IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No. 9 of 2000 Reserved on: August 4, 2010 Date of Decision : November 3, 2010 State of H.P. …Appellant. Versus: Ganpat Ram & Ors. …Respondents. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant: Mr. Vivek Thakur, Addl. A.G. with Mr. Rajesh Mandhotra, Dy. A. G. For the respondents : M/s. Dinesh Kumar and Y. Paul, Advocates Sanjay Karol, J. For an offence, which is alleged to have been committed on 21.3.1997, accused were put to trial. In terms of judgment dated 20.8.1999 passed by the learned Sessions Judge, Solan, in Sessions Trial No. 4-S/7 of 1998 titled as State of H.P. vs. Ganpat Ram & Ors., the accused stand acquitted of the charged offence. 2. It is the case of the prosecution that on 21.3.1997 religious ceremony was being performed in the house of Sh. Ram Dittu (not examined) in village Havani Kol. All villagers were invited for the feast on the occasion. At about 8.00 p.m. 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 Sh. Brij Lal (PW-10) also went for the feast. He was taken to the room in the upper floor of the house of Sh. Ram Dittu, where Sh. Ganpat Ram (accused No.1), Krishnu Ram (accused No.2) and Bhagat Ram (accused No.3) were also sitting. Accused bolted the door of the room from inside and gave blows with kicks and fists to Sh. Brij Lal. A-2 also gave beatings with danda. Hearing cries of Brij Lal, S/Sh. Hem Raj (PW-3) and Lala Ram (PW-4) forcibly opened the door and brought him towards the path outside the house of Sh. Ram Dittu. There Brij Lal met his brother Inder Singh (PW-9). Suddenly A-1 and A-3 came there and after holding Sh. Inder Singh proclaimed that they would not leave him alive. Then A-3 held Inder Singh from the arms and by taking out knife from his pocket gave it to A-1 who in turn gave two blows with the same to Inder Singh. The first on the stomach and second on the right eye as a result of which Inder Singh fell unconscious. Brij Lal ran towards his house and brought his brother Mahant Ram (not examined). In the meanwhile, a cot was arranged on which Inder Singh was carried up to the road and then taken in a truck to Darlaghat. There Brij Lal lodged report (Ext.PW-10/A) at Police Station, Darlaghat, on the basis of which F.I.R. No. 23/97 dated 22.3.1997 (Ext.10/A) under Sections 342, 307, 323, 34 IPC was recorded. SI Bhagi Rath (PW-12) commenced investigation. PW-10 was got medically examined by Dr. Amit Gupta (PW-8) who issued MLC (Ext.PW-8/A). PW-9 was referred to the State Hospital, (IGMC) at Shimla where he was examined by Dr. Ganga Rawat (PW-14) 3 who opined the injuries to be dangerous which could have been fatal to life if not medically and surgically treated. The injured was medically treated and MLC (Ext.PW-14/A) was taken by the police. Accused were arrested on 22.3.1997. During investigation A-1 made a disclosure statement (Ext.PW-2/A) dated 22.3.1997 on the basis of which knife (Ext.P1) was recovered from the field of Sh. Ram Dittu. In the presence of S/Sh. Sukh Ram (PW-1) and Kedary Ram (PW-2) who witnessed recovery memo (Ext.PW-1/A). Police prepared site plans (Ext.PW-12/A & Ext.PW-13/B) at the spot. Clothes of the injured were taken into possession by the police. During interrogation A-2 produced danda (Ext.P4) which was taken into possession vide memo (Ext.PW-4/A) dated witnessed by Sh. Lala Ram (PW-4). Knife and clothes were sent for chemical examination and as per report (Ext.PW-7/A) human blood was found on the same. Statements of the witnesses were recorded. With the completion of investigation challan was presented in the Court for trial. 3. Accused were charged for having committed an offence punishable under Sections 342, 323 & 307/34 IPC to which they did not plead guilty and claimed trial. In order to prove its case prosecution examined 14 witnesses. Statements of the accused under Section 313 Cr.PC were also recorded in which they took the following common defence: “At about 8/9 p.m. I , my wife, our children, other family members and Hari Chand as well as Tulsi Ram, Hira Lal 4 were present at my house. We were sitting inside. I heard various voices and sounds. We felt that some persons and ladies are damaging our house, so, I came out and saw that Brij Lal, Inder Singh, their family members specially those who have appeared as witnesses, armed with danda etc. were standing in our courtyard, on seeing me, they started abusing me, stating that you people think that you are in shelter of Thekedar (contractor). They further threatened to kill me and my relatives. In the meantime, my wife also came there and after her Hari Chand also came out. Brij Lal and others were under influence of liquor. Brij Lal tried to inflict injury on me, my wife intervened to save me and received injury on her hand. When Brij Lal tried to strike me again I moved fastly and Brij Lal struck blows which fell on Inder Singh. Aggressors were 10-11 persons. In order to save themselves, Brij Lal, Inder Singh etc. have got false case manipulated. I also tried to convince police by telling them reality but in vain. The police personnels told that they have already framed case against us and as such, whatever we have to say, we should tell in the Court. I am innocent.” 4. In support of their defence accused also examined five witnesses. 5. The trial court acquitted the accused of the charged offence, hence the present appeal. 6. As per the prosecution version on 21.3.1997 two incidents took place, one in the house of Ram Dittu when at about 8.00 p.m. A-2 gave beatings to Brij Lal. He was rescued by Hem Raj 5 (PW-3), Lala Ram (PW-4) and Ram Dittu and the second on the public path in front of the house of Ram Dittu. 7. Now Ram Dittu has not been examined in Court. That Inder Singh suffered injuries on his body which were serious in nature and could have been fatal stands proved through Dr. Ganga Rawat (PW-14). Accused also do not dispute this fact. It is their defence that Inder Singh received an injury by the blow which Brij Lal had intended to give to accused Ganpat Ram. 8. In order to prove its case statements of PW-1, PW-2, PW-3, PW-4, PW-5 & PW-10 have been relied upon by the prosecution. 9. We shall first deal with the incident which took place in the house of Sh. Ram Dittu. It is not in dispute that feast had been organized in the house of Ram Dittu. Villagers including the accused and the complainant party were also invited for the same. Now according to PW-10, he went to the house of Ram Dittu at about 8.00 p.m. In the Court-yard he was caught by A-2 and taken inside the room where A-1 and A-3 were already present. On the asking of A-2, A-1 & A-3 bolted the door from inside and then A-2 started giving beatings to him. He gave a blow with a danda (Ext.P-4) on the head. The other two accused also gave blows with fists and kicks. He cried for help and hearing his cries S/Sh. Hem Raj and Lala Ram came and forcibly opened the door. In cross-examination, this witness states that neither Babu Ram nor Ram Dittu were present in the room at that time. He states that he had injury marks all over his body 6 scars of which remained for two months. This version of his stands contradicted by the medical record. According to Dr. Amit Gupta, on examination he did not find any “apparent injury on the body of Brij Lal”. Allegedly he was beaten for 15 minutes. Had it been so, then definitely there would have been marks of injury on his body. 10. According to Sh. Babu Ram DW-1, PW-10 came to the house of Ram Dittu to attend the function at about 6.00 p.m. and started abusing A-2. Some altercation took place and the parties were separated by the persons present at the spot. PW- 10 took food and at about 7.00 p.m. went back to his house along with his brother Mahant Ram. That PW-10 was infact present in the house of Ram Dittu around the same time is also apparent from the version of Hem Raj (PW-3) who admits that Brij Lal came for the feast at about 5.30 p.m. Hearing cries of Brij Lal, at about 6.00 p.m. he rushed to open the door and rescued him from the accused persons. Contradiction in the statements of the parties with regard to the time gains significance in view of the fact that version of Brij Lal is not corroborated by medical evidence on record. PW-3 is an interested witness. He has corroborated the version of Brij Lal but however, one cannot loose sight of the fact that he is a close relative of the complainant. According to PW-10, Babu Ram was not sitting inside the room, which fact is contradicted by Lala Ram and Hem Raj. Now Sh. Babu Ram has not been examined in Court. His examination would have elicited complete 7 truth. All the prosecution witnesses admit that other villagers and neighbours were present at the spot, yet prosecution has not examined any one of them. Why so has not been explained. None have also been associated by the Investigating Agency. 11. Now with regard to the second incident, it is the version of PW-9 that near the house of A-1, he met his brother PW-10 who was with S/Sh. Lala Ram and Hem Raj. Brij Lal was weeping. A-3 came at the spot and by catching him gave knife to A-1 who then gave him tow blows one in the stomach and the other near the right eye. A-3 also proclaimed that he would not leave him alive. This witness then fell unconscious and gained consciousness only in the hospital at Shimla. According to him, houses of A-1and Sh. Ram Dittu are separated by a distance of 5 steps. Now this falsifies the site plan (Ext.PW-12/A) prepared by the police at the spot wherein this position is not indicated. Further, he admits that between his house and the house of Ram Dittu there are houses of S/Sh. Tehlu Ram, Prem Lal, Nikku Ram, Bangali Ram, Gopala Ram, Ram Saran, Babu Ram etc. Now none of these persons have been associated by the Investigating Agency or examined by the prosecution in Court. Importantly, he states that he did not ask Brij Lal the reason of his weeping. He admits that when A-3 caught him he did not make any noise. His voice could have been heard in the house of Sh. Ram Dittu. He admits that even S/Sh. Lala Ram and Hem Raj did not make cry for help. PW-10 contradicts this version and states that he called loudly and even though court- 8 yard of Ram Dittu was visible from the place of occurrence yet none came at the spot. There is no dispute that the place was well lit. The version cannot be accepted to be true. Undisputedly cot was arranged from the house of the neighbours. The injured was carried in the cot up to the road head. Strangely none was told about the incident. According to Hem Raj incident took place at a distance of 5 to 6 steps from the place where food was being served in the house of Ram Dittu. Strangely enough none of the villagers noticed the incident. PW-9 was seriously hurt and there was an open wound. Surprisingly police did not find any blood at the spot. PW-10 admits not to have made any attempt to rescue PW-9 from the clutches of A-3. Why so is not explained. Contradiction in the statements of the spot witnesses and the version as narrated by them does not inspire confidence. 12. PW-3 has given yet another version which lends credence to the defence taken by the accused. According to him, Smt. Bimla Devi, wife of A-1 was present at the spot and in fact did try to snatch the knife from her husband but was pushed aside. Strangely PW-4, PW-9 & PW-10 do not reference her presence. 13. Investigating Officer admits that wife of A-2 had come to the police station and showed injury on her hand. He specifically does not deny that no injuries were found on the body of A-2. Accused and their family members had received injuries which prosecution has failed to explain. Smt. Bimla Devi while appearing as DW-5 clearly stated that complainant party 9 came to her house and inquired about Krishnu Ram and Thekedar, when her husband informed them that they were not at home. Brij Lal tried to hit her husband with a knife. Inder Singh was standing next to her husband. Her husband was pushed by Tulsi Ram as a result of which blow of knife intended to be given by Brij Lal to her husband actually hit Inder Singh on his abdomen. Even if this version of the defence is to be ignored we still find that statements of the prosecution witnesses do not inspire confidence. There are material contradictions with respect to time and place. Prosecution has not examined independent witnesses and complete truth has not been disclosed. 14. According to the Investigating Officer (PW-12), A-1 made a disclosure statement (Ext.PW-2/A) in the Police Station on 22.3.1997 in the presence of PW-1 & PW-2. Now PW-1 admits that he never went inside the police station and according to PW- 2, statement was scribed and got attested from witness in the house of Ram Dittu on 23.3.1997. 15. According to Sh. Harmesh Kumar (PW-13), file was entrusted to him by PW-12 on 23.3.1997 and he took A-1 to village Havani Kol where knife (Ext.P-1) was got recovered by him. According to PW-1, proceeding for recording of the statements was not witnessed by him and knife was shown by A- 1 only to PW-2. He does not state that he witnessed recovery of the knife. According to PW-2, who no doubt was declared hostile and cross-examined by the prosecution, before his arrival knife stood recovered from the field. PW-1 & PW-2 have contradicted 10 themselves on the point of presence of Sh. Bheem Lal who has not been examined in Court. According to PW-2, Bheem Lal was present, which is denied by PW-1. Further these witnesses had no reason to be present in the Police station at Darlaghat. They live at a distant place. All this renders the recovery and the disclosure statement to be extremely doubtful. 11. The accused have had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down in Mohammed Ankoos and others vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the persons has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. ( Deepak Gupta ) Judge. ( Sanjay Karol ), Judge. November 3, 2010. (rana)