IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.A. No. 700 of 1996. Decided on: 30.6.2010. ___________________________________________________________ State of H.P. … Appellant. Versus Gian Chand … Respondent. ___________________________________________________________ Coram: Hon’ble Mr. Justice R.B. Misra, Judge. Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 For the appellant : Mr. Rajinder Dogra, Addl. A.G. For the respondent : Mr. J.R. Poswal, Advocate. ___________________________________________________________ R.B. Misra, J. (Oral). The present criminal appeal has come up for consideration after leave to appeal has been granted, under Section 378 (3) Cr.P.C., in reference to the impugned judgment, dated 25.3.1996, passed by the learned Sub Divisional Judicial Magistrate, Nalagarh, District Solan, H.P., in Criminal Case No. 86/2 of 1992, acquitting the respondent-accused for the alleged offence, under Section 326/324 IPC. 2. In order to adjudicate the criminal appeal, it is necessary to give the factual back ground of the case. 3. Prosecution case is that on 29.5.1992 at about 4.30 p.m., when Complainant Sita Ram while returning to his village from Baghari after shopping had moved about 1/2 kilometer away from village Baghari, he was attacked by Gian Chand from behind with an axe whereby he suffered injuries on the right side of his 1 Whether reporters of the local papers may be allowed to see the judgment? 2 head and right ear. Roshan Singh had reached the spot and saved the complainant from the clutches of the accused person. Thereafter, Krishan Lal and Raj Kumar reached on the spot and took the complainant to Police Post, Joghon. Accordingly, FIR dated 29.5.1992 was registered in Police Station, Nalagarh. Dr. K.K. Goel examined the victim who found two wounds over the right temporal region of the head and one wound over right ear in the middle of Pinna. Complainant was referred to District Hospital, Solan. After investigation of the case, accused was charged for offences under Sections 326 and 324 IPC to which the accused pleaded not guilty and claimed to be tried. 4. In order to prove its case, the prosecution examined as many as 12 witnesses. Whereas, the accused in his statement under Section 313 Cr.P.C. has denied the prosecution case and examined two defence witnesses, namely DW-1 Lekh Ram and DW-2 Gian Chand. 5. We have heard the learned Additional Advocate General for the State and the learned counsel for the accused and have perused the record. 6. Out of 12 prosecution witnesses, six witnesses, namely PW-1 Sita Ram complainant/injured, PW-2 Raj Kumar, PW-3 Krishan Lal, PW-6 Roshan Singh, PW-7 Karam Singh and PW-12 ASI Abdul Hamid are material prosecution witnesses. Remaining prosecution witnesses are formal in nature. 7. PW-1 Sita Ram, complainant/injured in support of prosecution case has stated that on 29.5.1992 at about 4.30 p.m., while coming back to his home from village Baghari, he was attacked by Gian Chand who assaulted him with an axe on the right 3 ear and then hit on the head and at that time, Roshan Singh arrived at the spot and saved him, thereafter, Krishan Lal and Raj Kumar also arrived at the spot. After seeing them, the accused ran away. Thereafter, he was taken to the hospital in an unconscious state. PW-1 Sita Ram has further stated that he had gone to the shop alone and on raising alarm, PW-6 Roshan Singh reached the spot. In cross-examination, PW-1 has stated that accused is son of his real brother and he is not on visiting terms with the accused and his father on account of pending civil and criminal litigation between them. PW-1 has also admitted that he has appeared as witness against the accused person and his parents in a criminal case. PW-1 has also stated that he has executed a Will in favour of the sons of Krishan Dass, who is his real nephew. PW-1 has also stated that litigation is pending against PW-2 Raj Kumar and PW-3 Krishan Dass. According to PW-1, PW-7 Karam Singh has also seen the occurrence and PW-6 Roshan Singh a resident of village Kulhari had accompanied the victim uptill bus stand. However, injured has denied that he has sustained such injuries by the fall of branch of Kikar tree over him when the accused was lopping the tree. 8. PW-2 Raj Kumar while supporting the prosecution case has stated that on 29.5.1992, he was filling water on the tap and heard the noise when he rushed to the spot along with PW-3 Krishan Lal. PW-6 Roshan Singh was going ahead of them. At that time accused fled away from the place of occurrence and thereafter, the victim in an injured condition was taken by PW-3 Krishan Lal and PW-2 Raj Kumar to the Police Station. PW-2 has further stated that the victim was in an injured condition and was 4 taken to his house where the people of entire village including Pradhan had gathered. The Pradhan had advised that the injured person has to be taken to the Police Station and FIR has to be lodged. PW-2 has, however, not seen the occurrence and has said that he reached the spot accompanying Krishan Lal and that Roshan Singh was going ahead. 9. PW-3 Krishan Lal, who is said to have accompanied PW-2 Raj Kumar and reached the spot on 29.5.1992 on hearing noise has noticed the accused running away holding an axe in his hand and the complainant was bleeding from his head. PW-3 has further stated that the complainant was removed by them to the Police Post. In his cross-examination, PW-3 has stated that several people had heard the noise, however, none had visited the spot. 10. There is apparent contradiction in the testimony of PW-2 and PW-3. PW-2 Raj Kumar, who is said to have reached the spot along with PW-3 Krishan Lal, has not stated that the complainant was running with an axe. The version of PW-2 Raj Kumar is contrary that the victim/complainant in an injured condition was taken to his house first where Pradhan and people of entire village had gathered. However, such version is not coming in the statement of PW-3 Krishan Lal. According to PW-3, the victim was directly taken to the Police Station and despite hearing the noise by several people, none had visited the spot. 11. PW-4 Dr. K.K. Goel while finding the injuries near neck and head of the victim has opined that such injuries are possible if a sharp side of a branch of tree fall on the person. The opinion of PW-4 also creates doubt and contradiction is created in a 5 manner the prosecution has endeavoured to say that the victim was assaulted by Gian Chand with an axe. 12. PW-6 Roshan Singh, a resident of the same village of the complainant has deposed that while going to his house on 29.5.1992 at about 4.30 p.m., he observed that the accused hit the complainant on his head and ear and he even told the accused person as to whether he will kill the accused person. On that the accused fled away from the spot amidst Safeda trees. As per testimony of PW-6, the complainant was bleeding and thereafter, he gave call to his home from where PW-3 Krishan Lal and his son PW-2 Raj Kumar came to the spot and took the injured with him while he went towards shop. In cross-examination, PW-6 has stated that his house and the house of the accused person are situated in different hamlets. However, he further deposed that if anything happened on the spot, it could be heard in the village of the complainant. He further stated that the occurrence had taken place in the centre of the road from where the hamlet of the complainant is visible. PW-6 has further stated that the accused had inflicted three injuries on the person of the complainant and that when PW-2 and PW-3 reached the spot, the accused person had fled away from the spot. He has further stated that he has seen the occurrence from a distance of 40-50 yards. The testimony of PW-6 Roshan Singh is giving a contradictory version as according to PW-6, he has asked the accused as to whether he was to kill the accused on which the accused ran away from the spot. If as per his own statement, PW-6 was 40-50 yards away, then on that count, it could not be said that the accused had raised noise and he rightly said to the accused that he could have hit the 6 accused person. Another contradiction is also being noticed from the testimony of PW-6 that PW-2 and PW-3 reached the spot on giving call whereas PW-2 and PW-3 have stated that on hearing the noise, they came to the spot. 13. According to PW-2, the victim/complainant was taken to the house in his village in an injured condition, whereas, the same is not stated by PW-3 and according to PW-6, victim/injured was taken to the Police Station and hospital by PW-2 and PW-3 when he had gone to the shop. It is also apparent that probability is also emanating from PW-6 who was 40-50 yards away, how he could notice the accused assaulting the victim when he was hit and PW-2 and PW-3 were behind and had not seen the occurrence. PW-6 has not stated that the accused was holding an axe in his hand. PW-6 has further stated that the accused person fled away from the spot amidst Safeda tree, whereas, escaping of accused in such a manner was not noticed by PW-2 and PW-3. 14. PW-7 Karam Singh, Shopkeeper of village Baghari has stated that on the day of occurrence, the complainant had visited his shop at about 3.30 p.m. and left the shop after buying the Bidi. However, thereafter, he is not aware that what happened and PW-7 was declared hostile. 15. DW-1 Lekh Ram has stated that on 29.5.1992 at about 4.30 p.m., when he was going to Raipur, he observed two persons also on the path, accused had climbed on Kikar tree and was cutting the branches, at the nearby places the children were playing, cattle were grazing and the victim was standing nearby and that the accused has even cried that branches will fall down. However, the victim was injured by falling of branch of Kikar tree. 7 16. DW-2 Gian Chand, son of Babu Ram has also stated that he was accompanying Lekh Ram on cycle and at that time the victim/complainant was injured on his head and ear by falling of the branch of Kikar tree. 17. From the prosecution witnesses and material on record, it appears that relations between the parties are not cordial and there is dispute about the land between them, it appears that there are several rounds of civil and criminal litigation between the accused and the complainant. The testimony of PW-1 is not corroborated by any prosecution witness including PW-2 and PW-6. PW-6 Roshan Singh a chance witness has not supported the prosecution case fully. PW-6 has admittedly stated that he appeared as a witness against the brother of accused in a criminal case and it shows that he has special interest in the complainant cannot be ruled out and taking of interest in the case can also not be ruled out. As per testimony of PW-2, the victim/complainant (PW-1) was taken from the spot to the house where large number of people had gathered including Pradhan but surprisingly no independent witnesses were examined by the prosecution. Corroboration of testimony of PW-1 and PW-6 are not made with other prosecution witnesses whereas PW-1 and PW-6 are inimical with the accused person. Axe Ex. P3 was said to have been recovered at the instance of the accused person in reference to disclosure statement Ex. PW-3/A given by the accused to the police in custody and no independent witness was said to have been joined the prosecution to witness the disclosure statement Ex. PW- 3/A and recovery Ex. PW-3/B. PW-6 has also denied the disclosure statement having been given by the accused. However, 8 PW-6 has further stated that axe was recovered from out of the place which was accessible to all. As such, recovery of axe Ex. P3 at the instance of accused person becomes doubtful. Very strangely, the axe alleged to have been recovered with which the complainant is said to have assaulted by the accused was not sent to the Chemical Examiner for ascertaining as to whether the same axe was used for assaulting the victim, however, no endeavour was made to co-relate the blood stains with the blood on the body of the victim. In absence of such aspect, the prosecution story also becomes doubtful. The defence witnesses, however, have indicated that the complainant had sustained injuries by fall of branch of tree does not appear to be plausible. However, in view of the apparent contradictions, improbabilities, inconsistencies, lack of completing the chain and co-relate the axe with the injury having been inflicted by the accused, it may be rightly concluded that the prosecution has failed to bring home the guilt to the accused and has also failed to prove the prosecution case beyond any reasonable doubt. There is no scope for interference with the judgment of the trial Court. Accordingly, the appeal being without any merit fails and is dismissed. (R.B. Misra) Judge. (V.K. Sharma) Judge. June 30, 2010. (cr)