IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.A. No.17/2001 Reserved on.7.3.2008 Decided on.5.4.2008 Ramesh Kumar and others …Appellants. Versus State of Himachal Pradesh. …Respondent Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. No. For the appellants : Mr. Ashutosh Burathoki, Advocate. For the respondent : Mr. R.K. Bawa, Advocate General with Mr. Rajinder Dogra, Additional Advocate General. Rajiv Sharma, J. This appeal has been directed against the judgment of conviction and sentence dated 5.1.2001 passed by the learned Additional Sessions Judge (I) in Sessions case No. 35-P/97 whereby the appellants have been convicted under sections 326 and 148 of the Indian Penal Code. They have been sentenced to undergo rigorous imprisonment for a period of 3 years under section 326 of the Indian Penal Code and to pay a fine of Rs. 1000/- and in default of payment of fine they were ordered to undergo rigorous imprisonment for a period of 3 months. They have also been sentenced to undergo rigorous imprisonment for a period of 6 months and to pay a fine of Rs. 500/- under section 148 of the Indian Penal Code and in default of payment 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. 2 of fine they have been ordered to undergo rigorous imprisonment for one month. Both the sentences have been ordered to run concurrently. The prosecution case in brief is that one Angat Singh was posted as Chowkidar in Himachal Pradesh Krishi Vishav Vidhyalya, Palampur in the year 1992. In the month of December, 1995, he was posted in Padhiarkhar Agriculture Farm of the University. On 25.12.1995, at about 4.30 P.M., Anagat Singh (PW-9) was on duty and was later on accompanied by Deep Chand (PW-11). He found 4-5 goats grazing in the farm of University. He told accused Ramesh Kumar to take the goats away from the fields. Thereafter Angat Singh was patrolling in the fields along with Deep Chand, then all of a sudden accused Vijay Kumar and Jagdish came and caught his arms from behind. Accused Ramesh Kumar inflicted a knife blow in the stomach of PW-9 Angat Singh and he again gave another blow of knife which pierced into his stomach. Accused Pappu inflected injury on the left arm of complainant Angat Singh with Darat due to which his arm got fractured. Accused Jagdish Chand inflicted injuries with motorcycle chain due to which blood started oozing out of the injuries received by Angat Singh. Angat Singh was taken to the office of department and thereafter he was taken to Palampur Hospital by Sh. P.C. Sharma, Rajinder Kumar and Deep Chand. He was operated in the hospital. The FIR Ex.PW-15/A was recorded. The matter was investigated. The challan was put in the Court. The prosecution examined as many as 16 witnesses to prove its case. The appellants were examined under section 313 of the Code of Criminal Procedure. The trial court convicted and sentenced the appellants on 5.1.2001. 3 Mr. Ashutosh Burathoki, Advocate had submitted that the prosecution has miserably failed to prove the case against the appellants. The trial court has not properly appreciated the material on record. The prosecution case is full of contradictions. The prosecution story is highly improbable and the accused persons have been falsely implicated. He also contended that the recovery of knife at the instance of accused Ramesh Kumar is not in accordance with law since PW-10 and PW-11 have not supported the prosecution case to this effect. He further contended that as far as the medical opinion of the Doctor of PGI is concerned, he has only mentioned that the injuries were grievous, however, in final opinion Ex.PW-1/D, it has come that injuries No.5 and 6 were dangerous to life. In other words his submission is that there is variance with regard to the nature of the injuries in Ex.PW-2/A and Ex.PW-1/D. He has also pointed out that initially Dr. Chain Singh, Medical officer had opined that injuries were grievous, however, in a different ink he has opined in Ex.PW-1/D that injuries No.5 and 6 were dangerous to life. He had further contended that no conclusive finding has been given in Ex.PX since according to Dr. Arun Sharma stains of blood were not sufficient to give any conclusive opinion whether the blood found on the clothes matched the blood group of the complainant Angat Singh or not. He then submitted that even the recovery of clothes is doubtful in view of the statement made by PW-4 Smt. Swarna Devi. The learned Advocate General has supported the judgment dated 5.1.2001. I have heard the learned counsel for the parties and have gone through the record of the case. 4 PW-1, Dr. Chain Singh had found the following injures on the person of Sh. Angat Singh: 1. “Swelling and tenderness on base of nose bleeding through nostrils present. Advise X-ray for nasal bones. Referred to Z.H. Dharamshala. 2. There was abrasion 2 cm x 1 cm, in right temporal region covered with blood clots. 3. There was swelling and haematoma left upper arm. Advise X-ray to rule out bone injury. 4. There was lacerated wound 2 cm x 1 cm, on lateral side of left upper arm covered with blood clots. 5. There was incised wound below right costal margine. Margines were regular and well defined. Size was 2 cm x .5 cm. The wound was deep upto under lizing muscloses. 6. There was incised wound 3 cm x 2 cm below left costal margine. Omentum was protruding out from the wound. Referred to Z.H. Dharamshala for further opinion.” According to PW-1, Dr. Chain Singh, the injuries No. 2 and 4 were simple injuries and opinion of injuries No.1, 3, 5 and 6 was reserved till X-ray and surgeon’s opinion. He had issued MLC Ex.PW- 1/A. According to him injuries No. 3,5 and 6 were grievous in nature whereas injuries No.5 and 6 were dangerous to life. PW-2 is Dr. Deepak Puri. He has noticed the following injuries on the person of Angat Singh: 1. “There was stabbed wound in the left hypochondrium (abdomen). The size of the said injury 2 cm x 1 cm with omentum prolapsing through the wound. 2. There was a stabbed injury on right lumber region 1.5 cm x 1 cm. 5 3. There was Cl.W on left side of nose below medial canthus. 4. There was fracture of the maxilla Le Forte II on the left side (face) with over lying swelling on the left cheek and left side black eye. 5. There was fracture of shaft of left humerus with radial nerve palsy of left side. 6. There was lacerated wound on the posterxo-lateral aspect of left arm.” According to PW-2 Dr. Deepak Puri, Angat Singh remained admitted in PGI with effect from 26.12.1995 to 6.1.1996. He was operated on 27.12.1995 by a team of doctors headed by Dr. Laxmi Narayan. Case summary Ex.PW-2/A was written by him. He admitted in his cross-examination that in Ex.PW-2/A there was no mention of injuries being dangerous to life. It is thus evident that there is variance in two opinions i.e. one given by Dr. Deepak Puri (PW-2) and Dr. Chain Singh (PW-1). It is clear from Ex.PW-1/D that initially PW-1 had written that the injuries were grievous, however with a different pen though in continuation, he has stated that the injuries No.5 and 6 were dangerous to life. PW-3 is Sh. Dina Nath. He was associated by the police at the time of taking into possession the blood stained soil vide memo Ex.PW- 3/A. PW-4 Smt. Swarana Devi has not supported the case of the prosecution. She has stated that she was called by the police 2-3 years back. The blood stained clothes were already kept there and those were put in a gunny bag. The clothes were not handed over to the police in her presence. She could not recognize the clothes in the Court. PW-5, PW-6, PW-7 and PW-8 are formal witnesses. 6 PW-9 Angat Singh has stated that on 25.12.1995 while he was on duty, he came across 4-5 goats owned by accused Ramesh Kumar grazing in the farm of the University. He requested accused Ramesh Kumar to move his goats away. Accused Ramesh Kumar threatened him and thereafter left with his goats. Sh. Deep Chand Chowkidar also came on the spot and both of them started guarding the fields. In the meantime at about 4.45 P.M., Vijay Kumar and Jagdish Chand came and caught hold of him. Accused Ramesh Kumar gave knife blow to him and thereafter Ramesh Kumar gave two more blows in the stomach. Accused Pappu gave blow on his left arm with reverse side of Darat (sickle). His arm was broken. Accused Jagdish Chand hit him with cycle or motorcycle chain. PW-10 is Sh. Ajay Kumar. He has denied that accused Jagdish had handed over any chain to the police. He has denied that Ramesh Kumar has got the recovery of the knife effected from his house. He has reiterated in cross-examination that no recoveries were effected in his presence. The statement made by Sh. Ajay Kumar if read with his cross-examination casts serious doubt about the manner in which the knife has been recovered at the instance of Ramesh Kumar under section 27 of the Evidence Act. PW-11 is Sh. Deep Chand, whose name also figures in recovery of knife i.e. P-1. He has also denied that any knife was recovered in his presence. He has categorically stated in his cross-examination-in-chief that Ramesh Kumar had not handed over anything to the police in his presence. PW-11 has stated that on 25.12.1995 when he and Angat Singh were on duty, Angat Singh was attacked by the accused persons. According to him Ramesh Kumar has given knife blow to Angat Singh. He has not stated that Pappu has given any Darat (sickle) blow to Angat Singh. He 7 has also not stated that Jagdish has hit Angat Singh with chain, though he has stated in his cross-examination that Ramesh Kumar had in fact got the knife recovered from his house. Since there is variance in examination-in-chief and cross-examination with regard to recovery of knife, statement of PW-11 cannot be relied upon. PW-12 and PW-13 are formal witnesses. PW-14 is Sh. Amar Singh, who has signed Ex.PW-10/C. In his cross-examination, he has admitted that Ramesh Kumar has not given any disclosure statement Ex.PW-10/C. It is, thus, evident that neither Ajay Kumar PW-10 nor PW-14 Amar Singh has supported the prosecution as far as the disclosure statement of accused Ramesh Kumar is concerned. PW-15 is Sh. Joginder Singh, Sub Inspector who has carried out partial investigation of the case. PW-16 is Sh. Lal Singh, who has also carried out the investigation. He has supported the prosecution as far as the recovery of knife and chain are concerned. It has also come in Ex.PX that no conclusive opinion could be given by an expert whether the blood group of victim matches with the blood found on the clothes. No conclusive opinion was given by Dr. Arun Sharma as the blood stains were not adequate to come to a final conclusion. It has come in the statement of PW-9 that P.C. Sharma and Rajinder Katoch came on the spot when PW-11 Deep Chand raised the alarm. He has stated that Rajinder Katoch had died, however, the prosecution has not examined Sh. P.C. Sharma, who was the first person to reach the spot and had taken him to the hospital. The prosecution has failed to prove the recovery of knife on the basis of statement made by Ramesh Kumar in accordance with law. PW-10 and PW-14 have not supported the prosecution as far as the disclosure statement made by accused 8 Ramesh Kumar is concerned. Since the prosecution case has not been supported by PW-10 and PW-11 as far as the disclosure statement is concerned, the recovery of knife effected at the instance of accused Ramesh Kumar is doubtful. Ex.PW-10/D prepared by the police is also doubtful since the same is not supported by PW-10 Ajay Kumar. PW- 11 has also stated in his examination-in-chief that Ramesh Kumar has not handed over any knife in his presence. The recovery of clothes is also doubtful since the prosecution has not been supported by PW-4 Smt. Swarana Devi. The recovery of chain is also doubtful. This recovery has not been duly proved by the prosecution. PW-10 has stated that Pappu has not handed over any chain to the police. PW-9 Sh. Angat Singh has stated that he was given Darat blow at his left arm by accused Pappu. The police has not recovered the weapon of offence i.e. Darat. Angat Singh has stated that his left Arm was broken. This version was not supported by medical opinion. Sh. P.C. Sharma, who reached the spot after Deep Chand (PW-11) had raised hue and cry was not examined by the prosecution. There was no explanation why Sh. P.C. Sharma was not examined by the prosecution. PW-9 has stated that when he asked Ramesh Kumar to take away his goats, he left the scene and thereafter PW-11 came on the spot. He has further stated that when he was beaten up by accused persons, Deep Chand came on the spot, however, PW-11 Deep Chand has not supported PW-9. He has stated that he and Angat Singh were together and when Angat Singh objected to the grazing of goats by Ramesh Kumar, he was beaten up by the accused persons. In view of the material contradictions in the statements made 9 by PW-9 and PW-11, the prosecution version the manner in which the incident has taken place cannot be believed. Now, the Court has to consider the manner in which the trial court has read the medical opinion. According to Dr. Chain Singh as per Ex.PW-1/D, injuries No.5 and 6 were dangerous to life. This opinion has been added it appears prima facie in a different ink. This final opinion of Dr. Chain Singh (PW-1) is also at variance with the summary recorded by Dr. Deepak Puri. PW-2 has admitted in his cross-examination that in Ex.PW-2/A there is no mention of injuries dangerous to life. Ex.PW-2/A has been given after the injured was operated upon. Dr. Deepak Puri was in a better position to give the conclusive opinion. The trial court had only taken into consideration the statements of PW-9 and PW-11 to come to a conclusion that the prosecution has proved its case. The trial court has not discussed whether the disclosure statement made by Ramesh Kumar could be relied upon when the material witnesses have resiled from their statements as discussed hereinabove. In view of the above discussion the appeal is allowed. Judgment dated 5.1.2001 is set aside. The appellants are acquitted of the charges. The bail bonds are cancelled and sureties are discharged. April, 5, 2008. ( Rajiv Sharma), Judge *Awasthi*