IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No. 38 of 1997 Decided on: May 21, 2010. State of H.P. …Appellant VERSUS Kewal Singh ….Respondent Coram The Hon’ble Mr.Justice R.B.Misra, Judge The Hon’ble Mr. Justice V.K.Sharma, Judge Whether approved for reporting?1 For the Appellant: Mr. Anil Jaswal, Dy. A.G., Mr. Rajesh Madhotra, Dy.A.G. and Mr. Vivek Thakur, Addl. A.G. For the respondent: Ms. Ambika Kotwal, vice counsel R.B. Misra, Judge (Oral): The present appeal has arisen after leave to appeal in reference to order, dated 22.3.1996, passed by the Additional Chief Judicial Magistrate, Amb, District Una, H.P. in Case No. 23- I-1991, acquitting the accused for the alleged offence under Section 324/326 of the Indian Penal Code. 2. In order to adjudicate the present appeal, it is necessary to give factual background of the case. On 16.11.1990 at about 1.30 p.m. at Gagret, accused gave two hits of Kassi from its sharp edged side on the head of one Bachitter Singh and thereby caused grievous and simple hurt on his person, who was Whether the reporters of the local papers maybe allowed to see the judgment? …2… thereafter removed to hospital by his two brothers and some other people, who were on the spot. Thereafter, he was got medically examined. The injured was referred to Una hospital and then to PGI, Chandigarh. After investigation, challan was prepared and submitted in the court for the offence under Section 324 & 326 I.P.C. 3. The prosecution, in order to prove its case, has examined as many as ten prosecution witnesses, whereas, accused has denied the prosecution case and has shown his innocence. 4. From the testimony of prosecution witnesses and material on record and medical report, we notice that Bachittar Singh (PW-4) was injured, who had sustained injuries, as has been found by Dr. Y.P. Sharma (PW-2), as below:- “Incised wound 3.5”x1 cmx bone deep. Extending from the top of vertise to the right underlying bone has also been visibly cut. There was clotted blood in the bone gap and there was bleeding on touch. Horse-shoe shaped cut 21/2x1 cmx bone deep at the injunction of frontal and parietal bones just in the midline. Fresh bleeding present, margin of wound are sharp and finally cut. Indication of incised wound.” 5. As per opinion of PW-2 Dr. Y.P. Sharma, the injury could be caused by fall. Bachhitar Singh (PW-4) was injured on 16.1.1990 at about 1.30 p.m., whereas it has also come to the light that on the morning of 16.11.1990, Bachhitar Singh (PW-4), the injured, and two of his other brothers, who are witnesses in the instant case, as well as one another witness, had quarrelled with accused Kewal Singh, for which the trial was going on. According to PW-4, Bachhitar Singh, he was going towards police station alongwith his younger brothers, Shashi Pal and Jamiat Lal …3… when he reached at Gagret, near the shop of Rattan chand, accused Kewal was collecting sand with a Kassi (spade), who gave two hits of Kassi on his head. Jagdev and Swaran Singh were standing on the shop. Bachhitar Singh (PW-4), after receiving injuries, fell unconscious and thereafter was removed to hospital. PW-4 Bachhitar Singh subsequently stated that against him and his brothers, a case under Section 324 I.P.C. has been registered at the instance of the brother of the accused regarding beating on the same day. PW-4 also stated that against his brothers, a trial of murder was going on in the court of Sessions Judge Una, where they were acquitted. Though in his testimony, PW-4 has, however, denied that on the day of occurrence, i.e. in the morning of 16.11.1990, Shashi Pal and Swaran Singh had beaten the brother of Kashmir Singh, but from the testimony of PW-4, nothing is emanating that when he was going to police station alongwith his brothers, Shashi Pal and Jamiat, all of them were empty handed or after sustaining injuries, by PW-4, what was the conduct of his two brothers, nothing is emanating that after sustaining injury, when he became unconscious, how he observed the presence of so many persons assembled on the spot. 5. PW-3 Jamiat, one of the brothers of PW-4 Bachhitar Singh, has deposed that on 15.11.1990 at about 8.00 p.m., Harnam Singh and his wife, Srla Devi, Guardas Ram and his four sons had given beating to Harnam Singh and his wife. When he intervened, accused Kashmir Singh grappled with him and threatened him that they will see him in the morning. On the …4… next day, when he was coming at about 8.00 a.m. to his relations, Kashmir Singh and Kewal restrained him near the fields of Kartar Singh and ran after him. He went to his brother Jandbar and narrated the whole incident. He alongwith his brothers came to police at Gagret. Near the shop of Kewal and Rattan Chand, accused was collecting sand. It was about 1.30 p.m. when all the three brothers were passing through the shop, accused Kewal gave two hits of Kassi on the head of his brother, due to which blood started oozing. Jagdev was at a distance of 2-3 yards from there, who also reached on the spot. Bachhitar Singh was taken to government hospital. PW-3 further stated that at the time of incident, Shashi Pal and Bachhiter Singh were present. From the testimony of PW-5, (the third brother of injured Bachhitar Singh (PW-4)), it appears that on the date of occurrence at about 10.00 a.m. Suram Singh and Baldev reached on the spot and rescued the injured PW-4, and they took him to hospital at Gagret. PW-5 has also stated that five persons were present on the shop of Rattnu at that time. From the testimony of PW-4, Bachhitar Singh, it appears that quarrel had taken place on the same day i.e. 16.11.1990 at about 8-9 a.m., whereas PW-5, brother of PW- 4, has deposed that at about 10.00 a.m. his younger brother had told that Kashmir Singh and Kewal had quarrelled with him. PW- 4 has stated that on 16.11.1990, when he was going with his younger brothers, Shashi Pal and Jamiat and at the time of incident, both were present, whereas Jamiat (PW-3) has stated that Jagdev was also at a distance of 2-3 yards from there when PW-4 was injured and he was taken to the hospital. It is not …5… known as to who took PW-4 to the hospital in an injured condition because as per testimony of PW-4, Shashi Pal and Jamiat were present, whereas, Jamiat, in his testimony, has indicated that Jagdev was also present, whereas, from the testimony of Shashi Pal (PW-5), Suram Singh and Baldev reached on the spot and they rescued the injured person and took PW-4 to the hospital. A contradictory version has come from the testimony of PW-4 about his taking of to the hospital. It is very surprising, when after receiving injury, PW-4 has become unconscious, then how he could come to know that who have taken him to the hospital as he has only stated in his testimony that his brothers, Shashi Pal and Jamiat were accompanying him and he was un-aware about the presence of Jagdev as well as Suram Singh. The brother of injured, Shashi Pal (PW-5), said to be accompanying PW-4, has categorically stated that Suram Singh and Baldev reached on the spot and had taken PW-4 to the hospital in the injured condition. PW-5, Shashi Pal has also stated that five persons were present on the shop of Ratnu at that time, however, he has not stated as to what was done by them. Nothing has come out from the testimony of PWs 3, 4 and 5 about the conduct of the brothers accompanying PW-4. PW-4 as well as his brothers PWs 4 and 5 have not stated that after PW-4 was injured, what was their conduct, how they reacted and what endeavour was made by them to rescue the injured person. As per testimony of PW-3, it appears that children of Ratnu and some other persons were present at the shop and road was busy, then in what way no independent witness came in support of the …6… prosecution case. One of the important improbability is being noticed that when brothers are going together and one is hit by an accused abruptly, will they be an inert spectator or will they show some reaction or what role would be played by the accompanying brothers. 6. PW-10, Investigating Officer, has deposed that the statement of Jamiat Singh Ex. PW-3/A was recorded by him which bears his endorsement Ex. PW-10/A which was sent for registration of FIR. As per testimony of PW-10, one of the shop- keepers was ready to participate in the investigation. None of the shop-keepers was ready to say that he has seen the occurrence. However, nothing is revealed from the testimony of PW-10 that he made any endeavour or attempt to contact individually out of the persons, present on the shop of Rattanu or present on the spot and has anybody denied specifically that he has not seen the occurrence. Undisputedly, occurrence has taken place in a market where shop-keeper Rattnu was present alongwith his son and 4-5 other persons and surprisingly none were examined by the prosecution. We notice that both sides, including the accused and Bachhitar Singh, were on inimical terms and such aspect could be used both ways in favour of the prosecution as well as in favour of the defence also. We are conscious that injury has been noticed on the head and body of PW-4, but being an injured prosecution witness, PW-4 has not deposed in a natural way. There is apparent contradiction from the testimony of the persons accompanying PW-4 and the manner of occurrence and also the conduct of the brothers of PW-4 after he was injured. The …7… apparent contradictions and improbabilities are creating doubt in the prosecution case. On the basis of the prosecution witnesses, material on record and after noticing the contradictions, learned trial court has rightly arrived at the finding that the prosecution has failed to prove its case beyond reasonable doubt. In our considered view we do not find any scope of interference. The appeal being devoid of any merit, is accordingly dismissed. ( R.B.Misra ) Judge May 21, 2010(K) ( V.K.Sharma ), Judge