IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 104 of 1995 Reserved on: 18.3.2009 Date of decision: 23.03.2009 State of H.P. ... Appellant Versus Ashwani Kumar … Respondent Coram : The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant: Mr. Rajesh Mandhotra, Deputy Advocate General. For the respondents: Mr. Sanjeev Sood vice Mr. K.D. Sood, Advocate. Per V.K. Ahuja , J.: This is an appeal filed by the State of H.P. under Section 378 Cr.P.C. against the judgment of the Court of Ld. Sessions Judge, Kangra at Dharamshala, dated 18.7.1994, vide which the respondent was acquitted of the charge framed against him under Section 307 I.P.C. The prosecution story in brief is that ASI Balraj Singh, P.P. Ranital, was present in connection with patrolling on Jwala Mukhi road and PW-4 Ashwani Kumar, complainant, met him while sitting in a taxi having injuries on his person. He recorded the 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 statement of said Ashwani Kumar under Section 154 Cr.P.C., in which he alleged that today at about 8/8.30P.M., he was present at his shop and had come with one Dr. Pawan Kumar on his scooter. When he was opening the shop, the respondent came there and asked him as to why he had given beatings to his cock. He told him that his cock had tried to hit his cousin brother and he threw a stone which had hit the cock. He also told the respondent to collect 2-4 persons and he will pay the money as settled. However, the respondent refused to call the persons and gave blows on his right hand, thumb and left forearm with a Drat in his hand and bleeding started. He further alleged that his right thumb was cut and Dr. Pawan and other persons came there and took him in a taxi to Kangra hospital, where the police officer met him and recorded his statement. This statement was sent to the police, on the basis of which a case was registered. After investigation, the challan was filed before the learned S.D.J.M., Dehra, who committed the case to the Court of learned Sessions Judge, who tried the respondent under Section 307 I.P.C., leading to his acquittal. We have heard the learned counsel for the parties and have gone through the record of the case. The submissions made by the earned Deputy Advocate Genera were that the statement of the complainant had been corroborated to some extent by the statements of PW-5 Hans Raj and PW-6 Dr. Pawan Kumar and, therefore, the findings recorded by the learned trial Court to the contrary are liable to be reversed since they can be termed as perverse. 3 On an appraisal of the evidence led by the prosecution, it is clear that the most material witness was the complainant himself, who has been examined as PW-4. He stated that he admitted having injured the cock and offered respondent the money of compensation, if he brings some noble persons of the village to assess the compensation. However, he stated that the respondent refused to call any person and stated that he would get Rs.200/- then and there from him. He took up the plea that the respondent went to his shop, picked up cock with one hand and in the other hand, he carried a Drat and threw the cock in his shop and demanded Rs.200/-. He further stated that thereafter the respondent hit him with Drat, which landed on his right arm and his arm was cut. He further stated that the respondent grappled with him and when he came to his senses, he found injury on his left arm and his right thumb was cut and his chest was also injured. A perusal of his statement shows that he had made material improvements in his statement in Court and he was also confronted with his statement recorded under Section 154 Cr.P.C. He stated that he told the police regarding grappling about which there was no mention in the statement under Section 154 Cr.P.C. Ext. PE. In his statement Ext. PE, he was very much emphatic that this injury had been caused by the respondent with a Drat and his right thumb was cut. Whereas, now he has come up with the statement that he does not know how he sustained injuries on the thumb and left arm. He stated that he had not become unconscious. Therefore, he should have been able to state that this injury was clearly inflicted by the respondent. He further stated that there was a grappling and 4 he does not know whether the respondent had sustained any injury during grappling and he cannot say how these injuries were caused on his thumb and left arm or if these were caused due to grappling. It is surprising that he came up with the statement that he did not state about the grappling to the police and he does not know as to how he sustained injuries on his thumb and left arm. He had come up with the plea that the injury on the chest was also caused with front edge of the Drat and he was confronted with his earlier statement, in which it was not so recorded. From the above discussion of the statement of the complainant, it is apparent that though he was clear about the injuries, when he lodged the report with the police as to how these were sustained. However, when he appeared in the Court, he shifted his stand and denied his knowledge specifically if these were sustained in grappling or how these were sustained, which may be for any reason including the reason that he may have compromised with the respondent. However, it is clear that his own statement was sufficient to demolish his own case and he had failed to specifically state that he had sustained the injuries as a result of Drat blow given by the respondent. He admitted that he had come at that time with PW-6 Dr. Pawan Kumar on his scooter, who as per him was present there at the spot. The said Pawan Kumar was examined as PW-6, who admitted that complainant took the lift from him. There was an altercation in between the complainant and the accused. But he stated that after altercation, the respondent returned to his house and complainant PW-4 Ashwani Kumar went to his shop and after sometime PW-4 Ashwani Kumar came to him in an injured 5 condition. This clearly shows that he stated that he had not seen the manner in which the injuries were caused on the person of the complainant or that these were suffered at the time of grappling in between the respondent and him. He clearly stated that he does not know who attacked first, meaning thereby that he admits that the complainant may have also attacked the respondent at that time since as per the evidence, the respondent had also suffered injuries. PW-4 complainant Ashwani Kumar has stated in the cross-examination that when he came to senses he found Hans Raj, Dr. Pawan, Santosh Kumar and Som Dutt present at the spot, though he has not stated that all these persons had seen the occurrence also. Out of these persons apart from PW-6 Dr. Pawan Kumar, PW-5 Hans Raj has also been examined, who stated that the respondent asked the complainant as to why he had injured his cock and a quarrel started in between the accused and the complainant. When he was coming back after closing his shop, he saw blood stains on the earth and saw the injuries on the person of PW-4 Ashwani Kumar, which were bleeding. He did not see the respondent at the spot and when he went to the hospital, he learnt from PW-4 that the injuries were caused to him by the respondent. A perusal of the statement of PW-1 Dr. S. Kumbhkarni, who had examined the complainant/injured, shows that he had found three injuries on the person of the complainant. According to him, Injuries No. 1 & 2 could be caused by Drat Ext. P-1 and Injury No. 3 on the thumb could be caused by any heavy blunt weapon like Drat, if used from blunt side. He stated that in-advertently he had not mentioned the duration of the 6 injuries, which were material, though he has now stated that these injuries were fresh. He stated that two injuries on right forearm and left forearm were simple in nature, but he came up with the statement that these were dangerous to life. How these were dangerous to life does not stand established since these injuries were simple in nature and had not been caused on any vital part and, therefore, his statement does not establish that these injuries were serious or dangerous to life. Therefore, the statement of the Medical Officer is not of much help to the prosecution to establish that the nature of the injury was serious or it was grievous injury. Apart from the above, the learned trial Court had also observed that the accused had also examined DW-1 Dr. S. Kaul, who found two injuries on the person of the respondent, which were present on the outer surface of right arm as well as on the right chest, which injuries were simple in nature. The kind of weapon used was blunt and these were possible with cricket bat. He further admitted that these can be possibly caused in a scuffle. In his statement under Section 313 Cr.P.C., the accused had taken a specific plea that the complainant had aimed a bat on his head. To ward off that attack, he gave a swing to the Draft. He had given a second blow with Drat, which he was having and still he suffered injury on his arm. He further stated that the complainant gave second blow, which he warded off with a Draft and the said blow had hit him. He further stated that the complainant fell on the ground with great force. The version given by the complainant as PW-4 is that this injury was inflicted on his person near his shop and he admitted that there is Arjan tree about 3 Mtrs. from his shop, but 7 denied that he suffered injury near that tree. But PW-5 Hans Raj is specific that the occurrence took place near the Arjan tree at a distance of 2-3 meters away from the shop of PW Ashwani. He stated that the altercation started in the shop of PW Ashwani and they came up near Arjan tree. There were no specific suggestion put to PW-5 Hans Raj and PW-6 Dr. Pawan Kumar in regard to the injury with the cricket bat having been inflicted by the complainant and rather rightly so since they had not admitted having seen the occurrence themselves. However, he denied his knowledge if the accused was medically examined and injuries were found on his person and he denied that story about the grappling was introduced subsequently after seeing injuries on the person of the accused. This clearly shows that in a way this plea was taken that the accused had tried to ward off the blow and he was holding a Drat. He denied the suggestion that both of them had fallen down. However, the evidence led does not rule out the possibility that these injuries were caused by the respondent while exercising his right of private defence. The complainant in his statement had admitted the dispute with the respondent and admitted that he had constructed a shop over the Government land and the said land earlier belonged to the father of the respondent, who had donated it to the Panchayat for construction of Panchayat building. This part of the evidence does suggest enmity in between the parties. The learned trial Court had referred to the decision of the Apex Court in State of Maharashtra Vs. Balram Bama Patil 8 and others, 1983 CRI. L.J. 331. The observations made in Para-9 are relevant and are being reproduced below:- “To justify a conviction under Section 307 it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in this section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof.” It is, therefore, clear that relying upon the above decision, the learned trial Court had held that the right of private defence was rather exercised by the respondent and the view taken by the learned trial Court cannot be termed as perverse in view of the above discussion. Therefore, we do not see any reason to hold that the findings recorded by the learned trial Court of acquittal of respondent are perverse calling for an interference by this Court. 9 In view of the above discussion, we accordingly hold that there is no merit in the appeal filed by the appellant, which is dismissed. Bail bonds furnished by the respondent shall stand discharged forthwith. ( Deepak Gupta ), J. March 23, 2009 ( V.K. Ahuja ), J. (BSS) 10