IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Rev. No.140 of 2004. Date of Decision: .1.6.2011. _______________________________________________ Sohanu Ram and others. ….Petitioners. Versus. State of H.P. ….Respondent. Coram: Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting1?. No. For the petitioners: :Mr. Ajay Sharma, Advocate. For Respondent. :Ms. Shubh Mahajan, Deputy Advocate General. Dev Darshan Sud, J (Oral). This revision petition has been preferred by the accused against the judgment and sentence imposed upon them by the learned trial Court as affirmed by the appellate Court. The prosecution case is that on 21.7.1996 in village Gangloh at 9 p.m., all six accused, namely, Sohanu Ram, Karam Singh, Sundri Devi, Mansho Devi, Mohan and Ram Ashra in furtherance of their common attention trespassed in the house of complainant Smt. Jamna Devi. At that time, they were armed with axe and dandas etc. They beat up the complainant- Jamna Devi causing injuries to her and threatened to kill her. The incident was reported to the police by the complainant on the next morning. She was medically examined in Civil Whether reporters of the Local papers are allowed to see the judgment.yes. 2 Hospital, Bilaspur and after completion of investigation, challan under Sections 452, 324, 323 and 506 read with Section 34 I.P.C. was filed in the Court. Ten witnesses were examined by the prosecution in support of this case. The accused denied their guilt and examined two defence witnesses, namely, Smt. Razo Devi and Jamana Devi in support of their defence. Learned trial Court has discussed the evidence in detail. From the record, what transpires is that accused Sohanu Ram gave blow with the axe on the hand and arm of the complainant and the other accused beat her up with dandas, fists and kicks. This was stated by complainant-Jamna Devi when she appeared as PW1. The time of assault given by the complainant was around 9 p.m. at night. PW5 Dr. N.K.Sankhyan stated in his evidence that on 23.7.1996, he examined complainant Jamna Devi who was referred to Dr.D.P.Handa for X-ray examination. He proved on record X-form Ext.PW5/A, X-ray films Ext. PW5/B and Ext.PW5/C and his report Ext.PW5/D which did not show any fracture. Dr. Sankhyan was again examined as PW9. PW10 Dr.D.P.Handa has stated that on 22.7.1996, he was posted in Civil Hospital, Bilaspur where he examined Jamna Devi and issued M.L.C. Ext.PW10/B and found the following injuries: “1. Defused irregular haematoma with 0.5 c.m. long are of abrasion right pari to occipital region. 2. Bluish bruise on the lateral aspect of upper lip on the oral side mucosa upper second incisor and canine tooth level, surface abrased. 3. 6.5 c.m. long wound left hand proximal to the proximal palmer cross on the extending radially from mid-palmar curving to dorsal side on radial aspect on to the radial and 3 base area of index finger. Wound having clear edges partial thickness skin on both hands 2 c.m. length on medial side and 1.5 c.m. on radial side and rest middle portion is deep exposing palmar-facia subsutenous. Wound edges are approximated and separated with little résistance. No fresh bleeding (Advised X- ray left hand) but dirty locking flue discharge scanty. Moments of index finger restricted. 4. Multiple abrasion of irregular size right elbow region having dried brown scab with two small pustule on the linier 0.5 c.m. broad abrasion distal to elbow on posterior and radial aspect. 5. Brownish blue bruise left fore-arm obliquely placed on lower third ventral aspect 7 c.m. length and maximum breadth 2 c.m. 6. 10 c.m. x 2 c.m. obliquely placed bruise red on the right lower chest extending superior to renal angle near to the posterior axillary line clear zone of skin colour 1 c.m. wide in the upper 6 c.m. of length. 7. 13 c.m. x 1.5 c.m. Bluish rd bruise over lower back obliquely and crossing over the D-12 area with 0.5 c.m. clear zone of skin along with length. Sparing 1 c.m. and on left side. 8. 19 c.m. long and 3 c.m. maximum width (where 2 c.m. minimum on the lower end) placed over inter scapular region extending right to left over D-3 area upper and extending to left posterior nape of neck. 6 c.m. long clear mid zone of skin on the upper end. 9. Multiple patterned bruise below injury No.8 and right infra scapular region sizes varies between 5 to 7 c.m. in length and 1.5 c.m. to 2 c.m. in breadth of brownish red with purple colour at placed. 10. 9 c.m. x 2.5 c.m. bruise brownish red in colour surrounded in area deep bluish bruised area almost horizontally placed on the left lateral aspect of chest, lateral and near to the posterior exillary line. 11. Two bruise placed transversally over deltoid region parallel to each other 8 c.m. x 2 c.m. brownish red in colour 3 m.m. faint zone along the length. On the left upper arm lateral aspect. 4 12. 5 c.m. x 1.5 c.m. superior to injury No.11 bruised placed obliquely extending near to lateral end of the shoulder of purplish red in colour. 13. 4 c.m. distal to injury No.11 there are two parallel bruise 7 c.m. x 1.5 c.m. with clear mid-zone of skin along the length brownish red in colour on lateral aspect. 14. 8 c.m. long 3 c.m. broad brownish red bruise on the left upper arm proximal to elbow on lateral aspect. 15. Tenderness left mid-fore arm on posteral lateral aspect clinically no bone injury. 16. 12 c.m. x 2.5 on lateral aspect of left upper thigh placed slightly oblique bruise, bruise having 1 c.m. of clear mid-zone of skin along the length, upper end is 6 c.m. below anterior iliac pine reddish colour surrounded by an area of deep echymosis of bluish colour. 17. 2 c.m. lateral aspect parallel to injury No.16 is the bruise radish in colour 5 c.m. x 2.5 c.m. with clear mid-zone along the length. 18. Multiple abrasion left knee with brown scab of different size and shape. 19. Multiple bruise of different sized (5x7) c.m. length) 2.5 c.m. x1.5 c.m. breadth) left lower leg on posterior lateral aspect placed almost transpiercely with evidence of deep echymosis over the area of upper 2/3 of lower leg on antero lateral aspect partially on the posterior surface involving calf region. 20. Tenderness left little toe and adjacent area, however no evidence of bone injury. 21. 10 c.m. x 2 c.m. faint radish blue right lateral thigh placed horizontally, suggesting lathi below. 22. Multiply regular abrasion right knee of different sizes with brown scab. 23. 12 c.m. x 1 ½ c.m. radish bruise medial aspect of right lower leg placed almost horizontally, suggesting of lathi blow. 24. 12c.m. x 1.5 c.m radish bruise placed obliquely over left middle leg on lateral aspect patterned lathi blow. 25. 8 c.m. x 1.5 c.m. bruise 3 c.m. distal and oblique to injury No.24 with clear mid-zone along length. 5 26. 5 c.m. x 1.5 c.m. parallel to injury No.24 but 4 c.m. distal to No.25, radish bruise in colour having clear zone along the length. 27. Complaining of pain neck, on examination nothing significant clinically.” On examination of the report of the Radiologist, no fracture was found. All the injuries were stated to be simple. The weapon used in injury No.3 was a sharp edged weapon whereas the remaining injuries were caused by blunt weapon. In defence, the case put up was that the complainant had been beaten up by her husband and the accused had been falsely implicated in this case. Two witnesses DW1 Razo Devi and DW2 Jamna Devi were examined and both of them stated at that particular point of time that they had seen the complainant being beaten up by her husband. One other point was urged that the police station, Talai was nearest to the place of occurrence whereas the report was lodged in Bilaspur which gave ample time and opportunity for concoction. Adverting to the evidence of the defence witnesses, the learned court holds that DW1 Smt. Razo Devi stated that she heard some noise from the house of the complainant and found that the husband of the complainant was beaten her but in her cross- examination she admitted that she did not go to the spot of occurrence. She explained that she had only heard some noise and then states that she could see for about ½ Km in the dark. Learned appellate Court then notes that she admitted that at that time there was no light and she has not seen the occurrence. It was only a presumption that the complainant was being beaten up by her husband. She admits in her cross-examination that she did not see Dhani Ram husband of the complainant on the day of occurrence in his 6 house. This testimony was rightly rejected. The other witness is DW2 Jamna Devi. She states that at the time when the occurrence took place, she was with her husband in the house. She has stated that she had not gone into the house of Jamna Devi. The learned appellate Court adopts one more reason to reject her testimony that she saw Jamna Devi on the village in the next day after the assault whereas the evidence is that she was in Bilaspur. Learned trial Court holds that the evidence of PW1 Jamna Devi, PW2 Dhani Ram, PW3 Ram Chand and PW7 Soma Devi was clear and cogent that Dhani Ram was not present in the house on the day of the occurrence. Their testimony was accordingly rejected. On the question of sentence, the learned trial Court granted the benefit of Probation of Offenders Act to Sundri Devi and Mansho Devi who are ladies and to Mohan Singh who was aged about 74 years, the others were punished. The sentence imposed were: Sr. No. Section 1. 452/34 IPC. Simple imprisonment for a period of one year and to pay fine of Rs.1,000/- each and in default of payment of fine to undergo further simple imprisonment for a period of six months 2. 324/34 IPC Simple imprisonment for six months . 3. 323/34 IPC. Simple imprisonment for one month All sentences shall run concurrently. In appeal, the evidence has been re-appreciated by the learned appellate Court. The appeal preferred by appellants Mohan and Ram Ashra were accepted and case of Sohanu Ram, Karam Singh alias Karmu, Sundri Devi and Manshu Devi were rejected. 7 Learned counsel appearing for the petitioners urges that the evidence has been mis-interpreted. He submits that there was inordinate delay in lodging the F.I.R. when she did not approach to the nearest Police Station, Talai. He submits that no independent witness in support of the case has been examined by the prosecution, their statements are self contradictory and that the contradiction as such would go to the root of the case. I have already extracted the findings of the trial Court as affirmed by the appellate Court. The evidence has been appreciated and re-appreciated by the two courts below. On the first aspect as urged that there is delay in lodging the F.I.R., I find that there is no circumstance brought on the record of the case which would show that the case has been concocted or that a deliberate attempt has been made to rob the petitioners. In fact, the defence of the petitioners that the complainant was beaten up by her husband has been found to be false. Both the defence witnesses have been rejected on the ground that their evidence is not worth believing. In these circumstances, it cannot be said that the petitioners have been deliberately robbed in more especially when they had full opportunity of being examined. The evidence of PW10 Dr. D.P.Handa clearly indicates the nature of the assault. The savagery of the assault is all to clear. I do not find any perversity in the appreciation of the evidence by two courts below. This revision petition is accordingly rejected. However, considering the facts and circumstances of the case, it would be in fitness of things if the sentence of imprisonment imposed upon two of the petitioners Sohanu Ram and 8 Karam Singh is reduced to three months for offences under Section 452 and 324/34 I.P.C. subject to this condition that each of them shall deposit a sum of Rs.20,000/- each with the trial Court which amount shall be paid to the complainant. All the sentences shall run concurrently. This amount shall be deposited within a period of four months from today. All other sentence shall run concurrently. It is directed that in case non deposit of this amount, the sentence of imprisonment shall revive and a direction is issued to the trial Court that the sentence be duly and faithfully executed. I have not interfered with the probation granted to two of the other appellants, namely Sundari Devi and Manshu Devi. This petition is disposed of. (Dev Darshan Sud), Judge. June 1,2011(R)