IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 90 of 2003. Date of decision: October 27, 2009. State of Himachal Pradesh .. Appellant. Versus Jamuna Devi and others .. Respondents. Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 No. For the Appellant: Mr. Vikas Rathore, Deputy Advocate General. For the Respondents: Mr. Ajay Chandel, Advocate. Surinder Singh, J (Oral). The prosecution of the respondents for the offences punishable under Sections 147, 323 and 149 of the Indian Penal Code ended into fiasco resulting in their acquittal. Thus the State filed the instant appeal. I have heard learned counsel for the parties and have carefully gone through the evidence on record. Precisely, the case of the prosecution case can be stated thus. On 6th June, 1999, the complainant 1 Whether the reporters of Local Papers may be allowed to see the judgment ? Yes. - 2 - and other family members leveled the field for sowing the maize crop. In order to watch the TV serial ‘Sri Krishna’ at 9.00 a.m., the family members of complainant Kanshi Ram had disbursed, he untied his oxen and took aside the ploughing instruments. Mast Ram his brother was taking rest in the shadow and Kanshi Ram was winding up his work. In the meantime, the younger son of Sarwan Kumar came there with his bat, to play the cricket in the cultivated field to which the complainant objected to. On this Sonu son of Prabh Dyal and another boy Sonu son of Krishan Gopal accompanied his elder brother Monu entered the cultivated field of the complainant with Dandas and Bat. They pounced upon Kanshi Ram and his brother Mast Ram and gave beatings to both of them. In the meantime, respondents Nirmla Devi wife of Prabh Dyal, Sudharshna Devi wife of Krishan Gopal and Jamuna Devi came there. They also started giving beatings. The case of the prosecution is also that Sonu son of Krishan Gopal brought the axe and gave its blow on the head of the complainant but immediately thereafter PW-3 Sheela Devi wife of PW-5 Mast Ram and PW-4 Meena Kumari daughter of PW-1 Kanshi Ram intervened and rescued them from the further attack. - 3 - Kanshi Ram reported the matter to the police and FIR Ext.PW-1/A was registered. Thereafter the medical examination of Kanshi Ram and Mast Ram was got conducted from PW-7 Dr. Sunita Kundu. On their examination on 6th June, 1999 at about 1.45 p.m. in CHC, Jawalamukhi, she noticed the following injuries on the person of Kanshi Ram: 1. “3.5 cm lacerated wound on the right parietal region. Irregular margin. Scalp depth. Minimum tenderness. No creptus clotted blood margin. Wholefacce and anterior chest wall soiled and clotted blood. 2. Pain complained on left ring finger. On examination tenderness was seen alongwith slight swelling. Movement on ring finger restricted. Advised X-ray. 3. Complain of pain on the left thigh. On examination skin was found intact. No colour is changed. Slight swelling. 4. Irregular abrasion 1x0.8cm on lateral aspect of the right shoulder. 5. Contusion 13 cm x 2 cm and 3 cm x 2 cm on the rightinfia scapular region. Normal tenderness. No creptus. Skin intact, reddish purple in colour.” On the person of Mast Ram, the following injuries were noticed: - 4 - “ 1. Incised looking lacerated wound on the left parietal bone of scalp about 5 cm in length. Irregular margin. Scalp depth, fresh blood was oozing out. 2. 4 x 5 cm hemotoma on middle 1/3 of left forearm along border overlying skin show 1 cm linear abrasion. Skin depth, tenderness but no creptus movement is hereby possible in full range. 3. Hemotoma 6 cm x 2 cm on dolso medial aspect of left wrist. Tenderness minimal no creplues movement at wrist restricted. 4. Hemotoma 4 x 2 cm on dorsal aspect of the left elbow. Fracture and tenderness but no creptus movement restricted. 5. Contusion 13 cm x 2 cm Lathi shape on right scapular region. 6. Contusion 13x 2 cm on the right timbar 6x 2 cm on left iliac region. Posterior aspect reddish in colour. Tenderness was present.” She issued Medico-Legal Certificates in respect of Kanshi Ram Exts. PW-7/A and 7/B of Mast Ram. The police visited the spot and prepared the site plan of the place of the incident. Nirmla Devi respondent is alleged to have produced Dandas Exts. P-3 and P-4 alongwith Bat Ext.P-5 in the presence of PW-6 Prem Chand and Gian Chand, which were taken into possession vide memo Ext.PW- 1/A. - 5 - The police recorded the statements of the witnesses and on completing the challan, it was presented in the Court for the trial of the respondents. The respondents were charge-sheeted for the aforesaid offences to which they pleaded not guilty and claimed trial. To prove its case, prosecution examined its witnesses and the respondents were also examined under Section 313 of the Code of Criminal Procedure. However, no defence was led by them. On reappraisal of the evidence on record, I have found material contradictions, improvements and embellishments, which lack the probity in the prosecution case. The initial allegation of the complainant was that it was Sonu son of Krishan Gopal, Monu and another Sonu son of Prabh Dyal had come to play cricket in the field to which the complainant objected to. Thereafter the respondents came to the spot and this fact was testified by him as PW-1. Monu who is alleged to have given axe blow to PW-1 Kanshi Ram and PW-5 Mast Ram was neither made an accused by the police nor any cogent explanation has been offered by the Investigating Officer for not doing so. The scrutiny of the evidence of the Medical Officer PW-7 Dr. Sunita Kundu also - 6 - makes it clear that the injuries on the persons of Kanshi Ram and Mast Ram could not have been caused by Dandas, fist or for that matter even with axe. Further, two Dandas and bat were alleged to have been produced by Nirmla Devi to the police in the presence of the aforesaid witnesses. PW-6 Prem Chand a recovery witness was examined, but he did not support the prosecution case at all. Therefore, to take support from this evidence is also of no avail to the prosecution. The injuries sustained on the persons of the complainant and his brother, as per the version of the doctor could be caused due to fall. Further PW-1 admitted that he had unsuccessfully tried to take the possession of the land in question through police 2-3 times. Thus, there is a possibility to fasten this case on the respondents due to enmity. Also, the complainant could not pinpoint as to which of Sonu had caused the injuries to him and his brother. I have also noticed that the duration which is alleged to have taken place at the time of the alleged quarrel varies between 2 to 2½ hours in the statement of witnesses. Therefore, in the light of the serious contradictions which are quite material with respect to the alleged incident, the case of the prosecution becomes doubtful and the - 7 - prosecution witnesses cannot be relied upon to convert the acquittal into conviction of the respondents. For the aforesaid reasons, I do not find anything to interfere in the judgment of acquittal passed by the learned trial Court. The appeal has no merit and accordingly is dismissed. October 27, 2009. ( Surinder Singh ), (rc) Judge.