IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 134 of 1995 Reserved on: 24.03.2009 Date of decision: 1.04.2009 State of H.P. ... Appellant Versus Dharam Dass alias Dassu & Anr. … Respondents Coram The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr. Justice V.K. Ahuja, J. Whether approved for reporting1? Yes. For the appellant: Mr. P.K. Sharma, Additional Advocate General and Mr. Rajesh Mandhotra, Deputy Advocate General. For the respondents: Mr. G.S. Sisodia vice Mr. R.K. Sharma, Advocate, for the respondents. Ms. Radhika Gautam vice Mr. Naveen K. Bhardwaj, Advocate, for the complainant. Per V.K.Ahuja, J.: This is an appeal filed by the State of H.P. under Section 378 Cr.P.C. against the judgment of the Court of Ld. Judicial Magistrate Ist Class, Karsog, dated 17.3.1994, vide which the respondents were acquitted of the charge framed against them under Sections 326/323 read with Section 34 I.P.C. Whether the reporters of Local Papers may be allowed to see the Judgment? Yes. 2 The prosecution story in brief is that on 27.5.1993, at 10.15 A.M., a report was lodged with the police by one Chet Ram alleging that he is serving in the Health Department and he was going to his office in the morning. He further alleged that at 9.30 A.M. when he reached near Jarotlu, respondents No. 1 and 2 were standing there. Respondent No. 1 was having a Kudali, while respondent No. 2 was having a Drati in her hand. It was alleged that respondent No. 1 gave a blow on his left leg with Kudali and then snatched the Drati from his wife respondent No. 2 and gave a blow over his head. The complainant kept his hand on the head to save himself and he suffered Drati blow on the thumb of his hand and on his fingers and blood started oozing out. Thereafter, he was again given blows with the same Drati on his shoulder etc. by the respondents. He fell down on the common path and when he raised an alarm, one old person came there and rescued him and one another girl was standing nearby who also saw the occurrence. On this report, a case was registered and after investigation, the challan was filed before the learned trial Court, who tried the respondents leading to their acquittal. We have heard the learned counsel for the parties. We have also been taken through the evidence produced by the prosecution in support of their case and several infirmities have been pointed out by the learned counsel for the respondents to show that the findings of acquittal recorded by the learned trial Court are not liable to be reversed. On appraisal of the record of the case, it is clear that the complainant had alleged in the report Ext. PA lodged with the police that respondent No. 1 was having a Kudali with which he gave blows on the left leg of the complainant, then snatched the Drati from his wife i.e. respondent No. 2 and gave blows which was suffered by the complainant 3 on his right hand, thumb and fingers. Thereafter, he was given blows with the same Drati, though it was not specified as to who gave these blows. However, when the complainant stepped into the witness box, he came up with the another plea and changed his statement when he claimed that respondent No. 1 gave blows on his left leg with Kudali, while respondent No. 2 gave the blows with Drati and thereafter, respondent No. 1 took Drati from his wife and gave blows over parts of his body. He raised an alarm, Tej Ram reached there and one Heera Mani was standing nearby. He had not named these both witnesses, though he had alleged in the FIR Ext. PA that one old man had come to the spot, while a girl was standing nearby. Apart from this, it is clear that in the earlier report lodged by him, he had not stated that Drati blow was given by respondent No. 2, though in Court he came up with the plea that this Drati blow was given by respondent No. 1 and not by respondent No. 1 may be to implicate respondent No. 2 also to show that she had given these blows. The learned trial Court had taken this as an improvement made by the complainant while appearing in Court. According to law, the witness was required to be confronted with the FIR Ext. PA lodged by him before any benefit can be taken by the accused in regard to the material improvements made by the complainant while appearing in the Court. Therefore, no benefit could have been taken by the accused for these material improvements until and unless, he was confronted with his report Ext. PA. Therefore, we have the statement made by the complainant in the Court on oath as the statement and are considering as to whether this statement stands corroborated by two eye witnesses examined by the prosecution or not. Coming to the statement of PW-2 Tej Ram, who had come to the spot, he has stated that near the Peepal tree, the respondents were 4 sitting and Chet Ram PW-1 came there and respondent No. 1 gave a Kudali blow on the left leg of the complainant. He further stated that Hima Devi gave a blow with Drati and Chet Ram raised an alarm and he reached there and asked the respondents as to why they were quarrelling. Thereafter, he took Drati from respondent No. 2, gave a blow on the head of the complainant and he suffered injuries on his hand and he stated that respondent No. 2 started giving beatings to PW-1 with Kudali which was never stated by the complainant as PW-1 that any blow was given on his person with Kudali by respondent No. 2. In cross-examination, he has stated that he has seen the respondents sitting near the tree from a distance of half furlong. He stated that he had no talks with the accused or the complainant. He has stated that he saw the occurrence from some distance and did not come nearby. In cross-examination, he has stated that he cannot say how many blows were given by respondent No. 2 to PW-1 Chet Ram on his back with Kudali about which the complainant has not stated at all. However, he further stated that respondent No. 2 continued giving beatings on the back of the complainant with both her hands. He denied the suggestion that the complainant PW-1 had committed indescent assault upon Hima Devi and therefore this occurrence had taken place. He stated that he did not see any injury on the person of respondent No. 1. PW-3 Heera Mani, the other eye witness has stated that she saw respondents giving beatings to Chet Ram. Respondent No. 1 was having a Drati and respondent No. 2 was having a Kudali with which they were giving beatings. She stated that meanwhile an old person named Tej Ram came there and rescued them and the respondents ran away from the spot. She has come up with another plea that both the respondents were giving beatings to the complainant with Kudali and 5 Drati in their hands, which is contrary to the version given by the complainant and PW-2 Tej Ram. She denied the suggestion that Chet Ram had committed any indescent assault on the person of Hima Devi, respondent No. 2 and some beatings took place in which Chet Ram suffered injuries. She stated that she did not see any injury on the person of respondent No. 1. She admitted as was admitted by PW-2 Tej Ram also that they used to take medicines in the Dispensary from PW-1 Chet Ram. From above discussion of the above evidence, it is clear that the complainant had stated differently in regard to the injuries inflicted by the accused persons and by which of the accused and with which weapons and the two eye witnesses examined by him have not corroborated his statement, who have stated differently. The fact that these injuries were sustained by the complainant during the quarrel was partly admitted by respondent No. 2 in her statement when she appeared in the witness box as DW-1 and had stated that since the complainant had committed indescent assault upon her person and had pressed her breast and attempted to break the string of her salwar, she was having a Drati and in that grappling, the complainant may have suffered injuries. It is clear from cross-examination of the witnesses that a specific defence was taken by the accused persons that complainant PW-1 had committed indescent assault upon the person of respondent No. 2, for which a quarrel took place and respondent No. 2 has not denied that in that process, the complainant had suffered injuries with a Drati. But she has not admitted that these injuries were inflicted by her husband or by her with either Drati or Kudali. Once a specific defence had been taken by the accused persons and they had also appeared in the witness box as DW-1 and DW-2 to substantiate their plea, it was 6 required of the learned trial Court to have discussed the plea taken in the cross-examination and in the statements made by both the respondents on oath when they appeared in the witness box as DW-1 and DW-2. The Statements of DW-3 Ram Saran and DW-4 Oma Chand are irrelevant and deserve to be ignored. From the above discussion, it follows that the learned trial Court did not deem it necessary to refer to the defence plea taken by the accused persons in the cross-examination of eye witnesses as well as in the defence version put up by them when they appeared in the witness box as DW-1 and DW-2. The reasoning given by the learned trial Court in not discussing the defence evidence is that the prosecution was required to prove their case and since they have failed to prove their case it is not necessary to refer to the defence evidence. This approach of the learned trial Court cannot be said to be proper though suffice to say that since the statement of the complainant was not corroborated in regard to the injuries suffered by him by both the eye witnesses. Therefore, it can be concluded that the statement of the complainant has not been corroborated by the eye witnesses and therefore, the same cannot be relied upon. However, as mentioned above, before any benefit could be taken by the accused, it was required of the learned counsel for the accused to have confronted the complainant with the statement made by him to the police and then only the benefit of improvements could have been taken by the accused. Apart from the above, we have also observed an infirmity in the conduct of the trial by the learned trial Court, which cannot be ignored and it needs to be referred to. A perusal of the record shows that the statement of the accused persons under Section 313 Cr.P.C. was recorded on 7.2.1994 and the case was fixed for defence evidence and 7 the learned trial Court recorded the statements of four defence witnesses including both the accused persons. According to law as laid down in Section 315 Cr.P.C., the accused cannot be permitted to appear in the witness box and make deposition on oath until and unless an application in writing is submitted by him to the Court and after permission is granted, then only he can be permitted to be a witness in his own favour. However, the learned trial Court proceeded to record the statements of both the respondents without following the above provision and this approach of the learned trial Court cannot be termed as legal. However, in view of the fact that the occurrence had taken place in the year 1993 and the judgment was pronounced in the year 1994, after 14 years we are not inclined to remand the case to the learned trial Court for fresh hearing and fresh examination of defence witnesses, if necessary, since the guilt of the respondents was not established beyond any reasonable doubt. In view of the discussion of the evidence as made above that the statement of the complainant was not corroborated fully by both the eye witnesses. We may also point out that at one place in referring to the testimony of PW-7 Medical Officer, the learned trial Court had observed that there is nothing in the statement of Medical Officer to show that these injuries were sustained by the complainant as a result of the beatings given by the accused. To our mind, this observation was uncalled for since the Medical Officer was never an eye witness and was not required to depose that these beatings were given to the complainant by the accused. However, the sum total of the above discussion is that the final judgment passed by the learned trial Court holding that the prosecution has failed to prove their case beyond any 8 reasonable doubt cannot be termed as perverse calling for an interference by this Court. In view of the above discussion, we accordingly hold that there is no merit in the appeal filed by the appellant, which is dismissed. Bail bonds furnished by the respondents shall stand discharged forthwith. ( Deepak Gupta ) Judge April 1, 2009 ( V.K. Ahuja ) (BSS) Judge 9