HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No.: 103 of 2002 Decided on: 1.1.2009 State of Himachal Pradesh ………Appellant. Versus Kewal Singh and others ………Respondents. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the appellant: Ms.Shubh Mahajan, Deputy Advocate General. For the respondents: Mr.Ashwani Kumar Sharma, Advocate. V.K. Ahuja, J (Oral): This is an appeal filed by the State of H.P. under Section 378 of the Cr.P.C. against the judgment of the court of learned Judicial Magistrate Ist Class- I, Dharamshala, dated 25.9.2001, vide which the respondents were acquitted of the charge framed against them under Section 324 and 323 read with Section 34 of the Indian Penal Code. Briefly stated the facts of the case are that on 28.8.1998, at 11.55 a.m., a rapat was lodged with the police by Bir Singh accompanied by Tripta Devi, Sanjay Kumar etc. in which it was alleged that on the previous evening at about 7.00 p.m., the complainant was collecting material of the dismantled house alongwith his nephews Ravi Kumar, Tarsem and brother Harnam Singh and they heard a noise. On this, he alongwith other persons, went to the spot and found that Madan Lal, Kewal and Desh Raj were giving beatings to Tripta Devi and Sanjay Kumar. When they tried to rescue them, the complainant party was also _______ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - inflicted injuries by the accused persons. On this rapat, an FIR was registered and after investigation, the challan was filed as against the respondents, who were tried by the learned trial Court, as detailed above, leading to their acquittal. I 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 disbelieving the prosecution story is that the accused party had also lodged an FIR prior to the report lodged by the complainant party and the accused persons had also suffered injuries which have not been explained by the prosecution. A perusal of the rapat Ext.PW-9/A lodged by the complainant Bir Singh shows that the occurrence had taken place on the previous day i.e. on 27.8.1998 at about 7.00 p.m. and the complaint was lodged by the complainant on the next day i.e. 28.8.1998 at 11.55 a.m. The complainant Bir Singh in his statement as PW-3 has not mentioned any reasons as to why the report was not immediately lodged or as to the reason for delay in lodging the FIR No.139/2008 on the next day. PW-2 Sanjay Kumar, who was also working with the complainant, has stated in his examination-in-chief that they had gone to the Police Station Shah Pur on the same evening, but some persons were standing outside the Police Station who did not allow them to lodge the report. This has not been substantiated by the rapat lodged by them on the next day i.e. on 28.8.1998 and this plea does not inspire confidence that they were not permitted by some persons standing outside the Police Station to lodge the report. Therefore, the fact remains that the occurrence was reported to the police after about 17 hours. The FIR lodged by the accused party has been proved in evidence in the statement of DW-3 LHC Dharam Chand, who has proved the FIR No.138/98, dated 27.8.1998. A perusal of this report shows that the FIR was registered on - 3 - the basis of rapat 25, dated 27.8.1998, lodged by Desh Raj, respondent. It was alleged therein that the rapat was registered at 8.30 p.m. on the basis of the report made by Desh Raj in which he had alleged that he alongwith his brother Madan Lal, Kewal Singh and his mother Gian Devi came to Police Station and informed the police that on the said day at about 7.00 p.m. when he was present near the well, Sanjay Kumar and his mother Tripta Devi came there and he inquired from them as to what had happened on the previous day and why his brother was disturbed. On this, a quarrel took place and Bir Singh and his son Ajay Kumar came there. It was further alleged that Bir Singh was having an axe and Sanjay was having a Khukhri like weapon and Bir Singh attacked him. When he raised an alarm, his brother Madan Lal, Kewal Singh and his mother Gian Devi reached there and when they tried to rescue him, Rakesh, Sawaran Singh etc. came there and gave beatings to him, his mother and his brothers. He further alleged that on hearing their cries, Duni Chand and Ravi Chand came to the spot who rescued him and his family members and they suffered injuries on the head and arms, apart from other parts of body. It was also alleged that while leaving the place, Bir Singh etc. gave them a threat that they have been saved today and he and his family members would be killed. He, therefore, alleged that his family members suffered injuries at the hands of the other party. It is, therefore, clear from a perusal of the FIR lodged by the accused party that they are also making reference to the same occurrence that had taken place at 7.00 p.m. on 27.8.1998 near the well for which allegations were made by the complainant Bir Singh in his report Ext.PW-9/A lodged with the police. This clearly establishes the fact that the accused party had lodged the complaint prior to lodging of the complaint by the complainant Bir Singh and they had specifically alleged that the members of the complainant family including the - 4 - complainant in the that case suffered injuries on their body, as mentioned above. A perusal of the statement of DW-3 LHC Dharam Chand also shows that on the basis of the FIR, the challan was also filed on 31.12.1998 in the Court. According to law, in case two complaints are registered at the instance of the complainant and the accused party for the same occurrence, as far as possible, both the cases should be decided at the same time by the same Court. However, there is nothing on the record or in the impugned judgment in regard to the fate of the other case registered at the instance of the accused party. Coming to the evidence in question, the statements of the eye witnesses examined in this case have to be appreciated as to whether they establish the guilt of the respondents or not. PW-3 Bir Singh, complainant, has stated about the occurrence that when he was working at the place, on hearing the cries of Tripta and Sanjay Kumar, he went to the spot alongwith his son Ajay Kumar and nephew Tarsem and found that the respondents were giving beatings to Tripta and Sanjay Kumar. When he tried to save them, he was inflicted blows by the respondents and he suffered injuries on his head, finger and other parts of his body. He was rescued by Surender Kumar, Swaran Singh etc. PW-1 Tripta Devi has stated that she was in the fields alongwith her son Sanjay Kumar and respondents came there and some altercation took place. On this, all the three respondents caught hold of her son from the neck and when she tried to rescue him, they started giving beatings to Sanjay Kumar and she was given blows with legs and fists and by stones by Kewal Singh. She stated that when she raised an alarm, Bir Singh, Surender Pal etc. came to the spot. A perusal of her statement shows that she has nowhere stated that when Bir Singh etc. came to the spot, they were also given beatings by the respondents, which - 5 - observation was also made by the learned trial Court in referring to the testimony of this witness. PW-2 Sanjay Kumar, son of Tripta Devi, has stated that he was working alongwith his mother and respondents came and some altercation took place and they started giving beatings to him. He stated that the respondents gave beatings to him as well as to his mother and he was inflicted blows with stones and they suffered injuries. He did not state that his mother was given beatings with legs and fists as stated by PW-1 Tripta Devi in her statement. He has also not stated that Bir Singh etc. came to the spot and rescued them and they were also given blows by the respondents. PW-4 Surender Kumar stated that on hearing noise, he went to the spot and found that respondents were giving beatings to Sanjay and Tripta Devi. When he tried to rescue them, he was also given beatings at that time apart from Sanjay and Pawan, who was also present. He did not state in regard to the injuries inflicted upon the person of Tripta Devi or Sanjay Kumar and with which weapon or in what manner or the injuries inflicted upon the persons of complainant Bir Singh and others. PW-5 Sukh Devi had also gone to the spot on hearing noise and stated that he found that the respondents were giving beatings to Tripta and Sanjay Kumar and when he tried to rescue, the respondents threw stone upon his person and he sustained injuries. He stated that he is not aware of injuries sustained by other persons except Bir Sigh. PW-6 Dr.S.K. Saini had proved the medical certificate of Bir Singh, who was having 9 injuries on his person, which were stated to be simple in nature caused with sharp edged weapon. He also proved the MLC of Sanjay Kumar, who was having two injuries on his person, which were simple in nature and - 6 - caused with blunt weapon. He also examined Chaman Lal, who was having two injuries on his person. In regard to MLC of Surender Kumar, he stated that the said injured was also having two injuries which were simple in nature. He also proved the MLC of one Sukh Dev, who was having two simple injures on his person. He further proved the MLC of Surender Kumar, who was having two injuries and there was also a fracture and the injuries were caused with blunt weapon. He also proved the MLC of Tripta who was having two simple injuries caused with blunt weapon on her person. He admitted that at the relevant time, he was working in Civil Dispensary, Ghatnalu which is at a distance of 4-5 kms. from Shahpur Hospital. It was suggested to him that his father was having some dispute with the accused party, which fact was admitted by him. He has not specifically stated that he was on duty and was also looking after the work of CHC Shahpur at the relevant time. Therefore, this shows his interestedness. From the above discussion, it is clear that the complainant party had suffered simple injuries caused with blunt weapon. The accused persons had also suffered injuries at that time which were simple in nature, but these injuries sustained by the accused party have not been explained by the prosecution as to how the respondents suffered injuries at that time. The accused have proved the MLC of Gain Devi, mother of accused, as Ext.DW-2/A, which shows that she had suffered five injuries on her person. The accused have also proved the MLC of Desh Raj, respondent, as Ext.PW-2/B, who had suffered four injuries which were simple in nature. The defence has also proved the MLC of Kewal Singh, respondent, as Ext.PW-2/C, which shows that five injuries were sustained by him, which were simple in nature and having been caused with blunt weapon. Accused has also proved the MLC of Madan Lal Ext.DW-2/D, which shows that he - 7 - had sustained two injuries on his person, which were simple in nature having been caused with blunt weapon. From the above discussions, it is clear that all the respondents and their mother had also suffered injuries at the time of occurrence, which have not been explained at all by the prosecution in any manner. The fact that the respondents also suffered injuries at that time shows that the origin of the occurrence is not there as to how the quarrel started and the possibility of there being a free fight in which both the parties suffered injuries cannot be ruled out in the facts and circumstances of the case. In such circumstances, when the accused party had lodged a prior complaint with the police for which a challan was also filed as against the complainant party and the accused persons had also suffered injuries at that time, it cannot be said that the guilt of the respondents stood established that they have caused injuries on the person of the complainant and other persons. Therefore, the final findings recorded by the learned trial Court that the prosecution has failed to prove their case beyond any reasonable doubt cannot be said to be perverse calling for an interference by this Court. From the above discussion, I hold that there is no merit in the appeal filed by the appellant and the same is dismissed accordingly. The Bail bonds furnished by the respondents shall stand discharged. January 1, 2009. (V.K. Ahuja), (TILAK) Judge.