HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A.No.: 147 of 1994 Reserved on: 12.11.2008 Decided on: 21.11.2008 State of Himachal Pradesh ………Appellant. Versus Ghanshyam Singh and others ………Respondents. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? Yes. For the appellant: Mr. R.M. Bisht, Deputy Advocate General. For the respondents: Mr.Rakesh Jaswal, Advocate. Per V.K. Ahuja, J: This is an appeal filed by the State of H.P. under Section 378 of the Cr.P.C. against the judgment passed by the learned Additional Sessions Judge (I), Kangra, dated 14.9.1993, vide which the respondents were acquitted of the charge framed against them under Sections 147, 148, 149, 323, 324 and 302 of the Indian Penal Code. The prosecution story in brief is that on 15.8.1991, at about 1.20 p.m., a statement was made to the police under Section 154 of the Cr.P.C. by one Parkash Chand. He had alleged therein that he was running an agency of small savings at Baijnath and when at about 12.30 p.m., he was going to Shiv Mandir, Baijnath and he reached near the shop of one Penu barber, he found that Bindu son of Roshan Lal, resident of Baijnath, had been caught hold of by Baldev, his ______________________ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. brother Ghanshyam and nephew Anil and they were giving him beatings with hockey and dandas. He alleged that 3-4 boys were there whom he could not identify, who were also having dandas and were standing there. It was further alleged that Bindu was thrown on the ground and then the complainant went to rescue him and at this incident Anil grappled with Bindu, inflicted knife blow on the person of Bindu and when the complainant tried to save Bindu, Anil inflicted a blow on the left side of his waist with the same weapon and his other companions also tried to run away from the place after giving beatings. Because of the throwing of stones by the persons present there, Baldev Singh, his brother Ghanshyam Sigh and Anil also suffered injuries. On this report, a case was registered and after investigation, the challan was filed before the learned Judicial Magistrate, who committed the case to the learned trial court, who tried the respondents, as detailed above, leading to their acquittal. We have heard the learned counsel for the parties and have gone through the entire evidence. The first point which was also considered by the learned trial Court is in regard to the question as to whether there was formation of an unlawful assembly and by which of the accused persons and as to whether it has been established by the prosecution that this unlawful assembly was formed by 5 accused persons whose presence has also been established at the spot. To prove the formation of an unlawful assembly, it has to be established that there were five persons, who had formed the unlawful assembly for the purpose of commission of an offence and it has to be appreciated as to whether these facts stood established from the evidence or not. The learned trial Court in forming an opinion in this regard has referred to the report under Section 173 of the Cr.P.C. to conclude that there were elections to the student union of Baijnath College and some scuffle had taken place and some groups had been formed to take revenge for the beatings given one day earlier between the members of the groups, but that conclusion, to our mind, is not relevant since the evidence has to be considered as to whether it proves as to when the elections were to be held, who were the members of the rival factions and who were the persons who suffered injuries prior to the occurrence and who were persons who had formed unlawful assembly to take revenge for which there is no specific evidence on record. The learned trial Court had also observed in this connection that there is no evidence that accused Anil Kumar and deceased Raj Kumar had quarreled on account of some discord regarding the taking place of elections of the student union of Baijnath Degree College and no witness has stated so. The learned trial Court had referred to the testimony of PW-2 Nitesh Kumar who has stated about the presence of Baldev, Ghanshyam and Anil at that time. The acts attributed to these persons are that Baldev came there followed by Ghanshyam and he overpowered Raj Kumar by embracing him. In the meanwhile, Anil stabbed him with knife and Ghanshyam gave a blow of hockey stick and he cannot say if Ext.P-4 is the same hockey stick which was used by Baldev. He further stated that thereafter Kaku alias Kulwinder and one Surender came there. He referred to the blow of hockey on his forehead by Ghanshyam and drat blow given by Kulwinder. Thus, he has referred to the presence of Ghanshyam, Baldev and Anil at that time and thereafter Kulwinder also came there apart from Surender, but no act was attributed to Surender though the act of giving a blow with drat was attributed to Kulwinder, but it does not establish that these persons had also come there after forming an unlawful assembly with the three other accused persons, named by him . He only refers to the presence of 16-17 persons at that time, but did not state the names of all or that they had formed an unlawful assembly and in furtherance of that unlawful assembly, the blows were given by some of the accused persons mentioned above. PW-3 Parkash Chand, who is the complainant and had lodged the report with the police, has named Baldev, Anil and Ghanshyam being present there as members of the crowd and attributed the act of throwing on the ground of Raj Kumar deceased by Baldev Singh and stabbing of him with knife by accused Anil Kumar and giving of blows with hockey stick by accused Ghanshyam. He has stated that he had seen 10-15 persons who had given beatings to Raj Kumar and others, but again stated that he did not see them giving beatings to Raj Kumar. He proved the presence of only the above named three accused persons and beatings and stabbing of Raj Kumar. The third eye witness PW-6 Shashi Kumar has stated that Raj Kumar was lying wounded on the ground. He does not know who caused the injuries to Raj Kumar. He is very emphatic that none of the accused was seen present by him at the place of occurrence. Therefore, he did not prove the identity of the accused persons or other members of the unlawful assembly. The next eye witness is PW-7 Jitender Kaushik, who has referred to an act that while running from the place, Anil Kumar gave him a blow with knife when he asked him as to what had happened and why he was running. He stated that Anil Kumar ran away alongwith the group of persons, but he did not attribute any act to any of the accused or established their presence or that they were the members of an unlawful assembly, which caused the injuries on the person of the deceased Raj Kumar or PW-3 Parkash Chand, the complainant. The fact that the people of the bazaar also pelted stones on the assailants to make them flee from the place was clearly stated by PW-5 Shashi Bhushan. Thus, from the above discussion it is clear that more than 10-15 persons may have gathered at the spot or may have been present at the spot, but no specific act has been attributed to them except to 3 or 4 accused persons named above and it does not stand established that those other persons present there were also members of an unlawful assembly formed by the main three accused persons named by the eye witnesses. Therefore, the learned trial Court had rightly concluded that the prosecution evidence does not establish the formation of an unlawful assembly and the individual acts of the accused persons have to be considered and as to whether they can be held responsible for the individual acts committed by them. Before we refer to the injury sustained by the deceased for which there is some evidence, we would like to refer to the injuries sustained by three other persons for which a charge has also been framed against the accused persons having inflicted blows upon the person of Nitesh, Parkash and Jitender and whether the evidence led by the prosecution establishes the guilt of which of the accused persons in regard to these injuries of these persons. The first eye witness examined is PW-2 Nitesh Kumar, who has stated that Ghanshyam gave a blow of hockey stick on his forehead. Kulwinder gave a blow of drat on his right arm. He cannot say that Ext.P-5 is the same drat or not. He further stated that about 15 or 16 persons had gathered there. He could not identify all of them. From amongst the accused, Baldev, Ghanshyam, Anil, Kulwinder and Surender were there and he cannot say about the presence of the other accused. He stated that after sustaining injury on his forehead, he had become unconscious and cannot say about other persons who had come there. In his evidence, PW-2 Nitesh Kumar has not named any person having witnessed the blow being inflicted upon his person by Ghanshyam and Kulwinder, as mentioned above. His Medico Legal Certificate has been proved in evidence as Ex.PC issued by PW-1 Dr.B. Prahlad, who had observed 10 wounds on the person of Nitesh. These have been detailed by him and 7 of these are cut wounds, while injury No.6 was bruise of reddish colour and injury No.7 was bruise on the top of left shoulder and the injury No.10 was a lacerated wound bone deep. Thus, the Medical Officer has opined in regard to 10 injuries on the person of Nitesh Kumar, who himself has very specifically stated about one blow of hockey stick on his forehead by Ghanshyam and a blow on his right arm by Kulwinder with drat. He never stated that he also suffered other injuries over the other parts of his body. Therefore, the medical evidence, which shows 10 injuries on his person, does not corroborate his ocular version. The Medical Officer has also opined that injuries No.1 to 5 and 8 were caused with sharp edged weapon, which means that there were six injuries on the person of injured with sharp edged weapon, but he refers to only one injury and remaining three injuries were caused with blunt weapon, but the injured states about only one blow with blunt weapon i.e. hockey. No other witness has corroborated in regard to the injuries sustained by this witness. The next injured is PW-7 Jitender Kaushik, who has stated that he asked Anil Kumar as to why he was running and what had happened and he stabbed him with knife on his chest below the ribs and then ran away alongwith other persons. He admitted that Anil had no animosity with him nor he did have towards him. They used to play cricket together. Anil Kumar did not talk to him anything but straightway, on his asking, stabbed him. He stated that his shirt was also cut from the place where the knife had hit. However, he did not hand over the shirt to the police nor the police ever demanded that shirt from him. Coming to the medical evidence in regard to this witness, PW-1 Dr.B. Prahlad had examined Jitender Kaushik and found a cut wound injury which was muscle deep. It was situated just lateral to the middle of the scapula. The injury was simple in nature having been caused within six hours. No other witness has stated in regard to the injury on the person of Jitender Kaushik nor he has referred to the presence of any other persons who were present at the spot or had seen the injury being inflicted upon his person. The third injured was PW-3 Parkash Chand, who had lodged the report with the police. He has stated about the occurrence that when he saw Baldev having caught hold of Raj Kumar, he went there and asked Baldev and Ghanshyam not to do anything. In the meanwhile, Baldev pushed Raj Kumar and uttered ‘attack-attack’. He then referred to the injuries on the person of Raj Kumar. In regard to the injury on the person of this witness, he stated that Anil Kumar stabbed him on the back with knife. Ghanshyam gave a blow of hockey on his shoulder and 2-3 more persons also gave beatings with hockey sticks or lathis. Thus, he has referred to the injuries with knife on his back and hockey blows given on his shoulder, but he refers to 2-3 other persons also, who too gave hockey and lathi blows to him. In his statement also, he does not refer to the presence of any other person at that time who may have seen this occurrence of giving blows to Raj Kumar or him. Coming to the medical evidence qua PW-3 Parkash Chand in regard to the injuries suffered by him, PW-1 Dr.B. Prahlad has stated that he examined Parkash Chand and found that there was a cut wound with regular margins. It was running about downward over the left side of the back caused with sharp edged weapon. The nature of injuries was simple and has tendered the MLC as Ext.PB. Thus, the Medical Officer has referred to only one injury on the person of Parkash Chand, which was a cut wound, but there is nothing that there were other injuries inflicted upon the person of PW-3 Parkash Chand, as stated by him, by hockey on his shoulder or other injuries inflicted by 2-3 other persons with hockey sticks or lathis and, therefore, there is corroboration to only one injury allegedly inflicted by Anil Kumar with a knife. He did not state about the presence of any other person at that time of having seen the occurrence or the blows given on his person. He did not state the presence of any other person even in the FIR lodged by him with the police. From the above discussion, it follows that all the three injured are referring to the injuries suffered by them which do not find corroboration fully from medical evidence and they do not find corroboration from any other witness in regard to the injuries sustained by them and if so, by which of the accused persons. Coming to the injury inflicted on the person of Raj Kumar, now deceased, who suffered an injury of stab wound given to him allegedly by Anil Kumar, respondent. The main witness to this is PW-3 Parkash Chand, complainant, who has stated that he saw Baldev having caught hold of Raj Kumar, Ghanshyam standing by the side of Raj Kumar and he requested them with folded hands not to do anything. He stated that then Ghanshyam gave a forceful blow of hockey on the forehead of Raj Kumar. Thereafter, he gave several blows of hockey to Raj Kumar who fell on the ground and cried ‘bachao- bachao’. At that moment, Anil Kumar came and stabbed Raj Kumar with sharp edged weapon which appeared like a knife or chhura. Then he has referred to an injury with a knife inflicted on his person by Anil Kumar. Thus, according to him, not only the injury with knife was inflicted on the person of the deceased by Anil Kumar, but he also suffered injuries of several blows and one forceful blow of hockey on his forehead. PW-5 Shashi Bhushan had come up with the statement that accused Baldev Singh came there, caught hold of Raj Kumar and knocked down him on the ground, whereas PW-3 Parkash Chand had stated that Baldev pushed Raj Kumar and then blow with hockey was given by Ghanshyam. However, he did not state that firstly the blow with hockey was given by Ghanshyam and then several blows were given and then stab wound was given by Anil Kumar. He simply stated that Baldev knocked down him on the ground and then the deceased was stabbed by accused Anil Kumar. Then he referred to the blows of hockey given by Ghanshyam and had referred to the act of saving by PW-3 Parkash Chand when Anil Kumar stabbed him also on the back. He stated that Nitesh had also gone there to save Raj Kumar when he too was beaten by numerous persons but this was never so stated by PW-3 Parkash Chand in his report lodged with the police or in the statement in court. PW-6 Shashi Kumar had only stated that he had seen Raj Kumar lying on the ground, but he has not stated as to who has caused injuries to him. No other witness has stated about these injuries inflicted on the person of the deceased and by which of the accused persons. Coming to the medical evidence in this regard, PW-1 Dr.B. Prahlad has examined Raj Kumar and found four injuries on his person. He stated that there was a wound on the right side of the abdomen and then stated about the lacerated wound present on the nose. He further stated about the third injury which was a cut wound running above downwards on the occipital region and the fourth injury was a lacerated wound on the right eye brow. He stated that injuries No.1 and 3 are possible with sharp edged weapon, meaning thereby that it can be caused with knife but he stated about 2 such injuries, whereas PW-3 Parkash Chand and other witnesses have stated about only one injury with sharp edged weapon. The remaining two injuries No.2 and 4 were caused with blunt weapon which are possible with hockey sticks, as stated by the witnesses. Coming to the question as to whether these injuries were possible in the ordinary course to cause the death of the deceased, the learned trial Court had referred to the medical evidence in this regard which needs to be appreciated and referred to. A reference was made to the statement of PW-1 Dr.B. Prahlad, who had given the first treatment to the deceased. There is nothing in his statement that the injured was unconscious or was unable to speak and there is no mention of the history of the case or as to who had assaulted the injured and no history has been mentioned therein, which could have been the first version on the part of the injured. The learned trial Court had observed that the wound which is alleged to have proved fatal is stated to be wound found on the abdomen of Raj Kumar, but the MLC does not prove if it was opined that it was sufficient in the ordinary course to cause death of Raj Kumar. The injured was then referred to Civil Hospital Palampur, where he was medically examined by PW-4 Dr.Karan Sharma, who operated upon Raj Kumar for stab injury found on his person and then referred the case to PGI, where he was attended by Dr.Ram Babu and the record was brought by PW-17 Dr.Nitya Nand Arya, who has deposed that the deceased was first operated upon at Palampur and next at Chandigarh and some complications were found in the abdomen of the deceased in the operation done previously. It was observed that in view of three operations, the deceased had developed complication of pencreatitis termed fecal fistulae and the deceased had died on account of formation of intra-abdominal abscess, which may have developed on successive faulty operations of the wound of the deceased. In such circumstances, it cannot be said that this stab injury was sufficient to cause death of the deceased or it had caused the death of the deceased in ordinary course. It had also come up in evidence that the people had resorted to stone throwing so that the persons involved in this rampage left the place though no specific suggestions were put up nor specific evidence was led except some scanty evidence in this regard. The prosecution should have proved that the injuries sustained by the accused persons were in the melee that followed the stabbing of the two of the injured by the accused persons and accordingly they suffered injuries which evidence is lacking except some scanty evidence that some rampage had taken place and accused had also suffered injuries. In case there are some injuries on the person by the accused persons, it is for the prosecution to explain the injuries which explanation is lacking. A perusal of the statement of PW-1 Dr.B. Prahlad shows that he had examined Baldev and found 15 injuries present on his person, which were simple in nature and were lacerated wounds and bruises, which were possible by blunt weapon and only injury No.5 was grievous. The medical officer had also examined Ghanshyam Sigh and found one injury on his person, which was simple in nature. He also examined one of the respondents Gulshan and had found two injuries on his person. He also examined respondent Harbir and found two injuries on his person. In regard to main accused Anil Kumar, he had found three injuries on his person, which were simple in nature, out of which one was a lacerated wound, another was a bruise and the other one was abrasion. In regard to injuries on the person of Kulwinder, respondent No.5, PW-1 Dr.Prahlad found one injury on his person. He admitted that injuries on the person of Ghanshyam, Gulshan, Harbir, Anil and Kulwinder could have been caused by pelting of stones, but this is part of suggestion to the Medical Officer and no specific evidence is on the record that the crowd present there had indulged in large scale stone pelting upon the accused persons so that they run away from the spot. Coming to the statement of the accused persons under Section 313 of the Cr.P.C., some of the accused have admitted their presence at the spot and it has to be proved that once they had not disputed their presence at the spot, whether the acts attributed to them stand proved fully keeping in view the suggestions put up to the witnesses about the prosecution case. In regard to the quarrel that took place, the learned counsel for the respondents had placed reliance upon the decision in Amin Chand and others vs. State of Himachal Pradesh, 1985 Sim.L.C. 298, wherein, in regard to appraisal of evidence under Section 45 of the Indian Evidence Act, it was observed that if the direct evidence is satisfactory and reliable, it has to be preferred to expert evidence. Such direct evidence cannot be rejected on hypothetical medical evidence. Reliance was also placed upon the decision in Jagannath Rana and others vs. State, 1994(1) Crimes (Orissa) 116, wherein in para 8 of the judgment, the following observations were made: “Evidence Act, 1872 – Sections 17 & 18 – Suggestion given by the counsel for accused to a prosecution witness is inadmissible in evidence and court cannot rely upon such inadmissible evidence.” Further, reliance was also placed on the decision in Koli Trikam Jivraj & another vs. The State of Gujarat, AIR 1969 (Guj.) 69. The observations made in paras 15, 16 and 18 are relevant and are being reproduced below: “Suggestions put in cross examination are no evidence at all against the accused and on the basis of such suggestions no inference can be drawn against the accused that he admitted the facts referred to in the suggestions. It is possible that in putting suggestions the lawyer of the accused, if he thinks fit and proper, may not put the entire case of the accused in the cross examination of a prosecution witness.” (Para 15) “Therefore, the accused is entitled to the benefit of the plea set up