Whether reporters of local papers may be allowed to see the judgment? IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.139 of 2003. Dated of Decision: March 16, 2010. --------------------------------------------------------------------------------------------------- State of H.P. …… Appellant. Versus Jeet Ram and others ……. Respondents. Coram The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting? For the Appellant : Mr. J.S. Rana, Asstt. Advocate General. For the Respondents : Mr. Anup Chitkara, Advocate. Surinder Singh, J. (oral) : The respondents were convicted by the learned trial Court, under Sections 323 and 325 read with Section 34 of the Indian Penal Code and each were sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1,000/- under Section 325 read with Section 34 of the Indian Penal Code and rigorous imprisonment for a period of six months 500/- under Section 323 read with Section 34 of the Indian Penal Code with the default clauses. All the sentences were ordered to run concurrently. Against this, the respondents filed an appeal before the Court of sessions. After hearing the parties and going through the record, the appeal was allowed and the respondents were acquitted. - 2 - Feeling aggrieved and dissatisfied by the judgment of acquittal, the State has filed the instant appeal. Shri J.S. Rana, learned Assistant Advocate General, vehemently argued that the learned Sessions Judge had given undue weightage to the minor discrepancies occurring in the statements of the prosecution witnesses. Since there is no material contradiction in the statements of the prosecution witnesses, thus, the acquittal of the respondents has caused the miscarriage of justice. Shri Anup Chitkara, learned counsel for the respondents has supported the impugned judgment of acquittal. I have given my thoughtful consideration to the rival contentions of the parties and have carefully gone through the evidence on record. In short, the initial prosecution story, as alleged is that PW2 Roshan Lal (injured) after closing his shop at 5.30 p.m. reached home alongwith PW3 his wife Karmi Devi around 6 p.m. He found 8/10 persons standing near his residence, they asked him as to why he was constructing room beside the path. On this, respondents Jeet Ram, Yash Pal, Manoj Kumar and Joginder Pal alongwith Ram Krishan and Khalelu dismantled the wall, which was raised upto three feet. When the complainant told them to desist from their illegal activities, Manoj Kumar respondent gave danda blow on his left arm and respondent Yash Pal hit him on the face and - 3 - Jeet Ram on the right side of his hip. When his wife Karmi Devi tried to intervene, she was also given beatings. This information was recorded in the daily diary, copy of which is Ex.PW10/A, which culminated in FIR Ex.PA. Police started investigation. ASI Nain Singh reached the spot and recorded statements of PW3 Karmi Devi and PW4 Parvati Devi. He prepared the site plan and took into possession few of the stones and broken pieces of statue/ idol from the courtyard of the upper storey of the house of the complainant, vide recovery memo Ex.PB. Respondent Yash Pal produced a stick Ex.P1 in the presence of one Pandit Ram Ward member. Respondent Manoj Kumar also produced stick Ex.P2. PW2 Roshan Lal was got medically examined from PW1 Dr. Mohinder Singh, M.O. CHC Barsar and he noticed the following injuries on his person:- 1. “1 x 1 cm size lacerated wound was present on the left side lower lip. Clotted blood was seen over it. 2. 1 x 1 cm size lacerated wound was present on the left side upper lip corresponding to the first injury. Clotted blood was present on it. 3. 2 x 3 cm size bluish coloured abrasion was present on the left knee-joint. 4. 2 x 1 cm size bluish coloured abrasion was present on the left elbow joint. 5. 4 x1.5 cm size obliquely situated reddish brown coloured bruise was present on the left glutial region. - 4 - 6. Patient complaint of pain in the upper first, second left teeth and lower left third teeth. Mobility of the same teeth present. Oral hygiene was good. Referred to the Dental Surgeon for expert opinion regarding duration and nature of injuries.” In the opinion of the doctor, injuries No.1 to 5 were simple in nature and for injury No.6, he was referred to the dental surgeon. According to PW9 Dr. S. Rajvanshi, this injury was grievous, because lower left canine was found fractured. He issued medico legal certificate Ex.PW9/A. The MLC with respect to other injury was issued by PW1 Dr. Mohinder Singh, which is Ex.PW1/A. On the same day at 9.45 a.m., Dr. Mohinder Singh (PW1) also examined PW3 Karmi Devi, wife of Roshan Lal and noticed the following injuries on her person:- 1. “2 x 1cm size reddish brown coloured abrasion was present on the occipital region. Clotted blood was present on it. 2. 4 x 1.5 cm size brownish coloured bruise was present on the right thigh. It was obliquely situated. No evidence of any fracture. 3. 4.5 x 1.5 cm size brownish coloured bruise was present on the right leg. It was obliquely situated. 4. 3 x1.5 cm size brownish coloured bruise was present on the left glutial region. It was obliquely situated. No evidence of any fracture”. All these injuries were found to be simple and probable duration of the injuries on both the persons was 24 to 48 hours. - 5 - The Investigating Officer came to the conclusion that there was free fight between the parties and the stones were also pelted on each other with the result the accused person’s also sustained injuries. Challan was presented against the respondents in the court for their trial. Finding a prima-facie case against the respondents, they were accordingly charge-sheeted for the offences aforesaid. At the end of the trial, the respondents were convicted and sentenced by the learned trial Court, as aforesaid and in appeal, they were acquitted. It is pertinent to note that in this case, the Investigating Officer ASI Nain Singh was not examined. PW2 Roshan Lal when examined in the Court gave contrary version and stated that on 15.12.1994, at about 5.30 p.m.. his wife Karmi Devi reached the shop and informed him that as she was apprehending that respondents Jeet Ram, Yash Pal, Manoj Kumar etc. would attack, therefore, he should close the shop and to leave the place to return home. On this, he closed the shop and reached in the house. Both of them changed their clothes and when he came out, he noticed that Jeet Ram was dismantling the wall of the room, which was under construction. On this, he asked him as to why he was doing so. In the meantime, the aforesaid persons attacked on him. Manoj Kumar is alleged to have given him a lathi blow on his left arm and thereafter ran away towards his compound. Yash Pal picked up a brick and hurled on him, which caused an - 6 - injury on his lip, which started bleeding. Thereafter, he became unconscious for sometime. He further stated that Jeet Ram, Manoj Kumar and Yash Pal fisticuffed him for sometime and then he regained his consciousness. He also stated that PW4 Parvati Devi intervened and relieved him from the clutches of the aforesaid respondents and also that his wife was beaten up by the said respondents. She was also relieved from their clutches by Parvati Devi and then sent to her room. He further stated that Parvati Devi went to the village and called Kishan Chand (PW6) and Jagdish Chand (not examined) to the spot. They took them to the hospital for their treatment and lodged the FIR. In cross-examination, significantly he admitted that the brother of Yash Pal named Jagdev Singh had lodged FIR against him and his wife with respect to the same dispute. The challan was presented in the court, but the said case titled State Vs. Roshan Lal and others, was sent to the Panchayat. He was confronted with the FIR Ex.PA, wherein it was not recorded that he was informed by his wife at 5.30 p.m. that the respondents were likely to attack them and also that the respondents were also intending to dismantle the wall of the room, which was under construction. Further, this fact was also not mentioned that Manoj Kumar had given a lathi blow on the left arm of Roshan Lal, thereafter he ran towards his compound. Further there was also no mention of picking up a brick by respondent Yash Pal and hurling it on the complainant, which caused the bleeding - 7 - injuries on his lip and thereafter he fell unconscious. Further, there was also no mention of giving him beatings by respondent Jeet Ram and others. So much so, the presence of Parvati Devi and her intervention, as alleged in the cross- examination, was also not found mentioned. Not only this, no mention therein is found that Parvati had called Kishan Chand (PW6) and Jagdish Chand to the spot, who took them to the hospital for their medical treatment and also about the injuries sustained on the various parts of his body. Although, he admitted that he is a matriculate, but stated against the contents of FIR, lodged by him. A perusal of the FIR also shows that there is tampering in the time of incident whereas it was received by the Judicial Magistrate concerned on the next day at 1.30 p.m. It is not understood as to how and why and with what reason, this tampering was made and who was the person responsible for it. Also I find that the names of two persons Ram Krishan and Khalelu were found mentioned in the report Ex.PW10/A and FIR Ex. PA, and there is no explanation as to why they were not impleaded as accused in the case. On the scrutiny of the above statement of the complainant, I find a lot of material contradictions, which makes the prosecution story doubtful. Insofar as PW3 Karmi Devi, his wife is concerned, she had another story to tell. According to her, at the relevant - 8 - time, Jeet Ram alongwith other accused started dismantling the wall of the room. When she alongwith her husband reached the spot, they told them to desist from their illegal activities and to resort to the legal remedy and further that they should also get the disputed land demarcated and if the area alleged to have encroached fell in the ownership of the State, they would leave it. Thereafter she stated about giving beatings to her husband and also to her and also stated that the respondents started hurling stones and an idol which was kept therein the shelf of the room was also broken in the said incident. She did not state about the presence of Parvati Devi, but according to her, some lady called Jagdish and Kishan Chand to the spot. She admitted that with respect to the incident in question, the case was also filed by the respondents against them but it was sent by the Court to the Panchayat. She also admitted that some matters inter se the parties were also pending before the Executive Magistrate. She expressed her ignorance that Yash Pal and Jeet Ram were also injured in the said incident and were medically examined. She stated that at the site of the incident, there were some more persons, who witnessed this incident, but none from those persons was examined to lend strength to the prosecution case. She admitted that Parvati (PW4), Baldev Singh (PW5) and Hans Raj (not examined) are her close relatives. She admitted her presence at the time of lodging the FIR by her husband. - 9 - PW4 Parvati Devi stated that she reached the spot when quarrel was going on, but she did not state that the incident had taken place at the place, where the room was under construction. She has changed the version. According to her, the fight was going on in the courtyard of the complainant, which is against the narration made by Roshan Lal and his wife. She admitted that the respondents did not give any danda blow to the complainant party. She further stated that she did not recognize the persons as to who others witnessed the incident, because of darkness. She also did not know whether Roshan Lal and his wife gave beatings to Yash Pal and Jeet Ram, on account of which Yash Pal remained hospitalized. PW5 Baldev Singh is a recovery witness, whereas, PWs 6 Jagdish Chand, PW7 Sukhdev and PW8 Pandit Ram did not support the case of the prosecution. PW10 HC Rakesh Chand corroborated the version of the respondents that Jeet Ram had lodged report on 16.12.1994 with respect to the same incident against the complainant and his family members at 12.05 a.m., but the complainant subsequently lodged the report at 12.30 a.m, which culminated into the instant FIR. The respondents also produced DW1 Nirmal Kumar. According to him, a free fight was going on inter se the complainant and some of the members of the respondents’ party. - 10 - On critical examination of the aforesaid evidence, I find material variations in the prosecution story, as initially alleged by the police in the report under Section 173 of the Code of Criminal Procedure and also the incident as narrated by the complainant and his wife during the trial of the case. With respect to the land in question, there was also civil litigation pending and it appears from the above facts that the complainant party was constructing a room by encroaching upon the path owned by the government, which was objected to by the respondents. It is also evident from the record that some of the respondents also sustained the injuries. The complainant and his wife have considerably moved away from the pivotal of the prosecution case. The improved version given in the court by these witnesses cast a doubt on the correctness of the prosecution case. From the fact situation, a considerable doubt arises as to who was the aggressor, because the initial version as per police report shows that it was a free fight inter se the parties, which means that even police could not conclude as to who was the aggressor. More so, on the FIR of the respondents, a separate case was prepared by the police, which was even presented in the court for the trial of the complainant party and later, it was sent to the Panchayat. Thus, it is very difficult in order to find out or at least to conclude who was the aggressor. - 11 - It is a settled preposition of law that when there appears material contradiction into the story initially set by the police and as spelt out during the trial of the case, whole story of the prosecution becomes doubtful. The learned appellate Court had taken care of all the infirmities noticed in its detailed judgment, which is also borne out from the evidence on record. Therefore, it rightly set-aside the conviction and sentence passed by the learned trial court. Hence, no interference is called for in the present appeal. The appeal being devoid of any merit, is accordingly dismissed. The respondents are discharged of their bail bonds, entered upon by each of them at any stage during the proceedings of the case. Send down the records. March 16, 2010. (Surinder Singh) (Pds) Judge. - 12 -