IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 328 of 2001 Date of decision: 05.04.2011 ________________________________________________________________________ The State of H.P. .....Appellant. Versus Mahender Pal & others. .....Respondents. Coram The Hon'ble Mr. Justice R.B. Misra, J. The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? _______________________________________________________________ For the appellant: Mr. R.K. Sharma, Sr. Additional Advocate General with Mr. Rajinder Dogra, Additional Advocate General. For the respondents: Mr. Raman Sethi, Advocate. R.B. Misra, J (Oral). The present criminal appeal has come up for consideration after leave to appeal under Section 378(3) of the Code of Criminal Procedure has been granted in reference to the impugned judgment dated 30.03.2001, passed by the learned Sessions Judge, Kullu, District Kullu, H.P. in sessions Trial No. 22/99, acquitting the respondents-accused for the offence under Section 323, 326, 307, 506 read with Section 147 of the Indian Penal Code. 2. Prosecution case is that on 11.01.1999 Chande Ram (PW-6), complainant alongwith his grandson, Narender Pal (PW-8), after visiting Manali came to Nehru Kund, Manali by vehicle and thereafter crossed the bridge on foot. After crossing the bridge, he was attacked by accused persons, namely, Mahender Pal and Chet 1 Whether reporters of Local Papers may be allowed to see the judgment? ...2... Ram with iron rods whereas other accused persons gave fist, kick blows and also knife blow. PW-6 (Chande Ram) was brought to the hospital at Manali in an injured condition by his daughter, Nanki (PW-7) and Dhiru, where his statement was recorded as Ex. PW-6/A and in that reference FIR, Ex. PW-5/B, was registered. After investigation, the accused persons were charged for the aforesaid offences. 3. In order to prove its case, prosecution examined as many as eleven witnesses, whereas, accused through their statements under Section 313 Cr.P.C. denied the prosecution case. 4. The FIR, Ex. PW-5/A, is extracted below: “Stated that I am resident of above address. Today on 11.1.99 I had come to Manali bazar due to personal work. At about 4.30/5.00 PM I was going to my house in own vehicle No. HP-02-4433 in which in addition to Narender Pal others were sitting. I got out of the vehicle near Nehru Kund, at a place near bridge alongwith grandson, Dhiru and one more person. As soon I crossed the bridge on the road beyond the koisk of Ruldu Ram suddenly appeared 5-6 persons. Mahender Pal son of Rewat Ram, Chet Ram son of Chhape Ram, Krishan Gopal s/o NiratRam and Nand Lal s/o amar Chand were also amongst them. They suddenly appeared on the road, stopped and started beating me. Mahender Pal and Chet Ram were having iron rods with which they gave beating on my body and head and remaining ggave fist and kick blows. Mahender Pal openly threatened to kill me there and then. When they saw blood oozing out from my body, they fled away. Sd/- (Chande Ram)” 5. The statement, as per endorsement, Ex. PW-5/A, was recorded by Swarn Singh Inspector (PW-10) in Mission Hospital, Manali, in which the name of Nanki Devi (PW-7) daughter of Chande Ram was not mentioned in that FIR, whereas, she was with Chande ...3... Ram and was said to be present on the spot as an eye-witness. Chande Ram (PW-6)/injured-victim, in his endeavour to support the prosecution case has stated that he was accompanied by Narender Pal, Dhiru and Nanki on the fateful day and after stepping out of the vehicle at Nehru Kund when he crossed the bridge, 4-5 persons came from the back, out of whom, he recognized Mohender Pal and Chet Ram, who gave beatings with iron rods due to which he suffered injuries. The remaining accused-respondents gave fist blows and inflicted injuries on him with knife. 6. PW-6 (Chande Ram) further stated that the name of other accused-respondents were disclosed later on by Nanki (PW-7) as Krishan s/o Balku, Krishan s/o Nirtu and Nand Lal. As per testimony of PW-6, he was brought by Nanki and Narender to the Government Dispensary at Manali where he was admitted for about 15-20 days. As per the testimony of PW-6 his daughter, Smt. Tehli, was married to one Man Dass, who was ousted from his house and consequent upon Smt. Tehli was brought by the maternal uncle of Mahender accused and at the relevant time Smt. Tehli was residing with PW-6 and because of such incident, Mahender was having inimical relations with him. 7. As per the testimony of PW-6, made in the cross- examination, accused Chet Ram is brother-in-law of Mahender. However, he was not aware whether his son Sonam has inflicted knife blow to the brother of the accused Mahender on 03.01.1999. However, a criminal case was going on against him. As per testimony of PW-6, made in cross-examination, he was admitted only in the ...4... government hospital where his statement was recorded in the night. PW-6 had disclosed to the police that Bhiru came there at the time of incident, but he has not disclosed about Nanki. Again stated that only Nanki was with PW-6 when he was brought to the hospital and Bhiru was not with him. PW-6/Chande Ram, however, has very categorically denied that he had gone to the hospital in an injured condition and he had never asked medical officer to issue medical certificate of serious injuries. 8. Smt. Nanki (PW-7), daughter of Chande Ram/PW-6, has very strenuously claimed that she had gone with her father, Chande Ram, to Manali and returned with him to the place of occurrence. In her endeavour to support the prosecution case, PW-7 has stated that the moment Chande Ram crossed the bridge and was going to the village five boys, namely, Mahender Pal, Chet Ram, Nand Lal, Gopal Krishan and other accused Gopal Krishan gave physical beatings with iron rods and knife to her father. She raised hue and cry “bachao bachao” but nobody came on the spot. Narinder was also there with PW-7 (Nanki). Accused-respondents Mohinder and Chet Ram were having iron rods in their hands and Gopal Kishan son of Shri Nirat Ram was having knife. Mohinder accused was saying that my father be killed. After sustaining injuries, blood started oozing from the body of PW-6 (Chande Ram) and in an injured condition PW-6 was taken to the hospital where he remained admitted for 12-13 days. PW-7 (Smt. Nanki Devi) has very categorically stated in her cross-examination that she brought the police in government hospital, where the statement of her father was recorded and she has very categorically indicated that ...5... it is wrong to suggest that she has taken her father for treatment at Mission Hospital. 9. PW-8/Narinder Pal said to be accompanying PW-6/Chande Ram on the relevant day, has stated that 5-6 boys came from the side of 'khoka' of Rulda Ram. All those boys stopped Chande Ram/PW-6 and told “aaj bach ke kahan jayaga” and thereafter they gave beatings to his grand father Chande Ram, who received injuries and fell down. In the meantime, Nanki and Bhiru also came on the spot from the Manali side and Chande Ram was brought to the Manali hospital in an injured condition. In cross-examination, PW-8/Narinder Pal stated that Nanki had not met him at Manali. PW-8 had seen Nanki and Bhiru at the spot where quarrel had taken place. PW-8 has stated that he had taken Chande Ram to Mission hospital at Manali, where he was given treatment. Police also came in Mission hospital and statement of his grand father was recorded. PW-8 has also very categorically stated that Chande Ram/PW-6 had fallen down about 20 feet in the Beas river from the path and the surface was stony. 10. Apparent contradictions are emanating from the testimony of PW-7 and PW-8. In view of testimony of PW-6/Chande Ram, Nanaki (PW-7) and Narinder Pal (PW-8) was accompanying him at the time of incident whereas in view of testimony of PW-7 at the relevant time she raised hue and cry but none came at the spot and it was Mahender who told that Chande Ram be killed, whereas in view of the testimony of PW-8/Narinder Pal a different version was given that all the accused had told “aaj bach ke kahan jayage”. Such narration is not emanating from the testimony of PW-6/Chande Ram. In view of ...6... the statement of PW-8/Narinder Pal, the presence of Nanki (PW-7) was doubtful and a suspicion was also created whether Chande Ram (PW-6) was taken to the Mission hospital at Manali, where his statement was recorded or he was directly taken to the government hospital where his statement was recorded. PW-8/Narinder Pal, has stated that he took Chande Ram (PW-6) to the Mission Hospital, where his statement was recorded, whereas in view of testimony of PW-7, PW-6 (Chande Ram) was taken to the government hospital and not to the Mission hospital for treatment. Two persons, who took Chande Ram (PW-6) to the hospital had given different versions. In view of the testimony of PW-7 (Nanki), Chande Ram (PW-6) stayed in the hospital for 12-13 days, whereas as per Chande Ram (PW-6) he remained in the hospital for about 15-20 days. PW-6 has further categorically denied to have gone to the Mission hospital in an injured condition. In view of the testimony of PW-8, Chande Ram (PW-6) had fallen down from the path in 20 feet deep river. 11. PW-9 Ghanthu Ram had stated that on 12.01.1999 Narinder Pal had identified the cap and stone at the spot which were taken by the police in possession vide memo Ex. PW-1/A. PW-10 Inspector Sawarn Singh, at the relevant time was SHO P.S. Manali, received telephonic information that Chande Ram was admitted in the Mission Hospital where he recorded the statement, Ex. PW-6/A. Thereafter, patient was shifted to Government Hospital, Manali. In view of the statement of PW-10, Chande Ram (PW-6) was taken to Mission Hospital and thereafter to Government Hospital. However, his statement was recorded in Mission Hospital. Statement of PW-10 is ...7... also in derogation to the testimony of PW-6 and PW-7, however, corroborating the testimony of PW-8 to the extent that he was taken to the Mission Hospital where his statement was recorded. 12. PW-3, Dr. Shashi Wapa, Medical Officer Kelong, has medically examined Chande Ram (PW-6) and has observed the following injuries: “1. There was clean lacerated wound on the head. Margin irregular 1½ inch x 0.5 cm in width and o.5 cm in depth. First aid given previously. Injury subjected for x-ray examination. 2. there was clean lacerated wound on the head. Margin irregular 1.5 inch x 0.5 cm. 0.5 cm in depth. There was no fresh bleeding. 3. there was clean lacerated would on the head. Margins irregular. 0.5 inch x 0.5 cm. Superficial. There was no fresh bleeding present. Blood clots were present. 4. there was clean incised would on the middle finger 2cmx1cm. Index finger 3x1cm. Thumb 2x1cm. Margin clean and sharp regular bleeding was present. 5. there was clean incised would on the ring finger and thumb. 4Cm x 0.4 cm x 2 cm. Margin clean regular. Bleeding was present. 6. A contusion on right metaarpohal angeal joint Bluish in colouration 4 cm x 3 cm in size. 7. A contusion on the left elbow 5 inch x 4 inch. Bluish in colour. 8. There was clean lacerated would on the left lower leg 0.5 inch by 2cm in size depth 0.5 cm. There was fresh bleeding present. 9. There was clean lacerated would on left lower leg 0.5 inch x 2 cm in size depth 0.5 cm. Fresh bleeding was present. Margin was irregular. 10. There was clean lacerated would on right lower leg 4 cm x 1 cm in size. Clotted blood was present. 11. Clotted blood was present around the nasal orfice. 12. Swelling and tenderness on left thumb-injury subjected for x-ray examination. Injury No. 12 to 11 were simple and injury No. 1 was grievous. As per x-ray left hand showed fracture distil phalanx of thumb and stural fracture of skull. Injury No. 1 could be fatal to life of injured. The probable duration of injury was one hour. Injury No. 4 and 5 were caused by sharp ...8... edged weapon and other injury with blunt weapon. MLC is Ex. PW-3/A which is in my hand and bears my signatures. The signature of the injured are at point A of Ex. PW-3/A. My opinion about injury No. 1 is Ex. PW-3/B.” 13. In view of the testimony of PW-3, injuries No. 4 and 5 could be caused with knife, Ex. P-6, and other injuries No. 1 to 3 and 6 to 12 could be caused with iron rods, Ex. P-7 and P-8. In the opinion of PW-3, the injuries found on the person of PW-6 (Chande Ram) were possible by fall. Such opinion of PW-3 is in derogation to the ocular evidence of PW-8 Narinder Pal, who had very categorically indicated that Chande Ram (PW-6) had fallen 20 feet down from the path on the stony surface. It could not be believed that after falling 20 feet down Chande Ram will not sustain any injury. However, medical evidence, as indicated by PW-3, has not noticed any injury of any kind which could have been caused by falling on hard surface. 14. PW-4 Dr. Chetan Thakur, has noticed fracture of distil phylinx of left thumb and sutural fracture of skull and gave opinion in cross-examination that injuries No. 1 and 12 could be dangerous to life. PW-4 has not, however, examined the patient neurologically except applying the plaster on the fracture. There is also contradiction in the opinions of PW-3 Dr. Shashi Wapa and PW-4 Dr. Chetan Thakur to the extent that injuries No. 1 to 12 could have been caused by fall in view of medical opinion of PW-4, whereas such opinion has not been indicated by PW-3. Such conflicting opinion of two medical experts, namely, PW-3 Dr. Shashi Wapa and PW-4 Dr. Chetan Thakur in derogation to the ocular evidence of PW-8 also makes the prosecution case doubtful. ...9... 15. The daughter of Chande Ram, Smt. Tehli was married to one Maan Dass and later on was turned out and the daughter of the maternal uncle of Mahender was married to Maan Dass, can not reasonably be motive or which could be the cause of assault by the accused persons. 16. On analysis of the prosecution witnesses and the materials on record the presence of Nanki/PW-7 also becomes doubtful and the injuries also could not be said to have been inflicted by the accused persons when PW-8/Narinder Pal said to be accompanying Chande Ram (PW-6) and PW-8 has very categorically asserted that Chande Ram (PW-6) had fallen 20 feet below the path, then possibility of sustaining injuries by fall cannot be ruled out. As per medical evidence also the injuries could have been caused due to fall. The FIR, Ex. PW-6/A, recorded at the instance of Chande Ram (PW-6) also did not mentioned the injuries having been inflicted by knife as the injuries were said to have been inflicted by iron rods and by beatings. Therefore, in the facts and circumstances of the case, the injuries caused by knife could be the improved version of the prosecution case. The prosecution case becomes doubtful as contradictions go to the root of the prosecution case and medical evidence is also contradictory and in derogation to the ocular evidence. 17. On analysis of the prosecution witnesses and the materials on record, the prosecution could not said to have proved its case beyond all reasonable doubts and in our considered view also, the prosecution has failed to bring home the guilt to the accused- respondents. In these circumstances, criminal appeal being devoid of ...10... merit is dismissed. 18. The bail bonds of the accused-respondents are discharged. (R.B. Misra) Judge (V.K. Sharma) Judge 5th April, 2010 (virender)