IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 529 of 2001 Reserved on: 12.08.2008 Date of decision: August 19 , 2008 Sushil Kumar …….. Appellant Versus State of H.P. ……. Respondent Coram: The Hon’ble Mr.Justice Surinder Singh, J. Whether approved for reporting ?1 No. For the appellant : Mr Rajiv Jiwan, Advocate. For the respondent : Mr. Vivek Thakur, Addl. Advocate General. Surinder Singh, J. The appellant has assailed the judgment of conviction and sentence, passed by the learned Additional Sessions Judge (II), Kangra at Dharamshala, in Case No.15-K/1997 under section 307 of the Indian Penal Code in this appeal. The factual matrix, giving rise to the present appeal, is that in the year 1990 complainant Nirmal Singh (injured) was a student of 9th Class studying in G.A.V.School, Kangra. He used to take bus from his school to his home and the appellant-accused was student of 6th standard studying in Government Middle School, Mataur. A few days earlier to the alleged occurrence, some wordily 1 Whether the reporters of Local Papers may be allowed to see the judgment ? yes. 2 dual had taken place between the complainant and the appellant. On 29.11.1990, after school hours, the complainant alighted from the bus at Mataur, he met his uncle Rumail Singh (PW1) and Sammi on the way and Ranjeet Singh (PW3) his cousin and the appellant who were the class fellows also met them near the bridge. All of them started going together to their respective houses in the same direction. While walking, complainant asked the appellant as to why he was hurling abuses earlier, on this appellant got infuriated and again started calling him names. When the complainant desisted the appellant from doing such acts, the appellant took out a small knife (Ex.P3) and stabbed on the left leg of the complainant. When Rumail Singh intervened the appellant picked up a stone and threatened him with dire consequences and threw the knife towards the river nearby and ran away. In the meantime, Pardeep Singh son of Sh.Kehar Singh also reached there. He immediately took the complainant to the hospital. The Doctor reported the matter to the police. Police reached at the spot and recorded the statement Ex.PW8/A of the complainant, on the basis of which FIR Ex.PW7/B was recorded. The complainant was medically examined by the Doctor V.K.Mahajan (PW2) and noticed the following injuries: 1. An incised wound 1½ cm x ½ cm placed horizontally in the 5th intercostals space at posterior axillary line on left side of the chest. The margins were sharp and inverted. 3 Wound was bleeding profusely. Probe test was done and probe (blunt) could go 1” easily. He was advised X-ray of the chest to rule out injury to vital viscera and soft tissue, bony injury. 2. An incised wound was placed horizontally 1 ½ cm x ½ cm in the 4th intercostals space just to right to the sternal margin. It had sharp, clean edges and skin & soft tissue and muscle deep only. It bled on cleaning. The injured-complainant was referred to x-ray examination which showed pneumothorax with sympathetic plural effusion of left lung, thus injury No.1 aforesaid was opined to be grievous and injury No.2 as simple, having been caused within six hours. To this effect medico-legal-certificate Ex.PW3/A was issued. Site plan Ex.PW6/D of the alleged place of occurrence was prepared by the Investigating Officer. The police searched the weapon of offence, with the help of the appellant, which was found near the bamboo grove on the side of river and was taken into possession vide memo Ex.PW6/E, its site plan Ex.PW6/F was prepared. Later on, the opinion of the Doctor was also sought on the application Ex.PW6/G with respect to injury No.1. The Doctor opined that the injury could cause the death spontaneously. 4 Statements of the witnesses were recorded. Challan, after its completion, was presented in the court for trial. The Additional Chief Judicial Magistrate, framed the charge under section 326 I.P.C. and recorded statements of some witnesses but later finding a case under section 307 I.P.C. committed the appellant to the court of Sessions. The appellant was charge sheeted, under section 307 I.P.C. to which he pleaded not guilty and claimed trial. To prove its case, the prosecution examined its witnesses and the appellant was also examined under section 313 of the Code of Criminal Procedure. The appellant did not lead any evidence in defence, when called upon to enter into his defence. At the end of the trial, the appellant was convicted and sentenced to undergo simple imprisonment for a period of six months and to pay fine of Rs.5,000/- which has been challenged by the appellant in this appeal on law and facts. Shri Rajiv Jiwan, learned counsel for the appellant has forcefully argued that the very story, initially set by the prosecution has not been supported by its witnesses. They have deviated materially from the main pivotal of the case and set up a new case during the trial. The prosecution examined only the interested witnesses, who were inimically disposed of towards the appellant. Their testimonies were quite contradictory and were wrongly relied upon. The x-ray, on the basis of which the Doctor opined that injury 5 No.1 could prove fatal was not produced during the trial and probability of causing said injury due to fall as alleged in defence could not be ruled out. Since these factors were ignored by the trial court, the conviction of the appellant is bad in law. Contra, Shri Vivek Thakur, learned Additional Advocate General, has forcefully argued that the version of the injured- complainant has been supported by the medical evidence and the eye witnesses, which were properly appreciated by the learned trial court. The Doctor has proved injury No.1 so fatal that it could have caused the death spontaneously, therefore, the appellant was rightly convicted and sentenced by the learned trial court. I have given my thoughtful consideration to the rival contentions of the learned counsel for the parties and carefully examined the record. PW1 Rumail Singh is the uncle of the complainant and PW3 Ranjeet Singh is his cousin brother. Therefore their testimonies require close scrutiny and are required to be appreciated with great caution. In fact, injured (PW5) Nirmal Singh is the maker of the FIR, in his earliest version Ex.PW5/A, the FIR was lodged against the appellant. He gave a definite story to the police on the same day as stated above. But as PW5, the complainant gave a different story and greatly embellished his earlier version. According to him, when he reached village Mataur at 4 p.m. along with PW1 Rumail Singh. PW3 Ranjeet Singh met him and complained that the appellant used to threaten him. When the appellant was walking ahead he asked him 6 the reason of threatening Ranjeet Singh while engaged in conversation. All of them were walking ahead. When they reached near the bamboo grove, the appellant challenged them and attacked him with a knife on the chest and threw it towards the river side and ran away from the spot. On raising hue and cry Pardeep (not examined) also came to the spot from his field. Thus it has been seen that he materially deviated from his earlier version, thus gave a complete go bye to his statement Ex.PW5/A, wherein he alleged that at the previous occasion the appellant had been abusing him and when asked from him the reason, he attacked as aforesaid. PW1 Rumail Singh has stated that he was accompanying the complainant in the bus. They alighted at Mataur. Complainant asked about the reason from the appellant for hurling abuses earlier and there was a wordily dual, when all of them covered a distance of about 400-500 yards the appellant again started hurling abuses to the complainant, when he objected to a scuffle took place between the appellant and complainant, during the scuffle the appellant took out a knife from the pocket of his pant and stabbed the complainant on the one side of the chest. The appellant picked up a stone when PW1 asked him about the reason of attack, he tried to hit him with the stone, thereafter he threw the knife Ex.P3 towards the bamboos adjoining to the path towards the river side and ran away from the spot. Thus, there is a marked difference between the statement of the complainant and his uncle, recorded in the court regarding the story how the dispute originated and he also stated 7 about a scuffle to which complainant did not give even a fleeting reference in his statement. Further, PW3 Ranjeet Singh has introduced another story that at about 4 p.m. he and one Sammi (not examined) and the appellant were returning home after the school hours. On the way Rumel Singh and Nirmal Singh complainant met them. Appellant abused complainant Nirmal Singh. He asked the appellant as to why he had been abusing him, on this appellant again abused him and went about 400 yards ahead when complainant again asked the appellant as to why he has been abusing him, the appellant took out a knife from his pocket and stabbed the complainant on the left side of his chest, thereafter threw the knife towards the river side. The injury started bleeding and the complainant fell down, when Rumail Singh wanted to prevent the appellant from running away, he picked up a stone and ran away. Thereafter, Pardeep (not examined) who was working in the fields saw the appellant running also reached the spot. As already noted above, all the above witnesses are closely related to each other, they are from the upper caste, whereas the appellant is from a lower caste. None of witnesses aforesaid were on talking terms with the appellant as specifically admitted by PW1 and PW5 in their cross-examination. If it was so, there was no occasion for PW3 Ranjeet Singh to accompany the appellant from his school. The complainant party was in majority and the appellant who was a student of 6th standard, was alone. On the close scrutiny of the 8 testimonies of the above witnesses it transpires that the complainant party was enjoying the numerical strength, they rounded up the appellant and there was a scuffle between him and the complainant and in that scuffle the complainant sustained injury. The prosecution witnesses appears to have given a tainted and a lopsided version. In his statement Ex.PW5/A the complainant has stated having sustained only one injury whereas on medical examination he was found to have sustained two injuries. According to PW2 Dr. V. K. Mahajan on seeing X-ray No.239/90 dated 30.11.1990 injury No.1 was grievous but the X-ray was neither exhibited nor is available on record. He also admitted in his cross-examination that the injuries could be possible by one of the blades of a pair of scissors, if the size of the blade of the scissors is like the size of the blade of knife Ex.P- 3. He was again examined on 23.3.1998 and opined that injury No.1 could cause death spontaneously but he did not give any reason to support his version, as to how the said injury could cause death and what measures were taken by him to save the appellant. Even he did not say what treatment was given to the injured, how the injury was managed? Whether the complainant was hospitalized for his treatment? How the attempt failed to cause the death of the complainant? The statements of the prosecution witnesses have been found contradictory and self destroying. They were interested and nurtured malice against the appellant. According to Ranjeet Singh (PW3) Pardeep and Sammi were also there. PW1 Rumail Singh admitted many persons were commuting at that time on the 9 road. None of the aforesaid witnesses were examined who could have lent strength to the prosecution case. Further recovery of knife, from the bamboo grove, appears to be an eye wash. As already stated above medical evidence i.e. X-ray and treatment summary of the appellant was not placed on record to prove that injury in question was imminently dangerous to life and the injured would have died had the timely medical aid was not provided to him. Thus on sifting the prosecution evidence, I do not find it a case worth inspiring confidence, therefore, the appellant is entitled for benefit of doubt. For the reasons aforesaid, the conviction and sentence passed by the learned trial court is unsustainable in the eyes of law. Accordingly, the appeal is allowed and the appellant is acquitted of the offence charged by giving him benefit of doubt. Fine, if any, deposited by the appellant, be refunded to him. August 19, 2008 (Surinder Singh),J. (D)