IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Criminal Appeal No. 304 of 2001 Date of Decision: 16th September,2011 State of Himachal Pradesh Appellant Versus Ajit Singh and others Respondents Coram The Hon’ble Mr. Justice Deepak Gupta,J. The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? No. For the appellant: Mr.Vivek Thakur, Additional Advocate General For the respondents: Mr. Satyen Vaidya, Advocate, for the respondents. Sanjay Karol, J. (Oral) For an offence, which is alleged to have been committed on 11.12.1995, accused were put to trial. In terms of judgment dated 30.10.2000 passed by learned Additional Sessions Judge, Shimla, H.P., in Sessions Trial No.28-S/7 of 1996, titled as State of H.P. vs. Ajit Singh and others, accused stand acquitted of the charged offences. 2. It is the case of the prosecution that on 11.12.1995 Sanjay Kumar (PW-1) got recorded his statement with the police under Section 154, Cr.P.C. (Ext.PW-1/A) to the effect that in the year 1988-89, a complaint filed by him and others, Whether the reporters of Local Papers are allowed to see the Judgment? 2 and the accused were convicted by the Court of JMIC-II, Shimla. Since then the accused have been nurturing grudge and animosity against him and his family members. The matter was also brought to the notice of the Superintendent of Police in writing and police protection was sought. On 9.11.1995 he alongwith his friend Manmohan Singh, Dinesh Kumar (PW-4) and brother Jagdeep Kumar (PW-3) was going towards Shoghi when accused Jai Singh, Amar Singh, Mohan Singh, Ajit Singh, Anil, Balwant and Sanjiv gave beatings to them. The matter was reported to the police. On 11.12.1995 Smt. Jamna Devi, Bimla Devi, Anupma and Hem Lata gave beatings to his sister Shakuntla (PW-19) and Bhabi (sister-in-law) Smt. Chander Kala (PW-11). While they were on their way to report the matter at Police Station, Boileauganj, all the accused persons also gave beatings to them with Dandas. When he learnt about the same, he alongwith Jagdeep Kumar (PW-3), Sudhir (PW-2), Kishan Chand (PW-5), Om Prakash (PW-17), Subhash Chand and Dinesh came to see his sister at Shoghi. At Railway Station, Shoghi accused persons incepted them and attacked them with Dandas and knives. Accused Sanjiv Kumar gave a blow with a knife on his face. Kishan Chand, Om Parkash, Subhash, Jagdeep, Sudhir and Dinesh also sustained injuries with sharp edged weapons. The incident took place at about 10-10.30 a.m. 3. On the basis of the said complaint (Ext.PW-1/A), FIR No. 8/95 (Ext.PW-12/A) dated 11.12.1995 under Sections 3 147, 148, 149, 323, 324 and 341 IPC was registered at Police Station G.R.P, Shimla. The matter was investigated by ASI Balbir (PW-20) and SI Amar Nath (PW-22). During investigation accused were arrested and on the basis of disclosure statement knife (Ext.P-5) was recovered. Sticks (Ext.P-14) were also recovered by the police. The injured were got examined at IGMC, Shimla, through Dr.B.K.Lakhan Pal (PW- 10), Dr. Rajnish Pathania (PW-14), Dr.Anil Malhotra (PW-15) and Dr. Vinod Mehta (PW-21), and medical record (Ext.PW- 10/A and Ext.PW10/B; Ext.PW-14/A to Ext.PW-14/H; Ext.PW- 15/A to Ext.15/D; Ext.21/A to Ext.PW-21/D, taken on record. 4. With the completion of investigation, challan was presented in the Court for trial. 5. All the accused persons were charged for having committed offences punishable under Sections 148, 307, 324, 326, 323 read with Section 149, Indian Penal Code, to which they did not plead guilty and claimed trial. 6. In order to prove the charge, prosecution examined as many as 22 witnesses and statements of the accused under Section 313, Criminal Procedure Code, 1973, were also recorded in which they took the following defence: “Nothing except that I am innocent and implicated in this case falsely by the complainant parties because of I originally belongs to Village Galol, Tehsil Shimla and have been given some land by my sister Smt. Jamuna in Village Goro which the complainant party belongs. The members of the 4 complainant parties are not happy because of the land given to me by my sister in their village and it is for this reason they assaulted on several occasion and in this case also I have been implicated falsely alongwith other co-accused out of whom accused Mohan Singh is my brother and Amar Singh, Balwant Singh, Sanjeev Kumar my nephew, whereas accused Anil and Rajeev the sons of my other brother Jai Ram and Hari Chand Rohal.” 7. Court below has acquitted the accused, hence the instant appeal. 8. From the statements of Dr.B.K.Lakhan Pal (PW-10), Dr. Rajnish Pathania (PW-14), Dr.Anil Malhotra (PW-15) and Dr. Vinod Mehta (PW-21) and medical record produced on record (Ext.PW-10/A and Ext.PW10/B; Ext.PW-14/A to Ext.PW-14/H; Ext.PW-15/A to Ext.15/D; Ext.21/A to Ext.PW-21/D, a (Ext.PW-16/A to Ext.PW16/D; Ext.PW-15/A; Ext.PW-17/A to Ext.17/C; Ext.20/A to Ext.PW-20/F; Ext.PW-21/A-1 to Ext.PW- 21/A-3, Ext.PW-21/B, Ext.PW21/C-1 to Ext.PW-21/C-4 and Ext.PW-21/D), it cannot be disputed that Sanjay Kumar (PW-1), Jagdeep Kumar (PW-3), Sudhir Kumar (PW-2), Om Parkash (PW-6), Subhash Chand and Kishan Chand (PW-5) received injuries on their body, which were simple and grievous. However, this fact alone would not be sufficient to establish complicity of the accused to the charged offences. 9. That some fight took place at Railway Station, Shoghi, between the two groups cannot be disputed. The fact 5 that both the complainants and the accused have registered cross cases against each other is also not disputed. Police officials have admitted that even some of the accused persons sustained injuries in relation to the very same incident. Even they were got medically examined and challan with respect to the case registered against the complainant party was also filed in which members of the complainant party are the accused persons. 10. As per the complainant party, ladies of their house i.e. PW-11 and PW-19 were given beatings by the ladies belonging to the accused party. Subsequently these ladies were also beaten by the accused persons and it was only when they went to inquire about the welfare of the ladies of their side, accused persons assaulted them with sharp edged weapons and sticks. However, except for bald statements of PW-7, PW-11, PW-18 and PW-19, there is nothing on record to show that prior to the incident in question, any such incident took place. Prosecution has also not placed on record any material to show prior animosity between the two parties. Even with regard to the alleged incident, which took place on 9.11.1995, there is nothing on record to substantiate this fact. 11. The incident took place on the railway tracks near Railway Station Shoghi. From the statement of Om Parkash (PW-6) the sole independent and unrelated witness, who is a government employee and posted at Railway Station, Shoghi, it has come on record that he saw two groups fighting with each 6 other on the railway track. According to him both groups were giving blows with Dandas to each other. 12. PW-19 states that at about 8 a.m. on 11.12.1995 while she was on way to her office at Shimla, she was caught by accused Ajeet, his wife Bimla and given beatings. She states that other ladies of the village and her Bhabi Chander Kala (PW- 11) rescued her. She also states that later on accused also gave her beatings with sticks. No doubt, her version also stands corroborated by PW-11, but, however, we find their testimonies not to inspire confidence. PW-19 admits that she remained in Shoghi bazaar upto 1 p.m. in the shop of Badri. She also admits that “other ladies” from the village came to rescue her alongwith PW-11. Now police has not associated any one of these independent persons, during investigation nor has the prosecution examined them in Court during trial. PW-11 admits that they were assaulted in the bazaar at Shoghi where there are several shops. Surprisingly she states that none came to rescue them even though shops were open. The witnesses admit that they did not visit the Hospital but straight away went to their respective homes. Now if Smt. Shakuntla had sustained injuries, she could have gone to the Health Centre at Shoghi itself or at least reported the matter to the police through telephone from Shoghi bazaar itself. She was not alone at that time. Significantly PW-11 states that one Shri Raj Kumar and Surinder Kumar had rescued them, which is also not the version of PW-19. Even these persons have not been 7 examined in Court. With regard to the involvement of all the accused persons, witnesses were confronted with their prior statements recorded under Section 161, Cr.P.C. wherein there is no reference of accused Ajit Singh and Amar Singh. Hence, the genesis of the dispute cannot be said to have been proved by the prosecution. 13. According to the victims, PW-1, PW-2, PW-3, PW-4, PW-5 and PW-17, the moment they reached Railway Station at Shoghi to inquire about the welfare of the ladies of their houses, the accused started pelting stones. They were also given blows with knives and sticks. Now this version stands contradicted on record. Pertinently, injured Subhash has also not been examined by the prosecution. 14. That apart, each of these witnesses have deposed that they were given blows by each of the accused persons individually and with separate sharp edged weapons i.e. knives. But the police has only taken into possession one knife (Ext.P- 5). If each of the victims were given blows with separate weapons individually by the accused persons then there has to be more than one weapon. There is no explanation with regard to absence/non recovery of such sharp edged weapons. Further each of these witnesses, have denied that anyone of the accused persons had also received injuries as a result of the very same incident. 15. In this regard statement of PW-6 acquires significance as it has come on record that both the groups were 8 fighting with each other. Further, statement of Dr.Rajnish Pathania (PW-14) also reveals the fact that complainants while getting themselves medically examined, had disclosed that injuries were suffered by them as a result of group clash. Victims admit that cross cases stand registered against them in relation to the very same incident. They admit that the incident took place in broad day light at about 10-10.30 a.m. yet none from the neighbourhood, where undisputedly houses are there, were associated by the police to corroborate their version. Significantly PW-5 admits that stones were pelted by both the parties against each other, which process went on for about 2-3 minutes. He also admits that atleast some of the accused persons might have received injuries in this process. Even PW- 17 admits that they pelted stones on the accused persons, which, however, was only in defence. Surprisingly even this witness feigned ignorance about the fact that some of the accused persons also remained admitted in the hospital for treatment. Both the parties are from the same area. May be their residence are at a distance of about 15-20 kms., but when a group fight takes places people are generally aware of all events and developments. Also these witnesses admit that their statements were recorded by the police much after the incident and the time gap in certain cases is more than 8-9 months. 16. According to Jagdeep (PW-3) blow with a knife was inflicted by accused Amar Singh, whereas according to Dinesh 9 (PW-4) it was by accused Balwant, who gave the blow whereas as per the version of Kishan Chand (PW-5) the blow was given by accused Sanjiv Kumar. Thus the prosecution has also not been able to prove as to which of the accused persons had given blows to which of the victims and with which weapon. Hence testimonies of the victims do not inspire confidence. 17. Further the incident in question is alleged to have been witnessed by PW-7 and PW-18. According to us not much reliance can be placed on their testimonies. They are close relatives. They reside at a distance of about 25 kms. from the place of the incident. They have not satisfactorily explained their presence on the spot. There are contradictions in the statements with regard to the manner in which they left the spot. Their conduct is unusual. They also did not report the matter to the police. It is not their case that they had sustained injuries, or had fear of lives and as such could not have reported the matter to the police. Their statements were also recorded much after the date of incident. They also did not seek any help from the neighbourhood, the Bazaar or the staff posted at the Railway Station. 18. Other independent witnesses Shiv Dutt (PW-8) and Hari Chand (PW-9) have not supported the prosecution case at all. They were declared hostile and nothing fruitful could be elicited from their statements. 19. With regard to recovery of knife (Ext.P-5), PW-22 admits that he did not record any statement under Section 27 10 of the Indian Evidence Act. He also admits that recovery took place while accused Sanjiv Kumar was in custody. Hence, it cannot be said that the alleged weapon of offence was got recovered by the police on the basis of disclosure statement made by the accused. Knife also did not have any blood stains. 20. Weapon of offence i.e. sticks/knife were not connected with the crime. These were also not shown to any of the witnesses during trial. 21. PW-20 admits that in relation to the very same incident two cases were registered, investigated separately and also challans filed in the Court in which complainant in one case is accused in the other. He admits that in each of the cases, weapons of offences were recovered from the accused. It is thus quite apparent that weapons of offence were also recovered from the complainant party. 22. From the record, it could not be proved beyond reasonable doubt that accused were in fact the assailants. The genesis of the dispute as alleged by the prosecution has also not been proved on record. From the material on record, it is proved that both the parties were present at the spot but who were the assailants is not proved. In the instant case, we find that the prosecution has failed to explain the injuries sustained by the accused persons. 23. Thus for all the aforesaid reasons, it cannot be proved beyond reasonable doubt that the prosecution has been able to prove the charged offences. 11 24. The accused have had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down in Mohammed Ankoos and others vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the accused persons has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. (Deepak Gupta) Judge. September 16, 2011 (Sanjay Karol) (C) Judge.