 of 1997 Ex. PW-7/A under Sections 333, 307 and 353 read with Section 34 of the Indian Penal Code was recorded. The matter was investigated by the Police. - 3 - 3. PW-2 Manoj Kumar was medically examined by PW- 1 Dr. R.K. Ahluwalia. Accused Roshan Singh was also examined by PW-1. 4. The prosecution has examined 13 witnesses to prove its case. The accused were also examined under Section 313 of the Criminal Procedure Code. According to them, they had been implicated falsely in the case and according to them, Manoj Kumar and Mehar Chand were not discharging their official duties. Learned trial Court acquitted the respondents No. 1, 3 and 4, however, respondent No. 2 Vijay Kumar was convicted under Section 325 of the Indian Penal Code and was sentenced to undergo imprisonment till the rising of the Court and to pay fine of `1500/-. In default of payment of fine, he was ordered to undergo imprisonment for a period of one month. 5. Mr. R.K. Sharma, learned Senior Additional Advocate General has strenuously argued that the prosecution has proved its case against the respondents. According to him, learned trial Court has not correctly appreciated the evidence, which has led to the acquittal of respondents No. 1, 3 and 4 and only respondent No. 2 Vijay Kumar was convicted under Section 325 of the Indian Penal Code. 6. Mr. Vinay Thakur, learned counsel for the respondents has supported the judgment of the learned trial Court. 7. We have heard the learned counsel for the parties and gone through the pleadings carefully. - 4 - 8. Prosecution has examined PW-1 Dr. R.K. Ahluwalia. He has conducted the medical examination of Manoj Kumar and observed following injuries on his persons: “1. There was 6 cm. x 1.5 cm. would on the left occipital region. It was horizontal with clean cut vell defined everted edges. It was bone deep. There was flap formation of the lower edge. It was bleeding the left angle of the wound was curved downwards. He was advised to get the scalp x rayed. 2. There was red contusion 2 cm. x 1 cm. over the spine of left specula. It was placed 6 cm below and medial left shoulder joint. There was no fracture of underlying bone.” 9. According to the report of Radiologist, the bone below the wound on the skull was fractured and he designated the injuries as grievous caused by sharp weapon. According to him, injury No. 2 appears to have been caused with blunt weapon. The injuries had been opined by him to have been caused within 12 hours preceding to the medical examination on 10.1.1997 at 11:15 p.m. He has also examined accused Roshan Singh and issued medical certificate Ex.–DA. 10. PW-6 Dr. J.R. Azad has given his opinion on X-ray Ex. PW-6/A on the basis of skiagrams Ex. PW-6/C. The X-rays were taken by PW-12 Suresh Kumar, Radiographer. He has proved X-ray film Ex. PW-6/C. 11. According to the case of prosecution PW-2 Manoj Kumar was assaulted while he was discharging his official duties. PW-2 was posted in District Hamirpur. He was put on temporary duty only for a period of three months. PW-8 Mehar Chand was not investigating the F.I.R. No. 11 of 1998. - 5 - Prosecution has not placed on record the copy of F.I.R. No. 10 of 1997. It is not borne out from the record whether the name of accused Bdda finds mention in F.I.R. No. 10 of 1997. 12. PW-11 Nand Lal and PW-13 Som Nath have not supported the version of prosecution. These witnesses were declared hostile. Rather, PW-11 Nand Lal has deposed that Sub Inspector Gulab Singh, S.I. Bihari Lal, ASI Mehar Chand and Krishan Kumar Head Constable visited his house. They stayed for about 1 ½ hours. They took liquor at his house. According to him, the policemen had gone to the house of accused Roshan Singh in the state of intoxication. Prosecution has given up PW Sanjiv Patial, being won over. Prosecution has miserably failed to prove that Manoj Kumar was discharging official duties at the time when he visited Hathli Khad with PW-8. 13. PW-2 has deposed that when they reached the house of Roshan Singh, he was attacked by the accused. It was 8:00 p.m. when he was attacked on 10th January, 1997. It was difficult to recognize the assailants during dark. According to him, he has repelled the attack by using his arms and hands. However, no injuries were noticed by PW-1 Dr. R.K. Ahluwalia on his arms and hands. It has come in evidence that the police officials were drunk when they reached the house of Roshan Singh. According to the defence version, the police officials misbehaved with a woman in the house, which led to the brawl. Respondent No. 1 Roshan Singh and respondent No. 2 Vijay Kumar have not denied their presence on the spot. The presence of remaining two accused was suspect. The police officials have no business to visit the house of Roshan Singh under - 6 - intoxication. Rather, PW-8 was only assigned investigation of F.I.R. No. 11 of 1998 and not F.I.R. No. 10 of 1997. According to PW-2, initially one of them was wielding a drat. The blood stains on drat could not be examined as per the report of the chemical examiner. PW-1 Dr. R.K. Ahluwalia has based his opinion on the basis of the report proved on record by PW-6 Dr. J.R. Azad. He has not given his independent opinion with regard to the nature of injuries. PW-6 Dr. J.R. Azad though has opined that there was fracture of skull in the occipital region. PW-5 Shri Sohan Chand has turned hostile. He has denied in his cross- examination that Vijay Kumar got the drat recovered and Roshan Singh stick Ex. P-1 and Ex. P-2, respectively. He has denied that accused Roshan Singh and Vijay Kumar had given disclosure statements in his presence. According to him, the recovery memos which were signed by him, had not been read- over and explained to him nor he himself red it, though he was a graduate. He was not disclosed why Ex. PW-5/A and Ex. PW- 5/B were prepared at the time of obtaining his signatures. Thus, the recovery of drat and dandas have also become suspect. PW- 7 Ramesh Chand has only registered the F.I.R. Ex. PW-7/A. PW-8 Mehar Chand has not disclosed, who has told him about the hiding of accused Badda in the house of accused Roshan Singh. According to him, he was accompanied by Nand Lal and Sanjeev Patial. Nand Lal has been declared hostile and Sanjeev Patial has not been examined by the prosecution. According to Nand Lal, the police officers/officials were drunk when they visited the house of Roshan Singh. PWs. Nand Lal and Sanjeev Patial were the only independent witnesses to the entire - 7 - incident. PW-11 Nand Lal though declared hostile, has testified that he did not accompany policemen to the house of accused Roshan Singh on 10th January, 1997, whereas according to PW- 8 Mehar Chand, Nand Lal has accompanied him to the house of Roshan Singh. Nand Lal has also denied that accused Roshan Singh alongwith rest of the accused has assaulted Manoj Kumar with lathis and drat etc.. He has also denied that accused Vijay Kumar had tried to give blow of drat on the neck of Manoj Kumar. He also denied the suggestion that an attempt was made to kill him with the blow of drat. PW-13 was also declared hostile. He has also denied that he accompanied policeman Manoj Kumar to the house of accused. He has also denied the suggestion that the accused had given beatings to Manoj Kumar and other policemen with lathis and drat. 14. From the evidence led by the prosecution, it has failed to prove that the accused Vijay Kumar had any intention to kill Manoj Kumar. There are contradictions in the statement made by PW-8. The version of the prosecution has not been supported by independent witnesses. Both the independent witnesses have been declared hostile and PW Sanjiv Patial was not examined by the prosecution. The recovery of weapon of offence, i.e. drat and lathis is also suspect. Manoj Kumar was not discharging his official duties, when he visited the house of Roshan Singh. Manoj Kumar was never entrusted the investigation of F.I.R. No. 10 of 1997. He was posted in 3rd Battalion of Himachal Police at Pandoh and was only temporarily deputed at Hamirpur vide Ex. PW-4/A. Accused have taken a specific defence that the policemen were drunk and - 8 - have mis-behaved with the woman present in the house. In these circumstances, the defence taken by the accused is probabilized, resulting in a brawl taking place on the spot. The accused were supposed to defend the honour of a woman, with whom the policemen under the influence of liquor have mis- behaved. The learned trial Court has sentenced accused Vijay Kumar under Section 325 of the Indian Penal Code on the basis of injury received by Manoj Kumar. The findings given by the learned trial Court were correct that only offence under Section 325 of the Indian Penal Code was committed by the accused Vijay Kumar and he was sentenced and convicted accordingly. So far as the other accused are concerned, they have been rightly acquitted by the learned trial Court due to lack of evidence. Accused Roshan Singh has also received injuries as per Ex.-DA proved by PW-1 Dr. R.K. Ahluwalia. However, these injuries have not been explained by the prosecution. PW-1 Dr. R.K. Ahluwalia has not given opinion that the injuries received by PW-2 were sufficient in course of nature to cause death. In the instant case, the prosecution has failed to prove the ingredients of Section 307 of the Indian Penal Code. 15. There is no reason for us to interfere with the well reasoned judgment of learned trial Court. Accordingly, there is no merit in this appeal and the same is dismissed. (R.B. Misra), Judge (Rajiv Sharma) Judge April 26, 2011. (bhupender) - 9 - - 10 -