IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No. 610 of 2002 Decided on September 16, 2011 _____________________________________________________________ State of H.P. …Appellant Versus Prabh Dayal & Anr. …Respondent. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting? For the Appellant: Mr. R.K Sharma, Sr. Additional Advocate General. For the respondent : Mr. Ravinder Thakur, Advocate. Justice R.B. Misra,J.(oral) The present Criminal Appeal has come up for adjudication after the grant of leave to appeal under Section 378 (3) of the Code of criminal Procedure in reference to the judgment dated 6.6.2002, passed by the Learned Sessions Judge, Bilaspur in Sessions trial No. 14 of 1995, acquitting the alleged accused/respondents for the offence under Sections 307, 506 I.P.C read with Section 34 I.P.C in reference to F.I.R No. 66/94 of Police Station, Barmana, H.P. 2. Prosecution case in brief is that on 19.5.1994, PW-3 Sh. Shiva Nand reported that around 7.00 p.m. when he was going to fetch vegetables, he met his nephews Anant Ram and Ratan Lal (PW-2). When all of them reached near a well, Prahb Dayal accused met them at which accused asked him who is 2 there? At this, Prabh Dayal accused resorted “can’t you see”. Thereafter they entered into a hot discussion. However, PW-3 intervened and asked everyone to go to their respective home. After sometime, PW-3 Shiva Nand heard some noise from outside and came out of his house and noticed that accused party were abusing Ratan Lal and Ramesh Chand. PW-3 took Ratan Lal away from the courtyard but, in the meantime Prabh Dayal accused gave a knife blow on the stomach of Ramesh Chand (PW-1). Blood started oozing out from the wounds. In the meantime, Ratan Lal came to the courtyard but he was also given three knife blows, two on his shoulders and one of his neck. At this, Rattan Lal and Ramesh Chand raised hue and cry. The two other accused Jai Devi (Since died) mother of Prabh Dayal and Meera Devi wife of accused Prabh Dayal also gave danda blows on Ratan Lal and Ramesh Chand. The villagers gathered on the spot and took Ratan Lal and Ramesh Chand to the Hospital and in that regard F.I.R was lodged. 3. On 21.5.1994 Prabh Dayal accused produced knife Ex. P-8, which was taken into possession vide seizure memo Ex. PW-3/A and after investigation accused persons were charged for the aforesaid offences. With respect to same incident Meera Devi wife of Prabhdayal lodged FIR No. 67/1994 on 20.5.1994 by stating that on 19.5.1994 at about 8.00 p.m. when she came out of her kitchen after taking her food, her jeth (elder brother of husband) Ratan Lal accused under the influence of liquor was scolding them in a filthy language and proclaimed that he will take back the path. In the meanwhile 3 Ramesh Chand accused came there and also joined in giving filthy abuses. Accused Ratan Chand gave a knife blow on the head of Meera Devi and accused Ratan lal gave a blow of danda on her head. In the meanwhile, her mother-in-law Jai Devi cried and rescued her from the clutches of the accused. Thereafter, accused Ratan Lal came out with a gun and pointed out it at her but, Ananat Ram came there and snatched the gun from Ratan Lal. F.I.R Ex. PW-4/A was registered and after investigation Ratan lal and Ramesh Chand were charged for offence under Sections 323,324,504, 506 I.P.C read with Section 34 IPC in reference to FIR No. 64 of 1994. In reference to said FIR No. 67 of 1994, in sessions trial No. 46 of 1997 learned Sessions Judge, Bilaspur vide its judgment dated 6.6.2002 acquitted Ratan Lal and Ramesh Chand for the offence mentioned above giving them benefit of doubt by observing that prosecution has failed to prove the case beyond reasonable doubt against them. 4. Surprisingly, in the endeavour of the prosecution relying on prosecution witnesses PW-1 Dr. S.P Dhiman. PW-2 Meera Devi PW-3 Prabh Dayal, PW-4 Inspector Kashmir Singh, PW-5 Shri, Krishan Dass and DW-1 Shri. Vijay Kumar have failed and State has not preferred any criminal appeal with leave to appeal under section 378(3) Cr.P.C against the judgment dated 6.6.2002 passed in Sessions Trial No. 46 of 1997. However, in respect of FIR No. 66/1994 against Prabh Dayal, Meera Devi and Jai Devi prosecution 4 examined as many as seven prosecution witnesses namely PW-1 Ramesh Chand, PW-2 Ratan Lal, PW-3 Shiva Nand, PW-4 Dr. S.P Dhiman, PW-5 Dr. J.P Nadda, PW-6 HC Prem Lal, PW-7 Ins. Kashmir Singh and DW-1 Shri. Hari Nand, DW-2 Shri. Ram Pal and DW-3 Shri. Sanjiv Kumar. On the basis of prosecution witnesses and material on record we notice that Dr. S.P Dhiman on examination of Smt. Meera Devi had found following injuries: “Injury No. 1: Linear sharp edged wound of size 1cmx0.2cmx0.3 cm on the scalp in the middle of skull. Blood was oozing on touch. No odema is present. Injury No. 2: Lacerated would of 3.5x0.3x2 cm in occipital region of scalp. Hairs are soiled and oedema was present in the adjoining area. Injury No. 3: Abrasion with deep clotted blood in the inner side of index finger. Shirt is soiled with clotted blood. 5. Dr. S.P Dhiman has also opined that injuries were simple in nature and Injury No.1 could be caused with sharp edged weapon and injuries No. 2 and 3 could be caused by blunt weapon. In view of testimony of PW-1 Ramesh Chand , he stated that all the three accused persons who were abusing his elder brother Rattan Lal and on asking as to why they were doing so, accused Prabh Dayal caught hold of him and gave him knife blow in his stomach, blood started oozing out and he 5 fell down and became unconscious and was taken to Hospital at Panjgain. PW-2 Rattan lal who is said to have witnessed the incident stated that on 19.5.1994 at about 7.30 p.m., while coming to his house along with his uncle Shiva Nand, he heard footsteps of some one and asked as to who he was. The said person stated that “cant you see”. Thereafter said PrabhDayal, his wife Meera Devi and his mother Jai Devi started abusing PW-2 Ratan Lal. In the meantime, Ratan Chand came there and accused Prabh Dayal assaulted him by giving knife blow in his stomach, when PW-2 Ratan Lal went to rescue him, three knife blows were given by accused Prabh Dayal to PW-2 Ratan Lal , two blows on his shoulders and the third blow was given on his neck. Many persons gathered there and PW-2 Ratan Lal and Ramesh Chand were taken to Hospital. PW-4 (Dr. S.P Dhiman) examined PW-2 Rattan Lal and opined that: “Injury No. 1: Incised wound of size 4.2x1.0x1.3 cm. with sharp edge. 2cm below the right jaw. Injury No. 2: Incised wound of size 2.5 cmx1.6 cmx1.2 cm in the medial side of the shoulder on the ventral aspect of the right side. Injury No. 3: Incised would of size 2 cmx3.1cmx0.75 cm in the medial side of the left shoulder joint on ventral aspect. “ PW-4 has opined that injuries were simple in nature and could be possible with a knife. 6 6. PW-5 Dr. J.P Nadda examined Ramesh Kumar after performing his operation and noticed that injuries on his body were apparent and dangers to life. 7. On the basis of prosecution witnesses, materials on record, we have also noticed that Ratan Lal and Ramesh Chand were also injured, In view of testimony of PW-4 and PW- 5. Accused Meera Devi was also injured as witnessed by Dr. S.P Dhiman in the same incident. It is difficult to know that in the said occurrence who had inflicted whom with what weapon and who was the aggressor. The testimony of PW-1, PW-2 and PW-3, however, does not inspire confidence as we notice that PW-2/B is report first in the point of time lodged by PW-3/ Shivanand indicating that when PW-1 and PW-2 raised hue and cry, PW-1/Ramesh fell down and become unconscious. PW-2 has no where stated that he and his brother has raised any hue and cry. PW-3 Shri. Shiva Nand stated that the accused had been abusing his brother Ratan Lal for five minutes but suprisinly in cross-examination Ratan Lal PW-2 denied his presence on spot and PW-1 Ramesh Chand went to the place of occurrence. PW-2 Ratan Lal admitted that when PW-1 Ramesh Chand went to the place of occurrence, only Shiva Nand PW-3 was present there whereas he was not present there. PW-3 in his cross-examination has admitted that he heard noise and saw that a knife blow was given to Ramesh Kumar PW-1 and only then he went there. Apparent contradiction has also been noticed when PW-2 Ratan Lal has stated that when he went to rescue PW-1, he was given knife 7 blows, whereas, PW-3 had stated that PW-1 Ramesh Chand was being taken to Hospital and accused Prahb Dayal had given him knife blows. In these circumstances, testimony of PW-1 and PW-3 becomes doubtful and unreliable. 8. In the facts and circumstances of the case when prosecution had examined no other independent witness except PW-3 Shiva Nand who was inimical with accused persons despite the fact that independent witnesses were available on the spot. PW-3 Shiva Nand has categorically stated in his cross-examination that both the parties were abusing each other loudly for half an hour. Analysis of prosecution witnesses makes it clear that Parabh Dayal accused is stated to have caused knife blow on Ramesh Chand and PW-2 Ratan Lal in the said incident, the possibility of having suffered such injuries in order to defend his wife Meera Devi from the accused cannot be ruled out. We also notice that PW-1 Ramesh Chand has admitted that occurrence took place in the path which goes from the house of the accused persons. It has also come in evidence that Meera Devi had sustained serious injuries on her head which is vital part of the body. In these circumstances, if Parab Dayal might have caused injury to PW-1 and PW-2, he should have exceeded his right of self defence. No doubt accused Prabh Dayal has not taken this defence in his examination under Section 313 of Cr. P.C , but, analysis of prosecution witnesses reveals that quarrel took place within the boundary of the house of the accused persons. The testimony of PW-4 Dr. S.P Dhiman 8 indicates that Meera Devi had sustained injuries and Ramesh Chand PW-1 has inflicted a knife blow on Meera Devi. In these facts and circumstances, the prosecution has failed to prove the case beyond all reasonable doubt and analysis of material on record learned Sessions Judge has rightly came to the conclusion that the prosecution has failed to bring home the guilt to the accused. The present criminal appeal, being devoid of any merit, is dismissed. 9. The bail bond furnished by the respondent/accused is hereby discharged. (Justice R.B. Misra), Judge. September 16.2011 (Justice Dev Darshan Sud) (priti) Judge