IN THE HIGH COURT OF HIMACHAL PRADESH,SHIMLA. Criminal Appeal No. 16 along with Criminal Appeal Nos. 20,21, 22,23 and 24 of 2010. Judgment reserved on: 04.05.2011. Date of decision: 25/05/ 2011. _______________________________________________________ 1. Criminal Appeal No. 16 of 2010. Sher Singh. ….. Appellant. Versus State of H.P. …. Respondent. 2. Criminal Appeal No. 20 of 2010. Virender Singh. ….. Appellant. Versus State of H.P. …. Respondent. 3. Criminal Appeal No. 21 of 2010. Shiv Singh. ….. Appellant. Versus State of H.P. …. Respondent. 4. Criminal Appeal No. 22 of 2010. Lalit Kumar. ….. Appellant. Versus State of H.P. …. Respondent. 5 Criminal Appeal No. 23 of 2010. Bitu Thakur. ….. Appellant. Versus State of H.P. …. Respondent. 6. Criminal Appeal No. 24 of 2010. Budhi Singh. ….. Appellant. Versus State of H.P. …. Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting? No For the Appellant(s) : Ms. Ritta Goswami,Advocate. (in Cr.A. No. 16 of 2010.) Mr. M.S.Guleria,Advocate. (in Cr.A.Nos. 20,21,22,23 & 24 of 2010.) For the Respondent : Mr. J.S.Rana,Asstt.A.G. Kuldip Singh, Judge This judgment shall dispose of Criminal Appeal Nos. 16,20, 21,22, 23 and 24 of 2010 which have arisen from common judgment dated 12.01.2010 passed by learned Additional Sessions Judge, Fast Track, Kullu, in Sessions Trial No. 24 of 2008 convicting all appellants for commission of offence punishable under Sections 307, 326, 324, 323 read with Sections 149, 147 of IPC and sentencing each convict to undergo rigorous imprisonment for five years and to pay a fine of ` 5,000/- and in default to undergo simple imprisonment for five months for commission of offence punishable under Section 307 read with Section 149 IPC, each convict has further been sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of ` 3,000/- and in default to undergo simple imprisonment for three months for the commission of offence punishable under Section 326 read with Section 149 IPC. _________________________ Whether the reporters of the local papers may be allowed to see the Judgment? Yes Each convict has also been sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of ` 2,000/- and in default to undergo simple imprisonment for two months for the commission of offence punishable under Section 324 read with Section 149 IPC. The learned Trial Court has further sentenced each convict to undergo simple imprisonment for a period of six months and to pay a fine of `1,000/- and in default to undergo simple imprisonment for one month for the commission of offence punishable under Section 323 read with Section 149 IPC. Each convict has also been sentenced to undergo simple imprisonment for a period of six months and to pay a fine of `1,000/- and in default to undergo simple imprisonment for one month for the commission of offence punishable under Section 147 IPC. All the sentences shall run concurrently with benefit of Section 428 Cr.P.C. 2. The prosecution case, in brief, is that on 27.10.2007 PW-7 Rajender Singh had gone to Kullu in ‘Dushehra’ fair, PW-1 Nihal Chand and PW-2 Sohan Lal, PW-3 Ved Vyas and two other persons namely Mohinder Singh and Ram Lal met him. All of them were outside the ‘Pandal’ of ‘Devta’ at about 7.30 P.M. Some persons came from ‘Kala Kendar’ side at about 9.00 P.M. and attacked PW-7 Rajender Singh and others. The fingers of PW1 Nihal Chand were chopped off by some sharp edged weapon in the attack. PW-2 Sohan Lal suffered injuries on his head and hand. PW-3 Ved Vyas also suffered injuries on his head. PW-7 Rajender Singh suffered minor injuries on his head. 3. It has been alleged that PW-7 Rajender Singh was not aware of the names of the assailants, but he could recognize them. The injured were taken to hospital. PW-7 Rajender Singh made a statement Ex. PH to PW-12 Roshan Lal. On the basis of statement Ex. PH, FIR Ex. PN came to be registered at Police Station, Sadar Kullu. Nihal Chand ,Sohan Lal and Ved Vyas were medically examined and their MLCs Ex. PE, Ex. PF and Ex. PG respectively were issued. Nihal Chand was referred to Radiologist and X-rays were taken. Similarly, X-rays of Sohan Lal and Ved Vyas were also taken. 4. Nihal Chand produced blood stained clothes which were taken into possession vide seizure memo Ex. PJ. Ved Vyas and Sohan Lal produced their blood stained clothes which were taken into possession vide seizure memo Ex.PA. Site-plan Ex. PS was prepared. Bitu Thakur accused made a disclosure statement Ex. PD on 06.11.2007 and ‘Khukhari’ concealed under the stone was recovered. The rough-sketch of ‘Khukhari’ Ex.PC was prepared. The place of recovery has been shown in site plan Ex.PT. The copy of daily diary Ex. PP showing that HC Roshan Lal, Constable Narender Kumar, HHG Kuldeep and Mine Ram were on patrolling duty on 27.10.2007 was taken into possession. The statements of witnesses were recorded. On completion of investigation, challan was prepared and presented in the Court. The case was committed. The accused/appellants were charged for commission of offence punishable under Sections 147,323, 324, 326, 307 read with Section 149 IPC. The accused pleaded not guilty. The prosecution examined 12 witnesses and produced several documents. The statements of accused were recorded under Section 313 Cr.P.C, they denied the prosecution case, but led no evidence in defence. On conclusion of trial, the accused were convicted and sentenced as noticed above, hence appeal. 5. Heard and perused the record. On behalf of appellants arguments were led by Mr. M.S.Guleria, Advocate, heard Ms. Rita Goswami, Advocate also. I have heard learned Additional Advocate General along with Assistant Advocate General on behalf of respondent. It has been submitted on behalf of appellants that FIR Ex.PN has been registered on the basis of statement Ex.PH of PW-7 Rajender Singh. In FIR accused have not been named. 6. The supplementary statement Ex. DD of Rajender Singh was recorded on 28.10.2007,who has alleged that he came to know on that date from Ved Vyas and Sohan Lal that they were attacked by ‘Khukhari’ and given beatings with kick and fist blows by Sher Singh and Sukh Ram alias Sukhu and their friends. On 04.11.2007 again another supplementary statement Ex. DE of PW-7 Rajender Singh was recorded stating therein that he, Sohan Lal, Nihal Chand and Ved Vyas were attacked by Bitu Thakur and Virender Singh with ‘Khukhari’, whereas, Sher Singh, Shiv Singh alias Lalu, Daulat Ram, Budhi Singh and Lalit Kumar alias Nilu gave beatings with kicks and fist blows. Sukh Ram alias Sukhi was not involved in the beatings. 7. The prosecution has improved the case step by step. The genesis of the case has been changed. The place of occurrence has been shifted. It was dark. The assailants were not identified and the appellants have been implicated merely on suspicion. The recovery of ‘Khukhari’ is highly suspicious and it has otherwise not been proved. Similar is the case of alleged disclosure statement. There was delay in lodging the FIR. The appellants were not involved in the case. The learned counsel on behalf of the appellants have prayed for acceptance of the appeals and acquittal of the appellants. 8. On behalf of respondent, it has been submitted that the prosecution has proved the case beyond reasonable doubt. The ocular evidence coupled with the medical evidence has proved the case against the appellants. There is no reason not to believe the injured who appeared as witnesses. It is not believable that injured would implicate innocent persons and would leave the real culprits. The minor variations in the statements of the prosecution witnesses are natural and are of no help to the appellants when subtratum of the offence has been proved by the prosecution. A prayer has been made for dismissing the appeals. 9. In order to appreciate the case of the parties, it is necessary to consider the evidence which has come on record. PW-1 Nihal Chand has stated that on 27.10.2007 he along with Solan Lal, Ved Vyas and Rajender had gone to ‘Pandal’ of ‘Devta Jamdagni’ at Dhalpur ground at about 7.30 P.M. At about 9.00 P.M., all accused came from ‘Kala Kendar’ side. All accused are well-known to him. Sher Singh caught him and inflicted injuries on his person with the aid of ‘Khukhari’. Bitu Thakur and Virender Singh were also armed with ‘Khukharies’. He then stated that Sher Singh was not armed with ‘Khukhari’ nor he inflicted injuries with the aid of ‘Khukhari’ on his person. He was merely caught by Sher Singh. Bitu Thakur and Virender Singh inflicted injuries on his person with the aid of ‘Khukharies’, his three fingers of left hand and three fingers of right hand were chopped off as a result of injuries inflicted with the aid of ‘Khukharies’ by Bitu Thakur and Virender Singh. Bitu Thakur and Virender Singh had inflilcted injuries with the aid of ‘Khukharies’ on his shoulder, back and head. After sustaining injuries, he became unconscious. The remaining accused also administered beatings to him with fist and kick blows. 10. He continued that Sohan Lal had also sustained injuries on his head and one finger of his hand had also been chopped off. Sohan Lal had been subjected to beatings by the accused. Rajender had sustained injuries on his head, Ved Vyas had also sustained injuries on his head. He was taken to Kullu hospital, then to I.G.M.C., Shimla for treatment. In cross-examination, he denied that he, Sohan Lal, Rajender and Ved Vyas took meat and liquor in the ‘Pandal’. The police was on duty on that day in Dhalpur ground. He denied that they started creating nuisance inside the ‘Kala Kendar’ where mob inside the ‘Kala Kendar’ attacked them and administered beatings to them. The occurrence took place outside the ‘Pandal’. He admitted the suggestion that the occurrence took place near water tank situated outside ‘Kala Kendar’. He denied that accused were not responsible for inflicting injuries on their persons. He has stated that he knew Sher Singh, Bitu and Virender Singh by names as well as by face. He denied that he could not recognize Sher Singh, Bitu ,Virender and other accused on the spot. 11. PW-2 Sohan Lal has stated that on 27.10.2007, he along with Rajender, Nihal Chand and Ved Vyas had gone to see Dushehra festival at Dhalpur ground. At about 9 or 9.30 P.M., Sher Singh caught Nihal Singh. Bitu was armed with ‘Khukhari’, friend of Bitu was also armed with ‘Khukhari’. Both of them attacked Nihal Chand with the aid of ‘Khukharies’ and he sustained injuries on his person and fell down. Ved Vyas tried to save Nihal Singh, but he also sustained injuries on his head. The remaining accused also administered beatings to Nihal Chand with kick blows. He tried to save Nihal Singh, but sustained injuries on his head and right hand. Nihal Chand had sustained injuries on his head and back and his six fingers were chopped off. He and Ved Vyas handed over clothes to police vide memo Ex. PA. He identified sweater Ex.P-1, shirt Ex.P-2, sweater Ex.P-3 and shirt Ex. P-4. The ‘Khukhari’ Ex. P-5 was recovered and recovery memo is Ex. PB. The ‘Khukhari’ was recovered at the instance of Bitu in presence of Bhawani Singh and Labh Singh witnesses. In cross-examination, he has stated that he had disclosed the names of the accused to the police on 28.10.2007. He had not disclosed to the police during the course of recording of his statement that Sukh Ram alias Sukhu was one of the assailants. He denied that they were attacked by the mob. He had not gone to ‘jungle’. ‘Khukhari’ was shown to him by the police. 12. PW-3 Ved Vyas has stated that on 27.10.2007 at about 9.30 P.M., accused came from ‘Kala Kendar’ side. Bitu Thakur and Virender were armed with ‘Khukharies’. Sher Singh caught Nihal Chand. Bitu Thakur and Virender Singh inflicted injuries on the person of Nihal Chand with the aid of ‘Khukharies’. Three fingers of the left hand and three fingers of the right hand of Nihal Chand were chopped off. Nihal Chand had sustained injuries on his head and back and he became unconscious on the spot. He and Sohan Lal tried to save Nihal Chand and sustained injuries. Sohan Lal sustained injuries on his hand and he sustained injuries on his head and left hand. Bitu Thakur and Virender took the police party to ‘Chayal jungle’ and at their instance ‘Khukhari’ was recovered concealed under the stone in the presence of Sohan Lal, Labh Singh and one person from Siraz. In cross-examination, he denied that they were attacked inside ‘Kala Kendar’ by mob. On 28.10.2007 he disclosed that Bitu Thakur and Virender were armed with ‘Khukharies’ but confronted with statement mark-C wherein it has not been recorded so specifically. He had not disclosed to the police that Sukh Ram alias Sukhu had come to the spot along with 8-9 friends from ‘Kala Kendar’ side armed with ‘Khukharies’. 13. PW-4 Bhawani Singh has stated that Bitu Thakur and Virender Singh had stated that they had concealed ‘Khukharies’ underneath the stone in ‘Chayal jungle’ which could be recovered. This statement was recorded into writing and was signed by him. In pursuance of disclosure statements of Bitu Thakur and Virender Singh ‘Khukhari’ was recovered and was taken into possession vide memo Ex. PB. 14. PW-5 Dr. Roshan Lal has examined Nihal Chand on 27.10.2010 and issued MLC Ex. PE. He has stated that injuries mentioned in MLC Ex. PE can be caused with the aid of ‘Khukhari’ Ex. P-5. All injuries No. 1 to 5 in MLC Ex. PE are grievous. In cross- examination, he has stated that injured Nihal chand was conscious and drowsy at the time of arriving in the hospital. The injuries can be caused by other sharp edged weapon like ‘darat’, chopper, sword, big knife. PW6 Dr. Rattan Sagar has examined Sohan Lal on 27.10-.2007 and issued MLC Ex.PF. He also examined Ved Vyas on 27.10.2007 and issued MLC Ex.PG. He has stated that injuries on the person of Sohan Lal could be caused with the aid of ‘Khukhari’ Ex.P-5. In cross- examination, he has stated that the injuries on the person of Ved Vyas could be caused by fall on stone or any sharp pointed object. Injury No.2 on the person of Sohan Lal could be caused with the aid of Sword, ‘darat’, Chopper or big knife. 15. PW-7 Rajender Singh has stated that on 27.10.2007, he met Nihal Singh, Sohan Lal, Ved Vyas near ‘Pandal’. At about 9.30 P.M. some boys came from ‘Kala Kendar’ side. He was not able to recognize them. The boys gave blows on his person with ‘Khukhari’. They had also given blows with ‘Khukharies’ to Nihal Chand and Ved Vyas. They had also given blows with ‘Khukhari’ on the person of Sohan Lal who sustained injuries on his hands and head, Ved Vyas sustained injuries on his head. It was dark at the place of occurrence. Nihal, Ved Vyas and Sohan Lal were taken to hospital. The police recorded his statement Ex.PH. He was not able to recognize the accused. He was medically examined at Kullu. He did not support the prosecution and was declared hostile. He was cross-examined by the Prosecutor. In the cross-examination he admitted that statement Ex.PH under Section 154 Cr.P.C. was recorded by the police at his instance. He has stated that accused were responsible for inflicting injuries on their persons. In the cross-examination conducted on behalf of the accused, he denied that some persons were taking liquor inside the ‘Pandal’. He was fully conscious when his statement was recorded by the police. He had disclosed to the police during the course of recording of his statement that sharp edged weapons had been used by the assailants. He has denied that his statement was recorded by the police on 28.10.2007. He had also not given statement to the police on 4.11.2007. 16. PW-8 Suresh Kumar has stated that Gopal father of Nihal Chand had handed over blood stained clothes to the police which were taken into possession vide recovery memo Ex.PJ. He has proved shirt Ex.P-6 vest Ex.PH, jacket Ex.P-8 which were handed over to the police by Gopal. PW-9 Dr. Manoj Kumar Kapoor has stated that on 30.12.2007 X-ray films pertaining to Sohan Lal were shown to him and he gave opinion Ex.PK, but lateron stated that opinion Ex.PK was given on 30.10.2007 and inadvertently date has been mentioned as 30.12.2007. On 30.10.2007 he gave opinion Ex.PL pertaining to Ved Vyas and opinion Ex.PM pertaining Nihal Chand. Nature of injuries on the persons of Sohan Lal and Nihal Chand were found grievous. 17. PW-10 Bishan Dass has stated that on the basis of rukka, FIR Ex.PN was registered. PW-11 Narinder Pal has proved copy of daily diary entry 46 A Ex.PP. PW-12 H.C.Roshan Lal is the Investigating Officer. He has proved statement Ex.PH of Rajender Singh. He has stated that on 6.11.2007 Bitu Thakur gave disclosure statement Ex.PD which was signed by Bhawani Singh, Labh Singh and Bitu Thakur. In pursuance of Ex.PD, ‘Khukhari’ Ex.P-5 was recovered at the instance of Bitu Thakur. He has also proved site plan Ex. PT of place of recovery. He has stated that sketch Ex.PC of ‘Khukhari’ was prepared by him. He has also stated that supplementary statements of Rajender were recorded by him on 28.10.2007 and 4.11.2007. He has proved statements Ex.DB of Sohan Lal Ex.DC of Ved Vyas. Virender had also given disclosure statement. 18. Ex. PH is the statement of PW-7 Rajender Singh under Section 154 Cr.P.C. which was recorded on 27.10.2007 at 11.20 P.M. In this statement PW-7 has not named any accused but PW-7 has stated that he could recognize assailants. On 28.10.2007 PW-7 made supplementary statement and stated that he came to know on 28.10.2007 from Ved Vyas and Sohan Lal that they were inflicted injuries by Sher Singh, Sukh Ram alias Sukhu and their friends with ‘Khukharies’ and by kicks and fist blows. PW-7 on 4.11.2007 made another supplementary statement and stated that Sher Singh, Shiv Singh alias Lalu, Daulat Ram, Budhi Singh, Lalit Kumar alias Nilu gave him beatings with kick and fist blows. Sukh Ram alias Sukhi was not with him. Bitu Thakur and Virender Singh inflicted injuries on PWs Nihal Chand, Sohan Lal and Ved Vyas with ‘Khukhari’. FIR was registered on 27.10.2007 at 11.30 P.M. The learned counsel for the appellants have submitted that there is delay in lodging the FIR. The statement under Section 154 Cr.P.C. was recorded at 11.20 P.M. and FIR was registered at 11.30 P.M. on 27.10.2007. The occurrence took place at about 9.30 P.M. Many persons of the complainant party received injuries, they were taken to hospital and in these circumstances recording of the statement Ex.PH under Section 154 Cr.P.C. at 11.20 P.M. and in pursuance thereof FIR Ex.PN at 11.30 P.M. on 27.10.2007 cannot be said to be late. 19. The appellants have not denied the injuries sustained by the injured. Their simple case is of denial and that injured received injuries in the mob attack which was invited by the complainant party themselves as they misbehaved in the ‘Pandal’. In these circumstances, MLCs Ex.PE, Ex.PF and Ex.PG do not require detail discussion and their relevancy is only with respect to nature of injuries recorded in the MLCs. 20. The statements of PW-1 Nihal Chand, PW-2 Sohan Lal, PW-3 Ved Vyas, PW4 Bhawani Singh, PW-7 Rajender Singh and PW-12 Roshan Lal are material. PW-1 has stated that he knew all accused very well. Sher Singh caught him, Bitu Thakur and Virender Singh inflicted injuries on his person with the aid of ‘Khukharies’ and they chopped off three fingers of his left hand and three fingers of right hand. The learned Additional Sessions Judge while recording the statement of PW-1 has observed that three fingers of left hand and three fingers of right hand of the witness are not present. PW1 has also stated that Bitu Thakur and Virender Singh had inflicted injuries with the aid of ‘Khukharies’ on his shoulder, back and head. He has not stated who specifically inflicted injuries on Sohan Lal which chopped off one finger of his hand and caused injuries on the head. He has stated that Rajender and Ved Vyas sustained injuries but not named any accused who caused injuries on the persons of Rajender and Ved Vyas. He has however, stated that all other accused gave beatings to him with fist and kick blows but without naming them. He said that all accused came from ‘Kala Kendar’ side when the complainant party was roaming in Dhalpur ground at about 9.00 P.M. In cross-examination, he specifically denied that he could not recognize remaining accused on the spot. He was confronted with statement under Section 161 Cr.P.C. wherein it was not so recorded that Sher Singh caught him on the spot. This witness was not cross- examined on the point that occurrence took place at a dark place where there was no provision of light. He was also not cross- examined on the point that he did not know the accused previously. He was suggested in cross-examination that he was not able to recognize the remaining accused on the spot which suggestion he denied. 21. PW-2 Sohan Lal has stated that Bitu was armed with ‘Khukhari’. A friend of Bitu was also armed with ‘Khukhari’, both of them attacked Nihal Chand with ‘Khukharies’. He tried to save Nihal Chand but he also sustained injuries on his head and right hand. But he has not stated that who inflicted injuries on his person. Ved Vyas also tried to save Nihal Chand but he also sustained injuries on his head, who inflicted injuries on Ved Vyas that has not been elaborated by PW-2 Sohan Lal. He has stated that other accused gave beatings to Nihal Chand with the aid of fist and kick blows, but not named any accused specifically for causing the injuries. Nihal Chand had sustained injuries on his head and back and his six fingers had been chopped off. This witness has also not been cross-examined on the point that occurrence took place at a place where there was no provision of light. 22. PW-3 Ved Vyas has stated that Bitu Thakur and Virender were armed with ‘Khukharies’. Bitu Thakur and Virender Singh inflicted injuries on the person of Nihal Chand with the aid of ‘Khukharies’ and in this process his three fingers of left hand and three fingers of right hand were chopped off, Nihal Chand sustained injuries on his head and back. Sohan Lal and he tried to save Nihal Chand and he sustained injuries but he has not stated who inflicted injuries to him and Sohan Lal. He has stated that Sher Singh caught Nihal Chand. He has not stated anything about the part played by any other accused. This witness was also not cross-examined on the point that at the place of occurrence there was no provision of light and accused could not have been identified. PW-7 Rajender Singh is the complainant. He has not named any accused. He was declared hostile. He has stated that due to darkness on the spot, he was not able to recognize the assailants. 23. It has been submitted by learned counsel for the appellants that PW-7 has made improvements in the prosecution case by giving supplementary statements Ex.DD and Ex.DE by introducing the names of the accused. It has also been submitted that at the place of occurrence there was darkness and therefore, there is no question of identification of any accused by the so called eye witnesses. In Ex.PH statement under Section 154 Cr.P.C., PW-7 has stated that he knew the accused but not their names. The statement Ex.PH was made by PW-7 within two hours of the occurrence where he has