--------------------------------------------------------------------------------------- Whether reporters of the Local papers are allowed to see the judgment? IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr.A. No. 24 of 2005. Judgment reserved on:19.12.2011. Decided on: December 23, 2011. State of Himachal Pradesh. …… Appellant. Versus 1. Satish Kumar s/o Shri Negi Ram, r/o Baghi, Tehsil Chirgaon, District Shimla, H.P. 2. Deepak Kumar, s/o Kundan Lal, r/o village Chirgaon, Tehsil Chirgaon, District Shimla, H.P. 3. Prem Singh, s/o Shri Bir Bhadur, C/o Shri Ishwari Nand, r/o Tikkari, Tehsil Chirgaon, District Shimla, H.P. 4. Ravinder s/o Shri Banka Ram, r/o VPO Chirgaon, District Shimla, H.P. 5. Padam Singh s/o Shri Kundan Singh, r/o VPO Chirgaon, District Shimla, H.P. …….Respondent. Appeal under Section 378 Cr.P.C. against the judgment of acquittal dated 22.5.2004, passed by ld. SDJM, Rohru, District Shimla in Cr. Case No.66-2 of 2003, under Sections 147, 149, 323 and 325 I.P.C. ________________________________________________________ Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting?. For the appellant : Mr. P.M. Negi, Dy. Advocate General. For the respondents : Mr. Dinesh Thakur, Advocate, for respondents No.1,2,4 and 5. Mr. Pritam Singh Chandel, Advocate, for respondent No.3. - 2 - Surinder Singh, J: The State has challenged the acquittal of the respondents, passed by the learned trial Court in Criminal Case No.66-2 of 2003, decided on 22nd May, 2004, for the offences punishable under Sections 147, 149, 323 and 325 of the Indian Penal Code. 2. In short, the prosecution story as emerges from the prosecution evidence can be stated thus. On 19.4.2002, around 9.30 p.m., PW2 Suman Prakash (injured) visited Chirgaon Bazaar to receive his cousin Trilok Singh, who was to arrive there from Hamirpur, in a bus. When PW2 aforesaid reached Bus stand Chirgaon, he noticed respondents coming from the opposite side. (ii) The respondents asked as to where he was going and put certain questions. The complainant informed them that he was going to the telephone booth to give a call to his brother who was likely to arrive. On this, respondents threatened him. Thereafter, respondent Prem Singh caught hold of him and respondent Satish Kumar and Deepak Kumar @ Phuli started giving fist and kick - 3 - blows. Satish also gave a blow of Knuckle- duster which landed on his jaw. Respondent Deepak Kumar also hit him with the stone. He got the bleeding injuries and sustained fracture of the jaw bone. (iii) In the meantime, PW4 Trilok Singh cousin of the complainant reached bus-stand and while going ahead, he noticed that his brother was being beaten up by the respondents. He shouted for the help, on this respondents fled away from the spot. (iv) It is alleged that the relations of the respondents and the complainant were not cordial as they had some civil and criminal litigation, which served as a motive to the respondent to beat the complainant. (v) PW2 Suman Prakash injured reported the matter to the police in Police Post Chirgaon. He was taken to Sandasu hospital, from where he was referred to Sub-divisional hospital, Rohru, because of emergency, where his injuries were X-rayed and even from Rohru, he was referred to IGMC, Shimla - 4 - for further management of injuries and treatment. (vi) Police also took into possession the blood stained clothes of the injured vide memo Ext.PW1/A. (vii) Police took into possession MLC Ext.PW5/A of the injured (PW2), prepared site plan Ext.PW11/A and also recorded the statements of the witnesses. The Knuckle - duster was produced by respondent Satish Kumar, which was sealed on the spot and taken into possession by the police. 3. After completing the challan, it was presented in the Court, for the trial of the respondents. They were accordingly charge-sheeted, tried and acquitted by the learned trial Court, on the grounds of improvements in the statements of the injured as well as his brother Trilok Singh. Further that the criminal case was pending in the court against the injured. Also that there was a reference in the FIR that Sanjeev Kumar and Ashok Kumar (PW3) had rescued the injured, but Ashok Kumar did not support the prosecution case whereas Sanjeev - 5 - Kumar was not examined. The recovery of the Knuckle-duster was held to be unreliable and lodging of the FIR was found doubtful. 4. Shri P.M. Negi, learned Deputy Advocate General submitted that the learned trial Court has given undue importance to the minor contradictions and there were no material improvements in the statements of PWs 2 and 4 aforesaid. The hostility of the prosecution witness Ashok Kumar because of a near relative of the accused is writ large and the pendency of the case between the parties prior to the alleged incident serves as a motive to way-lay the injured by the respondents. 5. Learned counsel for the respondents has supported the findings of acquittal recorded by the learned trial Court. 6. To appreciate the rival contentions of the parties, I proceed to reappraise the evidence on record. 7. Admittedly, there has been a litigation inter-se the parties prior to the alleged incident, which fact stands admitted in so many words by PW2 Suman Prakash and his brother PW4 Trilok Singh, but that - 6 - does not mean that on this sole ground, the case of the prosecution can be dubbed with suspicion. 8. PW2 Suman Prakash testified that on the day of alleged incident, he had gone to Bus-stand Chirgaon around 9.30 p.m. as his cousin PW4 Trilok Singh had to arrive. When he was going in the Bazaar to give a telephonic call, respondents met him on the way and started beating him. He specifically stated that the blow of the Knuckle- duster was dealt by respondent Satish Kumar and further that Deepak Kumar @ Phuli and the respondent had also blocked his way and gave beatings to him. He categorically named Prem Singh, who is alleged to have caught hold of him. He is specific in making his statement that the blow of the Knuckle-duster fractured his jaw and to manage the said injury, he was referred to IGMC, Shimla. Though an attempt was made to contradict him with his statement under Section 161 Cr.PC., but nothing material which could shake the very root of his version could be extracted. 9. PW4 Trilok Singh, afforded corroboration to his statement. He stated that when he alighted from - 7 - the bus at the Bus-stand, he started going towards Bazaar and near the STD Booth, he was attracted by some commotion. When he reached there, he noticed that the respondents were beating his brother Suman Prakash. He was also categoric in his statement that Satish Kumar respondent gave a blow of Knuckle-duster to his brother on his jaw and the others were giving beatings to him. He also corroborated the version of the injured that Prem Singh respondent caught hold of his brother and he shouted for police, on this the respondents got scared and fled away. Thereafter, he picked up his brother and made him to sit on the side of the road and tried to give a telephonic call, but the STD Booth was closed. Thereafter, he took his brother to Sandasu hospital. In cross-examination, he admitted that on the day of the alleged incident, there was a village night fair in village Gumma. He also admitted that there are the shops in and around the place where the incident had taken place. Though, he admitted that the relations with Deepak Kumar were not good because of the litigation, but qualified - 8 - that, this was the reason for giving beatings to his cousin (PW2). 10. PW3 Ashok Kumar cited as an eye witness although did not support the case of the prosecution, but he admitted when he arrived at the spot, he saw PW2 Suman Prakash in an injured condition and his injuries were bleeding, but he did not know as to who have given beatings to him. His version also lends strength to the statements of PWs2 and 4 above regarding the happening of the incident. Thus, it stands proved that the respondents gave beatings to the complainant as aforesaid. His testimony which stands corroborated in material particulars can not be totally ignored. 11. Further, PW5 Dr. M.K. Dixit had clinically examined PW2 Suman Prakash and noticed as much as eight injuries on his person and found that the lacerated wound on the lower lip with displacement of the lower tooth, thus he was referred to dental OPD for further treatment and dental surgery. He also stated that the injury was x-rayed and as her reports Exts.PW5/B and C there was a fracture of jaw. - 9 - 12. On the critical examination of the aforesaid evidence, there is no room for entertaining doubt that PW2 Suman Prakash was not way-laid, fisticuffed and given beatings, as stated aforesaid by the respondents. It stands established that respondent Satish Kumar had given beatings and dealt a blow of Knuckle-duster, which caused the facture of his jaw and the other respondents also engaged themselves in beating him (PW2) whereby he sustained various simple injuries. The evidence on record clearly exhibit that the respondents were the members of an unlawful assembly one of them i.e. Satish Kumar was armed with Knuckle-duster, which if hit on the vital part of the body could even cause death and he alongwith other co-accused used force and violence in prosecution of the common object, therefore, they are vicariously liable for the act of principal accused Deepak Kumar, as the act done by the respondents was in pursuance to the common object as the member of an unlawful assembly and they knew to be likely to be committed in prosecution of the common object i.e. by giving beatings to PW2 Suman Prakash, therefore, - 10 - everyone of the respondents must be taken to have intended the probable and natural result of the combination of the acts in which they joined. Their unlawful assembly was definitely to do an overt act. For that Section 149 declares, in substance that every member of an unlawful assembly is responsible for an offence committed by another member, or the other members, in prosecution of the common object of such assembly, or one which he must have known was reasonably likely to be committed in the prosecution of such common object. In other words, this provision, so to speak, takes them out of the region of abetment, and makes everyone responsible as a principal for the acts of each. The aforesaid principle has been explained at length by the Apex Court in Lalji & Others v. The State of U.P. [1989 SCC (Cri) 211] as well as in Ranbir Yadav v. State of Bihar 1995(2) Crimes 161 (SC). 13. Further the plea of the previous enmity as well as pending litigation in defence, in the aforesaid circumstances is not fatal to the prosecution case, but it can be one of the reasons to bash the complainant. It is also well established that an enmity - 11 - is a double-edged sword which cut for and against. I also find that the contradictions in the instant case are not so material, giving cause to reject the case of the prosecution nor there is any delay in lodging FIR to doubt the probity of prosecution case as in the wee hours of the morning i.e. at 5.15 a.m. on 20.4.20002 the report Ext.PW7/A was lodged in the Police Post Chirgaon. His injury sheet was prepared and complainant was taken to CHC Sandasu for his treatment. Subsequently when the injury was found to be grievous, FIR was lodged on the same day i.e. on 22.4.2002 as per daily diary report Ext.PW7/B. 14. Therefore, for the aforesaid reasons, the acquittal of the respondent recorded by the learned trial Court dehors the overwhelming evidence on record, therefore, set-aside. The respondents are held guilty for the offences punishable under Sections 147 read with Section 149, 323 and 325 of the Indian Penal Code and are accordingly convicted. 15. Confronted with the above situation, learned counsel for the respondents pleaded for leniency, on the grounds that the respondents at the time of - 12 - incident were youthful offenders ranging between the ages of 21 to 25 years, which had taken place about nine years ago. There is no previous criminal history against them, nor they have indulged in any other criminal activity subsequently. They have by now settled down in their lives and are living in harmony with their respective families, thus they may be released on probation. 16. The report of the Probation Officer was called for. After having heard the learned counsel for the respondents and on going through the reports, I do not find that the respondents are of desperate character and still posing danger to the society or the complainant and also keeping in view the date of incident and that they have settled down in their lives, if they are sent to jail, it would cause a scar on them and would spoil their career in association with the hardened criminals, therefore, in my opinion, there is no harm in case, the convicts-respondents are released on probation. 17. Accordingly, for the above reasons the respondents are hereby ordered to be released on probation on their entering into the bonds in the sum - 13 - of Rs.10,000/- each with one surety each of the like amount, to the satisfaction of the learned trial Court, to keep peace for ‘one year’ and be of a good behaviour in terms of Section 4 of the Probation of Offenders Act within a period of two months from today. In addition, respondents are also ordered to pay compensation to the tune of Rs.1,000/- each, which shall be disbursed to the injured PW2 Suman Prakash, failing which, it shall be recovered as a fine. 18. The appeal filed by the State is allowed in the above terms. Send down the records. (Surinder Singh ) Judge December 23, 2011. (Pds)