1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 381 of 2001. Judgment reserved on :02.05.2008. Decided on: May 8th, 2008 ____________________________________________________________ State of H.P. ……..Appellant. Versus Dharam Chand & Others. ……..Respondents. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? No. For the appellant : Mr. R.M. Bisht, Deputy Advocate General. For the respondents : Mr. Vikrant Thakur, Advocate, vice Mr.Rajnish Maniktala, Advocate. ____________________________________________________________ SURINDER SINGH,J: The respondents were tried and acquitted of the offences punishable under Sections 147, 148, 323, 325 and 506 read with Section 149 of the Indian Penal Code, by the learned trial Court; which has been challenged in this appeal. In brief, the prosecution case is that on 15.11.1994, at about 8 a.m., complainant Kishori Lal went to defecate in the bushes, on his return he came across the respondents suddenly appeared from behind the bushes, they man-handed and gave thrashings to him. It is alleged that respondent Prakram Chand, gave an axe blow on his head, Dharam Chand respondent hit him with a Danda causing injury on the hand of the complainant. He raised hue and cry. PW-4 Biasan Devi and PW-2 Salochna Devi got attracted by the cries came there and witnessed the Whether reporters of the Local papers are allowed to see the judgment? Yes. 2 occurrence. Even they were beaten up. The matter was reported to the police. The FIR Ex.PW1/A was registered in Police Station Baijnath. Kishori Lal was got medically examined. Dr. O.P. Ramdev (PW8) after examining the complainant sent him for X-Ray. He noticed the following injuries on the person of Kishori Lal:- (1) “CLW size 3” X ½ “muscle deep on the right parietal region. Margin irregular. Clotted blood present around the wound. Advised X-Ray Skull AP & lateral view. (2) Complaint of pain and swelling over left shoulder region. On examining swelling over specular region. Advised X-Ray left shoulder A.P. view. (3) Complained pain over left lip joint. No invisible abrasion, contusion or wound. Advised X-ray of pelvis AP view.” The case was referred to Sub-Divisional Hospital, Palampur for management and surgical opinion. The report of X-Ray No.74 and 75 had shown the compression fracture of the right parietal bone of the skull. The opinion of the Doctor is Ex.PW8/A. X-ray films are Exts.PW5/A to E. Injury No.1 was opined to be grievous and others as simple having been caused within 24 hours, by a blunt weapon. The MLC is Ex.PW8/B. In the opinion of the Doctor, the Injury No.1 was possible with an axe blow whose edges are not sharp. The medico-legal examination of Salochna Devi was also conducted by the Doctor on the same day and he noticed the following injuries on her person:- (1) CLW size 1” X ½” on the head in parietal region in mid line triangular shaped ½” depth at its widest part and 2 mm at its lower end of the wound. Skin deep clotted blood was found present. 3 (2) Contusion size 1” X ¾” on the back of left elbow joint. Reddish in colour. Injuries were simple in nature. Probable duration was within 24 hours, caused with a blunt weapon. Her MLC is Ex.PW8/D. The police visited the spot, prepared the site plan Ex.PW11/B, took into possession blood stained shirt Ex.P1 of Kishori Lal vide memo Ex.PW1/B, blood stained CHUNI Ex.P2 vide memo Ex.PW2/A, shirt of Biasan Devi vide memo Ex.PW4/A and recorded the statements of witnesses. After completing the challan, it was presented in the court for trial. On the facts placed on record, the respondents were charge-sheeted under the aforesaid sections, to which they pleaded not guilty and claimed trial. The case of the respondents was that Biasan Devi and Salchna Devi had gone to the house of respondents and picked up a quarrel with them and there was only an exchange of hot words. The complainant party ran away and sustained injuries due to fall on the sharp edged stones. The respondents did not lead any evidence in defence. The trial court acquitted the respondents on the grounds: a) The statement of the complainant is contrary to the FIR. Witnesses did not state that the respondents were hiding themselves behind the bushes. b) The presence of Sanjay Kumar (PW3) the son of the complainant was not shown in the FIR, his statement is contrary to the prosecution version, thus unbelievable. 4 c) Sawroop Chand an eye witness named in the FIR. According to Biasan Devi (PW4) one Vidya Devi was also present there, but none of them were examined to lend strength to their version. d) Deepa, Pradhan of the Gram Panchayat, who was introduced as an eye witness also did not support the case of the prosecution. e) There was an old enmity between the parties over a shed. f) The weapons of alleged offence were not taken into possession nor shown to the Doctor. Against the above back-ground, Sh. R.M. Bisht, learned Deputy Advocate General has argued that the learned trial court committed the error in acquitting the respondents by ignoring the statement of injured witnesses. The original counsel for the respondents was not present and there was no effective assistance from the vice counsel. However, I have perused the evidence on record and findings recorded by the learned trial court to evaluate the submissions made by the learned Deputy Advocate General. It is a fact that the name of only one eye witness Swaroop Chand was mentioned in the FIR who was not examined. PW4 Biasan Devi introduced one Viday Devi as the eye witness who was also not produced. Deep Chand PW12 has stated that no 5 quarrel had taken place in his presence, though he arrived at the place quite late. He has stated that the quarrel took place on the land which was in the possession of Dharam Chand-respondent. According to him the complainant had sustained the injury on his head due to fall. PW8, Dr. O.P. Ramdev has stated that the injury on the head of the complainant could be sustained due to fall. Onkar Singh (PW11), the Investigating Officer, has not given any explanation for not effecting the recovery of the alleged weapons of offence. No weapon of offence was shown to the Doctor. It was incumbent upon the prosecution to have produced the weapon of offence, to get the positive opinion from the Doctor. PW3, Subhash Chand is the real brother of the complainant. He was shown to have been present at the time of occurrence. His name is not found mentioned in the FIR. His version is contrary to the version made in the FIR. He has stated that the respondents gave beatings to Kishori Lal while he was going to answer the call of nature, whereas, it was mentioned in the FIR that the respondents were hiding themselves behind the bushes. Even he did not know which of the accused had hit whom. He even stated that the children of Kishori Lal were also present on the spot. From his narration, it is clear that he was not present on the spot; he was simply introduced to lend strength to the version made by the complainant. Therefore, his testimony has to be totally ignored. As far as the statements of Kishori Lal (PW1), Biasan Devi (PW2) and Salochna Devi (PW3), the injured are concerned, these are contradicting each other very sharply on material particulars. 6 The respondents and the complainant party belong to one family. Biasan Devi is the mother and Salochna is the wife of the complainant. Biasan Devi has stated in his cross-examination that she had handed over the axe and Danda to the police on the spot. It was not the case of the prosecution that these weapons were left by the respondents on the spot. PW-2 Salochana Devi has stated that the quarrel took place on the village path. She has admitted that in the front of the “Babe-Ka-Temple” the land of the respondent is situated. Her plea that quarrel took place at the path is falsified by the site plan Ex.PW11/B, wherein it has been shown that the complainant was dragged and taken to the field of the respondents nearby. The place from where he was alleged to have been dragged is also shown in the field of the respondents. On the critical examination of the above evidence, I have found that the real story of the incident was suppressed by introducing the witnesses who in fact were not on the spot. Those who were mentioned in the FIR were not examined. It is established on record that both the parties were not pulling on well on account of the land dispute between them, which appears to have resulted in some quarrel but in fact the evidence on record does not clinch the matter that the respondents were aggressors. Thus the evidence of the prosecution is discrepant and the statement of the injured witnesses who are from the same family and sharply contradict each other cannot be relied upon. The evidence on record create a reasonable doubt the manner the 7 aforesaid witnesses had sustained the injuries. Therefore, the respondents are entitled to be given the benefit of doubt. For the reasons aforesaid, I do not find any infirmity in the findings of acquittal passed by the learned trial court, therefore, the appeal is dismissed. The respondents are discharged of their bails bonds entered upon them at any time during the proceedings of the case. (Surinder Singh), Judge. May 8th, 2008. (Pds)