IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 338 of 1995 Date of decision: 27.11.2008 State of H.P. ... Appellant Versus Yashi Chaumpal … Respondent Coram : The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant: Mr. Rajesh Mandhotra, Deputy Advocate General. For the respondent: Mr. K.C. Rana, Senior Advocate with Ms. Uma Manta, Advocate. Per V.K. Ahuja , J.: This is an appeal filed by the State of H.P. against the judgment of the Court of learned Sessions Judge, Kangra at Dharamshala, dated 2.12.1994, vide which the respondent was acquitted of the charge framed against him under Section 302 I.P.C. Briefly stated, the prosecution story is that on 22.4.1994, at about 6.30 P.M., one Anil Kumar alongwith Suresh Kumar, Om Parkash and Upinderjeet(now deceased) were returning home in village Gamroo and on way, they met Goldi, Onkar alias Anju and Ashok Kumar. The said Anju told Upinderjeet that one Tibetan boy had asked him to take him to Tibetan School in his taxi and on his refusal, he had been slapped by the said Tibetan boy. It is further the prosecution case that Anil Kumar 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 alongwith above named persons were going towards Gamroo, the same Tibetan boy met them and Upinderjeet asked him as to why he had slapped Anju. The said Tibetan boy, the present respondent, took out a knife from his pocket and stabbed Upinderjeet in the abdomen. The respondent picked up a big stone in order to throw the same at them but they managed to run away. Upinderjeet fell down, was taken to Zonal Hospital, Dharamshala, but he died on way to the hospital. On the basis of the report lodged by Anil Kumar, a case was registered and after investigation, the challan was filed before the Judicial Magistrate, Dharamshala, who committed the case to the Court of learned Sessions Judge, who tried the respondent leading to his acquittal. We have heard the learned counsel for the parties and have gone through the record of the case. The first point taken by the learned trial Court in acquitting the respondent was that the genesis of the occurrence has not been brought on record since the respondent had also suffered an injury, which has not been explained and two other persons accompanying the deceased had also suffered injuries which have not been satisfactorily explained. In such circumstances, it was held that once the prosecution has not proved the injuries on the person of the respondent and it is not clear as to how the occurrence took place, the prosecution story becomes doubtful. The learned trial Court had observed that the occurrence took place on 22.4.1994, at about 6.30 P.M. The respondent was also brought to the hospital in an injured condition on 22.4.1994, at about 8.20 P.M. He was examined by PW-2 Dr. R.K. Sharma, at about 8.20 3 P.M., who issued MLC Ext. PD in this regard. According to PW-2 Dr. R.K. Sharma, the respondent had suffered the following injury:- “ 1. An incised wound was present in the right glutial region on inner side measuring 1½ inch in length and ½ inch in breadth. On probing the depth of the wound it was found about 1 inch in the area of wound, involving muscles of the glutial region. On removing the pack, blood was oozing out from the wound. No active bleeder was seen.” According to the opinion of the Medical Officer, injury was simple in nature and was caused within six hours with a sharp edged weapon. He has also stated that the injury was possible by fall while running on sharp edged weapon standing vertically on the ground. A perusal of the record shows that firstly the investigation was carried out by PW-13 Hira Singh, Inspector, the then S.H.O. Dharamshala, who recorded the statements of the witnesses. He admitted that the accused was also brought to the hospital on the same night, at about 8.45 P.M. and was admitted as an indoor patient. The accused was also got medically examined on the same day by him. But he did not give any explanation in regard to the injury on the person of the accused. The further investigation was conducted by PW-14 S.I. Nathu Ram. In his statement, he has stated that he had investigated in regard to the injuries found on the person of the accused and had also interrogated him on this aspect. He further observed as under:- “The investigation revealed that the accused after the occurrence, while running away towards Ghaniara road, had jumped and fallen on a heap of waste, which consisted broken glasses and bottles, he had fallen on the said waste with his hip striking the ground and the injuries were sustained by him as a result of such fall.” 4 It has to be seen as to what explanation has been given by the other eye witnesses in regard to the injuries on the person of the respondent. PW-3 Anil Kumar who had lodged the report has stated that he was going to his house alongwith Goldi, Om Parkash and Upinder, when Anju met them and told about the slap blows given by a Tibetan boy. He stated that the said boy met them and when Upinder asked, he gave a him a blow with a knife and he alongwith Goldi were going ahead of Upinder at that time when he was stabbed and when he turned back, he saw the accused standing on the spot with a knife and Upinder told them that he has been stabbed by this Tibetan boy. He had admitted in cross-examination that he had not seen the accused giving stab blow to the deceased and he has only seen the blood stained knife in his hand at the spot. He had admitted that the accused was alone at that time. In his examination-in-chief, he gave the explanation in regard to the injury on the person of the respondent that while running, the respondent fell down with his hips hitting the ground. The next eye witness was PW-6 Onkar Chand alias Anju, who stated that the slap blows were given by the respondent to him earlier and he made a complaint to Upinder and when the respondent met them by chance, Upinder asked him in regard to the slap blows and there was argument in between them for 2-4 minutes. Thereafter, the respondent gave a stab blow to Upinder with a knife. He also saw the accused person at the spot with a knife in his hand, which was blood stained. In regard to the injury on the person of the respondent, he stated that while picking up the stones, the respondent fell down and his hip hit the ground. He was confronted with his statement Ext. DC, wherein it was not so recorded. The third eye witness was PW-7 Goldi who also 5 stated about what PW Anil had stated and they were going back and he was going ahead, while deceased and Anju were following and respondent met them and gave a blow with a knife on the person of Upinderjeet. He also came up with the statement that the respondent was throwing stones on them, he fell down and his hip hit against the ground. He stated that he saw the accused in the hospital on the same day and he was unconscious. From above detailed discussion of the evidence, it is clear that the accused had also suffered an injury, which was an incised wound as detailed above and the explanation given by the three eye witnesses does not appear to be plausible that he suffered this injury while running from the spot, since they made improvement while making such statement in Court. Apart from this, it is also clear that two of the eye witnesses had also suffered injuries at that time. PW-3 Anil Kumar, complainant, has stated that he sustained a bruise on his dorsal aspect of right hand, while trying to lift the deceased from the ground, for which he was medically examined. In regard to this injury PW-2 Dr. R.K. Sharma, Medical Officer, has stated that there was a contused lacerated wound present on the back of the right hand at the base of the right ring finger. The injury was simple in nature and caused within six hours by a blunt weapon. PW-7 Goldi, an eye witness, has not stated in regard to the injury suffered by him at that time. However, PW-2 Dr. R.K. Sharma had examined this witness and had found in injury on the person of PW Goldi. There was a contused lacerated wound on the back side of the left index finger. The nature of injuries was simple, caused by blunt weapon and was having about six hours duration. Surprisingly, the 6 witness has not stated the manner in which he suffered injuries and at what time or where he had suffered the injuries. In regard to the blow given by respondent with a knife on the person of the deceased, PW-3 Anil Kumar had not seen the stab blow being given to the deceased but had seen the respondent having a blood stained in his hand, when he turned his back and saw Upinder standing there having suffered the stab blow. PW-6 Onkar Chand has stated about the stab blow, while PW-7 Goldi has stated that he saw the accused taking out a knife and giving stab blow on the abdomen of the deceased. From the above discussion of the evidence, it is clear that these witnesses had seen the accused at the spot having inflicted the blow or after the blow was given with a knife in his hand. However, the accused also suffered in injury at that time, which has not been explained and the explanation given by the witnesses does not appear to be plausible. Two of the eye witnesses also suffered injuries and one of the eye witnesses gave an explanation in regard to the injury but that does not appear to be plausible to us since there is nothing on record that any scuffle took place at the spot or there was a grappling and, therefore, while trying to rescue the deceased one of the witness suffered the injuries. The time given in regard to the injuries by two witnesses and the accused are same including that of the deceased i.e. within six hours, which clearly shows that this injury was suffered by the respondent and two witnesses at the time of occurrence. The learned trial Court had referred to some decisions of the Hon’ble Apex Court to show that in such circumstances, when there is no plausible explanation in regard to the injuries, it is difficult to hold 7 as to who was the aggressor. Reliance was placed upon the decision in Prahlad Apto and Ors. Vs. State of A.P., 1994(3) Crimes - 764. The observations made in Para-6 are relevant and are being reproduced below:- “The prosecution has deliberately suppressed, the very genesis of the incident and has not explained the injuries on the accused. It has to be borne in mind that in cases of this nature, it is necessary for the prosecution to state the true story of the genesis of the occurrence, as it is necessary to decide as to who was the aggressor when both the parties had received injuries. If the prosecution fails to do so, then as an inevitable corollary, the benefit of doubt has got to be given to the accused entitling their acquittal. This very important aspect was ignored by the Sessions Court, inspite of its finding that true genesis of the story of the prosecution was not stated.” In such circumstances, when the accused had also suffered injuries and the same have not been satisfactorily explained by the prosecution, it is difficult to hold as to the genesis of occurrence as to how it started. It is also clear that when the respondent met the deceased and other persons, namely, PW-3 Anil Kumar, PW-6 Onkar Chand, PW-7 Goldi, Om Parkash and Upinder(now deceased), numbering five. The respondent was alone and the possibility that these persons may have tried to give him beating in which one blow was given cannot be ruled out and in that process if one injury had been sustained by Upinder, deceased, it turned to be fatal, it cannot be said that he was liable since the injury may have been inflicted by him to save himself. There is nothing on record to substantiate the manner in which the quarrel started, who was the aggressor and in such circumstances, the prosecution story 8 becomes doubtful. Apart from the above, there is another important aspect of the case in regard to the identity of the respondent, which cannot be ignored. PW-3 Anil Kumar who had lodged the report with the police Ext.PE has stated that he knew the accused one year before the occurrence and was also knowing him by name. He stated that he does not know the name of the father of the accused. He stated that he had not told the name of the father of the accused in his statement to the police and he was confronted with his statement Ext. PE, where name of father of the accused is recorded. PW-6 Onkar Chand has stated that he was knowing the accused 5-6 months before the occurrence. He has stated that he told to the police that he came to know about the name of the accused as Yashi Chompal son of Janguchu, again stated that he did not state to this effect to the police. He stated that he does not know the name of the father of the accused. PW-7 Goldi has stated that the name of the accused was given to him by Anil after his statement was recorded by the police. He stated that he did not name the accused in his statement before the police and he was confronted with Ext. DD his statement, where the name of the accused finds mention. The FIR in question Ext. PE/1 had been lodged within about two hours and 15 minutes of the occurrence and not only the respondent had been named but his father’s name and other particulars were also mentioned therein but the witnesses as discussed above were not aware of the name of the father or some have learnt about the name of the accused subsequently. Therefore, it seems a mystery as to who gave the name of the father of the accused and other particulars when the same were not known to the complainant or other witnesses. Therefore, the possibility that identity of a wrong 9 person was given so as to implicate the accused, cannot be ruled out, which had also weighed with the learned trial Court in coming to the conclusion that the prosecution case does not stand proved. Apart from the above, it is also clear that Upinderjeet(now deceased) had only suffered injury inflicted by the respondent with a knife on his abdomen. But during postmortem examination, the injuries observed were three as observed by PW-1 Dr. D.P. Swami, who conducted the postmortem examination on the person of the deceased. The injuries observed are as under:- “1. Wound. Penitrating spindle shaped on the mid left clavicular line oblique reddish with sharp margins and tailing upward Exact 3cms x 1½cm x ½cm (Length, breadth and depth) just below the ribs rage front mid portion, as shown in the diagrame. Flour filled with clotted blood. 2. Omuntum, intestine (Large proximal left side) seen with a penetrating sharp edged spendle shaped, wound just adjoining to skin wound, 2cms x ½cm, tailing upwards reddish with clotted dark reddish blood in surrounding. 3. A small 1cm x ¼cm x 1cm penetrating wound sharp edges on the upper surface and mid portion of the spleen, last depth is tapering (The wrole trapping was 6cm longs, maximum breadth 3cms indicates double edged weapon used in the crime.” Therefore, the ocular evidence does not stand fully corroborated by the medical evidence and in view of the above discussion, it is clear that the findings recorded by the learned trial Court that the 10 guilt of the respondent has not been proved beyond any reasonable doubt cannot be said to be perverse calling for an interference by this Court. In view of the above discussion, we hold that there is no merit in the appeal filed by the appellant, which is dismissed accordingly. The bail bonds furnished by the respondent shall stand discharged. ( Deepak Gupta ), Judge ( V.K. Ahuja ), November 27, 2008 Judge (BSS) 11