1 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 687 of 2002 Date of decision: 10th October, 2011 State of Himachal Pradesh …Appellant Versus Dulo Ram and others ….Respondents Coram The Hon’ble Mr. Justice R.B. Misra, J. The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 For the Appellant: Mr. R.K. Sharma, Senior Additional Advocate General with Mr. Rajinder Dogra, Addl. Advocate General. For the Respondents: Mr. Himmat Negi, Advocate vice Mr. Ajay Sharma, Advocate. Dev Darshan Sud,J.(oral) The State has challenged the judgment passed by the learned Chief Judicial Magistrate, Kangra at Dharamshala acquitting all the respondents charged with offences under Sections 326, 324, 506, 147, 148 and 149 of the Indian Penal Code (hereinafter referred to as the IPC). 2. The prosecution case against the respondents is that accused Dulo Ram had blocked the path adjoining 1 Whether the reporters of Local Papers may be allowed to see the judgement? 2 his house at village Ansuie by stacking stones. On 7.6.1997 at around 3 P.M. Sandhya Devi and Reshma Devi started quarrelling and Harphool Singh PW2 started removing the alleged blocked path at which Babita started shouting that she had been beaten up by Sandhya Devi. During this time, Reshma, Golki, Dulo Ram respondent No. 1, Sanjeev Kumar respondent No.2, Satish Kumar respondent No. 3 and Anil Kumar respondent No. 4 rushed to the spot . They were alleged to be armed with dandas and darats (sickles). They entered into an altercation with PW2 Harphool Singh, whereupon a fight ensued which resulted in injuries to him. He was rescued by Sandhya Devi, Kamlesh Kumari and Ramesh Chand. Thereafter he went to the police station at Dharamshala and lodged First Information Report against the accused-respondents for having formed an unlawful assembly and causing injuries to him. 3. The prosecution examined 12 witnesses to prove its case. Harphool Singh PW2, who proved the First Information Report, states that on 7.6.1997 when he intervened between the quarrel between Sandhya and Reshma Devi and asked them to settle the matter 3 amicably, the accused alongwith Babita Devi rushed to the spot armed with dandas and darat etc. and started beating him mercilessly inflicting injuries all over his body. He was rescued by Sandhya Devi, Pawna Devi, Ramesh Chand and Pappi who intervened. He admits in his cross examination that the respondents have also filed a case against him and his family members arising out of the same incident. PW4 Sandhya Devi who is another accused in the cross criminal case instituted by the respondents states that when Harphool Singh started removing the stones which had allegedly been illegally stacked by the respondents on the path, Babita raised a hue and cry that she had been beaten up by Harphool Singh at which all the accused, armed with deadly weapons, pounced upon PW2 Harphool Singh who became unconscious after being thrashed/beaten by them. 4. PW5, Ichhya Devi mother of the complainant Harphool Singh also corroborates the fact about the assault etc. The other witnesses PW9 Pappi Kumar and PW12 Raj Kumar are the accused in cross case filed by the respondents. 4 5. PW1 Dr. Ajay Kumar examined Harphool Singh PW2 and has proved MLC Ext.PW1/A certifying that he had suffered three injuries namely: (i) a deep incised wound over his left infra orbital region having 2x2.5 cm. Its edges were clean and regular and fresh blood was coming out of the wound, while sharp edge of the wound was towards the eye, the blunt edge was towards the lower side. (ii) The second injury was a 5 cms. clean incised wound on the scalp. The edges of the wound were clean and regular and fresh blood was oozing out and the underlined skull wound was exposed. (iii) The third injury was a 3 cms. long incised wound on the left occipital region from which fresh blood was oozing out. Margions of this wound too were sharp, clear and regular. The first injury was opined to be grievous since it had caused disfigurement of his face. However, two other injuries were opined to be simple. He admitted in his cross examination that respondents Dulo Ram, Sanjeev Kumar and two other persons namely Ram Pyari and Babita were also examined by him as they had sustained injuries in the scuffle. He admitted that the injuries 5 caused to PW2 Harphool could be the result of a scuffle. This is the entirety of the evidence. 6. The learned trial Court did not accept the evidence of PW9 Pappi Kumar and PW12 Raj Kumar as they were admittedly accused in the cross criminal case which had been instituted against Harphool Singh and others by the respondents with respect to the same incident for which the respondents were being tried. 7. What is more important and requires to be considered is the cross examination of PW11 SHO Dharam Singh Inspector. In his cross examination, he admits that PW2 Harphool Singh was armed with Khukhri at the time when the alleged fight is supposed to have taken place and that he is also an accused in another cross case. He admits in his cross examination that the danga (retaining wall) had been built up by the respondents for protecting their house. The relevant portion reads: “yeh theek hai ki meri investigation main yah aya tha ki Phool Singh dange ke patharon ko hatane laga. Yeh bhi theek hai ki meri investigation main yeh aya tha ki vakua ke vakat Phool Singh ke haath main khuthari thi. Yeh theek hai ki isi vakua kaa case Phool Singh, Krishan Kumar, Raj Kumar, Pawan Kumar, aur Pappi ke 6 upar bhi aik case daraj hua tha jo aaj isi adalat main chalaa hai. Yeh theek hai ki Phool Singh kaa bhi medical karvaya tha. Yeh bhi theek hai ki muljam pakash kaa bhi medical karvaya tha. Yeh bhi theek hai ki complainant ke khilaf bhi mukdama chalaa hai.” Translation:- It is correct that during the course of my investigation I found that Phool Singh started removing the stones of retaining wall (danga). It is correct that during the investigation it was found that at the time of incident, Phool Singh was holding a Khukhari in his hand. It is also correct that with respect to the same incident, cross case was filed against Phool Singh, Krishan Kumar, Raj Kumar, Pawan Kumar and Pappi, which is also pending for adjudication in this Court. It is correct that the medical examination of Phool Singh was conducted as also that of the respondents. It is correct that the counter case is pending against the complainant. 8. This fact by itself would be sufficient to cast a serious doubt on the veracity of the testimony of the complainant. It is undisputed that at the time of the incident, PW2 Harphool Singh was armed with a Khukhari, he tried to remove the stones of the retaining wall which resulted in a free for all and that the 7 respondents also sustained injuries in the fracas. On examination of the evidence, we find no perversity in the appreciation of evidence by the learned trial Court or in the conclusion arrived at by it. In these circumstances, we find no merit in this appeal, which is accordingly dismissed. Bail bonds furnished by the respondents are discharged. (R.B. Misra) Judge (Dev Darshan Sud) Judge October 10, 2011(ms)