IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Criminal Appeal No. 143 of 2001 Date of Decision: 16th September,2011 State of Himachal Pradesh Appellant Versus Sanjay Kumar and others Respondents Coram The Hon’ble Mr. Justice Deepak Gupta,J. The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? No. For the appellant: Mr.Vivek Thakur, Additional Advocate General For the respondents: Mr. Nareshwar Chandel, Advocate, for surviving respondents. Sanjay Karol, J. (Oral) Accused Subhash Chand, (A-6), Dinesh (A-7), Manmohan Singh (A-8) and Hari Krishan (A-10) have since expired, as such, appeal qua them already stands abated in terms of order dated 19.8.2011. 2. For an offence, which is alleged to have been committed on 11.12.1995, accused were put to trial. In terms of judgment dated 30.10.2000 passed by learned Additional Sessions Judge, Shimla, H.P., in Sessions Trial No.15-S/7 of 1997, titled as State of H.P. vs. Sanjay Kumar and others, accused stand acquitted of the charged offences. Whether the reporters of Local Papers are allowed to see the Judgment? 2 3. It is the case of the prosecution that Shri Balwant Rohal (PW-1) made a report (Ext.PW-1/A) to the police on 11.12.1995 to the effect that his aunt (Bua) Smt. Jamna Devi (PW-13) had relinquished her share in the land situated in Village Jalel in favour of his uncle Shri Ajit Singh (PW-2). As a result of which accused nurtured grudge. PW-2 was also beaten up by them in the year 1989 but the matter was settled in the Panchayat. On 9.11.1995 in Village Gorho quarrel took place with his aunt in relation to which his father Mohan Singh had gone to the Police Station at Boileauganj. On 11.12.1995 while he alongwith Ajit Singh Rohal (PW-2), Sanjeev Kumar (PW-4) Anil Kumar (PW-5), Jai Singh Rohal (PW-6) and Amar Nath (PW-19) were waiting at Railway Station, Shoghi, for his father to return from Boileauganj the accused persons, namely, Sanjay Kumar, Sudhir Kumar, Krishan Chand, Om Prakash, Chander Mohan, Subhash Chand, Dinesh, Manmohan Singh, Jagdeep Kumar, Hari Krishan, Ramesh Chand, pelted stones at them and also gave beatings to them. 4. On the basis of complaint (Ext.PW-1/A), FIR No. 7/95 (Ext.PW-1/B) dated 11.12.1995 under Sections 147, 148, 149, 323, IPC was registered at Police Station G.R.P, Shimla. Investigation was carried out by S.I. Amar Nath (PW-19) and ASI Balbir (PW-22). During investigation stones, six in number (Ext.P-6), sticks (Ext.P-8) and five broken pieces of sticks (Ext.P-9), one blood stained stone (Ext.P-13) and blood stained clothes (Ext.P-11, Ext.P-2 and Ext.P-4) were recovered 3 by the police. Accused Jagdish and Subash also handed over sticks (Ext.P-15 and Ext.P-16) during interrogation. The injured were got examined at I.G.M.C., Shimla through Dr. Rajnish Pathania (PW-16), Dr.R.C.Thakur (PW-15), Dr. L.R.Verma (PW- 17), Dr. Suman Gupta (PW-20), Dr. Vinod Mehta (PW-21) and medical record (Ext.PW-16/A to Ext.PW16/D; Ext.PW-15/A; Ext.PW-17/A to Ext.17/C; Ext.20/A to Ext.PW-20/F; Ext.PW- 21/A-1 to Ext.PW-21/A-3, Ext.PW-21/B, Ext.PW21/C-1 to Ext.PW-21/C-4 and Ext.PW-21/D), were taken on record. 5. With the completion of investigation, challan was presented in the Court for trial. All the accused persons were charged for having committed offences punishable under Sections 147, 148, 323, 325 both read with Section 149, Indian Penal Code and Section 307 of Indian Penal Code, to which they did not plead guilty and claimed trial. 6. In order to prove the charge, prosecution examined as many as 22 witnesses. Statements of the accused under Section 313, Criminal Procedure Code, 1973, were also recorded in which they took a defence that it was the complainant party who assaulted them at the Railway Station as a result of which they sustained injuries and the instant complaint was filed only as a counter-blast to a private complaint filed by them. 7. Court below has acquitted the accused, hence the instant appeal. 4 8. From the statements of Dr. Rajnish Pathania (PW- 16), Dr.R.C.Thakur (PW-15), Dr. L.R.Verma (PW-17), Dr. Suman Gupta (PW-20), Dr. Vinod Mehta (PW-21) and medical record produced on record (Ext.PW-16/A to Ext.PW16/D; Ext.PW-15/A; Ext.PW-17/A to Ext.17/C; Ext.20/A to Ext.PW- 20/F; Ext.PW-21/A-1 to Ext.PW-21/A-3, Ext.PW-21/B, Ext.PW21/C-1 to Ext.PW-21/C-4 and Ext.PW-21/D), it cannot be disputed that Ajit Singh (PW-2), Jai Singh (PW-6), Sanjeev Kumar (PW-4), Balwant Singh (PW-1) and Amar Nath (PW-19) received injuries on their body, which were simple and grievous. However, this fact alone would not be sufficient to establish complicity of the accused to the charged offence. 9. Prosecution case primarily rests upon the testimonies of the injured, namely, Balwant Rohal (PW-1), Ajit Singh (PW-2), Anil Kumar (PW-5) and Jai Singh (PW-6). Also according to the prosecution, incident in question was witnessed by the family members/ close associates of the complainant party, namely, Kumari Anupama (PW-7), Inder Singh (PW-12), Narain Dass (PW-14) and Jagdish (PW-18) and two other independent and unrelated witnesses present at the spot i.e. Sh. R.N.Thakur (PW-3) and Om Parkash (PW-8). 10. That some fight took place at Railway Station, Shoghi, between the two groups cannot be disputed. The fact that both the complainants and the accused have registered cross cases against each other is also not disputed. Police officials have admitted that even some of the accused persons 5 sustained injuries in relation to the very same incident. Even they were got medically examined and challan with respect to the case registered against the complainant party was also filed in which members of the complainant party are the accused persons. 11. According to PW-3 and PW-8, government employees, who undoubtedly are not associated with either of the parties in any manner have simply stated that fight took place between two groups near the Railway Station. PW-3 is the Station Master posted at Railway Station, Shoghi. He saw 15-20 men fighting with each other. Both were pelting stones on each other. He asked PW-8 to intervene, who however, refused apprehending danger to his life. Accordingly he informed G.R.P., Railway Station on control telephone and within one hour police reached the spot when none was present at the spot. This version is duly corroborated by PW-8, who further added that one of the parties was already present at the Railway Station from before. 12. The genesis of the dispute appears to be a fight which took place in Village Gorho in the morning of 11.12.1995. 13. According to PW-7, on 11.12.1995 at about 8 a.m. accused Sanjay, Jagdeep Kumar and Sudhir Kumar came to their house at Village Gorho and started giving beatings to her mother. Accused Chandermohan and Manmohan came later and started throwing the utensils and other articles from their house. Accused Manmohan even asked the other accused to 6 set their house on fire. Smt.Shakuntla was also present with the accused at that time. When this witness raised hue and cry her brother Shri Inder Singh (PW-12) and his wife Smt. Sheela came to their rescue. When her younger sister Poonam informed her father about the incident, at Village Jalel, they were asked them to come to Shoghi. When they reached Shoghi they also saw the accused persons giving beatings to her father and other persons present at the spot. To support the version of PW-7, prosecution has examined Smt. Jamna Devi (PW-13), and Shri Inder Singh (PW-12). Close scrutiny of testimonies of all these witnesses would reveal that they have not only made several improvements but have contradicted the prosecution version. Their testimonies also do not inspire confidence. 14. To begin with, prosecution has not placed on record any complaint in relation to the fight which took place in Village Gorho. Mohan Singh and Poonam have not been examined in Court. According to PW-7 she sustained injuries. However, she was not got medically examined nor did she produce any medical record to this effect. She has made improvements from her prior statement recorded under Section 161, Cr. P.C. with which she was confronted. Her statement is replete with such improvements and contradictions. PW-12 admits that his statement was recorded by the police only on 19.6.1996. The delay is not explained. He admits that Smt. Bimla and Smt. Jamna Devi also sustained injuries. Now Bimla has not been 7 examined in Court. There is nothing on record to show that Jamna Devi received any injury. Significantly PW-13 admits that she did not report the matter to the police but clarifies later that the same was done on the third day of the incident. She feigned ignorance about the fact that accused sustained injuries as a result of beatings given by members of the complainant party, one of whom is her real brother i.e. Ajit Singh. Both brother and sister would have not had conversation with each other is unbelievable. 15. Hence the genesis of the dispute cannot be said to have been proved by the prosecution case. 16. Coming to the statements of victims i.e. PW-1, PW- 2, PW-3, PW-5 and PW-6, we feel that in Court they have made several improvements, there are exaggerations and their testimonies do not inspire confidence. 17. Strangely enough in Court, some of them dispute pendency of any criminal case against them also arising from the very same incident. They have also denied that some of the accused persons also suffered injuries, which version of theirs stands controverted by police officials. 18. In the complaint (Ext.PW-1/A) there is no reference of the accused persons attacking them with sharp edged weapons, whereas in Court they have made statements to the effect that they sustained injuries as a result of blows given by the accused persons with rods, axe and Khukhari. These weapons have also not been recovered by the police during 8 investigation or produced in the Court. These witnesses admit that house of accused Sanjay Kumar is near the Railway Station, Shoghi whereas they reside in Village Jalel. They have not explained under what circumstances they had assembled at Railway Station, Shoghi, which undisputedly is away from the places of their residence. PW-2 has tried to explain his presence at the spot by stating that he was waiting for his children, which in fact is not the case made out in the complaint (Ext.PW-1/A). Children have also not been examined to prove this fact. Assuming that PW-2 was waiting for his children at the spot, then what is the justification for presence of the other members of the complainant party at the spot remains unexplained. Significantly PW-1 admits that none had come to rescue them at the time when they were assaulted by the accused persons. If that were so then obviously statements of Shri Narain Dass (PW-14) and Shri Jagdish (PW-18) to the effect that they witnessed the incident and also intervened stands contradicted. Significantly complainant party has not placed on record anything to show that there was prior animosity between the complainant and the accused party. There is also nothing on record to show that there was any dispute, litigation or settlement arrived at between them either before the Panchayat or the Bradari. There is also nothing to show that the alleged incident which took place in the morning at 8 a.m. in Village Gorho, was reported to the police. According to PW-4 there are shops and houses near and around 9 Railway Station, Shoghi. He admits that he never called anyone to help them. Surprisingly none from the neighbourhood was associated by the police during investigation. The alleged incident took place in broad day light about 10-10.30 a.m. Why none was associated has not been explained on record. PW-5 has made exaggerates to the extent that the accused persons had come fully prepared to assault the complainant party and they were also wearing helmets, which is not the case of the prosecution. 19. PW-14 and PW-18 are the alleged independent witnesses, who allegedly witnessed occurrence of the incident. Both are related to the complainant party. Their testimonies, to large extent, do not inspire confidence. PW-14 has gone to the extent of even saying that accused were under influence of liquor which is not the prosecution case. They are not residents of the place where incident took place and had no occasion to be present at the spot. Further PW-14 admits that his statement was recorded after a period of six months of the incident and according to PW-18 his statement was recorded after a period of 1½ years from the date of the incident. In fact according to PW-18 only two persons came to Railway Station, Shoghi, who assaulted Ajit Singh and his brother. Now, this totally shatters the prosecution case against the other accused person. 20. From the record, it could not be proved beyond reasonable doubt, that the accused were in fact the assailants. 10 The genesis of the dispute as alleged by the prosecution has also not been proved on record. From the material on record, it is proved that both the parties were present at the spot but who were the assailants is not proved. Also in the instant case, we find that the prosecution has failed to explain the injuries sustained by the accused persons. 21. The accused have had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down in Mohammed Ankoos and others vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the accused persons has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. (Deepak Gupta) Judge. September 16, 2011 (Sanjay Karol) (C) Judge.