1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No. 122 of 2001. Judgment reserved on: 11.08.2008. Date of Decision: August 21, 2008. ____________________________________________________________ Chhaju Ram & Others. Petitioners. Versus State of H.P. Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? No. For the appellants : Mr. Naresh Thakur, Advocate with Mr. Pankaj Negi, Advocate. For the respondent : Mr. Vivek Thakur, Addl. Advocate General. ______________________________________________________________ Surinder Singh, J. This criminal revision has been preferred by the convicts assailing the order passed by the learned Sessions Judge in Criminal Appeal No.11 of 1999, decided on 27.7.2001, whereby the judgment of conviction and sentence passed, by the Additional Chief Judicial Magistrate in Criminal case No.12-II of 1995, on 5.5.1999 was upheld. The petitioners herein were convicted under Sections 148, 452/149, 323/149 and 506-part second read with Section 149 of the Indian Penal Code and each were sentenced to pay a fine of Rs.200/- under each sections and out of the fine, the payment of compensation of Rs.1,000/- to each of the injured persons was upheld in appeal by the learned Sessions Judge, but the substantive Whether reporters of the Local papers are allowed to see the judgment? Yes. 2 sentence passed by the learned trial court was modified by him till the rising of the court. In brief, the facts giving rise to this petition are that on 18.8.1993, the complainant PW2 Mohinder Singh was standing near the tea-shop of Kishsori Lal at Bharmour around 8.45 p.m. Accused Sanjay s/o Tulsi Ram and Des Raj entered ‘Chaman-Video Hall’, and took out injured Sanjay Kumar (PW5) s/o Shri Thakur Dass with them and started beating him in front of the shop of Kishsori Lal. In the mean time, PW4 Kamlesh, Kartar (not examined), PW3 Ram Chand and Naraian Singh (not examined) appeared on the spot and tried to rescue him from the accused. Thereafter, accused persons Janak, Chhaju, Madan Lal, Baldev Singh, Vinod Kumar, Hari Saran s/o Tulsi Ram and another Hari Saran s/o Mussafar, Dharam Chand, Sat Pal, Som Dutt and one Gurkha came armed with danda, hockeys and rods and in furtherance of their common intention started beating PW4 Kamlesh and others. While beating Kamlesh, he was taken to one side and was pushed down on the ground. He sustained the multiple bleeding injuries on his forehead and other parts of the body. PW5 Sanjay s/o Thakur Dass also sustained injuries on account of beating. Thereafter all the accused persons illegally entered into the house of PW1 Thakur Dass, MLA and threatened him to kill and asked as to how could he contest the election since he would be killed. They also hurled the abuses and picked up the brick from the road and threw the same on him, but he escaped. 3 On hearing about the incident, many persons gathered on the spot. The accused persons who were alleged to be from the BJP group fled away. Thakur Dass MLA was from the Congress party. The assailants due to political rivalry allegedly nurtured enmity against him. A case was registered vide FIR Ex.PW9/A on the statement of PW2 Mohinder Singh on his statement Ex.PW10/A recorded under Section 154 of the Code of Criminal Procedure but he did not support his case. The injured Kartar, Sanjay, Narain, Ram Chand and Kamlesh Kumar were medically examined by PW6 Dr. Hemant Sharma. During the investigation, the recoveries of rods, hockeys, dandas were effected from the accused persons. A piece of brick was found in the drawing room of PW1 Thakur Dass, which was also taken into possession. The medical certificates of the above named injured were also taken into possession. They had sustained the simple injuries. One gurkha allegedly accompanying the assailants was identified as Prem Lamba s/o Pukha, was absconding, thus he was declared proclaimed offender and the proceedings in the case were held in his absence as per the provision of Section 299 Cr.P.C. One accused Dharam Chand died during the pendency of the trial, as such proceedings against him were dropped. After completing the investigation, the challan was presented in the court for trial of all the accused persons. The learned Additional Chief Judicial Magistrate charge-sheeted them under the 4 aforesaid sections. They pleaded not guilty and claimed trial. To prove its case, the prosecution examined its witnesses and the accused persons were also examined under Section 313 Cr.P.C. They denied their involvement in the incident. According to them they were implicated by the then Congress MLA PW1 Thakur Singh, in a false case. However, no evidence in defence was led by them. At the end of the trial, 13 accused persons except Prem Lama (absconding accused) and one dead were convicted and sentenced as aforesaid. In appeal the learned Sessions Judge, upheld the conviction of petitioners herein and modified the sentences as aforesaid, whereas others were acquitted. The convict petitioners challenged the judgment of learned Sessions Judge, in this revision petition, on the ground that the injured persons did not support the prosecution case, testimonies of other prosecution witnesses are full of contradictions and replete. The alleged eye witnesses did not link the petitioners with alleged incident and the testimony of PW1 Thakur Dass is full of contradictions and do not inspire confidence. The courts below have wrongly returned the findings of guilt against them. Shri N.K. Thakur, learned counsel for the petitioners has led me through the evidence on record and ventilated that the discrepancies and contradictions in the statements of the witnesses of the prosecution makes the entire story doubtful. Thus, there was no justifiable ground and convincing reason to convict the petitioners. 5 Contra, Shri Vivek Thakur, learned Additional Advocate General duly assisted by Mr. Anil Jaswal, learned Deputy Advocate General have supported the findings of guilt returned by the courts below against the petitioners and further urged that there is no illegality in the judgment and the concurrent findings of fact cannot be gone into, therefore, the petitioners have no case for its interference in revision by this court. I have given my thoughtful consideration to the rival contentions of the parties and have carefully examined the record of the courts below. It is an admitted fact that PW1 Thakur Singh was a sitting Congress MLA and the complainant party was his supporter whereas the petitioners were supporters of BJP. The father of Sanjeev Kumar was a rival candidate of PW1 Thakur Singh to contest the election. It was an assembly election time. The alleged incident had taken place around 8.45 p.m., when it was quite dark. PW1 Thakur Singh stated that he was attracted by a commotion outside, he came to his stairs and saw Chhaju Ram, Janak Raj, Suresh Kumar, Desh Raj, Vinod and a Gorkha, accused persons armed with hockeys, iron rods in their hands. He did not name Sanjeev Kumar and Baldev Singh accused and further stated that they entered into his room and hurled abuses and brick upon him, but he escaped. He further stated that Jai Ram and Okhu Ram followed by Kamlesh and Kartar had also reached there who saved him. In cross-examination, he deposed that he had seen from his stairs that the accused persons were giving beatings to Kartar and 6 Kamlesh outside on the road with the hockeys and iron rods. He remained standing in the stairs for about 15 minutes. When he told the accused persons not to beat them, they attacked on him. He could not tell which accused was having which of the weapon. He was confronted with his statement under Section 161 Cr.P.C.(Ex.DA) where it was not recorded that the accused persons were seen by him while giving beatings to Kamlesh Kumar and others, which is material contradiction because none of the injured aforesaid have supported the prosecution version, all of them turned hostile to the prosecution. Jai Ram and Okhu Ram were not examined. Therefore, an adverse inference has to be drawn. The testimony of PW1 aforesaid does not inspire confidence, also for the reason that he was alleged to have been attacked by the accused outside on the stairs but there was no injury on his person. The story of recovery of his brick from the drawing room appears to be incorrect as he stated to have been hurled the brick from out side while he was in the hall of his residence. PW2 Mohinder Singh. PW3 Ram Chand, PW4 Kamlesh Kumar, PW5 Sanjay Kumar, PW7 Kartar Chand and PW8 Laxman Dass the injured witnesses have turned hostile to the prosecution. According to them, they could not identify the assailants due to darkness, however, they sustained the simple injuries and their medico legal certificates Exts. PA to PE proved by PW6 Dr. Hemant Sharma. It is also pertinent to note that PW4 Kamlesh is the nephew of PW1, but it is quite strange either some of them were not examined and those who were produced in the dock did not support 7 the version of Thakur Singh (PW1). The testimony of PW1 in view of the aforesaid circumstances is discrepant and does not inspire confidence thus cannot be relied upon to sustain the conviction of the petitioners. Therefore, in the facts and circumstances of the case, in my opinion, both the courts below have mis-appreciated and mis-applied the statements of the prosecution witnesses holding the petitioners guilty for the aforesaid offences. Thus, on examination of the legality and propriety of the evidence on record, for the foregoing reasons, I find that there is no evidence worth inspiring confidence. The petitioners are entitled for the benefit of reasonable doubt. Therefore, the conviction and sentence passed against the petitioners by the learned trial court and affirmed in appeal by the Sessions Judge is hereby quashed and set-aside. The revision petition is allowed. Consequently, the petitioners stands acquitted. They are discharged of their bail bonds entered upon by them during the proceeding of this case, fine if any deposited by them be refunded forthwith. Send down the records. (Surinder Singh) Judge. August 21, 2008. (Pds)