Whether reporters of local papers may be allowed to see the judgment? Yes. IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.93 of 2000. Judgment reserved on : 20.8.2008. Dated of Decision: September 5th, 2008. Vivek alias Vicky and others ……… Appellants. Versus State of H.P. ………. Respondent. Coram The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting? No. For the Appellants : Mr. Vinay Thakur, Advocate. For the Respondent: Mr. J.S. Guleria, Law Officer. Surinder Singh, J. : The appellants were tried and convicted by learned trial court the for the offences punishable under Sections 147, 452 read with Section 149, 323 read with Section 149 and 333 read with Section 149 of the Indian Penal Code. Each of the convict/appellant were awarded the following sentence: i) Rigorous imprisonment for six months for the offence under Section 147 of the Indian Penal Code. ii) Rigorous imprisonment for one year and fine of Rs.200/- and in default of payment of fine rigorous imprisonment for a further period of three months, for 2 the offence under Section 452 read with Section 149 of the Indian Penal Code. iii) Rigorous imprisonment for a period of three months, for the offence under Section 323 read with Section 149 of the Indian Penal Code. iv) Rigorous imprisonment for a period of three years and a fine of Rs.1000/- and in default of payment of fine, rigorous imprisonment for a further period of six months, for the offence under Section 333 read with Section 149 of the Indian Penal Code. 2. The judgment of conviction and sentence has been challenged by the appellants in the instant appeal. 3. The factual matrix of the present case can be stated thus. PW1 Hari Ram, PW2 Chhote Lal and PW3 Banarsi Dass hailed from the State of Uttar Pradesh and they used to run the shops in remote area in Tikkar bazaar, falling in sub-division Rohru, District Shimla. 4. On 30.10.1997, it was ‘Diwali’ festival. The appellants, belong to Tikkar area, they alleged to have formed an unlawful assembly, armed themselves with dandas. Their target was the shops of the complainant and other Uppites. They started browbeating and illegally demanded ‘Gunda Tax’ from them. 3 5. The appellants Vivek alias Vicky, Shaval Chand and Sanjay entered the shop of PW1 Hari Ram and raised such a demand from him. When he pleaded that he was a poor man and was not in a position to accede to their illegal demands, all the three, above named appellants, started giving him beatings with the dandas. One of the injury by a danda was sustained by him on his mouth, which caused the bleeding injury on the upper lip while made his few teeth mobile. 6. The other appellants allegedly went to the nearby shops of PW2 Chhote Lal and PW3 Banarsi Dass and raised the same illegal demands from them. When they declined to succumb to their threats, they were also beaten up. 7. In the meanwhile, PW4 Chander Mani Head Constable accompanied by PW5 Constable Vinod Kumar reached Tikkar market. When he tried to intervene, he (PW4) was given a fist blow on his mouth by appellant Vivek, which caused the uprooting of one insizer in his upper jaw and other two became mobile. Simultaneously, one of the appellant gave the danda blow on the head of Chander Mani from his back and on sustaining the injuries on his head, he became semi-unconscious. 4 8. All the three Uppites, namely Hari Ram, Chhote Lal and Banarsi Dass went to the police post Tikkar and lodged the report, on the basis of which FIR No.239/97 was formally registered, in Police Station Rohru. 9. PW11 Madan Singh ASI was posted as Incharge of Police Post Tikkar. After the registration of the case, he investigated the matter. He visited the spot, prepared site plan Ex.P2 and also got the injured medically examined from PW9 Dr. Vinod Kumar in PHC Tikkar. 10. On examining PW1 Hari Ram, the Doctor observed the following injuries on his person: 1. Lacerated wound on upper lip 1 cm. transverse and 1 cm. longitudner. It was bright red. Mild bleeding was present. 2. Upper incisor tooth was noticed to be tender on percussion. The injured was referred to the Dental Surgeon for his expert opinion. PW10 Dr. Vinay Kumar, Dental Surgeon had radiologically examined him but he did not notice any fracture of tooth or alveolar bone. So both the injuries were opined to be simple in nature, caused with blunt weapon within 24 5 hours and the Doctor issued medico legal certificate Ext.PA. 11. On examination of PW2 Chhote Lal, the Doctor observed the following injuries on his person:- 1. Abrasion 1 cm. oblique on the back of scapular line 1” below scapular blade. 2. Injury with fist elbow on lower chest right side, but no external sign of injury was noticed. The injuries were simple in nature, caused within 24 hours of the examination by a blunt weapon and issued his medico legal certificate Ex.PC. 12. PW3 Banarsi Lal was found having the following injuries:- 1. Abrasion on upper lip skin surface 0.5 cm x 0.5 cm area erythematous. No bleeding was present, however, haemotoma was present. The site of the injury was felt tender on palpation, inner nucus surface. Membrane tear was found with no bleeding. 2. Slight tenderness of upper incisor tooth on percussion. The above injuries were found simple in nature having been caused within 24 hours with the blunt weapon. The medico legal certificate Ex.PD was issued to this effect. 6 13. PW4 HC Chander Mani was also medically examined by him and the Doctor noticed the following injuries on his person:- 1. Injury on left parietal scalp, which was in the nature of an abrasion measuring 2 cm x 1 cm. Slight haemotoma was present. Local prepolian was found mildly tender. 2. Lacerated wound on upper lip 1 cm long in middle of upper lip under 1 cm. on mucous surface. 3. Fracture of upper incisor tooth first right. There was history of loose tooth earlier. The examinee was found used to wearing denture. He was referred to the dental surgeon by PW9 Dr.Vinod Kumar for his opinion. PW10 Dr. Vinay Kumar, Dental Surgeon opined that the dental injury (No.3) was grievous. After examining him, the Doctor issued medico legal certificate Ex.PF. The endorsement of the dental Surgeon is Ex.PF/2 on the certificate Ex.PF. In his opinion, the avulsion could be caused by means of fist blows. 14. After recording the statements of the witnesses and on completing the challan, it was presented in the court for trial for the appellants. 15. Finding a prima-facie case against the appellants, they were charge-sheeted by the 7 learned trial court for the offences aforesaid, to which they pleaded not guilty and claimed trial. 16. To prove its case, the prosecution examined PW1 Hari Ram, PW2 Chhote Lal, PW3 Banarsi Lal, PW4 HC Chander Mani, PW5 Vinod Kumar Constable, PW6 Chet Ram, PW7 Tarsem Lal, PW8 Lal Singh, PW9 Dr. Vinod Kumar, PW10 Dr. Vinay Kumar and PW11 ASI Madan Singh, the investigating Officer of this case. 17. The appellants were also examined under Section 313 of the Code of Criminal Procedure. They denied the circumstances appearing against them and they raised the defence that the prosecution witnesses have made false statements at the behest of the police and that was the reason that people of one community were associated by the police. 18. The appellants were called upon to enter into their defence, but they did not lead any evidence in their defence. At the end of the trial, they were convicted and sentenced as aforesaid, which has been assailed in this appeal, on the grounds that no identification parade was conducted and that the prosecution evidence is discrepant, unreliable and the real genesis of the occurrence was 8 deliberately concealed. They were not found to have formed an unlawful assembly. Further the story of collecting the ‘Gunda Tax’ was introduced to give a colour of gravity to the incident. 19. Shri Vinay Thakur, learned counsel for the appellant has forcefully argued that the prosecution story is full of material contradictions appearing in the statements of the witnesses, the appellants were not known to the witnesses prior to the alleged occurrence and police did not conduct any identification parade. Whereas, the identification was only made by the prosecution witnesses during the trial, which cannot be accepted with certainty as reliable identification, therefore, from the evidence on record, a reasonable doubt regarding the involvement of the appellants has crept in the benefit of which deserved to be given to the appellants. 20. Contra, Shri J.S. Guleria, learned Law Officer for the State while supporting the impugned judgment of conviction and sentence has strenuously argued that the learned trial court has properly picked up the circumstances, appreciated and correctly 9 relied upon them. The appellants are the local residents of the area, where the injured witnesses were running their business. They knew them by appearance. According to them they knew the assailants even prior to the incident as they had been visiting their shops. The appellants were also identified by them during the trial, thus there is no error in identifying them. The prosecution witnesses have proved the offences charged. The witnesses had no prior enmity with them. Therefore, there was no question of implicating them falsely. Thus, the impugned judgment which is based upon the proper appreciation of evidence calls for no interference. 21. I have given my thoughtful consideration to the rival contentions of the parties and have meticulously examined and reappraised the evidence on record carefully. The brief account of the testimonies of the prosecution witnesses are as under:- PW1 Hari Ram has testified on oath that he was running a habber dashery shop w.e.f. 1995 in Tikker Bazar i.e. two years prior to the alleged incident. On 30.10.1997 it was Diwali festival, he was present in the shop 10 around 5.30 p.m., when the appellant Vicky, Sanjay and Shaval Chand came there holding dandas in their hands and the other accused- appellants went to the shops of PW2 Chhote Lal, PW3 Banarsi and Pawan Kumar. The appellants Vicky, Shaval Chand and Sanjay demanded ‘Gunda Tax’ from him and threatened in case, he would not pay the tax, he would be done to death. He told the appellants aforesaid that he was a poor person, that was the reason he had come from a far off place to do the business in the remote area and pleaded that he was under their protection in that area and they should not harass him, but the appellants aforesaid insisted upon him to pay the tax, lest he would be killed. When he had shown his inability to pay the said tax, all the three appellants dealt him blows of dandas and one of blow hit him on the upper lip and some of the teeth became mobile, which fact has been corroborated by PW9 Dr. Vinod Kumar and he had mentioned this fact in MLC Ex.PA. He further stated that by such beatings he became some what unconscious. In the meantime his son came there and pulled down the shutter. He also stated that other accused/appellants were giving beatings to the 11 shopkeeper of the adjoining shops. According to him a Head Constable came to rescue them, but he was also beaten up, so mercilessly that four of his teeth got broken. It is further stated by him that the appellants thereafter kept on threatening either he should withdraw the case or they would not let him to remain in village to run his business. Therefore, because of the threats, he closed his business and went to his village in U.P. In cross-examination, he gave the description of other shops in the vicinity and stated that behind the shop of PW Banarsi Lal, there were several residential houses. Though he admitted that it was a `Diwali’ day on the date of alleged occurrence, but he denied that there were a large number of customers in the bazaar when the alleged incident took place. According to him the customers had left for their respective houses/villages when the incident took place. However, during the day time many persons were there in the bazaar. He further stated that when the incident took place, it was 5.30 P.M., it had not gone dark. He also stated that he was beaten up in the shop from where the shop of Chhote Lal was not visible, but clarified that he was dragged out 12 from his shop to the point from where the shop of Chhote Lal was visible. He further stated that Head Constable was beaten up on the vacant space between Chhote Lal’s shop and meat market. He also stated that first of all the police officials came to rescue him then they went to the shop of PW Chhote Lal. He suffered bleeding injuries on his lip. He also stated that he alongwith others went to the rear doors of their shops and saw that said Head Constable was being beaten up. He did not state to the police while reporting the matter that he became unconscious, but according to him, he felt giddy when the blow was given on his lip. He denied that he had a scuffle with a Youngman during the day time on selling fire crackers. According to him, he did not sell the fire crackers, therefore, there was no question of any quarrel having been taken place. He also denied that he was a relative of PW Chhote Lal and Banarsi Lal or that any of them belonged to their village in U.P. He admitted that although he did not know the names of the alleged assailants at the time of assault and before going to the police post, but he made an inquiry from the local people who had disclosed their names. In his cross- 13 examination no specific question was asked that he did not know any of the above assailants even by appearance. 22. Though PW2 Chhote Lal did not support the case of the prosecution regarding the allegation about raising the demand of “Goonda Tax” but he has corroborated the version of PW1 Hari Ram with respect to having been given beatings to him (PW2) when he had demanded the money for the packet of sweets taken by Vicky and Shawal Chand appellants. He also stated that after the said incident PW1 Hari Ram closed his business and returned to his home State. He categorically stated that the appellants visited his shop around 5.30 p.m. He also did not know their names, but stated that he could identify them by their appearance. The witness was required by the learned Public Prosecutor to touch those two persons who had come to his shop. He correctly identified Vicky and Shaval Chand appellants out of seven appellants present in the court. He further stated that previously they had been visiting in his shop once in a span of 8/10 days. He was also cross-examined by the learned Public Prosecutor with the permission of the 14 court when he did not state about demand of ‘Gunda Tax’. He admitted that Hari Ram was given beating by the appellants on that day and that because of the fear of the appellants (without naming anyone), PW1 Hari Ram closed his shop and had gone to his place in the U.P. He further clarified that he got scared because he belongs from a different area. He also stated that he was in a position to identify Vivek, Piare Lal, Sanjay, Shaval Chand, Mandip, because he had seen them before they came to their place where they were having the shops. Out of seven accused, he named only five and even out of them, he alleged beatings and criminal tress pass committed by only Vivek and Shaval Chand, but did not attribute any direct act by others. He admitted that two accused persons who entered his shop gave him beatings with Dandas and also fist blows. He also stated that HC Chander Mani had suffered injuries, but he did not say who caused the injuries to him. In cross-examination by the accused persons, he denied that from his shop, the shop of Banarsi Lal across the road, was not visible and that at the time of incident, it had not grown dark. Further according to him, 15 he was first to go to the police post followed by Hari Ram and others. He was also medically examined. Although in his statement he did not say about the demand of “Goonda tax” by the appellants but he specifically named appellants Vicky and Shaval Chand to whom he knew earlier by their physical appearance and stated that they did not pay the price of packet of sweets picked by them, when he demanded money, he was given thrashings. 23. PW3 Banarsi Lal resiled from his earliest version, as such he was cross- examined by the learned Public Prosecutor. He stated that he did not know any of the appellants either by their names or appearance. He denied having been given any beatings to him on that day by anyone. Though he admitted that he was medically examined on the night of Diwali and proved his signatures on his MLC Ex.PD and stated that nobody coerced and forced him to sign it. He further stated that the Head Constable was also having injuries on his person, but he did not see causing any injury to the Head Constable. Significantly, he stated that when the incident was taking place, he escaped to the orchard of Numberdar 16 to save himself, so he did not see who had given the beatings to whom. He has admitted the alleged incident in so many words but did not dare to tell by whom and in what manner he sustained the injuries. The fear of the appellants appears to have been looming large on his mind, because, admittedly he was still running a shop at that place and did not leave his business like PW1 Hari Ram. 24. PW4 Chander Mani, Head Constable has stated that on the date aforesaid at 5.30 p.m., he was on patrolling duty in Tikker Bazar, he heard commotion erupting from the side of the shops of Uppites namely Hari Ram, etc. He went in that direction alongwith Constable Vinod Kumar (PW5). On reaching there, he noticed appellants Rinku and Pinku (appellants No.5 and 6)inside the shop of Hari Ram and they were holding him physically and was given a danda blow. He also stated that Shaval Chand and Sanjay were inside the shop of Chhote Lal. They caught hold Chhote Lal. Rinku and Pinku gave beatings to Hari Ram whereas Vicky, Ashwani Kumar and one person were outside the shop of Hari Ram, but they were not carrying any Object. When he went to the shop of Hari Ram and tried to rescue him, 17 one of the appellant Vicky gave a fist blow on his mouth and one of his tooth got broken and two became mobile. Someone had given a danda blow on his head from back and when he fell on the ground, all the appellants, who were in the shop of Chhote Lal and Hari Ram gave him fist blows. He was carried to the police post by Vinod Kumar Constable, where, he regained from unconsciousness. He was medically examined and he proved his signatures on the MLC Ex.PF. He was also subjected to the lengthy cross-examination. He stated that his last incisor on the left side had been broken. Three incisors were already not in the socket. Whole of his tooth got uprooted and fell down on the spot, which could not be traced and two lower incisors became mobile because of the blow given on his mouth and the two lower incisors which became mobile were central incisors. He also stated that he had made departure entered in the Roznamcha when he went on patrolling duty in bazaar at 2 p.m. He further stated that Constable Vinod Kumar’s departure was not recorded in the Roznamcha, because he came to the bazaar without any specific purpose. He denied that he had 18 consumed the liquor, under the influence of which he fell and sustained the injuries. 25. PW5 Vinod Kumar has testified that he heard some commotion erupting from the side of main bazaar. He went in that direction and on the way, he met Head Constable Chander Mani. Both of them went to the spot together. Further he stated that out of the appellants 3-4 persons were inside the shop of Hari Ram while others were standing outside. One of them gave danda blow on the head of Head Constable Chander Mani while another accused hit him on his mouth with fist. He identified Vicky and Shaval Chand and stated that Vicky gave the danda blow while Shaval Chand gave the fist blow. He did not see the appellants using force against any other shopkeepers and indulging in violence in any other shop. In cross-examination, the whole impact of his statement with respect to having seen Chander Mani being beaten up got vanished because according to him he was not on the spot when Chander Mani was dealt with blows of danda and fist as he was in the shop of Hari Ram. 26. PW9 Dr. Vinod Kumar and PW10 Dr. Vinay Kumar Bhardwaj had examined the injured 19 persons and proved the injuries to them as aforesaid. PW9 has categorically stated that Chander Mani was referred to PW1-10 Dr. Vinay Kumar Bhardwaj, Dental Surgeon for his expert opinion and PW10 has corroborated his version and gave his opinion Ex.PF/2 on Ex.PF that the injury to the tooth to HC Chander Mani was grievous. 27. On a careful scrutiny of evidence, I find two sets of evidence on record. One set is of Uppites (PWs 1 to 3) who were running their shops in Tikkar Bazar and other set is of police officials (PWs 4 and 5) and to corroborate their version, the prosecution relied upon the medical evidence. 28. The first set of witnesses namely PW1 Hari Ram, PW2 Chhote Lal have only identified accused appellants Vivek @ Vicky, Saval Chand and Sanjay having entered the shop of PW1 Hari Ram and demanded “Gunda tax” on refusing to pay he was given beatings and he sustained simple injuries. PW2 Chhote Lal categorically stated that Vivek @ Vicky and Shaval Chand entered his shop and identified them out of seven accused persons. According to him, they were having dandas in their hands, when he demanded money for the packet of sweets picked 20 by them, they gave beatings. The Doctor found simple injuries on his person as stated above. PW3 Banarsi Lal though not supported the prosecution case but he had sustained injuries which have been proved by the Doctor and he himself has admitted his signatures on his MLC and also stated that he saw Chander Mani Head Constable having sustained injuries, but according to him, he did not see anybody giving beatings to him or HC Chandermani. He kept hidden the truth like a tip of the iceberg, may be due to fear of psychosis from the assailants. The incident stands proved. Now question is that who is responsible for the said incident and what offence(s) is/are committed by them. 29. The names of Vivek @ Vicky, Shaval Chand and Sanjay appellants are prominently figuring in the statements of PW 1 and PW2 above. They were present on the spot and were responsible to give them beatings to PW1 Hari Ram by dandas and fist blows when they refused to pay “Gunda Tax” or on demanding money for the packet of sweets by PW2 Chhote Lal. The terror in their mind as spelt out in their