IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.A. No. 420 of 2000. Date of decision: 10.11.2010. State of H.P. ….. Appellant. Vs. Pappu & anr. …. Respondents. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the appellant(s) : Mr. R.K. Sharma, Senior Additional Advocate General. For the Respondents : M/s Anup Chitkara & Chaman Negi, Advocates. Kuldip Singh, Judge (Oral). The State has come in appeal against judgement dated 9.5.2000 passed by learned Sessions Judge, Chamba Division in Sessions Case No. 3 of 1998, acquitting the respondents, under Sections 452, 307, 324 read with Section 34 IPC. 2. The prosecution case, in brief, is that on 21.9.1996, at about 10.00 p.m., Gopal Singh and Gurmit Singh were watching movie on television in their rented accommodation at Obri Mohalla, Chamba. Their uncle Arjun Singh was sitting outside in the verandah. The respondents entered into the room, respondent No. 1 was having a knife with him, deceased Yugal Kishore was also with them. They gave beatings to Gopal Singh and pulled him out of the room in the verandah, respondent No. 1 gave knife blows to Gopal Singh and Arjun Singh. On Whether the reporters of the local papers may be allowed to see the Judgment? …2… cries raised by Gopal Singh and Arjun Singh, Champa Devi, Sham Singh, Sukhdev Singh and Kuldeep came to the spot and rescued the victims from the assailants. In the process, respondent No. 2 managed to escape, whereas, respondent No. 1 and deceased Yugal Kishore were apprehended on the spot. Injured Gopal Singh and Arjun Singh were taken to hospital for treatment and matter was reported to the police. Ex. PA statement under Section 154 Cr.P.C., of Gurmit Singh was recorded and thereupon FIR Ex. PF was registered on 22.9.1996 at Police Station, Chamba. The injured were medically examined. 3. On completion of investigation, report under Section 173 Cr.P.C., was filed in the court and thereafter the case was committed to Sessions Court. The respondents were charged for offence punishable, under Sections 452, 307, 324 read with Section 34 IPC to which they pleaded not guilty and claimed trial. 4. The prosecution has examined nine witnesses to bring home the charge. The prosecution has tendered some documents in evidence. The statements of respondents were recorded, under Section 313 Cr.P.C. They have stated that accused Yugal Kishore was fighting with Gurmit Singh, and Gopal Singh. They had gone there to save them from his clutches and in the process, respondents had also sustained injuries, they were medically examined. They denied the prosecution case. In defence, the respondents have examined DW 1 Sham Singh. On conclusion of trial, the learned Sessions Judge acquitted the respondents, hence appeal by the State. 5. We have heard the learned counsel for the parties and have also gone through the record. The learned Senior Addl. Advocate …3… General has submitted that learned Sessions Judge has not properly appreciated the material on record and has erred in acquitting the respondents. The prosecution has proved the case against the respondents beyond reasonable doubt. He has prayed for setting- aside impugned judgement and has also submitted that respondents may be convicted and sentenced in accordance with law. 6. The learned counsel for the respondents has submitted that prosecution has miserably failed to prove the case against the respondents. The view taken by the learned Sessions Judge in acquitting the respondents emerges from the evidence on record, hence no fault can be found with the judgement of acquittal recorded by learned Sessions Judge. He has supported the impugned judgement. 7. In order to appreciate the rival contentions of the learned counsel for the parties, it is necessary to refer to the evidence, which has come on record. PW 1 Gurmit Singh has stated that on 21.9.1996 at about 10 p.m. he and Gopal Singh were watching television inside the room and his uncle was sitting in the verandah. Yugal Kishore and respondents entered in his room. The respondent No. 1 was carrying knife in his hand. All the accused started beating Gopal Singh inside the room and thereafter the accused pulled Gopal Singh outside the room to verandah. He saw Pappu inflicting the blows of knife on the person of Gopal Singh, when their uncle intervened to rescue Gopal Singh, accused started beating him and Pappu gave knife blows to him also. On hearing the noise, Champa Devi, Sham Singh, Sukhdev, Kuldeep reached the spot. Accused Moras ran away. The other two accused were apprehended on the spot.. The blood started oozing out …4… from the injuries of Gopal Singh, Arjun Singh and fell on the floor of verandah. In cross-examination, he has stated that accused Pappu and Yugal Kishore were given beatings by the tenants of Maghar Singh and by them also. Yugal might have suffered six injuries. He denied the suggestion that they gave beatings to Yugal Kishore in the verandah and Yugal Kishore gave knife blows to Gopal Singh and Arjun Singh. He has also denied that Pappu reached the spot after hearing the cries of Yugal Kishore. He has also denied that when Pappu arrived at the spot, he was also given beatings. He denied that Pappu was not having any knife or he did not give knife blows to Gopal Singh and Arjun Singh. 8. PW 2 Gopal Singh has stated that on 21.6.1996 at about 10 p.m., accused and Yugal Kishore since deceased entered their room and gave beatings to them, Pappu was having a knife, Yugal held the witness by arms and Pappu gave knife blows on his person. Arjun Singh came to rescue but he was also given beatings and knife blows. They were saved by Sukhdev, Champa, Sham Singh, blood fell on the ground. In cross-examination, he has stated that prior to occurrence, he had no quarrel with Yugal and Moras. He denied that he and PW 1 Gurmit Singh had inflicted injuries on the person of Yugal, who in order to save himself attacked them with knife. He has also denied that on hearing the cries of Yugal, Pappu intervened. He had not seen any injuries on the person of Yugal. 9. PW 3 Arjun Singh has stated that on 21.9.1996 at about 10 p.m., he was watching television, accused and Yugal Kishore entered the room and brought Gopal out of the room. Pappu was having knife with him. Accused Moras and Yugal caught him from the arms and …5… accused Pappu gave knife blows on his person. He intervened to rescue Gopal, but Pappu gave knife blows to him also. On hearing cries, Sukhdev, Champa Devi, Sham etc. came to the spot and rescued the victims. In cross-examination, he has stated that prior to occurrence, Yugal Kishore and Moras were not known to him nor their names were known to him. He came to know the names of accused persons from the persons who visited him in the hospital. He had no quarrel with the accused persons prior to the occurrence. He did not see any injury on the person of Yugal Kishore and Pappu. 10. PW 4 Dr. Mrs. Veena Sehgal had examined Gopal Singh and issued MLC Ex. PD, she had also examined Arjun Singh and issued MLC Ex. PE. In cross-examination, she has stated that on 22.9.1996, she had examined Pappu and one Yugal Kishore and issued MLCs Ex. DB and Ex. DC, respectively. 11. PW 5 Sukhdev Singh has stated that in the year 1996, he was tenant of Maghar Singh at Obri. PWs No. 1 to 3 were also the tenants. On 21.9.1996 at about 10 p.m., he heard the noise outside. He came out and saw accused Moras present in the court, Yugal Kishore had held Gopal Singh from his arm and accused Pappu gave knife blows on the person of Gopal Singh. He alongwith Gurmit Singh, Sham Singh, Champa Devi saved Gopal Singh. In the meantime Pappu gave blows of Chhura (knife) on the person of Arjun Singh. The blood fell on the ground from the wounds of Gopal Singh and Arjun Singh. In cross-examination, he has stated that he did not know Yugal and Moras prior to the occurrence. He denied that Yugal and Pappu received injuries. PWs No. 1 to 3 are his friends. …6… 12. PW 6 Kishori Lal, Dy. S.P. has stated that on receiving rukka Ex. PA, he recorded FIR Ex. PF. He has also stated that Chemical Examiner report Ex. PG was also filed alongwith the supplementary challan. PW 7 Dalip Singh is a formal witness regarding deposit of case property and sending of parcel to Forensic Science Laboratory Junga. PW 8 Man Singh is a witness who handed over the case property to PW 7 Dalip Singh and in turn deposited parcel and sample seal at Forensic Science Laboratory, Junga. 13. PW 9 Krishan Lal ASI is the Investigating Officer. He has stated that on 21.9.1996 he had received information at about 11 p.m. that at Mohalla Obri knives have been wielded. He proceeded towards the place of occurrence but he was told that injured have been removed to hospital. He recorded the statement Ex. PA of Gurmit Singh. He made endorsement Ex. PA/1 and sent the same for registration of the case. The blood was scattered on the floor of the verandah and blood stained knife Ex. P 1 was lying in the courtyard. In cross-examination, he has stated that Sham Singh, Champa Devi and Sukhdev were there. He saw bruises on the person of Pappu and Yugal Kishore. They sustained injuries in the same occurrence. On telephone only names of Yugal Kishore and Pappu were told. 14. DW 1 Sham Singh has stated that he is resident of Obri Mohalla. He knows Kuldip Singh, Gurmit and Arjun Singh, who were tenants of his father. Pappu was also a tenant in the same house. He heard some noise outside and came out and saw people grappling with each other. He saw Chhura in the hand of Yugal Kishore who struck it, but he could not see to whom the injury was caused. On hearing …7… shrieks, Pappu reached the spot. He did not see anything in the hand of Pappu. 15. Ex. DB is the MLC of Pappu Ram and he was examined on 22.9.1996. Ex. DC is the MLC of Yugal Kishore. He was also examined on 22.9.1996. In Ex. DB, two injuries have been recorded, whereas in Ex. DC seven injuries have been recorded. The tenor of cross- examination of prosecution witnesses makes it clear that respondents have not denied the incident but they have denied the manner in which the occurrence took place. According to respondents, there was fight between Yugal Kishore and PWs No. 1 to 3, who in self defence gave knife blows to PW 2 and PW 3. In their statements, under Section 313 Cr.P.C., the respondents have stated that they have intervened to save the injured from the clutches of Yugal Kishore but in the process Pappu respondent also sustained injuries on his person. PW 1 to PW 3 have denied having seen any injury on the person of Yugal Kishore and Pappu, whereas PW 9 Krishan Lal, Investigating Officer has stated that he saw Pappu and Yugal Kishore having bruises which were sustained by them in the same occurrence. When PW 9 could see bruises of Pappu and Yugal Kishore, why PWs No. 1 to 3 could not see such bruises of Pappu and Yugal Kishore, that has not been explained. This indicates that PW 1 to PW 3 are not coming out with whole truth. 16. PW 9 has stated that on telephone the names of only Yugal Kishore and Pappu were told. PW 1 to PW 3 have admitted the presence of Sham Singh on the spot. Sham Singh has been examined as DW 1 and he has stated that he saw Chhura in the hand of Yugal Kishore who struck it, but he could not see to whom the injury was …8… caused. On hearing shrieks, Pappu accused reached the spot. He did not see anything in the hand of Pappu. Sham Singh was given up by the prosecution as having been won over but except for the statement of Public Prosecutor to this effect, there is nothing on record to substantiate that Sham Singh was in fact won over. The prosecution has not examined Champa Devi, Kuldeep in order to corroborate the statement of PW 5 Sukhdev who has stated that PW 1 to PW 3 are his friends. The statements of PW 1 to PW 3 have not been corroborated by independent witnesses, rather independent witnesses though available have not been examined. PW 5 cannot be termed as independent witness, he has clearly stated that PW 1 to PW 3 are his friends. 17. There is substance in the contention of learned counsel for the respondents that Sham Singh is as good witness as any other witness of the prosecution. The statements of prosecution witnesses and defence witnesses are to be examined on merits. In Dudh Nath Pandey vs. State of U.P. AIR 1981 SC 911, it has been held by the Supreme Court that defence witnesses are entitled to equal treatment with those of the prosecution. And, Courts ought to overcome their traditional, instinctive disbelief in defence witnesses. 18. PW 9 has stated that he received information at about 11 p.m. that at Mohalla Obri knives have been wielded. He recorded the rapat No. 13 in the rojnamcha. In other words, it is the case of the prosecution that more than one knives were used in the scuffle. Rapat No. 13 of the rojnamcha has not been produced. The respondents right from the very beginning have taken the stand that knife was used by Yugal Kishore who has died. No finger prints were lifted from the knife …9… so as to pin point, who actually used the knife Ex. P 1. The prosecution itself has introduced the story of use of more than one knife. The injuries on the persons of Yugal Kishore and Pappu have not been explained by PW 1 to PW 3, rather they have shown their ignorance regarding injuries on the persons of Pappu and Yugal Kishore. The learned Sessions Judge has scanned the entire evidence and has held that prosecution has not been able to prove its case beyond shadow of reasonable doubt. The view taken by the learned Sessions Judge emerges from the evidence on record. It cannot be said that inference drawn by the learned Sessions Judge from the evidence is not at all possible. There is no merit in the appeal, which is accordingly dismissed. The bail bonds of the respondents are discharged. ( R.B. Misra ), Judge. November 10, 2010. ( Kuldip Singh), (Hem) Judge.