IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.Appeal No.517 of 2002. Judgment Reserved on: 2.8.2011. Date of decision: 30.12.2011 State of H.P. … …Appellant Versus Swaran Singh & Others … …Respondents Coram The Hon’ble Mr.Justice R.B. Misra,J. The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 Yes. For the Appellant: Mr.R.K. Sharma, Senior Additional Advocate General with Mr.Rajinder Dogra, Additional Advocate General. For the Respondents: Mr.Virender Singh Rathore, Advocate. Dev Darshan Sud,J. The State prefers this appeal against the judgment of the learned Additional Sessions Judge-(I), Kangra at Dharamshala, acquitting the accused- respondents for offences under Sections 147, 148, 149, 323,302 IPC. 2. Accused Swaran Singh, Ramesh Singh are brothers, Sandeep Singh son of Swaran Singh, Sham Singh son of Bachan Singh and Tarsem Singh son of Ram Singh, who have been charged for these offences for causing the death of Jagdish Singh and simple injuries to 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 Rajinder Singh and Gautam Singh on 17.12.1994 by forming of an unlawful assembly to achieve their common object when they were armed with deadly weapons like `Lathis’ and `hockey sticks’ and assaulted the deceased. 3. The incident is alleged to have occurred on 17.12.1994 at 11.00 P.M. when complainant Gautam Singh PW-1 accompanied by Naresh reported at Police Station, Indora, that he had a dispute with Swaran Singh and Ramesh Singh sons of Pashera Singh (both accused) about cutting of some Sheesham trees, about two months prior to the lodging of the report. At around 10.00 A.M. on that night, Ramesh Singh and Swaran Singh came to his house, abused them using filthy language and challenged them to come out. They threatened that they would kill them. His brother Ravinder Singh would also meet the same fate. Both of them came out of the house and stepped into the alley when both these accused set up on them, beating them mercilessly with `Lathis’. On hearing the commotion, their uncle Jagdish Singh also came to the spot and was also beaten up. During this fracas, Sandeep (accused) and Randeep sons of Swaran Singh also came to the spot and started raining fist blows on the complainant and his brother etc. At that time, Pritam Singh and Sanjeev had also reached the spot and tried to separate them. He stated that he had brought Jagdish Singh, who had been injured, in a van belonging to Naresh Singh. Jagdish Singh was 3 unconscious because of the injuries sustained by him. On these facts as narrated in Ex.PW-1/A, case under Sections 308, 323, 34 IPC was registered and investigation commenced. During investigation, the police found that on 17.4.1994 both the parties had engaged in a free for all fighting with each other with sticks and fist blows on account of which the complainant and accused sustained injuries and were sent to the hospital at Indora. Injury No.1 caused to Jagdish Singh was found dangerous to life having been caused by a blunt weapon and injuries to Rajinder and Gautam were found simple in nature. Injuries to accused Ramesh Singh were found simple, two injuries to accused Swaran Singh were found grievous in nature. Injury to his wife Samela was also found to be grievous, injuries to Savitri Devi, mother of accused Swaran and Ramesh, were simple in nature. On that basis FIR No.402/94, Ex.PW-12/B, under Sections 325, 147, 149 IPC was registered against the complainant. The case against the accused was altered to one under Sections 302 and 323 IPC as Jagdish Singh, who had been referred to Daya Nand Medical College and Hospital, Ludhiana, died on 27.12.1994. The accused pleaded not guilty. The prosecution produced 14 witnesses in support of its case. PW-1 Gautam Singh, complainant, PW-2 Rajinder Singh, who was also injured in the fight, is the brother of the complainant and PW-3 Joginder Singh and PW-4 Narinder Singh are eye witnesses of the 4 occurrence. PW-5 Kartar Singh has stated that the gun deposited by the accused with him was taken into possession by the police. PW-6 Subhash Singh is another eye witness who witnessed the injuries inflicted on Jagdish Singh deceased. PW-7 Pushpa Devi is wife of Jagidish Singh, PW-8 Swaran Singh is the Investigating Officer who conducted the investigation. 4. The accused pleaded not guilty. Swaran Singh (accused), in his statement under Section 313 Cr.P.C., stated that on the fateful day Subhash, Rajinder, Gautam, Purshotam and others got drunk. Purshotam was armed with a gun and others with dandas and hockey sticks. They came to his house, abused him and his brother and asked them to come out of the house. When he came out, he was brutally assaulted by them. His wife Samela Devi and mother Savitri Devi came out to rescue him but they were also set upon by the accused. In this scuffle, he snatched the gun and danda from the accused who then ran away from the spot. At 10.30 P.M. on the same night, he with his wife Samela Devi and brother Ramesh Singh decided to deposit the gun and danda with the Pradhan. When they were going to the house of Pradhan Kartar Singh, near the house of one Thakur Singh, the complainant had organized himself alongwith Jagdish, Parshotam, Rajinder and Subhash pounced on them and snatched the gun from them. He and his wife fled to the house of Thakur Singh to save 5 their lives and they deposited the gun with Kartar Singh, Pradhan. 5. The learned trial Court, notices that there are three versions of the incident on the record of the case. The first is as narrated in Ex.PW-1/A by the complainant PW-1 Gautam, the second version is what he states in Court and the third is what probalises the defence of the accused which they have set up in their statements under Sections 313 of the Code of Criminal Procedure. 6. Adverting to the narration of the events stated in Ex.PW-1/A and the version in Court, the learned Court holds that both of them are mutually destructive. The first version, as we can gather from Ex.PW-1/A on the basis of which the First Information Report Ex.PW-12/B has been recorded, is that on 17.12.1994 at around 10.00 P.M. Swaran Singh and Ramesh Singh, went to the house of PW-1 Gautam and PW-2 Rajinder Singh and challenged them to come out of the house. On this, both these witnesses came out in the `Galli’ (alley) where they were beaten up by both the accused with `Lathis’. On hearing the shouts and screams, Jagdish Singh, who is the uncle of these witnesses, came to the spot and was also beaten up with `Lathis’. He received injuries over his right eye, forehead and head. During this fracas, Sandeep accused-respondent alongwith his brother Randeep, sons of Swaran Singh also joined them in beating up both 6 these witnesses as also late Shri Jagdish. Thereafter, Pritam Singh and Sanjeev Singh, who witnessed this occurrence, rescued the complainant from the clutches of the accused. Injured Jagdish was immediately shifted in a van of Naresh Kumar to Police Station by the witnesses. 7. The second version of the complainant is what he states on oath in Court. The learned trial Court notes this in detail by quoting the evidence of the complainant verbatim. He states that he knows the accused as all are from his village. On 17.12.1994 at around 10.00 P.M. he heard a noise outside his house and some persons abusing loudly. He came out to see what was the reason and he saw Ramesh Singh accused running with a gun from the house of Rajinder Singh. Gun, according to him, belongs to his elder brother Purushotam Singh. His brother Rajinder Singh was running after him to take the gun from him and he also joined in the chase. When he reached near Mandi which is an open place, Sham Singh, Tarsem Singh, Sandeep Singh and Swaran Singh were waiting with `Lathis’ and hockey sticks. He and his brother tried to snatch the gun from Ramesh Singh accused which led to a scuffle/free for all fight and they sustained injuries as they were beaten up with ‘Lathis’. He suffered `Lathi’ blows on his head, arms, shoulders and other parts of his body. His brother also sustained injuries on his leg and other parts of his body. He was 7 bleeding from the injuries which he had received. He then states that he became unconscious thereafter and regained consciousness in his house only. It was a moonlit night and therefore he could witness the entire occurrence. His uncle Jagdish Singh was going to a doctor. He was also beaten up by all the accused persons outside the house of Shri Thakur Singh. Jagdish Singh was taken to the house of his aunt alongwith Pushpa Devi, their sons Sarjeevan Singh and Malkiat Singh in the van of Naresh Kumar. They took the injured to the hospital at Indora at about 11.30 P.M. Jagdish Singh was admitted in the hospital whereafter he alongwith Naresh Kumar went to the Police Station Indora, and his statement Ext.PW-1/A was recorded. The learned Court notes that this is a complete somersault of what has been stated by him in Ext.PW-1/A. In his statement in the Court, the place of occurrence has been changed, the assault has been split up into different times, taking place at different places. Even the number of accused, who participated in the assault, has been changed. 8. The third version which the Court garners is from the defence being probablised by the accused by suggestions made to the witnesses including the Investigating Officer in their cross examinations as also the Doctor, medical certificates and certain facts elicited in the cross-examination. In brief, the defence put up by the accused is that the complainant 8 party was drunk. They came to the house of the accused. Purshotam Singh PW-9, who was also drunk and was armed with a gun which he was holding in his hand. Purshotam Singh, attacked and hit Swaran Singh with the ‘butt’ of his gun intending to hit the accused on his head but instead the blow landed on his shoulder fracturing his bone. PW-2 Rajinder Singh inflicted injuries on Ramesh Singh with a hockey stick and when Samela wife of Swaran Singh came to rescue her husband, she was also beaten up and thrashed. When Smt. Savitri Devi mother of accused Swaran Singh and Ramesh Singh tried to intervene she was also beaten up. The gun was snatched by Swaran Singh and they rushed to their house and bolted themselves inside. During the night, when Swaran Singh with his wife Samela Devi and Ramesh Singh with his wife Pratibha were going to the house of Pradhan to lodge a report and to deposit the gun with him, the complainant party consisting of PW-1 Gautam alongwith Jagdish Singh, PW-2 Rajinder Singh, Dalbir Singh and Joginder Singh PW-3 attacked the accused with a view to snatch the gun. They took shelter in the house of Thakur Singh and Pratibha Devi rushed to the house of Gobind Singh. We will advert to the medical evidence at a later point of time. The Court also took into consideration the fact that the injuries on the person of accused have not been explained. 9. Ex.PW-11/A is the Medico Legal Certificate of Jagidsh Singh. The doctor found five injuries on him. 9 He found this person as disoriented and unable to respond to any question. Only one injury was found to be dangerous. Ex.PW-11/B is the MLC of Gautam Singh PW- 1 having two injuries on his person. Ex.PW-11/C is the MLC of Rajinder Singh, who has also received two injuries. Ex.DA is the MLC of Swaran Singh and Ex.DB of Ramesh Singh, Ex.DC of Smt.Samela Devi and Ex.DD of Smt.Sumitra Devi wife of Jagdish Singh. Mark-X is the medical report of Jagdish Singh at Dayanand Medical College and Hospital, Ludhiana where he was admitted on 29.12.1994. 10. We now advert to the evidence of the Doctor. PW-11, Dr.T.K.Roy, has proved on record the medical examination of Jagdish Singh, Gautam Singh, and Rajinder Singh. In cross-examination, he also proved the injuries suffered by accused Swaran Singh, Ramesh Singh, Samela Devi, and Sumitra Devi. He found that Swaran Singh had also sustained grievous injuries. He found two grievous injuries on his person out of five having been caused with blunt weapon and stated that these could possibly be inflicted by a gun `butt’. Ramesh Singh had simple injuries caused with a blunt weapon which were also possible with `danda’ (stick) and gun `butt’. Similar is his opinion with respect to the injuries on Smt.Samela Devi who according to him has sustained grievous injuries which can be caused by a gun `butt’ and `lathi’. Sumitra Devi had sustained simple injuries. We find from the evidence that the 10 injuries on the accused have only been proved by the defence in cross-examination of the doctor although there are cross cases pending between the parties and they were examined by the same doctor on the same day and at a close time interval. 11. We are not unmindful of the principle as laid down by the Supreme Court in Karnesh Kumar Singh and Others vs. State of U.P., AIR 1968, SC 1402 where the Court considering the provisions of Section 114(g) of Evidence Act, 1872 and following the decision in Darya Singh vs. State of Punjab, AIR 1965 SC 328 holds that:- “13. … … … … … … … … … a prosecutor should never adopt the device of keeping back eye witnesses only because their evidence is likely to go against the prosecution and that the duty of the prosecution is to assist the Court in reaching a proper conclusion. It is open, however, to the prosecutor not to examine witnesses who in his opinion have not witnessed the incident, but normally, he ought to examine all the eye witnesses in support of his case But in a case where a large number of persons have witnessed the incident it is open to him to make a selection. The selection must however tic fair and honest and not with a view to suppress inconvenient witnesses Therefore, if it is shown that persons who had witnessed the incident have been deliberately kept back, the court may draw an adverse inference and in a proper ease record such failure as constituting a 11 serious infirmity in the proof of the prosecution case.” (p.1407) 12. We are aware of the principle that mere non- explaining of injuries on the accused does not lead to the inevitable conclusion that the prosecution evidence is to be rejected outright. 13. In The State of Gujarat vs. Bai Fatima and another, AIR 1975 SC 1478 the Court holds:- “17. In a situation like this when the prosecution fails to explain the injuries on the person of an accused depending on the facts of each case, any of the three results may follow: (1) That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self defence. (2) It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt. (3) It does not affect the prosecution case at all. Question is in which category the present case falls?” (pp-1482-83) 14. In Lakshmi Singh and others vs. State of Bihar, AIR 1976 SC 2263, the Court reiterates this principle: “11. … … … … … … … … … … … …It seems to us that in a murder case, the non-explanation 12 of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences: (1) That the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version. (2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; (3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one.” (pp-2269-2270) 15. This principle applies with equal force in this case as the doctor, though not an eye witness, nonetheless was a very important witness in the chain of events to unfold the truth of what had occurred as both the accused and the complainant had sustained injuries with this difference that the women folk related to the accused had even sustained grievous injuries. 13 16. In Rizan and another vs. State of Chhattisgarh through the Chief Secretary, Govt. of Chhattisgarh, Raipur, Chhattisgarh, (2003) 2 SCC 661, where the Court holds that where the injuries on the accused are of a minor nature and is not explained by the prosecution it is not fatal to its case and in Amar Malla and others vs. State of Tripura, (2002) 7 SCC 91, again reaffirms that non-explanation of injuries on the accused cannot be used ipso facto to reject the entire prosecution case. 17. We also advert to the decision in Sucha Singh and another vs. State of Punjab, (2003)7 SCC 643, which lays down:- “20. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let a hundred guilty escape than punish an innocent. Letting the guilty escape is not doing justice according to law. [See Gurbachan Singh v. Satpal Singh and others, (1990) 1 SCC 445. The prosecution is not required to meet any and every hypothesis put forward by the accused. [See State of U.P. v. Ashok Kumar Srivastava, (1992) 2 SCC 86. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. 14 If a case is proved perfectly, it is argued that it is artificial; if a case has some inevitable flaws because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. [See Inder Singh v. State (Delhi Admn.) (1978) 4 SCC 161. Vague hunches cannot take the place of judicial evaluation. "A judge does not preside over a criminal trial, merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties." (Per Viscount Simon in Stirland v. Director of Public Prosecution, 1944 AC 315, quoted in State of U.P. v. Anil Singh, 1988 Suppl. SCC 686. (SCC p.692, para 17). Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. 21. In matters such as this, it is appropriate to recall the observations of this Court in Shivaji Sahebrao Bobade v. State of Maharashtra (1973) 2 SCC 793 (SCR pp 492-93) : (SCC page 799 para 6): 15 ".......The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand special emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principle or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt......." ".....The evil of acquitting a guilty person light-heartedly as a learned author (Claville Willians in `Proof of Guilt') has sapiently observed, goes much beyond the simple fact that, just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicted `persons' and more severe punishment of those who are found guilty. Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the 16 judicial protection of the guiltless........" ".........a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent..." 22. The position was again illuminatingly highlighted in State of U.P. v. Krishna Gopal (1988) 4 SCC 302. Similar view was also expressed in Gangadhar Behera v. State of Orissa, (2002)8 SCC 381). (pp.653-654) The Court then proceeds:- “26. Non-explanation of injuries by the prosecution will not affect prosecution case where injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it outweighs the effect of the omission on the part of prosecution to explain the injuries. As observed by this Court in Ramlagan Singh v. State of Bihar (1973) 3 SCC 881 prosecution is not called upon in all cases to explain the injuries received by the accused persons. It is for the defence to put questions to the prosecution witnesses regarding the injuries on the accused persons. When that is not done, there is no occasion for the prosecution witnesses to explain any injury on the person of an 17 accused. In Hare Krishna Singh v. State of Bihar (1988) 2 SCC 95, it was observed that the obligation of the prosecution to explain the injuries sustained by the accused in the same occurrence may not arise in each and every case. In other words, it is not an invariable rule that the prosecution has to explain the injuries sustained by the accused in the same occurrence. If the witnesses examined on behalf of the prosecution are believed by the Court in proof of guilt of the accused beyond reasonable doubt, question of obligation of prosecution to explain injuries sustained by the accused will not arise. When the prosecution comes with a definite case that the offence has been committed by the accused and proves its case beyond any reasonable doubt, it becomes hardly necessary for the prosecution to again explain how and under what circumstances injuries have been inflicted on the person of the accused. It is more so when the injuries are simple or superficial in nature. In the case at hand, trifle and superficial injuries on accused are of little assistance to them to throw doubt on the veracity of the prosecution case, particularly, when the accused who claimed to have sustained injuries has been acquitted.” 18. In Dhananjay Shanker Shetty vs. State of Maharashtra, (2002) 6 SCC 596, the Supreme Court affirms:- 18 “10 …. … … … … … … … … … … … . It cannot be laid down as a matter of law or invariably a rule that whenever an accused sustained an injury in the same occurrence, the prosecution is obliged to explain it and on its failure to do so the prosecution case should be disbelieved. But non- explanation of injuries assumes significance when there are material circumstances which make the prosecution case doubtful. Reference in this connection may be made to recent decisions of