IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Criminal Appeal No. 176 of 1994 Date of decision: 19.11.2008 State of Himachal Pradesh Appellant Vs. Om Parkash and others Respondents Coram: The Hon’ble Mr.Justice R. B. Misra, J. The Hon’ble Mr. Justice Surjit Singh, J. Whether approved for reporting?1 For the Appellant: Mr. P.M. Negi, Deputy Advocate General. For the respondents: Mr. K.C.Rana, Senior Advocate, with Mr. Rajnish Maniktala, Advocate Per Surjit Singh, J. (Oral) State is aggrieved by the judgment dated 15th March, 1994 of the Sessions Court, whereby respondents numbering 8, who were charged and tried for offences under Sections 147/148/302/307 and 325, read with Section 149 I.P.C., have been acquitted. 2. Prosecution case, as it emerges from the evidence on record, may be noticed. PW-7 Shayam Lal, and respondent Rikhi Ram are real brothers. They had been having disputes and litigation since long. PW-7 Shayam Lal had two sons. One of them is PW-6 Sarup Chand. The other was deceased Trilok Chand. On 3rd June, 1993 around 9.00 p.m. when PW-6 Sarup 1 Whether reporter of local papers are allowed to see the judgment ? Yes 2 Chand, one of the sons of PW-7 Shayam Lal, was returning home from a place called Sidhpur, where he had gone to work for the day, he saw Ravan Ram and Mehar Chand having an altercation with PW-7 Shayam Lal and deceased Trilok Chand near the shop of one Amar Singh in village Arla. Soon thereafter, respondents Om Parkash, Rajesh Kumar, Smt. Krishna, Smt. Shakuntla, Smt. Saleti Devi, Rikhi Ram and Sunil Kumar armed with iron rods, dandas and Kassis (Spade ) also reached the spot. Om Parkash respondent, who was carrying an iron road, hit deceased Trilok Chand on his head. He fell on the ground instantaneously. Other accused hit PW-7 Shayam Lal as also deceased Trilok Chand with dandas and Kassis (Spades). PW-7 Shayam Lal raised alarm. A number of persons reached the spot. They noticed Trilok Chand deceased lying unconscious and Sarup Chand and Shayam Lal having serious injuries. Those persons arranged to shift all the three injured to the hospital at Palampur. Trilok Chand succumbed to the injuries on way to the hospital. Report was lodged with the police by PW-6 Sarup Chand in the form of statement, under Section 154 Cr.P.C. (Ex.PR) from the hospital bed. On the basis of that statement, case was formally registered vide FIR Ex. PR/1. Inquest in respect of the death of Tarlok Chand was conducted and hospital authorities were approached to conduct postmortem. PW-5 Dr. D.S.Chandel conducted postmortem and noticed following six injuries on the dead body of deceased Tarlok Chand:- 3 1. 3”X 1” ellipitical incised wound right parieto occipital area, hair cut in two pieces, the wound was bone deep, bone bears the cut marks. There was fracture of occipital bone. 2. 3”X 1” ellipitical incised wound on left parieto occipital area in the sigital plane hair cut. The wound was bone deep. 3. 2”X 1/2” incided wound, clipitical in shape over the chin. 4. Fracture mandible. 5. “1/2 X 1/2” lacerated and punctured wound over the left clavicle. 6. “1/2 X 1/2” lacerated wound over the left chin. Riger mortis present all over the body postmortem staining present over the depending parts. No sign of decomposition no ligature mark. Cranium and Spinal Cord:- Intracranial bleeing present in right cerebral hemisphere, brain matter and membrance lacerated.” He opined that injuries No. 1 to 3 could have been caused by a Kassi, injury No. 4 by a danda or a rod, like Ex. P-1, and injury No. 5 by a nail, fitted on the back of Kassi (Ex.P-3). 2. Medico Legal examination of injured Shayam Lal (PW-7) was conducted by PW-2 Dr. K.C.Kalyan, who noticed the following injuries on his person:- “1. Lacerated wound over the left side of forehead bleeding profusely and it was lacerated 1½ X ½” wide with haematoma left upper eye lid. 2. A punctured wound ½ X ½” just below injury No.1. It was bleeding. 3. Lacerated wound on the left forearm on the posterior medial aspect. Underlying bone fractured (1” X ½” in size). 4. Left nostril filled with clotted blood and face badly soiled with blood. 5. Abrasion left leg shin 1.5 X ¼” in size with active bleed. The lower leg was soiled with blood. 6. Swelling of posterior aspect of left thigh 8 X 3 cm. in size. 4 7. Star shaped wound adjacent to injury No. 1 ½” X ½” in size. Arms, face head, thorax soiled with blood alongwith the clothes. 8. Swelling over the right wrist with tenderness. 9. Swelling at right lower jaw near the angle 4 X 5 cm. 10.three lacerated wounds on the scalp varying from ½ to 1½” was bleeding. They are situated on the parietal occipital regions. The patient vomited blood. 11.Signs of head injury present (vomiting, drowsiness and impaired consciousness).” 3. Two of the aforesaid injuries, i.e. injury Nos. 3 and 8 were opined to be grievous in nature. Injuries No. 1, 3, 6 and 9 were opined to have been caused by rod Ex. P-1. Other injuries were opined to have been inflicted with dandas. 4. PW-6 Sarup Chand was also examined by PW-2 Dr. K.C.Kalyan and following seven injuries were noticed on his person, two of which, i.e. injuries No. 1 & 2 were opined to be grievous in nature:- Patient was conscious and co-operative. 1. Whole of left forearm was swollen and extreme tender with a ½” lacerated would on the upper 1/3rd of forearm posteriorly which had a fresh bleed. Active and passive movements were restricted. Crepitus in the bones, possibly fracture both bones forearm. 2. Swelling tenderness of right forearm lower half with pain and restricted movements. The clothes and body soiled with soil and mud. 3. 6 mm X 3 mm lacerated wound on the prominence of right forehead with bleeding. 4. Multiple abrasions left thigh posteromedially. Let was soiled with right blood. 5. Multiple obliquely paced 3 to 4 bruises on the right paraspinal region. 8 to 10 cm X 1 – 1.5 cm wide. 6. A 1.5 X 1 cm. swelling right leg lateral aspect. 7. An oblique abrasion right side neck 8 cm with a width of 1 5 mm. It was opined that injury No. 1 could have been caused by rod Ex. P-1 and others by dandas. 5. Prosecution examined four eye witnesses, including two injured, namely PW-6 Sarup Chand and PW-7 Shayam Lal to prove the charge, besides examining the doctors and other witnesses. 6. Accused took the plea that on the relevant day, two of them, namely Mehar Singh and Om Parkash were returning home around 8.30 p.m., after working in their fields and when they turned towards the path leading to their house, near the shop of one Amar Singh, deceased Tarlok Chand, PW-6 Sarup Chand and PW-7 Shayam Lal affronted them and picked a quarrel. They stated that Tarlok Chand was armed with an iron rod and Shayam Lal and Sarup Chand with Fawras (Spades) and they stood in their way to stop them from proceeding towards their house and started hurling abuses. Then the three assaulted Mehar Chand, Om Parkash and also Rawan Ram, who accompanied by his wife had been coming behind them. Tarlok Chand dealt a blow of iron rod to Rawan Ram, as a result of which he fell on the ground. Then all the three, i.e. deceased Tarlok Chand, PW-7 Shayam Lal and PW-6 Sarup Chand started hitting Om Parkash, Mehar Chand and Rawan Ram. Om Parkash and Mehar Chand tried to defend themselves and in that process, Tarlok Chand sustained fatal injuries, while PW-7 Shayam Lal and PW-6 Sarup Chand sustained injuries noticed on their person by PW-2 Dr. K.C.Kalyan. Rawan Ram 6 died as a result of the injuries inflicted by deceased Tarlok Chand, PW-7 Shayam Lal and PW-6 Sarup Chand, on 12.6.1993 at P.G.I., Chandigarh where he was shifted for treatment. 7. Trial court concluded that the prosecution had not examined the sole independent and dis-interested eye witness, named in the FIR, namely Jaishi Ram and instead had introduced two other persons, namely PW-8 Rajinder Singh and PW-12 Arjun Kumar as eye witnesses, whose presence on the spot was highly doubtful. Trial court also noticed that there was no plausible explanation about the death of Rawan Ram, due to the injuries sustained by him in the incident, and that the explanation given by PW-7 Shayam Lal and PW-6 Sarup Chand and other two alleged eye-witnesses in the course of their cross examination by the defence was self contradictory as to the manner in which deceased Rawan Ram had sustained the fatal injuries and, therefore, there was no reason for doubting the defence plea. 8. We have been taken through the record by learned Deputy Advocate General appearing for the appellant. Also we have considered the submissions made by him. 9. Ex.PR is the earliest account of the incident which was given to the police by PW-6 Sarup Chand within 3-4 hours of the occurrence. Incident is alleged to have taken place at 9.00 p.m. on 3rd June, 1993. Statement of PW-6 Sarup Chand was recorded at 12.40 a.m. on 4.6.1993. As per this version, the 7 incident was witnessed by Jaishi Ram, resident of village Arla and one more person and that as soon as Jaishi Ram and another person reached the spot, the respondents ran away. Prosecution did not examine Jaishi Ram nor did it lead any evidence indicating that one of the two eye witnesses (other than the injured) was the man accompanying Jaishi Ram. That means, the witnesses named and referred to in the earliest version, i.e. Ex. PR have been withheld by the prosecution, for which it is liable to an adverse inference. 10. We are alive to the legal position that only on account of withholding of independent eye witnesses or on account of independent eye witnesses not supporting the prosecution version, testimony of injured witnesses cannot be disbelieved, but in a case, like the present one, where both the sides have a fight, free for all, and in that fight, one person on each side receives fatal injuries and the parties are shown to be on inimical terms from long before the occurrence, testimony of independent witnesses assumes a great deal of significance and when according to the earliest version some independent witnesses were there and they are not examined, adverse inference has to be drawn against the prosecution. 11. Admittedly, Rawan Ram, who was accompanying the respondents, died as a result of the injuries sustained during the occurrence. Explanation offered by eye-witnesses with regard to the manner of his sustaining the injuries, which proved fatal, is self contradictory. 8 12. PW-6 Sarup Chand stated that Rawan Ram was dealt a blow with iron rod by accused Om Parkash when he asked him not to give beatings to him (PW-6 Sarup Chand), Shayam Lal (PW-7) and deceased Tarlok Chand. PW-7 Shayam Lal stated that no injury was sustained by Rawan Ram in his presence. PW-8 Rajinder Singh and PW-12 Arjun Kumar stated that Rawan Ram was hit accidently when a blow of iron rod aimed by Om Parkash respondent at Sarup Chand (PW-6) landed on his (Rawan’s) head. These contradictions in the testimony of prosecution witnesses about the manner in which Rawan Ram received the fatal injuries probablize the defence plea that Rawan Ram was assaulted and hit by deceased Tarlok Chand, a member of the group of complainant party, which included PW-7 Shayam Lal and PW-6 Sarup Chand and that when the respondent-accused Mehar Chand and Om Parkash acted in self defence, Tarlok Chand sustained fatal injuries, while PW-6 Sarup Chand and PW-7 Shayam Lal were hurt and sustained the injuries found on their person by PW-2 Dr. K.C. Kalyan. 13. In view of the above stated position, we see no reason to interfere with the judgment of acquittal recorded by the trial court. Hence, the appeal is dismissed. ( R. B. Misra ), J. November 19, 2008(K) ( Surjit Singh ), J.