HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No.: 553 of 2003 Decided on: 7.10.2010 State of H.P. ……… Appellant. Versus Ramesh Chand and another ………Respondents. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? Yes. For the appellant: Mr.J.S.Guleria, Assistant Advocate General. For the respondents: Mr.Ajay Sharma, Advocate. V.K. Ahuja, J.(Oral): This is an appeal filed by the State of H.P. under Section 378 Cr.P.C. against the judgment passed by the learned Additional Chief Judicial Magistrate, Barsar, District Hamirpur, H.P., dated 26.6.2003, vide which, the respondents were acquitted of the charge framed against them under Sections 341, 323, 324, 325 and 506 read with Section 34 of the Indian Penal Code. 2. Briefly stated, the facts of the case are that on 19.8.1998, at about 4.40 p.m., a report was lodged with the police by one Bishan Dass that today at about 2.30 p.m., when he was coming back from Patwar Circle, Dhangota to his house, Ramesh Chand and Biri Singh, respondents, met him on the way and gave him filthy abuses as to why he had involved them in litigation. On this, he stated that the matter was to be decided by the Court. Thereafter, respondent Biri ___________________________________________ Whether reporters of local newspapers may be allowed to see the judgment? Yes. - 2 - Singh caught hold of him and Ramesh Chand gave an axe blow over his head and the complainant fell down. Biri Singh picked up a danda lying nearby and gave blows on his right arm, back and right leg. He was rescued by Amar Singh, Narayan Dass and Simro Devi, who came to the spot. Those persons brought the complainant in a jeep to the police station and then a report was lodged and the complainant was medically examined. After investigation, the challan was filed against the respondents for the offences, as detailed above, who were tried by the learned trial Court, leading to their acquittal. 3. I have heard the learned counsel for the parties and have gone through the record of the case. 4. On appraisal of the record of the case, it is clear that the prosecution had examined 7 witnesses to substantiate their case. The complainant Bishan Dass has stepped into the witness box as PW-1 and reiterated the allegations made in the complaint that he was given an axe blow by Ramesh Chand and was also given danda blows by other respondent Biri Singh. He raised an alarm and Amar Singh, Simro Devi and Narayan Dass came to the spot and rescued him. He was taken to the Police Station in a jeep and report Ext.PW-1/B was lodged by him. 5. This statement of the complainant had been duly corroborated on all material particulars by PW-2 Amar Singh, PW-3 Simro Devi and PW-5 Bhagat Singh. The learned trial Court did not refer to any contradictions in their testimony or any infirmity in their statements or any reason to disbelieve their version except by observing that they are interested witnesses. The statement of PW-2 Amar Singh was - 3 - not relied upon by the learned trial Court since he has not denied the suggestion that he has an old dispute with the accused persons. He also denied his knowledge as in how many cases he has appeared as witness against the accused persons and for the complainant. He admitted that his statement was recorded by the police on the same day itself. 6. The statement of PW-3 Simro Devi was not relied upon since she happens to be the Bhabhi of PW-2 Amar Singh. The mere fact that PW-3 Simro Devi happens to be the brother’s wife of PW-2 Amar Singh is no ground to hold that she would depose falsely since she has no interest to depose falsely in favour of the complainant. The statement of PW-5 Bhagat Singh was not relied upon by holding that his name was not mentioned in the FIR and he has also materially corroborated the statement of the complainant and other witnesses in regard to the injuries inflicted upon the complainant. The learned trial Court had referred to one contradiction in his statement since he had stated that he had sold bed sheets etc. to PW-2 Amar Singh and PW-3 Simro Devi on that day and they had stated that they had not purchased the bed sheets on that day, but they were working in their fields. The learned trial Court had not considered the question that the occurrence had taken place on 19.8.1998 and these witnesses were examined on 10.2.2003 after about 5 years and these minor contradictions are likely to be there by passage of time and it was not sufficient reason to ignore the testimony of this witness. There is nothing on the record to show as to what interest PW-5 Bhagat Ram had got, since he was a person who sells bed sheets by moving in the area and - 4 - there is nothing that he had any special reason to favour the complainant or depose falsely against the respondents. 7. The learned trial Court had also not considered the question that the report was lodged within 1- 1/2 hours of the occurrence, though the Police Station is at a distance of about 19 kms. from the place of occurrence. There was no opportunity for the complaint to falsely introduce the names of the witnesses since he lodged the report with promptitude. 8. Apart from the above, no reference was made to the testimony of the Medical Officer, which clearly corroborated the injuries, allegedly, inflicted upon the person of the complainant by respondent Ramesh Chand with an axe on his head and three injuries were inflicted with danda by Biri Singh on various parts of his body i.e. right arm, leg and on his back. All these injuries find corroboration from the testimony of PW-6 Dr.H.R. Kalia, who had observed one incised wound on the head of the complainant and swelling on the right forearm, one contusion on the right thigh and as such there was due corroboration by medical evidence to the ocular version of the complainant. The Medical Officer PW-6 Dr.H.R. Kalia has admitted that injury No.1 was possible by fall on sharp edged weapon if the forehead struck with the weapon, but there is nothing on the record or suggestion is put that the complainant had fallen on a sharp edged weapon at the relevant time. In regard to injuries No.2 and 3, it was clearly stated that they are not possible as a result of fall. The learned trial Court did not deem it necessary to refer to the medical evidence, which fully corroborated the ocular version of the complainant and did not deem it - 5 - necessary to consider that the report was lodged with promptitude and there was no opportunity for the complainant to introduce witnesses. 9. Coming to the question that witness, namely, PW-2 Amar Singh is interested since he had appeared earlier also for the complainant. In case it was proved on record that the presence of PW-2 Amar Singh was by chance only or he was living at a quite distance from the place of occurrence, some assistance could have been taken by the learned trial Court in coming to its conclusion that he was an interested person. In case the fields of PW-2 Amar Singh were near the place of occurrence, he was the natural witness and the mere fact that he has appeared earlier as a witness, as has come up on record per documents placed on the record, was not sufficient to hold that he was an interested witness. 10. The learned trial Court has not considered the question that the plea of enmity is a double edged weapon and it can be the reason for inflicting injuries on a person. It can also be a reason to falsely implicate some persons as accused even though no part had been played by them. This question should have been considered by the learned trial Court that the witnesses examined in this case were natural witnesses living nearby or having their fields nearby and the mere fact that they had appeared as witnesses sometimes earlier also for the complainant is no ground to reject their testimony. 11. The learned counsel for the respondent had submitted that the weapons of offence were not recovered by the Investigating Officer. The mere fact that these were not recovered due to the fault of the Investigating Officer or no - 6 - efforts were made by him is not sufficient to disbelieve the statements of the witnesses. 12. In view of the above discussion, I accordingly hold that the findings recorded by the learned trial Court holding that the guilt of the accused persons was not established are perverse and are liable to be interfered with. The guilt of the respondents under all the Sections stands proved accordingly. 10. Coming to the question as to the sentence to be imposed upon the respondents, this Court had called the report of the Probation Officer in advance in case the findings of the learned trial Court are to be reversed and accordingly, the report of the Probation Officer is attached with the file. The report of the Probation Officer shows that respondent Ramesh Chand is aged 33 years, was working as a private driver and was having a poor family background. Similarly, the report in regard to the other respondent Biri Singh shows that he is also aged 35 years, is working as a labourer and there is nothing adverse in both the reports as against both the respondents. 11. Keeping in view the fact that the occurrence had taken place in the year 1998 and the present appeal is being decided in the year 2010 and 12 years have passed, I am of the opinion that ends of justice would be met in case the accused/respondents are directed to be released on probation under Section 4 of the Probation of Offenders Act on each of them furnishing personal and surety bonds in the sum of Rs.10,000/- each to the satisfaction of the learned trial Court. The respondents shall be on probation for a period of one year subject to supervision of the Probation Officer and - 7 - they shall be released forthwith on their furnishing personal and surety bonds, as directed above. However, the respondents are also directed to pay compensation to the complainant amounting to Rs.15,000/- each. The compensation money shall be deposited before the learned trial Court within a period of two months from today. On deposit of the compensation money, it shall be payable to the complaint after the expiry of the period of three months from today. The appeal filed by the appellant is allowed accordingly. A copy of the judgment be sent to the learned trial Court for compliance. Oct.7, 2010. (V.K. Ahuja), (TILAK) Judge