IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 620 of 2002 Date of decision:17.7.2009 State of Himachal Pradesh Appellant Versus Kushal Kumar and others Respondents Coram The Hon’ble Mr. Justice R.B. Misra, Judge. Whether approved for reporting?1 For the appellant: Mr. P.K.Sharma, Additional Advocate General For the Respondents: Mr. Rakesh Jaswal, Advocate vice counsel R.B.Misa, J. (Oral) The present Criminal Appeal has arisen consequent upon granting of leave to appeal under Section 378(3) of the Code of Criminal Procedure in reference to the judgment dated 25.4.2000, passed by the Additional Chief Judicial Magistrate, Palampur, District Kangra, H.P. for the alleged offence of the accused persons in offence under sections 325/323/34 of the Indian Penal Code, whereby these alleged accused persons have been acquitted. In order to adjudicate the present appeal, it is necessary to highlight the brief facts. On 2.7.1993, at 1 Whether the reporters of the local papers may be allowed to see the Judgment? 2 about 4.45 p.m. at Garli Sarkari, daughters of complainant, Anuradha and Neelam were bringing back their cattle. On the way, they were stopped by the alleged accused, namely Jai Dei, Kushal Kumar, Saroj Kumari and Sudershana Devi. The alleged accused persons are said to have pelted stones upon the daughters of complainant Sansar Chand, who raised alarm, whereupon, both, complainant and his wife reached the spot. They were given beatings by the alleged accused persons with danda, legs and fist blows, whereby, both of them sustained simple and grievous injuries and the matter was reported to the police. After investigation, charge sheet was submitted in reference to offences under Sections 323/325/34 IPC. In order to prove its case the prosecution has examined as many as ten prosecution witnesses, whereas, and the alleged accused persons in their statement recorded under Section 313 Cr.P.C. have denied the prosecution case. The trial court had framed two points in respect of which one has been answered as partly as yes and in respect of second point, accused Kushal Kumar, Saroj Kumari and Sudershna Devi have been acquitted and accused Jai Dei has been convicted till rising of the court. From the analysis of the prosecution witnesses and material on record, I find that it 3 was categorically stated by the complainant that Jai Dei had applied danda blow on the complainant. Such version was supported by PW-3 Neelam, daughter of the complainant. The independent witnesses PW-4 Tulsi Ram, PW-5 Wazir Chand and PW-6 Ghungar are said that they were available on the spot who were also examined and who after hearing the noise have come to the spot as they were working in nearby fields. All these prosecution witnesses have stated that accused Jai Dei was having danda in her hand and had applied blow on the finger of Shakuntla Devi and other alleged accused had beaten the complainant Sansar Chand and his wife Shakuntla. PW-7 Dr. S.K. Sood, Medical Officer, in his testimony, dated 3.7.1993, has found the following injuries on the person of Sansar Chand:- 1. Bluish contusion 1.5 c.m. X 1 c.m. in size are dossal aspect of lower 3rd of R Forearm with abrasion of overlying skin. 2. Reddish bluw, contusion 3 c.m. X 3 c.m. in size lying 1” below & lateral to above injury. Overlying skin has two abreassion. Medical 1.2 X 1 c.m. & lateral over it, in size. Blood clot present over it. 3. Multiple abrasion over L Knee joint, leniar & irregular in shape. 4. Two contusion paralleled to each other with intervening space of 0.5 c.m. normal skin measuring 10 c.m. X 0.5 c.m. in size over R Chest wall latero- partenior aspect, reddish blue colour. 5. Contusion lower 1 c.m. X 9 c.m. in size, reddish blue in colour lying close to abovementioned injury. 4 In the opinion of PW-7 Dr. S.K.Sood, injuries are simple in nature and probably have been inflicted within 24 hours of the report. The injuries deposed on the person of Shakuntla Devi are also indicated as below:- 1. Swelling over proformal interphaljecal joint of L index finger, tenderness present. No colour change seen. Adv. X-ray. 2. Purple contusion over upper part of R Scapular region 3 c.m. X 1.5 c.m. in size 3. Contusion linear 2 c.m. long purple in colour in act abdominal wall over epigastic region. 4. Multiple contusion over L Lower and of thigh in oval area with normal intervening skin 6 on one side and 5 on other side purple in colour. Learned trial court has, however, noted the defence version that the alleged accused have falsely been implicated in the case. According to the defence, as noted by the trial court, the complainant party has attacked the alleged accused persons firstly and in that regard, accused Jai Dei has lodged a complaint with the police. As per cross examination of investigating officer, PW-2 Inspector Raghubir Singh, who has admitted that accused Jai Dei had lodged a complaint Ex. D-1 in Police Station. As per the defence, the complainant party has falsely been implicated the accused persons in the present case as a counter case. As per version of defence, as noted above, the occurrence took place on 5 2.7.1993 and the police was informed on 3.7.1993. Such delay was not explained by the prosecution. As noted by the trial court, the defence has argued that in the FIR, there was name of only accused Jai Dei, whereas, names of other accused persons were missing and the FIR reveals that one Ashok, son of Jai Dei was also present on the spot and he had also given beatings to the complainant, whereas, in fact there was no son of accused Jai Dei nor any Ashok Kumar was impleaded as accused in the case. According to the defence, Jai Dei was beaten by the complainant and she had sustained injuries. As noted by the trial court, the defence had argued that only interested witnesses were examined, who were from the same community to which the complainant belongs. As per FIR, Des Raj was also witness of the occurrence, but was not deliberately examined by the prosecution. It has also been noted by the trial court that there appears to be scuffle between the parties whereby the injuries were sustained by the complainant and his wife. It appears that the prosecution witnesses have consistently deposed that Jai Dei had given blow on the finger of Sudershna Devi, wife of the complainant. Sudershna Devi has categorically stated that accused Jai Dei was having danda in her hands who applied the same and consequent upon, the injury was 6 inflicted in her finger. The inflicting of injury by Jai Dei was found to have been corroborating by other independent witness Tulsi Ram and Wazir Chand. Therefore, on the analysis of the prosecution witnesses and the material on record, Jai Dei was found to have committed the offence which was proved on record and she was convicted till rising of the court. The prosecution witnesses have stated that the alleged accused started beating and when Sudershna Dei went to the spot, it was accused Jai Dei, who gave her danda blow. As such the saying of prosecution witnesses qua the alleged beating to Sansar Chand and Sudershna Devi is a general statement. There is no specific evidence as to how and in what manner the accused persons gave beatings to him and his wife. Therefore, general statement and allegations of beatings, by the complaint against the accused are not sufficient to convict the alleged accused. The injuries on the body of complainant and his wife also could not be corroborated and the prosecution was not successful to show the link of evidence that injuries were inflicted by the accused. The occurrence is said to have taken place at 6.00 p.m. and the distance of Police Station as per FIR is about 10 Kms. Immediately, the FIR was not lodged and the same was got registered at a later stage. I find that, for lack of 7 corroboration of role and the injuries found to have been inflicted on the body of the complainant and from lack of proper evidence, the alleged accused persons have rightly been given benefit of doubt, whereas Jai Dei has been convicted by awarding simple imprisonment till rising of the court. After going through the material and evidence on record, I find no merit in this appeal which is accordingly dismissed. July 17, 2009(K) ( R.B.Misra ), J.