IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No.66 of 2006. Judgment reserved on: 21st May, 2010. Date of Decision: 19th June, 2010. _______________________________________________________ Jagatu and others ..Petitioners. Versus State of Himachal Pradesh ..Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the petitioners: Mr. Rameshwar Sharma, Advocate. For the respondent : Mr. Anshul Bansal, Additional Advocate General and Mr. J.S. Rana, Assistant Advocate General. ____________________________________________________ SURINDER SINGH, J. The instant criminal revision has been directed against the judgment of the learned Additional Sessions Judge passed in Criminal Appeal No.6 of 2005/2003 dated 1st June, 2006 whereby he affirmed the judgment of conviction and sentence passed by the Sub Divisional Judicial Magistrate, Dalhousie in Criminal Case No.42-II of 1995 dated 16th September, 2003. 2. In short, the petitioners were put on trial on the allegations that on 24th July, 1994 at about 10.00 a.m. Whether reporters of the Local papers are allowed to see the judgment? - 2 - PW6 complainant Smt. Shiv Dei had gone at the back of her house in village Nichali Khairi to throw the garbage. At that time petitioners were working in their field adjacent to the aforesaid house of the complainant. They questioned the complainant for throwing the garbage in their land and started abusing her. Thereafter petitioner Dharma is alleged to have dealt a blow with stick, which hit the chin of the complainant, petitioner Kali pelted stones. When the complainant tried to run away from the spot she was caught by petitioner Hanso. He allegedly gave a blow on her right hand, with a sickle which caused the bleeding injuries. She raised hue and cry. Her son PW3 Kaka Ram came to the spot. On seeing him, petitioners fled away. Next day report was lodged in the Police Station. On 26th of July, 1994, she was got medically examined. PW1 Dr. Jaswant Singh noticed the following injuries on her person:- 1. Cut wound on palm of right hand below thumb of size about 2.5 inch long, but the depth could not be assessed. 2. A cut mark about 1.5 inches long on chin lying horizontally (depth approximately 1 cm). 3. Abrasion on chest anterior side just in stern in 2” x 1” area. - 3 - 3. For injury No.1 she was advised X-ray, which revealed small fracture of head of metacarpal bone below the thumb of right hand, which was opined to be grievous and other injuries as simple. Medico Legal Certificate is Ext.PW-1/A and the report of the X-ray is Ext.PW-1/B. In the opinion of the Doctor injury No.1 could be caused with a sickle. After collecting the report of the doctor, formal FIR Ext.PW-8/A was registered on 30th July, 994. Police also took into possession stick and the sickle and after completing the investigation, challan was presented in the Court for the trial of the petitioners. 4. Petitioners were put on trial and at the end of the trial, they stood convicted and their appeal was dismissed as aforesaid. 5. Shri Rameshwar Sharma, learned Counsel for the petitioners vehemently argued that the Courts below have mis-appreciated and misinterpreted the evidence, which has caused miscarriage of justice. He further ventilated that legality and propriety and correctness of the impugned judgments passed by the learned Courts below is required to be determined by this Court while exercising powers in revision. He also submitted that the complainant has materially deviated from her case initially set against the - 4 - petitioners and further that the complainant and her family members were already locked in litigation with the petitioners, thus they gave a tainted version. The medical evidence is not connected with the injuries in question, the independent witnesses though available were not examined to lend strength to the prosecution case and the statements of the prosecution witnesses are not confidence inspiring. 6. Contra, Shri J.S. Rana, learned Assistant Advocate General forcefully argued that there are concurrent findings of facts against the petitioners and the Courts below have meticulously examined the evidence on record and returned the findings of guilt against the petitioners, which are based upon proper appreciation of evidence, thus cannot be interfered with. 7. I have given my thoughtful consideration to the rival contentions of the parties and have carefully examined the record. 8. It is a settled practice that ordinarily this Court will not interfere with the concurrent findings of fact while exercising the powers of revision. It is also equally settled that the revisional powers of the High Court are not restricted to question of law. If the Court comes to the conclusion that there is mis-appreciation - 5 - or wrong interpretation of evidence on record which has caused prejudice to the accused and the conscious of the Court is satisfied that the conviction is not sustainable, the High Court in exercise of the revisional jurisdiction can certainly interfere and upset even the concurrent findings of fact, to do the complete justice to the parties. 9. It is an admitted case of parties that they were already locked in litigation prior to the alleged incident. Therefore, the statements of prosecution witnesses have to be examined with due care and caution. 10. On 25th July, 1994, Smt. Shiv Dei wife of Gian Chand (PW1) lodged report Ext.APW-5/A in Police Station, Khairi wherein she specifically stated that in order to throw garbage she had gone out at the backside of her house. The field of petitioner Jagatu was located at a distance of 10 feet. Her act of throwing the garbage was objected to by the petitioners who were working in the field, but when examined in the Court she has materially deviated from the main pivotal of the case. As PW6 Shiv Dei as well as her daughter-in-law PW7 Aaja wife of PW3 Kaka Ram stated that PW6 aforesaid was throwing garbage out of the window of her house, which means that she did not come out of the house as - 6 - initially alleged in the report. She also stated that this fact was noted down by the police in her statement, but when confronted with the same it did not find mentioned therein. Initially, the said incident is alleged to have taken place outside, but there is no evidence worth the name that the complainant had come out of her house she was given beatings. Further, PW-7 stated that there are about 10/15 houses, but strangely nobody came outside and to witness the incident. 11. The another fact that incident is alleged to have taken place on the common passage is contradicted by the site plan Ext.PW-9/A. It did not reflect this position. Rather the place of incident has been shown to be in the field of Jagtu. 12. Admittedly, PW3 Kaka Ram at the time of the alleged incident was not in his house. His wife PW7 Aaja Devi stated that he had gone to the Jungle with the herd of sheep. According to Kaka Ram, when he returned to his house, he heard his mother weeping, he came running to her. He saw bleeding injury on her hand and suddenly twisted his version and stated that when he came to his mother, on seeing him petitioners ran away. 13. PW4 Lathru Ram and PW2 Babu Ram both are the recovery witnesses of the weapon of the - 7 - offences. They have not supported the prosecution case, as such they were declared hostile. 14. The statement of Doctor is also not worth inspiring confidence in so far as duration of sustaining the injuries to the complainant is concerned. Report was lodged with the police on 25th July, 1994 with respect to an incident which took place a day earlier. PW1 Dr. Jaswant Singh examined the complainant on 26th July, 1994. Although he stated about the injuries mentioned in the Medico Legal Certificate, but did not say anything about its duration. The perusal of Medico Legal Certificate shows overwriting and tampering with respect to time of injuries which appears to have been tampered with. It reads 24 hours to more than 48 hours. Even at the time of issuing the said certificate the doctor was also not sure whether injury No.1 could be caused with a sickle, but subsequent to the issuance of the said certificate he simply mentioned that the injury was sharp. OPD slip of PW6 was issued on 26th July, 1994. She was advised X-ray of the injury of right hand, which was done and according to him, X-ray report is Ext.PW-1/B, which shows a small fracture head of metacarpal bone below thumb of the right hand. But this X-ray report is not connected with the injury in question. This report is with respect to M.L.C. No.103/94 dated 30.7.1994. The date - 8 - “26.7.1994” has been struck off and next to it 30.7.1994 has been written. Medico Legal Certificate [Ext.PW-1/A) in question is bearing No.8/94 and not “103/94”. It is dated 26.7.1994 and not 30.7.1994. Further there is nothing on record to show that X-ray report pertains to complainant PW6 Shiv Dei. The marks of identification given on the X-ray Ext.PW-1/B is a black hole on the left cheek and a healed scar mark about 1 cm x 1 cm in size lying horizontally approximately two inches below right knee, whereas in the Medico Legal Certificate Ext.PW- 1/A there is only one identification mark on the left cheek. The injured was also not got identified from him during the trial. The said doctor also did not say that the X-ray of the complainant was got done in his presence. 15. Further, an O.P.D. slip Ext.PW-1/D on record with respect to the treatment of Shiv Dei. There is also a reference for X-ray of the right hand, but opinion recorded therein is undated. There is also nothing on record to show that after 26th July, 1994 Shiv Sei had gone again to the hospital for her X-ray on 30th July, 1994. Report with respect to fracture of metacarpal bone recorded by someone is also undated. So is in Medico Legal Certificate Ext.PW-1/A. 16. Thus, against the aforesaid factual background, in my opinion, the Courts below have - 9 - misinterpreted and mis-appreciated the evidence on record, which has caused a material prejudice to the petitioners. Thus, on examining its legality, propriety and correctness, I find the judgment of conviction and sentence passed by the learned trial Court and affirmed by the learned Additional Sessions Judge for the reasons aforesaid, is unsustainable, as such the judgment of the learned Additional Sessions Judge affirming the conviction and sentence passed by the learned trial Court vide its judgment is hereby set aside. Consequently, the petitioners are acquitted and the revision petition is allowed. 17. The petitioners are discharged of their bail bonds entered upon by them at any stage during the proceedings of this case. 18. Send down the record forthwith. June 19, 2010. (Surinder Singh), J. (rc)