IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.A. No. 64 of 1997. Decided on: 7.7.2010. ___________________________________________________________ State of H.P. … Appellant. Versus Kala @ Onkar Singh and others. … Respondents. ___________________________________________________________ Coram: Hon’ble Mr. Justice R.B. Misra, Judge. Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 Yes. For the appellant : Mr. Anil Jaswal, Dy.Advocate General and Mr. J.S. Rana, Asstt. Advocate General. For the respondents : Mr. Pramod Thakur, Advocate. ___________________________________________________________ R.B. Misra, J. (Oral). The present criminal appeal has come up for consideration after leave to appeal has been granted, under Section 378 (3) Cr.P.C., in reference to the impugned judgment, dated 2.9.1996, passed by the learned Additional Sessions Judge, Kangra at Dharamshala, HP, in Sessions Trial No. 1 of 1996, acquitting the respondents-accused for the alleged offence, under Sections 302, 324, 323 read with Section 34 IPC. 2. Prosecution case in brief is that on 23.10.1995, Bir Singh accompanying his brother Pritam Singh lodged a report to Police Post, Gangath that at about 9.00 p.m. accused Kala came to their house and told that Bir Singh was being called by one of his friends in the street (Gali) and Bir Singh accompanied with Kala went to the street where other accused already present there pounced upon Bir Singh. Accused struck Bir Singh on his left arm 1 Whether reporters of the local papers may be allowed to see the judgment? 2 near elbow joint and he also received injuries in the abdomen and Bir Singh made hue and cry at that time. On this, Mela Ram and Pritam Singh, brothers of Bir singh reached the spot and Pritam Singh came for the rescue of Bir Singh, who also suffered injuries on the left side and blood started oozing from the abdomen of Pritam Singh. Accused Kala gave blow on left arm and another blow with the same weapon on left side of the stomach of Pritam Singh. Both were taken to Civil Hospital, Nurpur and the case was registered for the offences under Sections 307, 324 and 323 read with Section 34 IPC and thereafter, deceased Pritam Singh was referred to Zonal Hospital, Dharamshala and further to P.G.I., Chandigarh. On way, Pritam Singh succumbed to his injuries and on post mortem, the case was converted from Section 307 IPC to Section 302 IPC and the accused were charged for the aforesaid offences. The case was committed for Sessions trial. 3. In order to prove its case, the prosecution examined as many as 15 witnesses, whereas, the accused persons in their statements under Section 313 Cr.P.C. have denied the prosecution case. 4. PW-1 Dr. R.K. Chaudhary has examined Bir Singh and noted following injuries: “1. Incised spindle shaped wound on the posteriolateral aspect of left elbow joint with well defined regular margins with active bleeding on touch. Size 3 cm x 0.25 cm x muscle deep, running upwards, backwards and medially. He was advised x-ray left elbow joint. 2. Abrasion 0.75 cm x 0.25 cm. 3. He complained pain in the left chest. He was advised x-ray of the chest. X-ray was got conducted at Civil Hospital, Nurpur. X-ray report is in my hand which is Ex.PW1/B. So the injuries after x-ray report were 3 simple for all and kind of weapon used was sharp edged object for injury No.1 and blunt for injury No.2. Probable duration of injuries could not be ascertained. However, these could have been within 72 hours as there was no evidence of sepsis or evidence of repartee process of healing. I issued MIR copy of which is Ex.PW1/C.” 5. PW-1 Dr. R.K. Chaudhary also examined Pritam Singh and noted following injuries on his person: “Incised spindle shaped wound 2¾” lateral to the central line situated one inch above left costal margin with regular well defined edges size 1” x 0.25 cm depth was not ascertained and for the same patient was referred to Zonal Hospital, Dharamshala for surgical exploration treatment and report of the surgical specialist. He was also advised x-ray abdomen standing to see air under right come of diaphragm. Patient was having active bleeding externally. There was history of bleeding in the vomiting with red and black coloured vomitus. Nature of injury was reserved for the opinion of surgeon. The kind of weapon used was sharp edged. Probable duration was not ascertained exactly but it could have been before 72 hours as there was no evidence of sepsis and reparative process of healing. I issued MIR copy of which is Ex. PW1/D. Patient was not brought to me again with the opinion of surgeon as such I cannot opine the nature of injuries in this case.” 6. In cross-examination, PW-1 has stated that injury on the person of Pritam Singh is in the chest and on the person of Bir Singh is in elbow joint and in the opinion of PW-1, possibility of the injuries on the person of Pritam Singh by steel strip having sufficient sharp edge cannot be ruled out. 4 7. PW-4 Dr.B.D.Sharma conducted medical examination of Kala alias Onkar Singh, son of Shri Kehar Singh and has noticed following injuries on his person: “1. There was a lacerated wound in the left front of parietal region. It is 7 cm above the pina of the left ear. The wound is 5 cm long into 2.5 cm wide and skin deep. Clotted blood present front of the wound. Scab formation is there. Pus also present on the front of the wound. The wound is infected. 2. There was complaint of tenderness in the left leg muscle. No injury detected on this part. The nature of injuries was simple. Weapon used was blunt. Probable duration of 72 hours.” 8. In Doctor’s opinion, the injuries could have been caused in process of falling down having a heap of wood on his head. 9. PW-2 Bir Singh has stated that he belongs to the same village of accused. On 24.10.1995, that is, on the day Kala accused No.1 went to call PW-2 when he was in kitchen and all the four brothers were taking meals at about 9.00 p.m. and PW-2 was told by Kala that he had been called by his friend in the field and PW-2 accompanied Kala, when they reached at a distance of 20 yards near the water pump, accused Balkar caught PW-2 and three other accused pounced upon him. PW-2 raised alarm and accused struck him in left arm near elbow joint. PW-2 did not know the nature of weapon by which victim was assaulted and blood started oozing. PW-2 also received injuries in the abdomen but did not know with which weapon and how such injuries were caused. Mela Ram and Pritam Singh reached the spot. Pritam Singh came to rescue PW-2 and accused gave blow on his left side. The cause of 5 injury and the weapon used with which weapon injury was inflicted were not known to him as it was dark. Blood started oozing from the abdomen of Pritam Singh. Kala fled away and the other accused were apprehended by Mela Ram. PW-2 has stated that accused has not received any injury in the incident. According to PW-2, Kala had taken the watch of some body and when PW-2 asked him to return the watch, though the same was returned, but Kala accused handed over the watch to a person whom he did not remember. The injured persons were taken to Civil Hospital, Nurpur. Thereafter, Pritam Singh brother of PW-2 was referred to Zonal Hospital, Dharamshala and from there to PGI, Chandigarh and on way he died. PW-2 in his cross-examination has stated that there were about 12 houses near to his house and residence of PW-2 was in the mid of these houses. Mela Ram is maternal uncle of PW-2. PW-2 has also stated that the fact of carrying a torch in his hand was not recorded and it was pitch dark at the time of incident and it was impossible to recognize anybody. Mela Ram had apprehended the accused but lateron they were left free as saving of life of Pritam Singh was more important. PW-2 has also stated that if the alarm is raised from the place where incident took place, it could be noticed and heard by the people of the nearby locality. 10. PW-3 Dr. D.N. Chadha is said to have issued discharge certificate Ext. PW3/A regarding Pritam Singh having stab injuries on the left side of the lower chest. 11. PW-5 Mela Ram in support of prosecution has stated that on 23.10.1995 at about 8.35 p.m., when he came out of his house, Kala went to call PW-2 Bir Singh and rest of the two 6 accused remained near the hand pump in the street. Later on, PW- 5 went inside his house and heard the noise of Bir Singh. PW-5 has also seen Bir Singh in the company of the accused and as per statement of PW-5, Kala gave a blow to Pritam Singh on the left side of the abdomen with a knife which was kept in his hand by Kala. PW-5 has claimed to have seen the occurrence when he came in the street as PW-5 was carrying torch and was followed by Babu Ram. PW-5 has also seen injuries on the person of Bir Singh at his arm as well as on the abdomen, that is, on the right side and blood was oozing from the injuries and on reaching PW-5, accused Kala fled away. Despite endeavour to catch accused, he managed to escape. PW-5 tried to catch the other accused but they also managed to escape. PW-2 and Pritam Singh were taken to the house as deceased Pritam Singh was vomiting in the verandah. Thereafter, both the injured were taken to Gangath. As per testimony of PW-5, police came on 24.10.1995 and took into possession the stones and the earth vide recovery memo Ext. PW- 5/A in presence of PW-5 wherein PW-5 has put his signatures along with Harnam Singh. PW-5 in his cross-examination has stated clearly that he has not seen Kala, accused No.1 giving or inflicting injuries to Bir Singh and deceased Pritam Singh but he recognized the accused persons. PW-5 in his statement in cross- examination has stated that Kala accused had not gone to call Bir Singh and it has emanated from the testimony of PW-5 that it was pitch dark and was not possible for anybody to identify the others. 12. PW-5 Babu Ram, the brother of Pritam Singh and Bir Singh has stated that he was living separately in a joint house. On 23.10.1995, that is, on the day of Diwali, when PW-6 was taking 7 his meals, Karam Chand, Pritam Singh deceased, PW-2 Bir Singh and his parents were also in the house. At that time accused No.2 Balkar Singh came and told that Bir singh has been summoned by Kishori Lal. Accused No.2, (however, in Hindi version has stated that it is Kala) who came and told that Bir Singh has been called to the street. On this, Bir Singh accompanied him and after a short interval, Pritam Singh went outside the house following PW-6 Babu Ram and PW-2 Bir Singh was caught by accused and they started giving him beatings. In the meantime, Pritam Singh went for his rescue and Kala hit deceased Pritam Singh with some object on his left side of the abdomen. At that time, Mela Ram was also there. Pritam Singh fell down and accused No.1 fled away. Further, PW-6 is said to have seen the incident as Mela Ram and the accused party were having torches. 13. PW-6 in his statement in cross-examination has stated that Mela Ram was already there on the spot scene with a torch when PW-6 reached there and PW-6 has seen the entire occurrence with the torch which Mela Ram was having in his hand. As per testimony of PW-6 made in cross-examination, accused Santosh Singh was also having a torch in his hand. As per testimony of PW-2 Bir Singh on the day of incident, it was pitch dark and was impossible to recognize anybody. Statement to this effect was also indicated by PW-5 stating that it was pitch dark and was not possible for anybody to see the other person. PW-2 in his cross-examination has stated that Mela Ram apprehended the accused, but lateron they were left free as the saving of life of Pritam Singh (deceased) was more important, however, such statement is noticed from the testimony of PW-5 Mala Ram who 8 has stated simply that when he went on the spot, in the meantime, accused Kala fled away and PW-5 tried to catch the accused party but they managed to escape. From the testimony of PW-2 Bir Singh, it appears that he was having torch with him and he was not aware which accused has assaulted him in left arm near elbow joint with which weapon and which accused has inflicted injury in his abdomen. As per testimony of PW-2 Bir Singh, Mela Ram reached at the spot and Pritam Singh came for rescue of PW-2 Bir Singh, then it is also not known from the testimony of PW-2 as to which accused gave blow with which weapon on the left side of Pritam Singh. Subsequently, it was said by PW-2 that accused Kala inflicted injury to Pritam Singh and Kala fled away and other accused were apprehended by Mela Ram. According to PW-2 Bir Singh, accused has not received any injury during the incident. Such statement creates a doubt as to how Kala, who had fled away after inflicting injury to PW-2 Bir Singh then how in absence of ‘Kala’, Pritam Singh deceased had sustained injuries as has been noticed by PW-4. 14. In view of the testimony of PW-2, Mela Ram and Pritam Singh reached the spot, whereas in view of the testimony of PW-5, Mela Ram was followed by Babu Ram and PW-5 Mela Ram saw the injuries on the person of Bir Singh on his arm as well as in his abdomen and when he went there, in the meantime accused No.1 i.e. Kala fled away. As per testimony of PW-5 Mela Ram was followed by Babu Ram whereas, PW-2 has stated that Mela Ram and Pritam Singh reached at the spot and Pritam Singh tried to rescue PW-2 Bir Singh. PW-2 has not stated in his testimony about arrival of Babu Ram following Mela Ram and PW-5 Mela Ram has 9 not stated that he reached at the spot, thereafter, Kala inflicted injury on Pritam Singh. It is not probable as to how PW-2 and PW- 5 could see the occurrence in dark night when in view of testimony of PW-2 and PW-5, it was pitch dark and nothing could be seen during that night. 15. In view of the testimony of PW-2, he was having torch and accused were also having torches and PW-6 Babu Ram was also holding a torch along with accused Santosh Singh, who too was having torch in his hand, but PW-2 has not stated that Kala had inflicted injury to PW-2, himself and on Pritam Singh by the weapon carrying in his hand. PW-2 has not stated anywhere in his testimony that which accused gave beatings to PW-2 as has been stated by PW-6 Babu Ram. The contradictions, inconsistencies and improbabilities emerging from the testimony of PW-2, PW-5 and PW-6 make the prosecution case doubtful. It appears that nobody has seen the occurrence and manner of inflicting the injuries on PW-2 Bir Singh and Pritam Singh (deceased). Despite saying that prosecution witnesses including PW-5 and PW-6 were carrying torches in their hands along with accused, but the prosecution has not endeavoured to indicate as to which weapon was carried by which accused. If they could see assaulting and inflicting of injuries over PW-2 and Pritam Singh then naturally prosecution witnesses could have also observed in consonance to their assertion that they have seen the occurrence and the manner of inflicting injuries could also have been observed by them. The vital improbabilities indicate mystery as nothing could be seen in pitch dark night even it was difficult for anybody to see other and in view of statement of PW-5, PW-6 and PW-2 it was impossible to 10 recognize anybody. Such inconsistencies and contradictions indicate that the prosecution witnesses were not present at the spot and actually had not seen the occurrence otherwise the injuries on Kala accused could have been explained by other prosecution witnesses. We also take note that the prosecution has not proved as to how Kala accused had sustained injuries as the injuries of Kala remained unproved or unexplained and made the prosecution case doubtful. 16. It has been argued by Shri Anil Jaswal, learned Deputy Advocate General, on behalf of the appellant/State that the accused were known to the prosecution witnesses even if the incident took place in the pitch dark night, however, as the parties were used to live in the midst of nature and accustomed to live without light, therefore, the defence contention that the ocular witnesses could not have witnessed the occurrence is to be rejected in the light of the verdict of Supreme Court in Shivraj Bapuray Jadhav & Others versus State of Karnataka, (2003) 6 SCC 392. It has further been submitted by the learned Deputy Advocate General that the visibility capacity of urban people, who are acclimatized to fluorescent light is not the standard to be applied to villagers whose optical potency is attuned to country made lamps. Visibility of villagers is conditioned to such lights and hence it would be quite possible for them to identify men and matters in minimum light, as such, defence version is not to be given weightage in view of the decision of Supreme Court in Kalika Tiwari & Others versus State of Bihar, (1997) 4 SCC 445=JT 1997(4) SC 405. In our view, the applicability of above verdict, relied upon by the learned Deputy Advocate General, cannot be 11 made applicable to the present case despite the fact that PW-2 and PW-6 were holding torch in their hands, however, in view of the testimony of prosecution witnesses, being pitch dark night, it was difficult for anybody to see other and it was nobody’s case that despite pitch dark and non-visibility the prosecution witnesses had seen the accused by virtue of having their previous acquaintance. 17. According to learned Deputy Advocate General, Hon’ble Supreme Court in Thaman Kumar versus State of Union Territory of Chandigarh, (2003) 6 SCC 380, has prescribed the parameters of judging the reliability of ocular testimony by elaborating that the aspects of conflict between oral testimony and medical evidence can be of varied dimensions and shapes. There may be a case where there is total absence of injuries which are normally caused by a particular weapon. There is another category where though the injuries found on the victim are of the types which are possible by the weapon of assault, but the size and dimension of the injuries do not exactly tally with the size and dimension of the weapon. The third category can be where the injuries found on the victim are such which are normally caused by the weapon of assault but they are not found on that portion of the body where they are deposed to have been caused by the eye witnesses. The same kind of inference cannot be drawn in the three categories of apparent conflict in oral and medical evidence enumerated above. In the first category it may legitimately be inferred that the oral evidence regarding assault having been made from a particular weapon is not truthful. However, in the second and third categories no such inference can straight away be drawn. The manner and method of assault, the position of the victim, the resistance offered 12 by him, the opportunity available to the witnesses to see the occurrence like their distance, presence of light and many other similar factors will have to be taken into consideration in judging the reliability of ocular testimony. In the facts and circumstances, being a pitch dark night when visibility was not available and prosecution witnesses themselves have stated that they were not able to see which weapon was used for inflicting the injuries on Bir Singh as well as on Pritam Singh, therefore, the protection of the verdict in Thaman Kumar’s case (supra) cannot be given in favour of the prosecution. 18. On the other hand, learned counsel for the accused/respondents has referred and relied upon the decision of Supreme Court in Niranjan Prasad & Others versus State of Madhya Pradesh, 1996 Cr.L.J.1987 (SC), where the Supreme Court in prevailing facts and circumstances has set aside the conviction of the accused persons taking into consideration the sharp contrast between the ocular testimony and medical evidence in light of the fact that in murder trial testimony of eye-witnesses was that the deceased and injured were assaulted with sharp cutting weapons but their testimony was not corroborated with medical evidence showing deceased having been injured by blunt object (weapon) only. Post mortem report showing that the deceased had no injury which could be caused by a sharp cutting weapon and, indeed, he had sustained only one injury which could be caused, according to the doctor by a blunt weapon only. 19. Learned Deputy Advocate General has referred and relied upon several decisions e.g., Dimple Gupta (Minor) versus Rajiv Gupta, AIR 2008 SC 239, Kulwinder Singh versus State of 13 Punjab, AIR 2007 SC 2868, Kalegura Padma Rao & Anr. Vs. State of A.P., AIR 2007 SC 1299, State of Punjab versus Hakam Singh, (2005) 7 SCC 408, Krishna Mochi & Ors. Vs. State of Bihar, (2002) 6 SCC 81, Leela Ram versus State of Haryana & Anr. (1999) 9 SCC 525 and has submitted that since in the facts and circumstances, there is no material discrepancies or contradictions in the testimony of a witness, his evidence cannot be disbelieved merely on the basis of some normal, natural or minor contradictions, inconsistencies, exaggerations, embellishments etc. 20. In respect of non-examination of injury on accused Kala, learned Deputy Advocate General has referred and relied upon the decision of the Supreme Court in Sukumar Roy versus State of West Bengal, AIR 2006 SC 3406, where it was held that non explanation of minor injuries on the person of accused does not help the accused. Moreso, when neither injury report by doctor was produced nor any doctor was examined. The learned Deputy Advocate General has referred and relied upon the decision of the Supreme Court in Sucha Singh versus State of Punjab, (2003) SCC 643, where it was observed that no invariable rule that injuries sustained by accused in the same transaction should be explained by the prosecution. When major portion of evidence deficient but residue sufficient to prove the guilt of the accused, conviction can be recorded. The learned Deputy Advocate General has also relied upon the decision of Dashrath Singh versus State of U.P., (2004) 7 SCC 408, whereby it was observed that mere failure to mention in FIR about injuries received by accused is not a ground to discard the explanation of injuries given at the trial. 14 21. PW-7 Subhash Singh said to be a witness of recovery of knife Ext. PW-7/A at the instance of Kala alias Onkar Singh (accused). However, no endeavour was made to link such knife and the blood stains over it to the blood of Pritam Singh deceased and to prove that the same knife was used by Kala accused while inflicting injuries on the person of PW-2 Bir Singh and Pritam Singh deceased. 22. PW-8 Man Singh, Up-Pradhan, PW-9 Baryam Singh, PW-10 Sarif Mohammad, PW-11 Dr. Parveen Bhardwaj, PW-12 ASI Raghubir Chand, PW-13 Constable Mohinder Singh, PW-14 Ranjit Singh and PW-15 Jodhamal in discharge of their official duties have supported the prosecution case. However, nothing concrete could