IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.330 of 2000 Decided on : October 19, 2010 State of H.P. …Appellant. Versus Kirpa Ram and others …Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 For the Appellant : Mr. Mr. R.K. Sharma, Senior Additional Advocate General, and Mr. Rajinder Dogra, Additional Advocate General. For the Respondents : Mr. Anup Rattan, Advocate, for respondents No.1 to 3. Mr. Neeraj Gupta & Ms Charu Gupta, Advocates, for respondent No.4. Surjit Singh, J (Oral) State has appealed against the judgment dated 1st December, 1999 of learned Chief Judicial Magistrate, Solan, whereby respondents, who were charged with and tried for offences, under Sections 326, 323, 341, 506, read with Section 149 of the Indian Penal Code, have been acquitted. 2. Accusation, which led to the trial of the respondents, may be summed up thus. On 31st December, 1993, around 10 p.m., when injured Jiya Lal (PW-1) and Whether reporters of the local papers may be allowed to see the judgment? …2… Keshav Ram (PW-2) were returning to the village, after having worked in the fields of Nitya Nand, Krishan Chand (PW-9) met them on the way. They all started leading towards the village. When they reached near the field of Nitya Nand, Krishan Chand, being the son of Nitya Nand, told that it was their turn for the night to irrigate their fields from the water of the tank. So, he started diverting the flow of water, through the channel, to his father’s fields. In the meanwhile, all the five respondents, who were present in their adjoining field, irrigating their land, appeared there. Respondent Nand Ram was wielding an axe, while the other respondents were holding Dandas. They started attacking the above-named two injured. Jiya Lal was dealt a blow of axe on his right forearm, as a result of which he sustained bleeding injury. He fell on the ground. Other respondents dealt Danda blows on his person. Keshav Ram was given Danda blows by the respondents. 3. Injured Jiya Lal and Keshav Ram were rushed to the hospital at Solan. Their medical examination was conducted at 2.15 a.m. Jiya Lal was having a cut injury on his right forearm and underlying bone was found fractured, on X-ray examination. Simple injuries were also observed on the person of Jiya Lal. Keshav Ram was having two simple injuries on his person. …3… 4. Police was informed by the doctor, who attended upon the injured. PW-8 ASI Kali Dass Sharma went to the hospital and recorded statement of Jiya Lal, under Section 154 of the Code of Criminal Procedure. Record of the said statement is Ex. PW-1/A. Case was formally registered vide FIR Ex. PWQ-9/A, on the basis of the said statement. 5. Jiya Lal produced his shirt, which he was wearing at the time of the incident, to the police. An axe was recovered at the instance of respondent Nand Ram. Dandas were recovered at the instance of the other respondents. Shirt of Jiya Lal and axe were sent to the Chemical Examiner, who vide report Ex. PA opined that three cut marks, Marked Q-1 to Q-3, on the right sleeve of the shirt could not have been possible with the blows of axe Ex. P-1. He, however, found disintegrated marks of blood on the axe as also the shirt of Jiya Lal. 6. All the respondents were challaned, on completion of investigation. Trial Court charged the respondents with the aforesaid offences. Prosecution examined the two injured and three other eye-witnesses, namely PW-5 Lal Chand Sharma, PW-7 Hemant Kumar and PW-9 Krishan Chand, besides examining the doctor, namely PW-3 Dr. S.L. Verma, to bring the charge home to the respondents. Respondents denied their involvement. They pleaded that Jiya Lal might have sustained the injury, as a …4… result of fall, while walking back to his house late in the night. 7. Trial Court acquitted all the respondents, holding that the testimony of the injured was not corroborated either by the medical evidence or the report of the Chemical Examiner and also their testimony was inherently incorrect. 8. We have heard the learned Additional Advocate General as also the learned counsel for the respondents and gone through the record. 9. Injured Jiya Lal and Keshav Ram were medically examined by PW-3 Dr. S.L. Verma at 2.15 a.m. or say about four hours after the occurrence, but according to his opinion the probable duration of the injuries was 12 to 24 hours. Prosecution made no attempt to explain how the duration of the injuries could have been 12 to 24 hours, per opinion of PW-3 Dr. S.L. Verma, when the medical examination was conducted only about four hours after the incident. 10. Two holes on the right sleeve of the shirt of PW-1 Jiya Lal have been opined to have not been caused with axe Ex.P-1, by Chemical Examiner, meaning thereby that the story that Jiya Lal was dealt blows of axe on his right forearm may not be true. In any case, there was only one incised wound on the forearm of Jiya Lal and if that is so question of three cut marks Marked Q-1 to Q-3 being on …5… the sleeve of the shirt could not have been there. The fact suggests that evidence had been fabricated to seek corroboration to the version of injured. 11. PW-1 Jiya Lal, no doubt, stated that there was no cut mark on the shirt, when he handed it over to the police, but there appears to be a reason for his saying so. By the time he was in the witness-box as PW-1, opinion Ex. PA of the Expert was on the file and this opinion, as already noticed, was to the effect that it was not possible to cause cut marks on the sleeve of the shirt with axe Ex. P-1. It has also come in evidence that the parties are not having cordial relations. They had been litigating with each other since long. Criminal cases had also been instituted by the parties against each other, even prior to the occurrence. 12. PW-3 Dr. S.L. Verma testified that injury on the forearm could have been sustained, as a result of fall on a pointed and/or sharp piece of stone. PW-7 Hemant Kumar did not support the prosecution story. He categorically stated that he came to know that injury had been sustained by Jiya Lal, as a result of fall in the darkness of night. Krishan Chand (PW-9), who, as per prosecution version, was accompanying the injured, at the time of the alleged assault also, did not support the prosecution version. He was declared hostile and cross-examined by the prosecution. PW-4 Lal Chand, brother of Krishan Chand, …6… though did say that when he reached the spot, injured Jiya Lal was lying on the ground and all the respondents were present on the spot, with weapons, like Dandas and an axe, yet his name being not there in the FIR, and the injured also not having said that he was present on the spot, his statement cannot be believed unless corroborated. In view of the abovestated position, we see no reason to interfere with the judgment of acquittal passed by the trial Court. Hence, the appeal is dismissed. ( Surjit Singh ), J October 19, 2010(sd) ( Rajiv Sharma ), J