IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No. 734 of 2000 Date of Decision : 5.5.2008 State of H. P. …Appellant. Versus: Sanjeev Kumar & another …Respondents. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes For the appellant: Mr. Vivek Thakur, Addl. A. G. with Ms. Shubh Mahajan, Dy. A. G. For the respondents : Mr. Tara Singh Chauhan, Advocate. Sanjay Karol, J (Oral). The present appeal arises out of the impugned judgment dated 22.4.2000 passed by the Judicial Magistrate Ist Class, Bilaspur, H. P., in Case No. 144/2 of 1997, titled as State of H.P. v. Sanjeev Kumar and another, acquitting the accused of the charged offences under Sections 354, 341, 323 read with Section 34 IPC. As per the case of the prosecution on 19.8.1997, complainant Kashmiri Devi (PW-3) was travelling to Dhundan in her vehicle along with her sons Susheel Kumar and Vijay Kumar 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 (PW-4), and daughter Reena Devi and at about 9.00 P.M. when they reached a place known as Ghagas, the battery of their vehicle got completely discharged. PW-4 and Reena kept sitting in the vehicle and the complainant and Susheel Kumar travelled in a three wheeler to a place known as Beri to get the battery repaired. After getting the same repaired while they were returning back in a truck, another truck bearing No. HP-24-7275 being driven by the accused came from behind and after overtaking parked his truck in front of the vehicle in which the complainant was travelling, but on the objection of the driver he drove away from there. After reaching Ghagas they got down from the truck and started walking towards their vehicle with the battery. In the meanwhile, the accused also reached the spot and after stopping the truck he got down and catching the complainant from the arm started dragging towards their truck. At that she shouted and hearing her cries, her elder son Susheel Kumar came to rescue her when accused Sanjeev Kumar hit him with an iron rod on his head as a result of which her son fell down and became unconscious. In the meanwhile, hearing the cries, her another son Shri Vijay Kumar (PW-4) who was sitting in the Van also ran to her rescue. The accused also attacked him with an iron rod but however, the complainant intervened and saved her son by catching the rod with her hands. The accused persons gave beatings to the complainant and her two sons with fist and blows and also tore off her clothes. In the meantime, a 3 bus stopped by and the accused persons immediately fled away from the spot. The complainant and her sons received injuries. PW-3 and Susheel Kumar were sent in a three wheeler to the hospital and the police was informed by PW-4. Statement of the complainant Ext.PW-3/A under Section 154 Cr.PC. was recorded. Based on the same, FIR No. 130/1997 dated 20.8.1997 (Ext.PW- 8/A) was registered with Police Station Barmana, Bilaspur, H. P. under Sections 341, 345, 323/34 IPC against the accused persons. During investigation blood stained torn shirt Ext.P1 of Susheel Kumar and torn shirt of the complainant Ext.P-2 and iron rod Ext.P-3 were taken into possession vide seizure memos Ext.PW-2/A, Ext.PW-2/B & Ext.PW-2/C. The vehicle was also impounded and the injured were got medically examined trough Doctor S. D. Bharwal (PW-6) and the MLC Ext.PW-6/A were also taken on record. Certificate Ext.PW-9/A issued by the owner of the vehicle showing the accused to be on duty at the relevant time was also taken on record. With the completion of the investigation, the challan was presented in the Court for trial. The accused were charged for the offences under Sections 341, 323, 354 read with Section 34 IPC to which they did not plead guilty and claimed trial. In order to prove its case, the prosecution examined 11 witnesses and statements of the accused u/s 313 Cr.PC were also recorded. The only defence taken is that the witnesses are interested witnesses. 4 Appreciating the entire material on record, the Court below acquitted the accused of the charged offences on the ground that in the absence of corroboration by the independent witnesses, the statements of Smt. Kashmiri Devi (PW-3) and Shri Vijay Kumar (PW-4) could not be believed to have proved the guilt of the accused beyond reasonable doubt. I have heard the learned counsel for the parties and also perused the material on record. In my view, the reason for disbelieving the prosecution witnesses as given by the Court below is untenable in law. Simply because the prosecution witnesses happen to be the members of the same family that fact by itself would not be sufficient to disbelieve the prosecution case. The prosecution has examined witnesses, namely, Shri Harbans (PW-1), C. Surat Singh (PW-2), C. Ram Nath (PW- 3), Smt Kashmiri Devi (PW-3), Shri Vijay Kumar (PW-4), Shri Nand Lal (PW-5), Dr. S. D. Bharwal (PW-6), LHC Parkash (PW- 7), Kesho Ram (PW-8), Balak Ram (PW-9) & ASI Gobind Ram (PW-10). C. Ram Nath and Smt. Kashmiri Devi both have been cited as PW-3. C. Surat Singh (PW-2), PW-3 and PW-10 have proved that they had reached the hospital where the statement of the complainant Ext.PW-3/A was recorded. Both PW-2 & PW- 3 have witnessed the seizure of the torn clothes and iron rod vide memos Ext.PW-2/A, Ext.PW-2/ & Ext.PW-2/C. 5 Shri Nand Lal (PW-5), has not supported the case of the prosecution in entirety. He was declared hostile and was cross examined by the Public Prosecutor. He is a tractor driver and has deposed that on the spot he had seen some people quarrelling. He has however, admitted that he had seen two boys and one woman quarrelling when he had stopped his vehicle at that time. He admitted that the accused persons however, did not quarrel in his presence and he has also admitted that due to dark he could not identify the assailants. LHC Parkash (PW-7) has testified the receipt of the information Ext.PW-7/A on telephone given by Shri Vijay Kumar (PW-4) vide Ext.PW-7/A. Shri Kesho Ram (PW-8) has written the FIR Ext.PW-8/A. Shri Balak Ram (PW-9) owner of the vehicle proved certificate Ext.PW-9/A and the fact that at the relevant time of the occurrence of the incident, the driver accused Sanjeev Kumar and Cleaner accused Pawan Kumar were employed by him. ASI Gobind Ram (PW-10) who carried out the investigation has deposed that the injured were got examined from the doctor and the statements of the witnesses were recorded and with the completion of the investigation, the challan was presented in the Court. Thus, from the aforesaid evidence, it is evident that the accused persons were working as driver and cleaner of the vehicle and the iron rod Ext.P3 and shirts Ext.P-1 & Ext.P-2 were 6 seized by the police and the matter was reported to the police based on which the FIR was registered and further investigated. Dr. S. D. Bharwal (PW-6) has proved that he medically examined two of the injured persons; namely; Kashmiri Devi (PW-3) and Sushil Kumar. She has testified the issuance of MLC Ext.PW-6/A. As deposed by her the injured received the following injuries:- 1) Swelling right side of the lips upper and lower 1 cm x 1 cm to 1 cm x 1 cm red hot i.e. temperature raised teeth underneath, gums pyorrhea present. No corresponding teeth and mucose having any injury. No signs of inflammation. C/o injuries over the rest of the body parts but normal. 1) Scalp injury over the left fronts parietal region CLW’s underlying Haematoma. 2 cm x ½ cm. CLW 3 cm x 3 cm. Haematoma around clot visible over the CLW. Shirt sailed with blood. No other injury present over the body. Pulse 76 /mt B.P. 110/70. Pupil reacting. No neurological defict. Above injury is simple in nature caused by blunt weapon probable duration within 24 hours. I have issued MLC Ext.PW-6/A which is in my hand and bears my signatures. Injury can be caused by rod. Ext.P.3 on the person of Sushil. Injury mentioned in Ext.PW-6/A can be caused by fist blows. Therefore, it is also proved on record that PW-3 and Sushil Kumar did sustain injuries on their body. Further statements of Shri Harbans Lal (PW-1), Smt. Kashmiri Devi (PW-3) and Shri Vijay Kumar (PW-4) needs to be examined. PW-1 has proved the fact that a lady had got the battery of a vehicle charged from him, As per the version of PW-3, she was travelling with her children Sushil Kumar, Vijay Kumar (PW-4) and Reena Devi. 7 3 kms. short of Ghagas, the battery of their vehicle got discharged and with the help of another vehicle, they started their vehicle and took it to Ghagas. After parking their vehicle on the side, they took the battery for repair to another place known as Beri in a three wheeler. After the battery was repaired they took a lift in a truck and the accused who was driving the another truck stopped the same for some time. After reaching Ghagas the accused also stopped his vehicle and the accused cleaner of the vehicle after getting down from the truck caught hold of the complainant by her arm and tried to drag her towards his truck. When she cried for help her son Sushil Kumar tried to save her but the accused driver got down from the truck and hit Sushil Kumar on his head with an iron rod due to which he fell down. The complainant again loudly shouted for help and when her second son came out of the vehicle, the accused also tried to hit him with rod which was however, caught by the complainant by her hand. Hearing her cries people gathered at the spot and accused ran away from the place of occurrence. Due to the beatings given by the accused she received injuries on her body and her clothes were also torn. One of her teeth was also broken. She brought her son to the hospital for treatment at Bilaspur. The matter was reported to the police by her other son (PW-4) and her statement Ext.PW-3/A was also recorded. The police seized her shirt Ext.P-2 and T-shirt Ext.P-1 vide fard Ext.PW-2/B and iron rod Ext.P-3 was also taken into possession vide fard Ext.PW-3/C. From the line of cross-examination, it is evident that the accused persons have not disputed their presence at the spot, time and place of occurrence of the incident. It has been suggested to her in the affirmation, that her vehicle had broken down at Ghagas in the late night and the battery had been taken for repair to a place which was at about 3 8 kms. ahead of Ghagas having shops and hotels and the name of the mechanic from whom the battery had been repaired was specifically told to the police. Inspite of extensive cross-examination, there is nothing in her statement which would shatter her veracity. Her testimony has been clear, consistent and cogent. She has clearly deposed that the accused persons had assaulted her and her sons and that her clothes were torn by them. Shri Vijay Kumar (PW-4) fully corroborated the version of PW-3 and narrated the sequence of events in entirety. He has deposed that he was sleeping in the Van and after hearing crises he came out of the vehicle and found his elder brother lying near the truck in an unconscious state. He saw the accused drag his mother and when he tried to save her the accused kicked him in the stomach. Accused also tried to hit him with the rod but his mother intervened and saved him. He has clearly deposed that when the people gathered at the spot the accused fled away and he informed the police of the incident. In spite of extensive cross examination, there is nothing which would render his statement to be untrue. His deposition is clear, cogent and consistent. In fact a suggestion in the affirmative has been put to this witness that a tractor and a three wheeler had stopped at the spot and also a bus which was crossing by also stopped at the site but by that time the accused fled away from the spot. It has also been affirmatively put to this witness that the moment PW-3 raised hue and cry the assailants fled away from the spot. In my view, the sworn testimonies of PW-3 & PW-4 are sufficient to prove the guilt of the accused in the commission of the crime 9 beyond reasonable doubt. No doubt, there is a minor variation in the statement of PW-4 as he has deposed that the vehicle had run over his brother but however, it is also not the case of the prosecution that the accused persons had hit Sushil Kumar with the vehicle due to which he sustained injuries. It is the specific case of the prosecution that when the accused tried to drag PW-3 towards their vehicle she raised hue and cry and Sushil Kumar intervened and the accused hit him on his head with the iron rod. Therefore, the improvements would not render the prosecution version to be doubtful or raise a suspicion. The contradictions pointed out by the learned counsel for the respondent with regard to the exact time of having left the native place for Dhunhan, in my view, is irrelevant and insignificant and does not render the prosecution case to be doubtful or suspicious. In fact the accused themselves have affirmatively put it to PW-3 that at about 6.O clock in the evening their vehicle broke down. Shri Sushil Kumar son of PW-3, has not been examined. Be that as it may be, the injuries sustained by PW-3 and Sushil Kumar stand proved by PW-3 and also the medical evidence MLC Ext.PW-6/A, Ext.PW-6/B and also the sworn testimony of PW-6. The improvements in the deposition of PW-3 that she lost her tooth would not itself render her version to be doubtful. The doctor has clearly opined that PW-3 did sustain injuries on her lips. She did receive injuries as the accused had assaulted her. From the testimony of PW-6, it is evident that there were injuries on the entire body of PW-3. Her clothes were also torn by the accused persons. The incident has taken place during the late hours. PW-5 no doubt has not identified the accused but has supported the prosecution 10 case to the extent that he had seen quarrel take place between a lady and two persons and it was only due to darkness he could not identify the accused persons. It has been affirmatively put to PW-4 that a tractor and bus had stopped at the time of occurrence of the alleged incident. This only goes to prove the prosecution case. It has also come on record that the truck in which the complainant had travelling had left prior to the occurrence of the incident. It has also come on record that having seen the passer byes when PW-3 raised hue and cry people came at the spot and the accused fled away. In this background no independent witness would have seen the occurrence of the incident. The sequence of events as narrated by the prosecution witnesses duly stands proved in accordance with law. In cross- examination the accused persons have no where suggested to the complainant that they were not involved in the alleged incident. There was no reason for the prosecution witnesses to have deposed against the accused persons. The injured had no animosity against the accused. The complainant was travelling with her young children and in the late hours of the day, her vehicle broke down and with the help of passer byes she was with great difficulty able to get the battery of the vehicle repaired. The accused persons without any provocation or justifiable reason assaulted the complainant; dragged her towards their vehicle; tore off her clothes; gave her beatings with fist and blows and also gave blow with iron rod to her son Sushil Kumar. All these facts prove that the accused were guilty of the charged offence. There is no circumstance or material to show the innocence of the accused in any manner. It stands proved that the accused persons with criminal intent and in furtherance of the common intention had caught hold of the complainant and had 11 voluntarily dragged her towards their vehicle. They had also voluntarily caused hurt. In State of Haryana v. Surender & Others etc.(2007(3) AICLR), the Apex Court has held as under:- “The principle to be followed by appellate Court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference.” To my mind, the Court below has committed grave error in acquitting the accused. The prosecution has been able to prove its case beyond reasonable doubt. Accordingly, the judgment passed by the Court below needs to be reversed and is ordered accordingly. The accused are held guilty of having committed the offences under Sections 341, 323 read with Section 34 IPC. The complainant has not deposed that the assailants had attacked with an intention of outraging her modesty, therefore, the accused are acquitted of the charged offence under Section 354 IPC. Accordingly, the accused are convicted for the offences under Sections 341, 323 read with Section 34 IPC. Heard on the quantum of sentence. The accused are sentenced to undergo imprisonment for a term of 3 months for having committed the offence under Section 323 IPC and also pay a fine of Rs.1000/- failing which they shall further undergo imprisonment of one month. The accused are also sentenced to undergo imprisonment for a period of 15 days under Section 341 IPC. Both the sentence shall run concurrently. The accused are directed to surrender 12 within four weeks from today, failing which action in accordance with law be taken. ( Sanjay Karol ), Judge. May 5, 2008 (rana)