IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 211 of 1999 Date of decision: 22.07.2010 _________________________________________________________________ The State of H.P. .....Appellant. Versus Tarsem Lal and others. .....Respondents. Coram The Hon'ble Mr. Justice R.B. Misra,J. The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? _________________________________________________________________ For the appellant: Mr. Rajinder Dogra, Additional Advocate General with Mr. Anil Jaswal, Deputy Advocate General. For the respondents: Mr. N.K. Thakur, Advocate. R.B. Misra, J (Oral). The present criminal appeal has come up for consideration after leave to appeal under Section 378(3) of the Code of Criminal Procedure has been granted in reference to the impugned judgment and order dated 01.03.1999, passed by the learned Sessions Judge, Una, District Una, in Sessions Case No. 9 of 1997, acquitting the accused persons for the offences under Sections 307 and 324 read with Section 34 of Indian Penal Code. 2. In order to adjudicate the criminal appeal, it is necessary to give the factual background of the case. According to the prosecution, on 19.05.1996, accused persons had arranged a 'Jagrata' in their house at village Kud. Complainant, Shri Suresh Kumar, resident of the same village was also invited on behalf of Tarsem Lal in the Jagrata with his 1 Whether reporters of Local Papers may be allowed to see the judgment? ...2... family members, despite that there was animosity between the family of Tarsem Lal and Suresh Kumar. On invitation, complainant Suresh Kumar accompanied by Manohar Lal, Bhupinder Singh and Smt. Nisha alongwith their children attended the 'Bhandara' (feast) on 19.05.1999 and enjoyed listening 'bhajans' (religious songs) organized in the Jagrata. At about 11:30 P.M., when complainant Suresh Kumar and Bhupinder Singh came out of the venue of the Jagrata for drinking water, accused Tarsem Lal started abusing them, however, he was asked not to abuse, he picked up some weapon and struck with that on the head of Suresh Kumar. Manohar Lal and Nisha Kumari also came there in the meanwhile. All the accused started beating the complainant Suresh Kumar, Manohar Lal and Smt. Nisha with kick blows. On hearing the noise, Kuldip Singh, Santosh Kumari and Purshotam came there and saved the complainant Suresh Kumar, Manohar Lal and Smt. Nisha, however in scuffle, Suresh Kumar, Nisha Kumari and Manohar Lal sustained injuries. 3. On 20.05.1996, Suresh Kumar lodged a report at Police Station, Amb and on the basis of which FIR No. 75 of 1996, dated 20.09.1996, was registered. The injured persons were medically examined and accused were arrested on 23.05.1996. 4. In order to prove its case, prosecution examined as many as 11 witnesses, whereas, accused persons in defence have submitted that they have been falsely implicated in the case, as a counter blast of the case which they have registered against the complainant at Police Station, Amb, vide FIR No. 74 of 1996, dated 20.05.1996, under Section 307, 147, 148, 149, 323, 324 of the Indian Penal Code for creating rampage and making an assault on Tilak Raj, the Singer of bhajans (religious songs) at the venue of the Jagrata. In defence accused- ...3... respondents have examined two defence witnesses. 5. We have noticed that in reference to FIR No. 74 of 1996, lodged against the complainant and co-accused, a trial was conducted and the complainant and co-accused were convicted in Sessions case No. 12 of 1997, vide judgment dated 01.03.1999, passed by the learned Sessions Judge, Una, District Una, H.P., however, the complainant and co-accused were subsequently released on probation. 6. We have examined the prosecution witnesses and material on record we notice that 'Jagrata' was organized by Tarsem Lal accused and his co-accused brothers. On the venue of the 'Jagrata' Bhupinder Singh (PW-2), his wife Nisha Kumari (PW-3) had participated alongwith Raj Kumar, Rajinder Singh, Madan Lal and Manohar Lal. Bhupinder Singh intimidated the members of the bhajan mandli. The companions of Bhupinder Singh assaulted Tilak Raj (who had been invited to sing bhajans in the 'Jagrata'), Gurdial Singh and Smt. Jamuna Devi, mother of the accused persons. FIR regarding the assault was lodged at Police Station, Amb, on 20.05.1996 at 5:30 A.M. by Tarsem Lal and as a counter blast of that FIR present FIR No. 75 of 1996 was lodged by Suresh Kumar, which pertains to the same incident. 7. From the perusal of the prosecution witnesses, it cannot be said that the intention of the accused to convene the 'Jagrata' was to make a murderous attack over Suresh Kumar, Nisha Kumari, Manohar Lal and Bhupinder Singh. Factually, Bhupinder Singh had stabbed on the arm of Smt. Jamuna Devi, mother of the accused and he was arrested in FIR No. 74 of 1996, lodged by Tarsem Lal. Accused persons could not have an intention to attack and cause the death of Nisha Kumari, Manohar Lal, Bhupinder Singh and Suresh Kumar, whereas, Bhupinder Singh, accompanied by Raj Kumar, Tejinder, Madan and ...4... Manohar Lal had created rampage at the venue of Jagrata, wherein large number of persons were gathered. In the present case, it cannot be said that injuries on their persons have been inflicted by the accused- respondents or any one of them. The statement of Bhupinder Singh (PW-2) and his wife Nisha Kumari (PW-3) indicates that accused- respondents had quarreled with Bhupinder Singh and had struck the head of Suresh Kumar with darat . 8. Suresh Kumar (PW-1) stated that he was not on visiting terms with Nanak Chand, father of the accused. The hostility shown by Suresh Kumar (PW-1) and Bhupinder Singh (PW-2) indicates that they have managed to register this case as a counter blast of the case registered by the accused Tilak Raj by way of FIR No. 74 of 1996. PW-1 in his cross-examination has categorically clarified that his father, Bhupinder Singh and uncle Kuldip Singh had accompanied him when he had gone to lodge the report at Police Station, Amb. Testimony of PW-1, Suresh Kumar, further reveals that his presence at the venue of Jagrata is doubtful. His father, Parshotam, had gone there, who had indulged in creating rampage alongwith Raj Kumar. The statement of PW-4, Kuldip Chand, uncle of Suresh Kumar, does not inspire confidence regarding giving beatings by the accused or any one of them to Bhupinder Singh and Suresh Kumar. 9. In view of the testimony of Dr. Pankaj Kumar (DW-1), on examination of Jamuna Devi, Tilak Raj and Gurdial Singh, he issued medical certificates, Ex. DA, Ex. DB and Ex. DC, whereby, the above mentioned three persons were beaten by PW-2 Bhupinder Singh and his accomplices. Dr. Pankaj Kumar (DW-1) has noticed injuries on Jamuna Devi, Gurdial Singh and Tilak Raj. 10. Mehar Chand (DW-2) has stated that FIR No. 74 of 1996, ...5... Ex. DB, was registered against Madan Lal, Manohar Lal etc. on the complaint of accused Tarsem Lal on the basis of which Sessions Trial No. 12 of 1997 was conducted and the complainant and others were convicted. 11. PW-8, Beant Singh, scribed the daily diary report, Ex. PA. PW-9, Ramesh Chand, has stated that Gurbax Singh accused had given a disclosure statement, Ex. PD, regarding concealment of cycle chain. PW-10 Joginder Singh has stated that accused-respondents did not hand over drat, knife and cycle chain to the policemen, vide memos, Ex. PD/3. The statement of Shri Joginder Singh falsify the contention of the prosecution that the drat, knife and cycle chain were recovered pursuant to the statements of Gurbax Singh, Tarsem Lal and Ashwani Kumar, Ex. PD, PD/1 and PD/2, respectively. 12. Sansar Chand, S.I. (PW-11), who investigated the case, also does not indicate that Suresh Kumar, Nisha Kumari and Kuldip Chand were present at the venue of Jagrata and were assaulted by the accused- respondents and none else when Bhupinder Singh (PW-2) alongwith his companions had indulged in creating rampage at the venue of the Jagrata. The perusal of Ex. PA reveals that Suresh Kumar did not mention that he himself, his uncle, father and mother had been assaulted with knife, cycle chain and drat. The said fact has been introduced later on, during the course of investigation. Had these witnesses been assaulted with the aforesaid weapons, then Suresh Kumar would have divulged the use of these weapons while reporting the matter to the police, vide Ex. PA. If Suresh Kumar, Bhupinder Singh and Nisha Kumari were really present in 'Jagrata', then this aspect could have been divulged very specifically by Suresh Kumar. 13. From the scrutiny of the prosecution witnesses and the ...6... material on record, it appears that FIR No. 75 of 1996 had been lodged by Suresh Kumar as counter blast of the case lodged by the accused against Bhupinder Singh and others, vide FIR No. 74 of 1996. Another improbability, as has been highlighted by Mr. N.K. Thakur, Advocate, is that the persons who have arranged Jagrata and bhajan cannot think of making assault over the invitees, rather in such situation, the manager of Jagrata and the feast shall always think of tolerating more the mischief of the others and try to avoid embarrassment, if any. The quarrel which had taken place at the venue, when the complainant themselves assaulted the singer of the 'bhajan mandli' in 'Jagrata' and had caused injuries to the family members of the accused and in that reference FIR No. 74 of 1996, dated 20.05.1996, was lodged and Sessions Trial No. 12 of 1997 was concluded and the complainant and others were convicted. 14. In view of the facts and circumstance, the prosecution has failed to bring home the guilt against the accused-respondents and the prosecution has failed to prove its case beyond reasonable doubt against the accused-respondents. There is no scope of interference in the judgment of the trial court and appeal being devoid of merit is dismissed. (R.B. Misra) Judge (V.K. Sharma) Judge 22nd July, 2010 (virender)