1 HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No. 379/1998 Decided on September 10, 2010 State of H.P. …Appellant. VERSUS Narain Singh & ors ….Respondents. Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge Whether approved for reporting?1 For the Appellant: Mr.Rajinder Dogra, Addl. AG Mr.Anil Jaswal, Dy.AG Mr. Onkar Jairath with Ms. Kiran Dhiman, Advocates (for complainant). For the Respondents Mr. N.K.Thakur, Advocate. R.B.Misra, Judge (Oral) The present criminal appeal has come up for consideration after the leave to appeal has been granted under Section 378 (3) of the Code of Criminal Procedure, in reference to judgment dated 6.7.1998 passed by learned Sessions Judge, Shimla HP in S.Tr. No. 36-S/7 of 1996, thereby acquitting the respondents / accused for the offence under Section 307 read with section 34 of the Indian Penal Code. 2. The prosecution case is that on 9.6.1995, brother of injured Narain Singh, named Deep Ram along with some other family members, had gone his cabbage field in village Kharora Whether the reporters of the local papers maybe allowed to see the judgment? 2 in the morning. Injured Narain Singh accompanied by his niece Devki Verma also started for the said field and when they reached a point about 50-60 meters short of the said field, accused Narain Singh and his three sons named, Dinesh Kumar, Suresh Kumar and Ramesh Chand appeared from the nearby bushes, where they were already hiding. Accused Narain Singh, Suresh Kumar and Dinesh Kumar were wielding Dandas, while accused Ramesh Chand was carrying a Bharara (Axe). Accused Narain Singh, Suresh Kumar and Dinesh Kumar started giving blows of Danda on different parts of the body of injured Narain Singh. Consequent upon, Narain Singh fell down unconscious. Devki Verma, niece of the injured Narain Singh, raised alarm. On hearing her cries, Deep Ram, his nephew Om Prakash, sister in law Savitri and daughter Krishna Devi rushed to the spot. On seeing them accused ran away towards the village. Accordingly FIR No. 102 of 1995 was lodged. 3. PW-6, Dr. Ashwani Kumar examined the injured Narain Singh and noticed six lacerated wounds on the head and the bridge of the nose. One lacerated wound was noticed on the leg. Multiple bruises were also noticed on several parts of the body. PW-6 opined that all the injuries appeared to have been caused with blunt weapon, within one to six hours and that two lacerated wounds noticed on the scalp and mentioned at serial No. 1 and 2 in the medico legal certificate, were dangerous to life. Rest of the injuries were opined to be simple. The medico legal examination was conducted at 3.45 PM while the incident allegedly took place at 12.45 PM. Police visited the spot and 3 prepared the site plan and took into possession the weapon of offence and clothes of the injured, which were stained with human blood. After completion of the investigation, accused persons were charged of the aforesaid offence and the case was committed to the session trial. 3. In order to prove its case, prosecution has examined as many as 9 prosecution witnesses, namely Devki Verma (PW- 1), Dila Ram (PW-2), Narain Singh (PW-3), Om Parkash (PW-4), Ramesh Chand (PW-5), Dr. Ashwani Kumar (PW-6), Karam Singh (PW-7), Ved Parkash HC (PW-80A and ASI Partap Singh (PW-9), whereas, to their statements recorded under section 313 Cr.PC, accused/respondents denied the prosecution case. 4. On analysis of the prosecution witnesses, materials on record and medical report, we notice that earlier version of the incident was given to the police by Deep Ram, brother of the injured vide his statement Ext PB, who, however, has died before commencement of the trial. As such, his testimony could not be recorded. In earlier version, there is no mention that Devki Verma (PW-1) and Dila Ram (PW-2) amongst those, who had witnessed the occurrence. According to the earlier version, on hearing cries of Narain Singh (PW-3), Deep Ram, his wife, Padma Devi, daughter Krishna Devi and nephew Om Parkash rushed to the spot and they were followed by Deep Ram, sister in law, Savitri, and that they saw the accused fleeing the spot. 5. The testimony of Narain Singh (PW-3) suggest that Devki Verma was not present when the alleged incident took place. Devki Verma (PW-1) has stated that four accused lay in 4 ambush in the bushes on two sides of the path and that when she and her uncle, injured Narain Singh, reached near their fields, all the four accused appeared from the bushes and pounched upon her Mama (uncle Narain Singh). Furthermore, Om Prakssh (PW-4) says that they were attracted to the place of occurrence by the cries of injured Narain Singh himself, but Devki Verma (PW-1) says that injured Narain Singh did not raise any cries and that it was she who raised the alarm, on hearing which her another Mama, named Deep Ram, and cousin Om Prakash etc. came to the spot. Such narration of the prosecution witnesses, namely PW-1 and PW-2 shows that PW-1 was not present on the spot. PW-2, another alleged eye witness, no where has stated that he heard the cries of PW-3 and he reached the spot. Devki Verma, PW-1 has stated that Dila Ram was among the persons who was attracted to the place of occurrence by her cries. As per testimony of PW-1, only four persons, namely Savitr5i, Om Prakash, Padma Devi and Deep Ram came to the spot on hearing cries. Similarly PW-4 has stated that nobody other than himself and his uncle Deep Ram, Chacha Padma, Savitri and cousin Krishna Devi went to the spot, on hearing the cries of Narain Singh. 6. PW-3 Narain Singh has stated that after accused Narain Singh and his sons Suresh Kumar and Dinesh Kumar had given a number of lathi blows on different parts of his body, accused Narain Singh instigated this third son Ramesh Chand, who was armed with a Bharar (axe) to strike him with Bharara(axe) as the lathi blows were not enough. However, his 5 two sons Dinesh Kumar and Suresh Kumar had given Danda blows to him, accused Ramesh Chand, who was armed with a Bharara (axe) himself said that merely danda blows were not sufficient and that the injured Narain Singh deserved blows of Bharara (axe). PW-3 himself has stated before the police that it was on being prompted by accused Narain Singh that Ramesh Chand accused dealt blows of Bharara on his head, but in the statement Ext DC/1 with which he was duly confronted, there is no such mention. Medico legal evidence also does not corroborate the testimony of the injured. According to the injured he was dealt atleast two blows of Bharara ( axe ) on his head. He has no where stated that the blows were dealt from the blunt side of the Bharara (axe ). In the absence of specific statement as to form which side the blows were given, it can legitimately be presumed that the witness wanted to say that the blows were given from the sharp side of the weapon. PW-6, who conducted the medico legal examination and issued the medico legal certificate Ext PD, mentioned in the said certificate, that all the injuries had been caused with a blunt weapon Therefore, no injury was caused from the sharp side of Bharara (axe). Further, the Bharara was sent to the Chemical Examiner. He found no traces of any kind of blood thereon. According to the prosecution, a number of blows were given on the person of injured Narain Singh with the Bharara (axe) and the bleeding was coming from the head of the injured Narain Singh. If that was so, the Bharara (axe) was supposed to have had some marks or stains of blood on it. Such aspects also create doubt and the contradiction is 6 emanating from the testimony of ocular evidence and medical report. The Investigating officer has indicated the spot where injured Narain Singh had fallen unconscious. Such spot was at a distance of more than 200 meters. According to PW-3 and PW-4, the site of occurrence is at a distance of 5-60 meters from the cabbage field where Deep Ram and others had gone to work that day. Investigating Officer ASI Partap Singh (PW-9) has stated that the site of occurrence is at a distance of 300 meters from the said field. The Investigating Officer, in the site plan Ext PK, has shown the total length of the path from the main road to the field to be 60-65 meters. 7. Different versions, as indicated above also create doubt about the place of occurrence. The most material aspect which we notice is that civil cases both of civil and criminal nature were going on between the parties. Devki VErma, PW-1 and Om Parkash (PW-4) have very categorically admitted in their depositions that there was a dispute between the paties with respect to the right to irrigate their lands froma source of water situated near the land of accused Narain Singh. Copies of some orders and judgments passed by the courts in matters, inter se the parties have been placed on record. The documents show that the cases inter se the parties have been going on in civil, revenue and criminal since the year 1993 and the parties are inimical, the prosecution witnesses have also appears to be inimical. Inconsistencies, infirmities and contradictions are apparently being noticed in the present case which creates doubt in the prosecution storey. 7 8. On analysis of the prosecution witnesses, materials on record learned Sessions Judge has rightly come to the conclusion that the prosecution has failed to prove its case beyond reasonable doubt. In our considered view also, we find no scope for interference in the impugned judgment. The criminal appeal, being devoid of merit, is accordingly dismissed. ( R.B.Misra ), J. 10th September, 2010 ( V.K.Sharma ), J. (sl) 8