IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal Nos. 389 of 2007 Alongwith Cr.A. No.436 of 2007. Judgment reserved on: 13.3.2008. Date of decision: 11.4.2008. 1.Anil Kumar and others (in Cr.A. No.389 of 2007) 2.Bharat Bhushan ( in Cr.A. No.436 of 2007) ..Appellants Versus State of H.P. .. ..Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting ? No For the Appellants: M/s.Satyan Vaidya, Ajay Kochhar, & Bimal Gupta, Advocates For the respondent: Mr.Rajesh Mandhotra, Dy.A.G. _____________________________________________________ Deepak Gupta, J. By this judgment the aforesaid two appeals are being disposed of as they arise out of a common judgment passed by the learned Additional Sessions Judge, Fast Track Court, Shimla dated 31.10.2007 in Sessions trial No.5-S/7 of 2005/2004. The appellants have all been held guilty for commission of the offences punishable under Sections 148, 326 read with Section 149, 324 read with Section 149 and 323 read with Section 149 IPC and have been sentenced as follows: “Under Section 148 IPC Rigorous imprisonment for a period of one year each and fine of Rs.1,000/- each. For want of payment of fine, to undergo …2… rigorous imprisonment for a period of three months more. Under Sections 326/149 IPC Rigorous imprisonment for a period of 7 years each and fine of Rs.10,000/- each. In case of default in payment of fine, the convict(s) will further undergo rigorous imprisonment for a period of two years. Under Sections 324/149 IPC Rigorous imprisonment for a period of one year each and fine of Rs.1,000/- each. In case of failure to deposit the fine money, to undergo rigorous imprisonment for a period of three months more. Under Sections 323/149 IPC -do- All the sentences have been directed to run concurrently. Aggrieved against the aforesaid convictions and sentences, all the convicted persons have filed the above two appeals. The prosecution case, in brief, is that complainant Ashok Kumar resides with his family in Lalpani. His elder brother Raj Kumar lives in Krishna Nagar. On 22.12.2002 the complainant’s daughter Tabbu had gone to the house of her Uncle Raj Kumar. In the evening at about 9- 9.15 p.m. Ashok Kumar alongwith his wife Babli went to Raj Kumar’s house to bring back their daughter. When they reached Krishna Nagar ‘Chowk’, …3… Ashok Kumar asked his wife to bring back the daughter from his brother’s house. She entered the alley to go to the house of Raj Kumar to bring back her daughter. Complainant Ashok Kumar stood at the ‘chowk’ itself. Accused Kaku @ Bharat Bhushan, Anu @ Anil Kumar, Vinod Kumar @ Sunil Kumar @ Taddu, Anil Bhatia and Ashok Kumar were standing there. They were talking amongst themselves about getting some alcohol. Kaku @ Bharat Bhushan was armed with a sword, Anu @ Anil Kumar was armed with a Khukhri and Vinod and Ashok had hockey sticks in their hands. When the complainant Ashok Kumar went near the accused persons then Kaku @ Bharat Bhushan accosted him and demanded to know why he had come to their ‘Mohalla’. Anu abused him and told the others to catch-hold of the complainant and asked how he has dared to come to their Mohalla. The accused were all drunk. The complainant tried to run away but in the meantime the accused attacked him and Anu tried to kill the complainant and gave him a blow of the Khukhri on his head. The complainant fell down and the accused kept beating him. The accused yelled and screamed and in the meantime his wife alongwith their daughter reached the spot. His brother also reached the spot and tried to save him from the accused and in the meantime Kaku @ Bharat Bhushan gave a blow with the sword on the person of Raj Kumar which hit him on his right ankle. All the accused beat up his brother. When his wife intervened then Vinod Kumar @ Tadu gave a kick blow …4… towards his wife which hit his daughter. In the meantime, other people collected and the accused ran away. Thereafter, Bitu, Ashok sons of Amarnath etc. brought him to IGMC and Hospital,Shimla where the police came. The injured were got medically examined and statement of the complainant under section 154 Cr.P.C., Ext.PW-6/A was recorded and on the basis of this FIR Ext.PW-7/A was lodged at 2.15 a.m. on 23.12.2002. Investigation was conducted in the case and at about 11.45 p.m. HHC Kishan Chand, Incharge of Police Picket in IGMC, Shimla gave a telephonic information to the Police Station Sadar that two boys have been brought to the hospital in an injured condition. Daily diary Ext.PW-9/A was recorded in the Police Station at 11.45 p.m. to this effect and thereafter Head Constable Kanwar Singh from Police Post Lakkar Bazaar alongwith police went to the Hospital where the statement of complainant under Section 154 Cr.P.C. was recorded. During the investigation the injured were medically examined and medico legal certificates have obtained. Clothes of the inured were taken into possession and sealed. It was alleged that the accused made disclosure statement and got the weapons of offence recovered. The clothes as well as weapons were sent for analysis to the Forensic Science Laboratory. Human blood was found on the clothes and the Khukhri. Statements of the various witnesses were recorded and finally challan was presented. Since the offences were …5… triable by the Court of Sessions the case was committed for trial and the accused were summoned. The accused appeared before the Court and were charged for having committed the aforesaid offences. They pleaded not guilty and claimed trial. Thereafter, the prosecution examined 17 witnesses in support of their case. The trial Court convicted the accused as aforesaid. Now I proceed to deal with the evidence recorded before the trial Court. PW-13 Ashok Kumar is the complainant. He has repeated what has been stated in his statement under Section 154 Cr.P.C. till the point exchange of words took place. In Court he states that when he was about to go to the house of Raj Kumar the accused inquired from him what he was doing there. He was suddenly hit by accused Anu with a Khukhri and suffered injuries on his head. He further states that on hearing the noise his wife reached the spot and was given a kick blow by one of the accused which hit his daughter. He does not name the assailant. Thereafter, his brother Raj Kumar was also came there and accused Bharat Bhushan gave a sword blow on the ankle of Raj Kumar. The other accused who were armed with hockeys and sticks gave blows of the same. One hockey was broken and thrown on the house of Joginder. He has proved his statement Ext.PW-6/A. In cross examination the case put up to this witness as well as the others is that hot exchange of words took place between Raj Kumar brother of the …6… complainant and the accused. It has also been suggested that Aarti wife of Raj Kumar was also shouting at the accused. According to the case put up by the defence during this altercation Raj Kumar got pushed because of which he fell down and the complainant tried to catch hold of his brothers In this process both of them fell below the danga. Another suggestion put to this witness and other witnesses by the defence is that an iron sheet hit the head of the complainant and Raj Kumar’s leg got fractured because the complainant fell on it. Therefore, it is obvious that the defence has admitted the presence of the accused at the spot. They have also admitted that some altercation did take place between the two sides. It has been suggested that the case has been lodged due to enmity between the father of the complainant with the accused. PW-12 Babli is the wife of Ashok Kumar. She states that Anu who was armed with a Khukhri gave a blow with it on the head of her husband. According to her accused Daddu (The witness pointed towards Sunil Kumar) gave blow on the ankle of Raj Kumar. She was declared hostile. She was cross examined and in cross examination by the prosecution stated that though accused Bharat Bhushan was present he was not armed with a sword but according to her he was carrying a hockey. She denied that Bharat Bhushan gave a blow of the sword on the ankle of Raj Kumar. She also states that she tried to intervene and accused Sunil Kumar tried to kick …7… her but the kick hit her daughter. She has also denied the suggestion that Raj Kumar had fallen down and her husband was trying to save Raj Kumar and in this process both of them got injured. PW-14 Raj Kumar states that on hearing a noise he went to the spot. All the accused were beating Ashok Kumar. Anu was armed with a Khukhri and gave a blow of it on the head of Ashok Kumar and accused Bharat Bhushan gave blow with the sword on his left ankle and other accused beat him with hockeys. In cross examination, suggestions have been put to him that he and his wife are dealing in narcotics and liquor and since Prem Parkash objected to it he and Prem Parkash had a fight and that he kicked Prem Parkash and when the sons of Prem Parkash tried to catch hold of his legs he fell down. He has also denied the suggestion that in this melee he fell on the railing and his brother fell on top on him. He has admitted that there are disputes between his father and Prem Parkash. PW-11 Sohan Lal is the father of the injured. According to him on 22.12.2002 at about 9.30 p.m. he was in the house of his elder son Raj Kumar. Babli wife of Ashok Kumar came to the house of Raj Kumar to collect her daughter whereas his younger son Ashok Kumar stood on the road. When he heard a noise he went to the spot. He wanted to avoid the fight. Accused Anu who was armed with Khukhri gave a blow with it on the head of Ashok Kumar. The other accused were carrying hockeys and iron …8… bars which were flat. None of the other witness has talked about iron bars. He further states that one of the accused kicked Babli due to which her daughter fell down. Raj Kumar and his wife Aarti came to the spot and Bharat Bhushan gave a blow with the Khukhri on the ankle of Raj Kumar. This witness was declared hostile and cross examined by the prosecution. He in cross examination clearly stated that Bharat Bhushan was not armed with a sword. According to him, ankle of Raj Kumar was not cut because of the sword blow by the accused Bharat Bhushan. This witness states that when fight took place none of the neighbours had reached. PW-1 Dr.Rakesh Kumar states that HHC Duni Chand moved an application Ext.PW-1/A for examination of the injured persons Ashok Kumar and Raj Kumar. He found five injuries on the person of Ashok Kumar all of which were simple in nature. According to him, injury No.1 which was a cut lacerated wound on the scalp and injury No.2 which was a cut lacerated would on the left side of the forehead were caused by a sharp weapon whereas the other injuries were caused by a blunt weapon. He also examined Raj Kumar and found one cut lacerated wound on the ankle region of the left leg. On X-Ray fracture was discovered and this injury was declared to be grievous. He also produced MLC Ext.PW-1/C in respect of Raj Kumar. It would be pertinent to mention here itself that in both the MLCs Ext.PW-1/A & Ext.PW-1/C the date and time of examination is shown as 11 p.m. …9… PW-2 Rajinder Kumar was a witness to the alleged disclosure statement made by the accused Anil Kumar. He has resiled from his statement and according to him no investigation was done in his presence but he has signed the documents Exts.PW-2/A to PW-2/J. He admits that he is educated and signed the discovery memos and disclosure statements after reading them but he has denied the recovery of the various items. PW-3 Ashok Bali states that at about 9.30 p.m. on 22.12.2002 he heard a noise and found that Ashok Kumar and Raj Kumar were lying in an injured state and took them to the Hospital alongwith Gagan and Bitu. According to him the injured persons told him that they had been beaten but did not disclose the name of assailants. He denied having made any statement to the police. He was declared hostile but was not confronted with any previous statement. PW-4 is also a witness of recovery of certain clothes belonging to the injured. PW-5 is alleged to be a witness to the disclosure statement of Bharat Bhushan accused and also to the recovery of the sword. He did not support the prosecution and turned hostile. According to him the police had procured his signatures on the memo Ext.PW- 5/A. PW-6 Kanwar Singh has recorded the statement of the complainant Ashok Kumar at about 1 a.m. …10… PW-7 Jagdish Ram recorded the FIR Ext.PW-7/A on the basis of the statement. According to him he received the ruqua Ext.PW-6/A at about 2.15 a.m. on 23.12.2002. PWs 8, 9 and 10 are formal in nature. PW-15 is Dr.M.M.Verma. His statement is also not very relevant for this case. PW-16 Joginder Singh did not support the prosecution at all. He denied that any incident took place in his presence. He was cross examined by the State and denied having made any statement to the police. PW-17 is the investigating Officer. After recording the prosecution evidence the statements of the accused were recorded under Section 313 Cr.P.C. The accused led defence evidence. According to DW-1 Sonu a fight took place between Prem Parkash and Raj Kumar and in this process Raj Kumar fell into the Gali and while trying to save him his brother Ashok Kumar fell on top of him. According to him none of the persons were armed with sword etc. His statement does not inspire confidence at all. According to Bitu DW-4 he had accompanied the injured to the hospital and at the place of occurrence the people present were saying that these two persons had fallen down. His statement is purely hearsay and cannot be believed. …11… DW-2 and DW-5 are two shopkeepers according to whom some persons had purchased Khukhri and hockey from them on Ist January, 2003. On behalf of the appellants it has been urged that the investigation was not fair and this is apparent from the fact that whereas in the MLCs the date and time of examination is given as 11 p.m., the statement of the police officials is that information regarding the admission of the injured in the Hospital was received at 11.45 p.m. and thereafter the application Ext.PW-1/A for examination of the injured was moved. It is also urged that according to the Investigating Officer PW-17 he reached IGMC Shimla at 12 midnight but the FIR was lodged only at 1.30 a.m. and this gave the complainant party sufficient time to consult each other and build up a false case. It has also alleged that the Doctor PW-1 has not opined that the injuries on the injured Ashok Kumar were caused with a Khukhri. No doubt there is some discrepancy in the timings, but this discrepancy does not totally shatter the prosecution case. In view of these discrepancies the statements of the prosecution witnesses have to be read with greater care and caution. Even otherwise I am clearly of the opinion that in this case the statements of the prosecution witnesses must be scrutinized with a great deal of care keeping in view the fact that admittedly there is some enmity between the two sides and all the eye-witnesses are closely related. However, …12… as observed above the statements of such eye-witnesses cannot be discarded solely on the ground that they are interested witnesses. The chaff has to be separated from the grain. Even if there are embellishments or exaggerations in some portion of the statements the entire statements cannot be discarded unless the Court feels that the statements as a whole are totally false. No doubt the law is now well settled that conviction can be recorded on the basis of the statements of the injured persons alone. However, in the present case according to the injured persons themselves a large number of persons had collected at the spot. Only one independent witness was sought to be examined and he examined has turned hostile. There is also admittedly enmity between the two sides but the plea of enmity is itself a double edged weapon. The case of the defence itself is that some altercation did take place though according to the defence the genesis of the altercation was that Prem Parkash father of some of the accused objected to Raj Kumar selling alcohol and narcotics to minor persons. It is, therefore, clear that a fight did take place and the injured did sustained injuries. A few things which clearly come out from the perusal of the evidence and the statements of the parties is that there are major contradictions in respect of the accused Bharat Bhushan. According to PW- 12 Babli, though Bharat Bhushan was present, he was not …13… armed with a sword. According to her he was carrying a hockey. In respect of Bharat Bhushan, PW-11 father of the injured brothers states that Kaku @ Bharat Bhushan gave blow with Khukhri on the ankle of Raj Kumar. He has specifically denied that Bharat Bhushan was armed with a sword. On the other hand PW-13 Ashok Kumar and PW-14 Raj Kumar, the injured persons states that accused Bharat Bhushan gave blow with the sword on the left ankle of Raj Kumar. There are therefore three versions in respect of accused Bharat Bhushan. According to Sohan Lal he was armed with a Khukhri. According to Babli he was armed with a hockey and according to the two injured persons he was armed with a sword. The statements are so contradictory that no reliance can be placed on the same as far as Bharat Bhushan is concerned. On a perusal of the entire evidence I have no manner of doubt that an altercation did take place between the two sides. In fact this has not been disputed by the accused. The case set up by the accused is that a fight did take place and that Raj Kumar attacked Sh.Prem Parkash father of two of the accused. It has also been suggested to Raj Kumar that when he kicked Prem Parkash, the son of Prem Parkash tried to catch hold of his legs. Therefore, the presence of sons of Prem Parkash is admitted. The defence set up that both the injured fell down and thus sustained injuries is not plausible and cannot be accepted. …14… The learned trial Court has not even discussed the basic ingredients of the Sections before convicting the accused. The accused have been convicted by taking aid of the provisions of Section 149. To come to this conclusion the trial Court should have first held that there was an unlawful assembly and with the common object of that assembly the offences were committed. There is not an iota of evidence to show that there was an unlawful assembly. Even as per the prosecution version the accused were only standing on the spot when an altercation took place. The accused had not come armed to attack the injured because they would not have known what time Ashok Kumar is going to come to their Mohalla. There is also no evidence on record that there was an unlawful assembly or there was a meeting of minds and there was a common object of the assembly to cause grievous hurt to the accused. I also fail to understand how the accused have been held guilty of committing an offence punishable under Section 148 IPC. There is no discussion by the learned trial Court in respect of this offence. The essential ingredients to hold a person guilty under Section 148 are that the accused person must be a member of an unlawful assembly; he must have used force or violence in prosecution of a common object; he must be armed with a deadly weapon or with anything which when …15… used as a weapon of offence is likely to cause death. It is well settled law if one member of unlawful assembly is armed with such a weapon the other members cannot be charged with this section. It is only the person actually so armed with the deadly weapon who can be charged with this offence. As far as Bharat Bhushan is concerned, as already noted by me above, there is dispute as to what he was carrying. A hockey stick or a lathi is not itself a deadly weapon unless used on the vital part of the body. The possession of weapons like rods, hockey, and sticks does not intrinsically make them deadly weapons. Therefore, the accused except Anu could not have been held guilty of offence under Section 148 IPC. Further there is no evidence on record that there was an unlawful assembly or that there was a common object of this assembly. However, even if it is ruled out that there was an unlawful assembly or any common object of the assembly, the person individually guilty of the offence(s) can be held guilty. Though the injured and the eye-witnesses have contradicted each other on various other aspects, on one aspect they are ad idem and that is that accused Anu who was armed with a Khukhri gave a blow on the head of the accused Ashok Kumar. Though this is a simple injury which has been caused with a dangerous weapon, a Khukhri is an instrument meant for stabbing or cutting and is definitely a deadly weapon and therefore I find that …16… accused Anu @ Anil Kumar is guilty of having committed an offence under Section 324 IPC. As far as the grievous injury on Raj Kumar is concerned this is ascribed to Bharat Bhushan. As discussed above, there are material contradictions with regard to the weapon allegedly used by Bharat Bhushan. These contradictions create a doubt in respect to the involvement of Bharat Bhushan. Therefore, the accused Bharat Bhushan cannot be held guilty under Section 326 IPC. With regard to Section 323 IPC there are only general allegations against the other accused and it cannot be said as to which accused has caused which injury. Therefore, all of the accused are acquitted of having committed any offence under Section 323 IPC. The upshot of the above discussion is that the appeals filed by the accused Bharat Bhushan, Anil Bhatia, Ashok Kumar and Sunil Kumar are allowed and they are acquitted of all the offences they were charged with and convicted. As far as Anu @ Anil Kumar son of Prem Parkash is concerned he is found guilty of having committed an offence punishable under Section 324 IPC and the sentence imposed upon him of rigorous imprisonment for one year and fine of Rs.1000/- is upheld. He is however been acquitted of all other offences he was charged with. The accused except Anu @ Anil Kumar are directed to be released forthwith unless required in …17… some other case. The appeals are accordingly disposed of. April 11, 2008 ( Deepak Gupta ), PV Judge