IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.: 376/1996 Reserved on: 10.5. 2010 Decided on:2.6. 2010. _____________________________________________ State of Himachal Pradesh. …Appellant. Versus Swaroop Chand and others. …Respondents. _______________________________________________________ Coram: Hon’ble Mr. Justice Deepak Gupta, Judge. Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the Appellant : Mr. Vivek Singh Thakur, Addl. Advocate General. For the Respondents : Mr. Virender Singh Rathore, Advocate. ____________________________________________________ Per Rajiv Sharma, J. State is seeking reversal of the judgment dated 19.7.1995 of the learned Additional Sessions Judge-I, Kangra at Dhramshala rendered in Sessions Case No.4-P/94, whereby respondents, who were charged with and tried for offences punishable under sections 324,326 and 307 read with section 34 of the Indian Penal Code, have been acquitted. 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 2. Case of the prosecution, in a nutshell, is that on 20.8.1991, at about 8.00 P.M, Madan Lal (PW-3) had gone to the shop of Dhani Ram (PW-5) at village Jia for purchasing cigarette. Madan Lal was taken to the house of Gorkha for consuming liquor by accused Swaroop Chand. Madan Lal paid Rs. 20/- to Swaroop Chand for buying a bottle of liquor. Accused Swaroop Chand started misbehaving with the female members of the Gorkha family. Complainant, i.e. Madan Lal objected to it and thereafter accused persons started quarrelling with him. Accused Swaroop Chand left house of the Gorkha. Madan Lal also left for his home. He was accosted by Swaroop Chand and attacked with Lathi (stick), which was struck on his head, leg and other parts of the body. Blood started oozing out from the injuries. Madan Lal informed the Pradhan about the incident. He went to Police Station, Palampur in the morning. He was accompanied by Ram Kumar. They came back at 8.00 P.M. to village Jia. They were again intercepted by the accused persons. Swaroop Chand attacked Madan Lal and thereafter accused Pritam Chand gave him Drat (sickle) blow on the left shoulder of Madan Lal. Injury was also inflicted upon Madan Lal by accused Bimla Devi with Danda. When PW-6 Ram Kumar tried to save Madan Lal, he was also attacked with Drat. PW-5 Dhani Ram also tried to save Madan Lal and Ram Kumar but he also received a Drat blow on his chest. 3 Injured were taken to Primary Health Centre, Gopalpur. Thereafter they were referred to Zonal Hospital, Dharamshala. Statement of Madan Lal, Ex.PE, was recorded by the police, on the basis of which FIR was registered against the accused. The matter was investigated by the police. Drat Ex.P-6 was recovered vide recovery memo Ex.PX. Recovery memo was signed by PW-8 Jaswant Singh and PW-13 Rajinder Parsad, Pradhan. Challan was put up in the Court after completing codal formalities, under section 207 of the Code of Criminal Procedure. 3. Prosecution examined as many as fourteen witnesses in support of its case. Accused were examined under section 313 of the Code of Criminal Procedure. Their defence was that they were innocent and have been falsely implicated. The other defence was that complainants have received the injuries in the motor vehicle accident. The learned trial court acquitted the respondents. Hence, this appeal. 4. Mr. Vivek Singh Thakur, learned Additional Advocate General has strenuously argued that the prosecution has proved its case against the respondents- accused. 5. Mr. Virender Singh Rathore has supported the judgment of the learned trial court. 4 6. We have heard the learned counsel for the parties and perused the record carefully. 7. PW-1 Dr. K.C. Kalyan conducted the medical examination of Madan Lal complainant at 1.30 P.M. on 21.8.1991. He noted the following injuries on the person of Madan Lal: 1. “One lacerated wound on the top of skull parieto-occipital junction. The wound was angle shaped as shown in the M.L.C. The size was 3x2x1 cm. The breadth was ½ cm and depth ½ cm. The wound was gapping. The margins were ragged and there was slight granulation tissue. No fresh bleeding was observed. Hairs were soiled with clotted blood. No soil. 2. One horizontal bruise 8 cm x 3 cm in size on the left thigh in its middle and anterior aspect. Bluish purple in colour. 3. One oblique bruise on the lateral surface of right knee joint 3x 1.5 cm, bluish purple in colour. 4. Smell of alcohol with slurred speech.” 8. Nature of injuries was simple and the probable duration of injuries was 12 to 24 hours and the kind of weapon used was blunt. He then narrated that injury No.1, mentioned in Medico Legal Certificate, could be caused by Danda (stick). He issued Medico Legal Certificate, Ex.PA. In his cross-examination, he deposed that when Madan Lal 5 (complainant) was brought to the hospital for medical examination, he had consumed alcohol and injuries No.2 and 3 were possible if a person falls on hard surface. 9. PW-2 is Dr. K.L. Puri. He issued report Ex.PB qua complainant Madan Lal and report qua Ram Kumar Ex.PC. According to Ex.PB, there was fracture of acromio process scapula left side. There was comminuted fracture of shaft of ulna (left) lower 1/3rd as per Ex.PC. 10. Now, we will advert to the statement of Madan Lal, complainant (PW-3). He stated that on 20.8.1991 at about 8.00 P.M., he had gone to purchase cigarette/Biddi from the shop of PW-5 Dhani Ram. Accused Swaroop Chand met him on the road. He took him to the house of Gorkha for consuming liquor. He had good relations with Swaroop Chand. Both of them consumed liquor. He took two pegs and thereafter according to him, Swaroop Chand started misbehaving with the women of Gorkhas. He objected to misbehaving of Swaroop Chand and thereafter Swaroop Chand started quarrelling with him. He came out from the house of Gorkhas. He reached the road and thereafter accused Swaroop Chand, his wife Bimla and son Pritam and his brother-in-law, whose name was not known to him, accosted him and attacked him with Lathis. Pritam Chand and Bimla inflicted Lathi blows on his head and Swaroop Chand gave Lathi blow on his leg. Thereafter he 6 went to the house of Pradhan (PW-13) Rajinder Parsad. Pradhan informed him that he should get himself examined and thereafter report the matter to the police. He went to the Police Station, Palampur alongwith PW-6 Ram Kumar. He lodged report Ex.PD. Police took him to the hospital where he was medically examined. He took bus to Jia, which reached at 8.00 P.M. He and Ram Kumar went to the shop of Madan Lal for taking tea. Dhani Ram, Aptu Ram and Des Raj were already there. He and Ram Kumar came out of the Shop for going to their houses. He was again attacked by accused Swaroop Chand who beat him with hands and he fell down. Accused Pritam attacked him with Drat and gave blow on his left shoulder. He fell down. Thereafter accused Pritam gave blow with Drat on his both legs. Accused Bimla was having Danda with which she inflicted various blows on his body. When Ram Kumar intervened to save him, accused Pritam inflicted Drat blow on his hand. PW-5 Dhani Ram, who was going to his house, also came on the spot. He tried to save him from the accused, however, accused Pritam also gave Drat blow on his chest. This incident was witnessed by Aptu and Des Raj. They did not intervene but fled away from the spot. They were taken to Primary Health Centre, Gopalpur and thereafter they were referred to Zonal Hospital, Dharamshala. In his cross-examination, he admitted that Swaroop Chand took Rs.20/- from him and 7 they went to the house of Gorkhas to consume liquor. He further admitted that Jia Bazar, remains open utpo 8.30 P.M. to 9.00 P.M. 11. PW-4 Dr. (Mrs.) Veena Chaudhary has examined Madan Lal at 12.30 A.M. on 22.8.1991. Ram Kumar was also examined by her at 12.00 in the night on 21.8.1991. She issued report Ex.PB and PC. She admitted in her cross-examination that the injuries received by Ram Kumar were possible by fall on sharp object. She further stated that in case of Ram Kumar alleged occurrence was due to accident. Accident could be vehicular or otherwise. She then narrated that Madan Lal was fully conscious at the time of examination and was smelling of alcohol. Madan Lal also told PW-4 that he sustained injuries in an accident. The injuries received by Madan Lal were also possible by fall on hard surface and injury No.1 could be received if one falls on sharp edged surface. 12. PW-5 is Dhani Ram. He stated that accused Swaroop was having Drat in his hand and he inflicted five-six blows to Madan Lal. Ram Kumar was also lying injured on the road. Pritam Chand, son and Bimla Devi, wife of accused Swaroop were also present. When he tried to save Madan Lal, accused Pritam gave Drat blow on his chest. He was sent for medical examination to Primary Health Centre, Gopalpur. In his cross-examination, he admitted that Drat 8 Ex.PC was not produced by Pritam Chand in his presence. According to him, accused Pritam brought out Drat from his shop and Swaroop was already having Drat with him. He only saw Madan Lal being inflicted Drat blow by accused Swaroop. Ram Kumar had already fallen. He admitted in his cross-examination that after receiving Drat blow; he went to the house and slept there. Neither he try to go to the police nor he intended at that time to report the matter to the police. 13. PW-6 is injured Ram Kumar. He was requested by Madan Lal to accompanying him to Police Station. He accompanied him to Police Station, Palampur and reached there at 10.30 A.M. He lodged report and was medically examined. They came back to their village. At about 7.45 P.M. Madan Lal went to tea stall of Madan Lal son of Bhim Singh. Guddu and PW-5 Dhani Ram were already sitting there. Aptu was also there. They were taking tea. Swaroop Chand and Pritam Chand grappled with Madan Lal. Pritam Chand went to his house and brought Drat. Pritam Chand gave four blows of Drat to Madan Lal. When he tired to save Madan Lal, he was also given Draft blow on his left arm causing injuries near left wrist and one on upper portion of the arm near shoulder. Accused Bimla was standing and hurling abuses. PW-5 Dhani Ram also came on the spot and he was given Drat blow on his chest. Pritam Chand also 9 attacked Guddo with the Drat and did not allow any one to intervene. 14. PW-7 is Des Raj. He was sitting in the tea stall of Madan Lal in village Jia. Aptu, Ram Kumar, Madan and Dhani Ram were also there. They were taking tea. After taking tea, Madan and Ram Kumar went to their respective houses. Aptu also left for his house. He also came out of the shop. On way to his house, he heard noise “Mar-diya”. He went in that direction and saw Madan Lal and Ram Kumar lying injured. Ram Kumar was having injury on his arm and Madan on his shoulder. They were bleeding. Pritam Chand was standing in front but he had nothing in his hand. He inquired from Pritam how Ram Kumar and Madan sustained injuries, upon which he replied that he should go home and he has no concern with the matter. 15. PW-8 is Jaswant Singh. In his cross- examination, he admitted that the Police Officer has informed him that pant belonged to Pritam. 16. Dhani Ram (PW-5) was examined by PW-11 Dr. Dinesh Sood. He categorically stated that the injury received by Dhani Ram was not possible in case the blow with Drat Ex.P-6 was directly given to a person, however, it was possible in case after giving the blow, the Drat is withdrawn by pressing the same against the portion on which the blow 10 was given. He has noticed only one injury on the person of Dhani Ram. 17. PW-13 is Rajinder Parsad, Pradhan Gram Panchayat, Jia. He was informed about the occurrence by Smt. Sureshtha Devi, mother of Ram Kumar. She informed him that a quarrel between accused Pritam Chand and Swaroop Chand on the one side and Ram Kumar on the other side has taken place during the night intervening 21.8.1992/22.8.1992. He narrated that no recovery was effected from the shop. He was declared hostile. He was apprised by the police that one Drat, which was lying there at that time, was used as weapon of offence. It is the entire evidence led by the prosecution. 18. It is true that PW-3 Madan Lal and Ram Kumar (PW-6) have received injuries as per Ex.PB and PC. However, it has come in the statement of PW-4 Dr. Veena Chaudhary that alleged history of occurrence was due to accident. According to her, accident could be vehicular or otherwise. According to her, Ram Kumar might have sustained injuries due to accident. PW-3 Madan Lal also did not disclose that he was earlier examined at Palampur for the injuries sustained by him. 19. According to PW-4, he was smelling alcohol though was not under the influence of intoxication. Madan Lal has also told PW-4 that he had sustained injuries in an 11 accident. PW-5 Dhani Ram since has resiled from his earlier statement under section 161 of the Code of Criminal Procedure, he was declared hostile. He went to his house and slept there after receiving injuries instead of going to the police station. He never intended to make a police case. PW-7 Des Raj has also not supported the case of prosecution. He was declared hostile. He only saw Madan Lal (PW-3) and Ram Kumar (PW-6) lying injured. According to him, Pritam Chand was standing in front but he was not carrying anything in his hands. PW-13 Rajinder Parsad, Pradhan has also not supported the case of the prosecution. According to him nothing was recovered from the shop. However, according to him, one broken wrist watch and Kara (bangle) were lying at a place opposite the said shop across the road. He was told about the presence of the Drat by the police, which was used as weapon of offence in the quarrel. PW-1 has also deposed that when Madan Lal was brought to the hospital for medical examination on 21.8.1991 at about 1.30 P.M., he had consumed alcohol. 20. Prosecution has failed to connect the accused with the infliction of injuries received by PW-3 Madan Lal, PW-6 Ram Kumar and PW-5 Dhani Ram. We have noticed that Madan Lal and Ram Kumar have told the doctor that they have received injures in an accident. PW-5 though has received injuries but he never intended to make a police 12 case. He had gone to his house and slept there. Recovery of Drat has not been proved by the prosecution. According to PW-3 Madan Lal and PW-6 Ram Kumar, Drat blows were only given by accused Pritam Chand. Their statements have been contradicted by PW-5 Dhani Ram. According to Dhani Ram (PW-5), accused Swaroop was having separate Drat and accused Pritam was having separate Drat. According to him, Madan Lal (PW-3) was inflicted Drat blow by accused Swaroop. In his cross-examination, he has admitted that Drat Ex.P-6 was not produced by Pritam Chand in his presence to the police. PW-3 Madan Lal and PW-6 Ram Kumar have stated that they were also beaten by accused Bimla Devi. However, PW-6 Ram Kumar has deposed that accused Bimla Devi was standing and hurling only abuses. 21. So far as the injuries received by PW-5 Dhani Ram are concerned, PW-11 Dr. Dinesh Sood has categorically stated that the injury was not possible in case the blow with Drat Ex.P-6 was directly given to a person, however, it was possible in case after giving the blow, the Drat is withdrawn by pressing the same against the portion on which the blow was given. He has further admitted that injury could not be sustained by a person during the course of quarrel but could be possible in case the victim is suddenly attacked by Drat when he was unprepared and unguarded. 13 PW-5 Dhani Ram knew what was happening on the spot and there was no possibility of his being taken unaware. 22. In view of the aforesaid discussion, we find no merit in the appeal and the same is dismissed. Bial bonds furnished by the accused are ordered to be discharged. (Deepak Gupta), J. (Rajiv Sharma), J. 2.6. 2010 *awasthi*