IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 500 of 1996 Date of Decision : April 8, 2010 State of Himachal Pradesh Appellant Versus Bhagwan Dass and others Respondents Coram: Hon’ble Mr. Justice Deepak Gupta, Judge Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the appellant : Mr. Vivek Thakur, Additional Advocate General for the appellant. For the respondents : Mr. Sanjeev Kuthiala, Advocate, for the respondents. Deepak Gupta, J. (Oral) This appeal by the State is directed against the judgment dated 28.2.1995 delivered by the learned Sessions Judge, Hamirpur, H.P. in Sessions Case No. 15 of 1993 whereby he acquitted the accused of having committed offences punishable under Sections 452 and 307 read with Section 34 of the Indian Penal Code. Whether reports of Local Papers may be allowed to see the judgment? Yes. 2 The undisputed facts are that the complainant party and the accused persons are neighbours and have houses adjoining each other. According to the complainant at about 6.00 a.m. on 24.10.1992 all the four accused persons i.e. Bhagwan Dass, Damodar Singh, Swarup Singh and Balwant Singh after making preparation trespassed into the house of Purshotam Singh. Purshotam Singh was sleeping in one room of the house. His wife Smt. Kanta Devi, Smt. Roshani Devi who is the wife of the elder brother of Purshotam Singh and Smt. Sarla Devi wife of the younger brother of Purshotam Singh were present in the house. Purshotam Singh is an army man who had come home on leave. The prosecution case is that Damodar Singh and his son Swarup Singh were armed with ‘darats’ and accused Bhagwan Dass and Balwant Singh were carrying ‘dandas’. Damodar Singh inflicted ‘darat’ blow on the head of Purshotam whereas accused Swarup Singh gave a blow of ‘darat’ to Smt. Kanta Devi. Smt. Roshani Devi was given blow of ‘danda’ by the accused Bhagwan Dass. Similarly Smt. Sarla Devi was given blow on head and shoulder with ‘danda’ by the accused Balwant Singh. Thereafter Sh. Ram Ditta (PW-2) who is the paternal uncle of Purshotam Singh and who is also his next door neighbour came inside the house and saw the incident. He thereafter reported the matter to the police and daily diary report was lodged at 8.20 a.m. on 24.10.1992 at Police Station, Bhoranj. 3 Thereafter the police swung into action. The injured persons were taken to the hospital where they were checked up. The bed sheet etc. which were blood stained were taken into possession. Statement of Purshotam Singh (Ext. PF) was recorded purportedly under Section 154 Cr. P.C. at 9.30 a.m. and on the basis of this statement F.I.R. was lodged. Number of injuries were found on the person of the four injured persons. Injuries on the person of Smt. Roshani Devi were found to be grievous in nature since she had suffered a fracture on the nasal bone whereas the injuries on the other injured persons were opined to be simple in nature. After the investigation challan was filed against the accused and they pleaded not guilty and claimed trial. The defence of the accused is that a fight did take place between the two groups. According to the defence version Damodar Singh was cutting fodder from the ‘biul’ tree when Purshotam came and objected to his lopping fodder from the tree and Purshotam allegedly gave him blows. Thereafter, Smt. Roshani Devi came and also hit Damodar Singh. He raised hue and cry and on this Smt. Sarla Devi who had also accompanied Smt. Roshani Devi they both gave fist and leg blows to Damodar and abused him. Then Balwant Singh and Swarup Singh sons of Damodar Singh came on the spot and saved Damodar. Thereafter a fight ensued in which both sides sustained injuries. It would be pertinent to mention that report Ext. DC was lodged by the accused persons at 8.10 a.m. prior to the report lodged by Sh. Ram Ditta (PW-2). 4 The learned trial Court has noted some glaring contradictions in the statements of the prosecution witnesses vis-à-vis the version given by them to the police during the investigation. Whereas in the statements of the injured persons Purshotam Singh, Smt. Roshani Devi and Smt. Sarla recorded by the police it was clearly mentioned that there was enmity between the two sides while appearing in Court these three witnesses stated that there was no past enmity. However, Smt. Kanta Devi stated that there was past enmity and this was the cause of the fight. In this case the main dispute is as to where the occurrence took place. In case it took place near the ‘biul’ tree then the accused persons cannot to be said to be the aggressors since according to the demarcation report carried out by the police the said tree was found to be in the land of Damodar Singh, accused. However, in case the occurrence had taken place in the house of Purshotam Singh then the accused shall not only be guilty of trespass but a presumption can arise that they were the aggressor party. All the witnesses produced by the prosecution have stated that a number of other co-villagers had gathered at the spot. However, none of these co-villagers have been examined in the Court. Other than the injured the only other person examined by the prosecution is Sh. Ram Ditta (PW-2) who, as mentioned above, is the paternal uncle of Purshotam Singh. Therefore, all the witnesses are closely related to each other. By now the law is well settled that the evidence of the injured persons or other close 5 relatives cannot be discarded only on this ground. However, in case where admittedly independent witnesses were present the prosecution must show why it has not associated these independent witnesses with the investigation of the case and why the said witnesses have not been produced and examined in Court. In such circumstances the testimony of the injured witnesses and other relatives must be scrutinized with great care and caution and in case there are inconsistencies in their statements the benefit has to be given to the accused. There are glaring contradictions in the statements of the eye witnesses. According to Purshotam Singh (PW-3), his sister-in-law, Smt. Roshani Devi (PW-4) raised hue and cry at about 6.00 a.m. On hearing her cries this witness was about to get up from his bed but in the meantime accused Damodar Singh came inside and gave a blow of ‘darat’ which hit Purshotam Singh on the left side of his head. Accused Bhagwan Dass gave a blow of ‘danda’ on his right hand. Resultantly, Purshotam Singh fell on the grains of maize lying on the floor. Smt. Kanta Devi and Smt. Sarla came into the room and they were assaulted by the accused. He further states that before Sh. Ram Ditta (PW-2) came the accused had already fled from the scene of occurrence. Purshotam Singh does not talk of any injuries caused to Smt. Roshani Devi in his presence. Version of Smt. Roshani Devi (PW-4) is totally different. According to her after she woke and had got out of the bed and was coming out of the room in which she was sleeping she saw the 6 accused persons running into the room of Purshotam. She followed them there and found Damodar giving a blow of ‘darat’ on the head of Purshotam. Then accused Bhagwan Dass gave a blow of ‘danda’ on her head. Balwant gave blow of ‘danda’ on her shoulder. As a result of these blows she fell down. According to her she became unconscious and has no personal knowledge of what happened thereafter. On the one hand she stated that she had become unconscious and on the other hand she stated that later Ram Ditta and Amari Devi came to the spot of occurrence and then the accused persons ran away. She also admitted that a large number of persons living in the neighbourhood had come to the scene of occurrence. Thus her version is that first Purshotam Singh was given a blow of ‘darat’ on his head by accused Damodar and then she raised hue and cry when she was also attacked. Purshotam has given a diametrically opposite version of the said incident. It is pertinent to mention that the medical evidence does not support the evidence of Smt. Roshani Devi. According to her she was given one blow on the head and one blow with the ‘danda’ on the shoulder but the grievous injury caused to her is fracture of the nasal bone and this has not been attributed by her to any specific act or injury. Normally this Court would not insist on the injured giving detailed version but here we are dealing with a case where every injured witness has given detailed version of the injuries caused to him; has named the person who has caused the injury and also given details of the weapon carried by the accused 7 persons. When the witnesses speak in such detail then full explanation for all the injuries must be given. Smt. Kanta Devi (PW-6) states that she had just risen in the morning and was working in the kitchen. Her husband Purshotam Singh and her sisters-in-law Smt. Sarla Devi and Smt. Roshani Devi were sleeping in separate rooms. She heard the alarm raised by Smt. Roshani Devi and came down from the kitchen which is on the first floor and then found the accused persons in the room where her husband was sleeping. She saw accused Damodar giving a blow of ‘darat’ on the head of her husband and accused Bhagwan Dass and Balwant Singh gave blows with ‘danda’ and accused Swarup gave another blow with ‘darat’ on her head. She also received injuries on her neck and shoulder and thereafter fell down. According to her when she reached the room Smt. Roshani Devi was already lying injured. Therefore, as per her version Smt. Roshani Devi had been first attacked and then this witness reached the room and then in her presence Purshotam was attacked. Thus Smt. Roshani Devi who had become unconscious could not have seen the attack on Purshotam and this is a glaring contradiction in the statements of two witnesses. Smt. Sarla Devi (PW-5) states that she was sleeping in the first floor of the house and on hearing the cries came down and entered the room of Purshotam Singh and noticed that Purshotam, Smt. Kanta and Smt. Roshani were lying injured in the room and then accused Balwant gave a blow of danda on her head and 8 shoulder. She raised alarm and then Ram Ditta and his wife came to the place of occurrence. Sh. Ram Ditta (PW-2) is not an eye witness of the occurrence. Even, as per the version of Smt. Sarla Devi (PW-5) Sh. Ram Ditta arrived only after she had been injured. Ram Ditta in Court states that he saw accused assaulting Purshotam and the women of his family. This statement is totally false and contrary to the statements of the injured persons themselves. As per the prosecution, Purshotam Singh suffered injures and fell down on the maize grains stacked in the room which were soaked with blood. When there were two versions already before the police about the place of occurrence; one put forth by the accused that the occurrence had taken place near the ‘biul’ tree and the second that the occurrence had taken place in the room it was the duty of the police to have collected the blood stained grains and earth from the room. This has not been done and also shows that the investigation was not impartial. Even otherwise the version of the prosecution does not appear to be true. The prosecution witnesses have come out with different versions about the manner of the attack. According to three prosecution witnesses there was no prior enmity between the two sides. If there was no enmity why would the accused suddenly enter the house of the injured persons and without warning or even talking to them, injure them. Even if the version given by these witnesses is accepted then also something must have happened before which led the accused to 9 attack the injured persons. What is the genesis of the fight which admittedly took place? The prosecution has hidden the cause of the fight from the Court. When the genesis of the fight is hidden then the trial Court was justified in drawing an adverse inference against the prosecution. The defence version that the incident took place near the ‘biul’ tree cannot be said to be improbable in view of the fact that the report was lodged by the accused persons before the complainant lodged the report. The manner in which their complaint was summarily disposed of by the police also indicates that the investigation was not impartial. Ext. PF the so called statement under Section 154 Cr. P.C. cannot be treated to be the First Information Report since by this time the police had already recorded two reports in the roznamcha one at the instance of Ram Ditta and one at the instance of the accused. The possibility of this statement (Ext. PF) being ante timed cannot be ruled out. Purshotam Singh had been examined in the hospital at 8.50 a.m. as is apparent from Ext. PA. Smt. Sarla Devi was examined at 10.05 a.m., Smt. Kanta Devi at 10.20 a.m. and Smt. Roshani Devi at 9.30 a.m. The possibility of the details given in statement under Section 154 Cr. P.C. (Ext. PF) being made in such fashion to tally with the injuries cannot be ruled out. In view of the above discussions we are of the considered view that the learned trial Court was justified in acquitting the accused. We find no error in the judgment of the learned trial 10 Court. The appeal is accordingly dismissed. Bail bonds furnished by the accused are ordered to be discharged. (Deepak Gupta), Judge. (Sanjay Karol), Judge. April 8, 2010 (PK)