1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 544 of 2001. Reserved on 24-7-2008. Date of Decision: 28. 07.2007. ____________________________________________________________ State of H P. Appellant. Versus Ramesh Kumar and others. Respondents. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Sh.J. S. Guleria, Law Officer. For respondents. : Shri Y.P.S. Dhaulta, Advocate. _________________________________________________________ Surinder Singh, J . Conviction and sentence of the respondents passed by learned trial Court under Sections 147, 149, 323 and 506 of the Indian Penal Code was set-aside in appeal by learned Additional Sessions Judge in Criminal appeal No. 12 of 1998 vide its judgment dated 1-6-2001 which has been assailed in this appeal by the State on the ground that the learned Sessions Judge has failed to take notice that the statement of the injured which inspires confidence and finds corroboration from the medical evidence and eye witnesses. The learned appellate Court had wrongly reversed the well reasoned findings recorded by the trial Court which has caused a miscarriage of justice. In brief, the prosecution case is that on 10-11-1994, at about 10.00 A.M in village Baksaid, the respondents herein are alleged to Whether reporters of the Local papers are allowed to see the judgment? Yes. 2 have formed un-unlawful assembly and in furtherance of their common object, voluntarily caused hurt to the complainant PW2 Mahesh Kumar and threatened him with dire consequences. To this effect, an F.I.R. Exhibit PW2/A was registered on the same day. The complainant was medically examined by PW1 Dr. Kuldip Sharma. On his examination, he found as many as eighteen injuries on the person of the complainant and issued the M.L.C. Exhibit PW1/A. The Police visited the spot and prepared the site plan Exhibit PW7/A of the place of occurrence. After recording the statements of the witnesses, presented the challan in the Court for the trial of the respondents. The respondents were charge-sheeted for the offences aforesaid to which they pleaded not guilty and claimed trial. To prove its case, the prosecution examined its witnesses and the respondents were also examined under Section 313 of the Code of Criminal Procedure. Their case was of denial simplicitor and no defense was led. After appreciating the evidence on record, learned trial Court convicted the respondents and sentenced them to under-go simple imprisonment for a period of six months and to pay a fine of rupees 500/- for each of the offences but in appeal, the respondents were acquitted by the learned Additional Sessions Judge on the ground that there was bleeding injury as per statement of PW2 Mahesh Kumar and his clothes were torn but he did not tell this fact to the Police, whereas, as per the statement of PW3 Nirmal Singh that he had seen the bleeding injury from the mouth of the complainant and his sweater and pent were torn but according to PW4 Hardev Singh, he noticed some injuries on the nose and head from where the blood was oozing but according to him, only the shirt was torn. 3 PW5 Ranjeet Singh saw the blood oozing from the teeth of the complainant whereas PW7 H.C. Parma Nand deposed that the clothes of the victim were not torn. Thus the learned appellate Court did not rely upon the testimonies of the aforesaid witnesses as they were not said to be the independent witnesses because of their friendship with the victim, therefore their testimonies were disbelieved. Shri J.S. Guleria, learned Law Officer has forcefully argued that the statement of the injured and his witnesses inspires confidence. These are duly corroborated by the medical evidence. Minor contradictions are bound to be there owing to the lapse of time and further that the contradictions which are pointed out by the learned appellate Court are of a very minor nature and too much importance cannot be attached to it. Shri Guleria while supporting the judgment of learned trial Court, has prayed to reverse the findings recorded by the appellate Court. Contra, Shri Y.P.S. Dhaulta has forcefully argued that the contradictions which have been pointed out by the learned appellate Court are not minor in nature keeping in view the fact that the prosecution witnesses are close friends of the victim and independent witnesses though available, were not examined and their statements are contradictory. Therefore, substantial doubt is created and the learned appellate Court has rightly appreciated their evidence. The findings of acquittal are possible from the record. I have given my thoughtful considerations to the rival contention of the parties and have carefully examined the evidence on record. 4 PW2 Mahesh Kumar complainant runs a tailoring shop at village Baksaid. He had to realize Rs. 210/- from respondent Tej Singh which was unpaid for the last six months. On the day of alleged occurrence, there was a telephonic call for him in the nearby shop of Nirmal Singh. He went there to attend it, when he was returning on the way, he was way-laid by the respondents and all of them started fisticuffing and giving the kicks to him which continued for about ten minutes. Respondent Ramesh Kumar proclaimed if there is any body who dares to save him. On hearing cries of Mahesh Kumar, PW3 Nirmal Singh, PW4 Hardev Singh, PW5 Ranjeet Singh came there and they tried to intervene. On this, the respondents fled away from the spot and while running they had threatened him with dire consequences in future. The complainant lodged the F.I.R. Exhibit PW2/A on the same day. The aforesaid alleged eye witnesses were named in the F.I.R. PW3 Nirmal Singh has stated that except Piru and Shiv Ram respondents, all the respondents were giving beatings to Mahesh Kumar whereas Piru Ram and Shiv Ram respondents were standing there. In the mean time, his father Ranjeet Singh and Hardev Singh also came there. Since they wanted to intervene but the respondents were hurling the threats and in order to relieve the victim from the clutches of the respondents, they raised hue and cry. Thereafter, respondents fled away. PW4 Hardev Singh has also made the similar statement and further stated that PW2 Mahesh Kumar had sustained the injuries on his nose, head and other parts of the body with kicks and fist blows. PW5 Ranjeet Singh has also stated that he tried to intervene but he was threatened by the respondents. He had 5 noticed the blood coming from the mouth of the victim. In the cross- examination, he has stated that sister of Mahesh Kumar was married to his son and also stated that five/six times the victim was thrown on the ground by the respondents and his nose and teeth were bleeding. The clothes were also blood stained. PW7 Parma Nand Head Constable who investigated the case, has stated that he did not know that the aforesaid witnesses of the victim were his friends but according to him, they were the eye witnesses. The blood was found on the spot but it is not mentioned in the site plan. Immediately after the lodging of the report in the Police Station, Mahesh Kumar was examined by Dr. Kuldip Sharma and he found the following injuries on his person: ”1. Black eye, right, vision normal. 2. Contusion over the bridge of the nose. Tenderness +ve +ve clotted blood +ve in right nostril? Fracture nasal bone. 3. Contusion left side of forehead. No evidence of fracture of underlying bone. 4. Multiple abrasion over the extensor surface of right fore-arm. 5. Multiple abrasion over the extensor surface of left fore arm. 6. Contusion in interscapular region of back, 3 x 5 cm size. 7. Contusion over right scapula 4 x 4 cm size. 8. Contusion infrascapular region right side, 2 x 4 cm size. 9. Contusion infrascapular region right side 2x4 cm size. 6 10. Contusion with underlying swelling over L3, 4 region of back. Tenderness+. 11. Contusion over L1-2 region of back, right side of middle line. 12. Tenderness right inframammory region of chest. No external injury over skin. No evidence of fracture of underlying ribs. 13. Contusion left infrazxilary region. No fracture of underlying ribs detected. 14. Tenderness over lateral aspect of middle 1/3rd of left thigh. No external injury over skin. No evidence of fracture of underlying bones. 15. Abrasion over lateral aspect of upper 1/3rd of right thigh. No fracture of underlying bones. 16. Tenderness over upper 1/3rd of right leg, anterior aspect. No external injury over skin. No evidence of fracture of underlying bone. 17. Tenderness over lower end of lateral maleous right side. No external injury over skin. No evidence of fracture of the bone. 18. Tenderness in left calf region of leg. No external injury over the skin”. All the injuries were simple in nature caused with blunt object within less than six hours. In his opinion, these injuries were possible with foot and fist blows. However, in cross-examination, he has stated that all the injuries could be sustained by a fall in rolling. On the critical examination of the aforesaid evidence, I do not find any major discrepancy in the statements of the prosecution witnesses. The fact that the witnesses are close friends and 7 relatives of the victim would not make their testimonies doubtful if it otherwise inspire confidence. The number and amount of the injuries received by the complainant was due to the kicks and fisticuffs given by the respondents which stands corroborated by Doctor aforesaid. The complainant who was alone at their mercy and the witnesses have deposed that five/six times, he was thrown on the ground. Therefore, the Doctor has rightly stated that these injuries could be caused due to fall as aforesaid. The contradictions as noticed by the learned appellate Court are not enough which can cause the dent in the prosecution case. In the light of the aforesaid natural version given by the witnesses of the prosecution, their testimonies cannot be out rightly rejected more specifically when the statement of the victim finds corroboration from the medical evidence in material particulars. It was not incumbent upon the prosecution to examine all the witnesses who were present on the spot but whosoever witness has been examined in the instant case has unfolded the story of the prosecution in the manner it is alleged. Thus, reasons given by the ld. Additional Sessions Judge for acquitting the respondents are perverse which cannot be sustained in the light of the above discussion, rather I fully concur with the findings arrived at by the learned trial Court on the strength of the above evidence that the respondents are guilty of the offences under Section 147, 149, 323 and 506 of the Indian Penal Code. They have been proved to be the members of unlawful assembly and caused voluntary hurt to the complainant Mahesh Kumar and criminally intimidated him to do away with his life. Hence the judgment of acquittal passed in appeal by the learned Additional 8 Sessions Judge is hereby set-aside and that of the trial Court convicting the respondents for the above offices is restored. As far as sentence is concerned, the respondents are the first offenders and incident had taken place on 10-11-1995 about fourteen years back. Interest of justice shall be met in case they are given the benefit of Section 3 of the Probation of Offenders Act instead of awarding the substantial sentence against them after lapse of fourteen years. Therefore, I hereby give the respondents benefit of Section 3 of the Probation of Offenders Act. However, each of the respondents, instead of paying a fine of rupees 500/- as directed by the trial Court, shall deposit the amount of rupees 2000/- as compensation in the trial Court within a period of one month from today which shall be disbursed by the learned trial Court to the victim PW2 Mahesh Kumar, failing to deposit the aforesaid amount, it shall be recoverable from them as fine. The appeal is accordingly disposed of. (Surinder Singh) Judge. July 28, 2008. (bm)