Whether reporters of local papers may be allowed to see the judgment? IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.408 of 2010. Date of Decision: August 27, 2011. State of H.P. …… Appellant. Versus Hem Singh and others. ……. Respondents. Coram The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting? For the Appellant : Mr. P.M.Negi, Dy.Advocate General. For the Respondents : Mr. R.L.Chaudhary, Advocate. Surinder Singh, J (oral) : The State has challenged the acquittal of the respondents passed in Police Challan No.27- I/04 decided on 19.2.2009, for the offences punishable under Sections 451, 323 and 325 read with Section 34 of the Indian Penal Code. 2. In short the prosecution story as emerges from the record can be stated thus. Respondents and PW4 Pawan Kumar during day time on 23.8.2004 were strolling in the village fare. In the evening at about 6.30 p.m., respondents are alleged to have taken lift in the vehicle of Pawan Kumar aforesaid to reach their village. On the way, Pawan Kumar stopped his vehicle and went - 2 - to the meet his sister PW1 Hem Lata, who was sitting on the slab of her house alongwith her two sons PW2 Sanjiv Kumar and Pushp Raj. In the meantime, Chet Ram @ Chattar Singh and Bodh Raj respondents alighted from the vehicle and gave beatings to Pawan Kumar. It is also alleged that Jeet Ram and Hem Raj joined them in the pursuit and gave beatings to PW1 Hem Lata and her sons. Lot of persons gathered there. On seeing them, respondents fled away. 3. PW1 Hem Lata got recorded her statement Ext.PW1/A under Section 154 of the Code of Criminal Procedure. She alongwith her son Sanjiv Kumar were got medically examined by PW6 Dr. Sunil Thakur. Their injuries were also x- rayed under the supervision of PW3 Dr. P.K. Soni. Pushp Raj, Pawan Kumar and Hem Lata sustained simple injuries and one of the injuries on the lumber region of PW1 Hem Lata was opined to be grievous in nature. Doctor issued Medico Legal Certificates Exts.PW6/A/X, PW6/A/Y, PW6/A/Z, to this effect. Accordingly the police registered a case for the offences punishable under Sections - 3 - 451, 323 and 325 read with Section 34 of the Indian Penal Code. 4. Police prepared site plan of the place of alleged incident Ext.PW8/A, recorded statements of the witnesses, took into possession the Medico Legal Certificates alongwith Ski-grams and after completing the investigation, challan was presented against the respondent in the Court for their trial. 5. Respondents were accordingly charge- sheeted for the aforesaid offences, to which they pleaded not guilty and claimed trial. 6. To prove its case, prosecution examined its witnesses and the respondents were also examined under Section 313 of the Code of Criminal Procedure. Their case was denial simplictor and alleged false implication on account of trivial dispute having arisen with them during the village fare with Pawan Kumar, who was completely drunk. 7. Learned trial court disbelieved the prosecution version noting few contradictions in the statement of the complainant PW1 Hem Lata - 4 - who had not named the remaining accused except Chatru, according to learned trial Court no such person was accused, further that respondent Hem Singh did not participate in the alleged incident as he remained sit in the vehicle of Pawan Kumar. 8. Shri P.M. Negi, learned Deputy Advocate General submitted that prosecution witnesses namely PW1 Hem Lata, her son PW2 Sanjiv Kumar and PW4 Pawan Kumar have proved the incident in question and the injuries sustained by them was attributable to the incident having been caused by the respondents with their common object. The approach of the learned trial Court for picking up the evidence from the cross-examination of one or the other witness have caused miscarriage of justice without referring to these statements in substance. It is also argued that Chatru @ Chet Ram is an accused specifically named by the witnesses. If the evidence on record is seen in the right perspective, there are grounds to convert the acquittal into conviction. - 5 - 9. The above arguments have been countered by Shri R.L. Chaudhary, learned counsel for the respondents, on the ground except Chatru and Bodh Raj, there is no evidence against Hem Singh and Ajit Kumar. He further argued as there was no motive attributable to Chet Ram and Bodh Raj to cause such an incident and the case against them was on account of retaliatory step because of the trivial incident which took place during day time in the village fare and this case has been fabricated by Pawan Kumar in connivance with his sister. According to him, the findings arrived at by the learned trial Court are borne out from the record, which cannot be faulted in any manner. 10. I have given my thoughtful consideration to the rival contentions of the parties and have carefully reappraised the evidence on record. 11. The duty of the Court is to sift the evidence produced during the trial to arrive at the truth. PW1 Hem Lata in her earliest version made to police in her statement under Section 154 of the Code of Criminal Procedure - 6 - categorically named Chatru @ Chet Ram, who is stated to have alighted from the vehicle came over her slab where she was talking to her brother PW4 Pawan Kumar and fisticuffed him. When she intervened alongwith her sons Pushp Raj and PW2 Sanjiv Kumar, they were also given beatings by the other three persons who also alighted from the vehicle and reached there. On this, they raised hue and cry and the accused persons fled away from the spot, but she during the trial, categorically named Chataru @ Chet Ram and identified him as an assailant. In cross-examination she stated that after the said incident, she saw other accused persons for the first time in the Court, whereas, PW2 Sanjiv Kumar also named Chatru, who was first to give beatings to PW4 Pawan Kumar his maternal uncle and he further stated that other persons, who were sitting in the vehicle, they also joined Chatru @ Chet Ram. 12. PW4 Pawan Kumar not only identified Chatru @ Chet Ram but also named Bodh Raj respondent, who gave beatings to him, but referred other two accused as Jeet Ram and Hem - 7 - Raj, who also joined pursuit, but there is no Jeet Ram accused, it is only Ajeet Kumar and no specific role has been attributed to Hem Raj. The names of Ajeet Kumar and Hem Raj respondents have not been testified by other witnesses. Further all the witnesses stated that Hem Singh respondent remained kept sitting in the vehicle and he did not join the other respondents Chatru and Bodh Raj therefore, the involvement of the respondents Hem Singh and Ajeet Kumar in the aforesaid incident cannot be said to have been proved beyond reasonable doubt, but insofar as Chatru @ Chet Ram and Bodh Rah, both stands fully identified by the prosecution as assailants having caused injuries to PWs1, 2 and 4. 13. The injured witnesses are competent witnesses and the weight to the statements is attached more than any other witness because his/ her presence on the spot stands established and there is no reason that they will falsely implicate any other person than the real one. 14. PW6 Dr. Sunil Thakur stated that injury No.1 on the lumber spine was grievous in nature as - 8 - there was a small fracture on the right iliac bone as detected in the CT scan. The CT scan is stated to have been taken on 30.8.2004, but neither the doctor, who took CT scan nor report of the CT scan could be proved and connected with the said injury of Hem Lata. Even PW3 Dr. P.K. Soni, who is stated to have taken X-ray did not say anything about the fracture. Therefore, in the above circumstances, the grievous injury on the person of Hem Lata stands not proved. Therefore, the prosecution could not prove the offence punishable under Section 325 of the Indian Penal Code against any of the accused persons. 15. The simple injuries on the person of PW1 Hem Lata, her son PW2 Sanjiv Kumar and PW4 Pawan Kumar by respondents Chatru @ Chet Ram and Bodh Raj stands proved, thus the findings of their acquittal recorded by the learned trial Court is perverse, as such set-aside. 16. In result, respondents Chatru @ Chet Ram and Bodh Raj, both are held guilty for the offences punishable under Sections 451 and 323 read with Section 34 of the Indian Penal Code, - 9 - accordingly, they stand convicted for the said offences, whereas, acquittal against other accused persons is affirmed as the prosecution failed to prove the case beyond reasonable doubt. 17. Insofar as the sentence is concerned, the incident had taken placed in the year 2004, the convicts Chatru @ Chet Ram and Bodh Raj are the first offenders as there is no criminal history against them. The incident might have taken place at the spur of moment, the reason whereof is not spelt out in the prosecution case. The convicts are youthful offenders, thus instead of sentencing them to jail, which would mar their future, it is thus expedient in the interest of justice to give them the benefit of Section 3 of the Probation of Offenders Act. Accordingly, they are admonished. 18. The appeal filed by the State is thus partly allowed. 19. The matter stands disposed of. Send down the records. August 27, 2011. (Surinder Singh) (Pds) Judge. - 10 -