IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cri. Appeal No. 344 of 1999 and Cri. Appeal No.335 of 2000 Reserved on : 16th June, 2010 Date of Decision: 29th October, 2010 Cri. Appeal No. 344 of 1999 Munshi Ram and others Appellants Versus State of Himachal Pradesh Respondent Cri. Appeal No.335 of 1999 State of Himachal Pradesh Appellant Versus Munshi Ram and others Respondents Coram The Hon’ble Mr. Justice Deepak Gupta,J. The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? No Cri. Appeal No. 344 of 1999 For the appellants: Mr. Ashwani K. Sharma, Advocate. For the respondent: Mr. Vivek S. Thakur, Addl. Advocate General. Cri. Appeal No. 335 of 1999 For the appellant : Mr. Vivek S. Thakur, Addl. Advocate General. For the respondent: Mr. Ashwani K. Sharma, Advocate. Sanjay Karol, J. These appeals arise out of judgment dated 30.8.1999 passed by the learned Sessions Judge in Whether the reporters of Local Papers are allowed to see the Judgment? 2 Sessions case No. 19-K/VIII/1997, titled as State of Himachal Pradesh vs. Munshi Ram and others. The accused stand convicted and sentenced to undergo rigorous imprisonment for a period of (i) six months for having committed an offence punishable under Section 147, IPC; (ii) one year for having committed an offence punishable under Section 148, IPC; (iii) six months for having committed an offence punishable under Section 323/149, IPC and fine of Rs.2000/- each for an offence punishable under Section 323, IPC and in default thereof to further undergo simple imprisonment for a period of three months. 2. Challenging their conviction and sentence Criminal Appeal No. 344 of 1999, titled as Munshi Ram and others vs. State of H.P., has been filed by accused and Criminal Appeal No.335 of 2000, titled as State of H.P. vs. Munshi Ram and others has been filed by the State for enhancement of the sentence of accused persons. 3. It is the case of the prosecution that on 16.9.1995 at about 10.45 a.m., Parbhat Singh (PW-4) had gone to answer the call of nature towards Manjhi Khad. On his way when he reached Mastpur Chowk, he saw the accused standing there. Accused Tara Chand, Icchapuran, Gulaba and Munshi Ram were armed with Dandas and accused Om Parkash was armed with Jhablu (iron rod). When he reached near them accused Om Parkash gave a 3 blow with Jhablu (Ext.P-1) on his head and abdomen and the other accused gave blows with danda on his body. They proclaimed that since his cousin Shri Ashwani had written a letter to Nisha, a girl from their brotherhood, therefore, they were beating him. PW-4 fell on the ground. Sudarshan Kumar (PW-5), Mukesh (PW-8) and Amin Chand came at the spot and rescued him from the accused who later on ran away from the spot. Both PW-5 and PW-8 brought PW-4 to the Police Post, Gaggal where he lodged Rupat (Ext.PW-6/A). S.I. Daljeet Singh(PW-6) took the injured to the Primary Health Centre, Tiara for medical treatment, where Dr.(Mrs.) Anuradha Sharma (PW-1), examined him and gave M.L.R. (Ext.PW-1/B). From there he was referred to the Zonal Hospital, Dharamshala, where injured was examined by Dr.D.N.Chadha (PW-2) alongwith Dr. Atul Mahajan (PW-3) who performed surgery on the injured. According to Doctors, there was perforations of ileal. According to the Doctors injuries could have been fatal. MLR (Ext.PW-1/B) and M.L.C. (Ext.PW-2/A ) and Medical record (Ext.PW-2/B) were taken by the police. On the basis of medical opinion, rupats Ext.PW-6/A and Ext.PW-6/B (later on prepared by the police) FIR No. 472/1995 (Ext.PW-7/A) dated 18.9.1995 was registered with Police Station, Kangra under Sections 307, 323, 34, IPC. H.C. Kushal Chand (PW-9) investigated the matter. He prepared site plan 4 (Ext.PW-9/A) and took into possession iron rod (Ext.P-1), Dandas (Ext.P-2 to Ext.P-5) vide seizure memo Ext.PW- 5/A. Blood stained shirt (Ext.P-6) belonging to PW-4 was taken into possession vide memo Ext.PW-4/A. Statements of the witnesses were recorded and with the completion of investigation challan was presented in the Court for trial. 4. Accused was charged for having committed an offence punishable under Sections 148, 307, 323, 506 read with Section 149, IPC to which they did not plead guilty and claimed trial. 5. In order to prove its case, prosecution examined nine witnesses and statements of the accused under Section 313, Cr.P.C. were also recorded. 6. The Court below convicted the accused and sentenced them to undergo imprisonment, hence the present appeal. 7. As per the version of PW-1 several injuries were found on the person of PW-4. This witness no doubt has supported prosecution by stating that the injuries could have been caused by the weapon (Ext.P-1 to Ext. P-4), but, however, whether the accused gave the blows which was the cause of the injuries needs to be examined. 8. Ext.PW-6/A is recorded on 16.9.1995 at 12.10 p.m. PW-4 got recorded that at about 11 a.m. he was going towards Manjhi Khad to answer the call of nature. When he reached Mastpur Chowk he saw his co-villager 5 Icchha Puran carrying a danda in his hand who without any provocation started giving beatings to him. Thereafter turn by turn accused Tara Chand, Munshi Ram, Gulaba Ram gave him beatings. Accused Om Parkash also gave a blow on his head with the Jhablu. Resultantly he sustained injuries on his forehead, head, elbow of right arm and legs. The injuries on the head and forehead were bleeding profusely. Accused proclaimed that his nephew Ashwani wrote letters to Nisha, a girl from their brotherhood. Due to this animosity in the morning accused also gave beatings to his elder brother Pritam Chand and nephew Ashwani Kumar, who also sustained injuries. They were threatened for life. Many people gathered at the spot and rescued the complainant from the clutches of the accused after much difficulty. 9. Importantly, in this complaint he does not mention that the incident was witnessed by Sudarshan Kumar (PW-5) or Mukesh (PW-8). He also does not mention that he had been carried by the said persons to the Police Post at Gaggal. He also does not mention that earlier accused had scuffled with or given any beatings to Sudarshan Kumar. 10. Surprisingly in Court PW-4 has given a totally different version. He states that accused Om Parkash gave him a blow on the head and abdomen. He has improved upon his earlier version. In his statement (Ext.DA) he 6 categorically states that accused Om Parkash had given him a blow with Jhablu on his head. Reference is in singular and not plural. 11. It is his version that when the accused were giving him beatings, he raised hue and cry but none came forward to rescue. He started bleeding and fell down on the ground and became unconscious and regained consciousness after about 10 minutes and saw the accused leaving. When he regained consciousness he saw PW-5, PW-8 and Amin Chand who took him to the Rain Shelter and from there he was brought by PW 5 and PW-8 to the Police Post, Gaggal. Importantly, he does not mention that in fact the incident was in fact witnessed by PW-5 and PW-8. Prosecution has also not examined Amin Chand and as we shall find hereinafter statements of Sudarshan and Mukesh do not inspire confidence. In cross-examination, this witness admits that Mastpur Chowk is at a distance of 1 km. from his house. Now why would a villager and that too at about 11 a.m. walk a distance of 1 Km. for answering the call of nature. It has not come on record that there was no provision for toilet in the house or in the village nearby. He admits that from a distance of about 25 meters he noticed the presence of the accused at the Chowk. Now if his version that accused who were armed harboured animosity and had given beatings to his brother and nephew in the morning is true then why is it that he 7 continued to walk towards them. He could turn back or change his course. He admits that many persons were going and coming on the path. He did not seek their intervention. Importantly he admits that in report Ext.PW- 6/A he did not specifically mention that Om Parkash had given a blow with an iron rod (Ext.P-1) on his abdomen. He did not raise any hue and cry when the accused gave beatings to him. In Court he denies having told the police that none came forward to save him from the accused persons, which version is contradicted by Ext.PW-6/A. 12. Further we find that he has made several improvements and also contradicted his earlier statement recorded under Section 161, Cr.P.C. When confronted with his statement Mark ‘X’ he admits there is no reference of the fact as a result of the blow given by Om Parkash he became unconscious and fell on the ground there. He states that he had not told the police that many persons had rescued him from the clutches of the accused persons. Now this is a definite contradiction from his earlier statement. It gains significance as presence of the prosecution witnesses examined in court, at the spot appears to be doubtful. Importantly, police recorded his detailed statement only after a period of two months when his shirt (Ext.P-6), was taken into possession. Further police has not associated Pritam Chand or Ashwani during investigation. They would have revealed the true events 8 which allegedly took place. Prosecution has also not examined them. He admits that the place where scuffle took place in the morning was just at a distance of 100 meters from Mastpur Chowk. Therefore, he new the presence of accused persons in the area. Why is it he chose to go to answer the call of the nature at that place. All this renders his version to be extremely doubtful apart from contradictory. 13. Now Sudarshan Kumar (PW-5) has given a different version, which in any event does not inspire confidence being untrustworthy. According to him, he was present at the spot and accused scuffled with him. Accused Om Parkash took active part. He also witnessed the accused giving beatings to the complainant. He admits not to have intervened for the reasons that accused persons were armed with dandas. The version does not appear to be plausible. He is a young man. There was no reason for him not to have intervened. He admits that at least one of the shops at the Chowk was open. He did not make any efforts of calling any one from the said shop for help. He states that beatings continued for 5-7 minutes. If this were so then there was enough time for him to have got some help. He took PW-4 to the Police Post. Now if accused had earlier scuffled with him then why this fact was not got recorded in Ext.PW-6/A. It is not there. According to PW-5 only he and PW-8 witnessed the 9 incident, whereas according to PW-4 many persons were present. Prosecution has not examined any one of them. There is also no justifiable explanation for not doing so. It is also not the case of the prosecution that accused had actually scuffled with Sudarshan Kumar. This witness has made improvements from his earlier statement, with which he was confronted. The fact that accused persons had scuffled with him and that he had taken the injured to the Rain Shelter is not mentioned there. 14. No doubt PW-8 has corroborated the version of PW-3, but, however, his version cannot be said to be inspiring confidence. According to the complainant, accused proclaimed that they were giving beatings for the reason that his nephew Ashwani had written letters to Nisha. Surprisingly PW-8 states that he does not know why accused gave beatings to PW-4. He did not intervene for the reason that he was ill. Now this witness is a young boy of 25 years. There is no other material on record to even prima facie show his illness. According to him, accused Om Parkash had given blows on the back and abdomen of Parbhat Singh which is not even the case of the complainant. This witness admits Parbhat Singh to be his cousin from brotherhood. Importantly, this witness contradicts the version of PW-4 and PW-5 by deposing that after witnessing the incident he went home. Further he gave reference of one Satya whom he had met while 10 returning home. He admits not to have spoken with her. This conduct is quite unusual. He leaves his cousin on the spot and does not even mention about the incident to anyone. Importantly prosecution has not examined Satya Devi, Desh Raj and Amin Chand, who were the other independent witnesses. 15. According to PW-8 the incident lasted for about 50 minutes, whereas according to PW-4 accused gave beatings for 2-3 minutes. Thus presence of PW-8 at the spot itself appears to be doubtful. 16. Version of PW-4 also stands contradicted by PW- 5 and PW-9 who have stated that PW-4 had not only come alone to the Police Post, Gaggal but had also not named any person to have witnessed the incident. He admits that in his report (Ext.PW-6/A) he had not made any reference of injuries sustained by the injured. Now if PW-4 was profusely bleeding then this fact would have been mentioned therein. It is not the case of the complainant that police acted unfairly or tried to help the accused. Further he admits not to have recorded the statement of Ashwani or Pritam Chand. This is very strange. If the police thought it fit not to examine them then the very genesis of the prosecution story is rendered doubtful. 17. Further according to PW-9, injured had not given any description of weapon of offence which allegedly were produced by the accused persons. Recovery itself is 11 in doubt. There is no report of the Chemical Examiner to prove that blood on shirt (Ext.P-6) was actually that of the complainant or that blood marks were found on the weapon of offence (Ext.P1 to Ext.P-6). Importantly, the incident took place on 16.9.1995. Police visited the spot on 19.9.1995. Why so late has not been explained. Even the statements of the witnesses were recorded much of the incident. There is no FSL report on record. Police recorded FIR only on 18.9.1995 which was received in the Court of CJM only on 19.9.1995. All this renders the prosecution case to be extremely doubtful. 18. Further it has come in the evidence of C. Daljeet Singh (PW-6) that Police Post Gaggal is at a distance of 2 kms. from the spot and PHC Tiara is at a distance of 5 km. from police post. There is following uncontroverted version of this witness or examined:- “Injured Parbhat Singh had come to the police station himself alone, on foot” 19. In the incident accused is alleged to have sustained serious injuries. How is it that he walked for such a long distance. 20. While convicting the accused, Court below found that there is no delay in recording the FIR; there is nothing on record to prove that Ashwani had been writing letters to Nisha, therefore there was no cause for the 12 beatings. Defence taken by the accused that the complainant had suffered injuries as a result of hitting of stones due to blasting carried out in the khud was not proved at all. 21. To prove the charged offence, prosecution has to stand on its own legs The charge is to be proved by leading clear, cogent, convincing and reliable evidence which is missing in the present case. In the absence of the same the accused is not to prove its defence. Charge against the accused needs to be proved beyond reasonable doubt. In the instant case, prosecution has failed to discharge its burden. We find that not only there has been delay in registration of FIR but also the version of the prosecution witnesses, present at the spot stands contradicted by themselves as also the material on record. As discussed contradictions in the version of the prosecution witnesses are material. 22. For all the aforesaid reasons, the appeal filed by the accused is allowed and the appeal filed by the State is dismissed. Bail bonds, if any, furnished by the accused are discharged. (Deepak Gupta) Judge. October 29, 2010 (Sanjay Karol) (C) Judge.