IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.: 71/1999 Reserved on: 20.5. 2010 Decided on:2.6. 2010 _____________________________________________ State of Himachal Pradesh. …Appellant. Versus Bumber and others. …Respondents. _______________________________________________________ Coram: Hon’ble Mr. Justice Deepak Gupta, Judge. Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the Appellant: Mr. Rajesh Mandhotra, Deputy Advocate General. For the Respondents: Mr. N.S. Chandel, Advocate. ____________________________________________________ Per Rajiv Sharma, J. By way of this appeal, the State is seeking reversal of the judgment dated 6.11.1998 of the learned Sessions Judge, Bilaspur rendered in Sessions Trial No.39 of 1996, whereby respondents, who were charged with and tried for offences punishable under section 307 read with section 34 of the Indian Penal Code, have been acquitted. 2. Case of the prosecution, in a nutshell, is that on 25.8.1995, a quarrel had taken place in which Parvesh 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 Kumar (PW-5) had received injuries. He was taken to hospital for treatment. The police visited the hospital and the statement of PW-5 Parvesh Kumar was recorded vide Ex.PW-4/A. He stated in Ex.PW-4/A that when he was going to attend his Class, he was accosted by accused Bumber Thakur. He went towards Bumber Thakur and asked the reason why he was called. He was given beatings by the accused persons. Bumber Thakur inflicted knife blow and Anil Kumar and Rajesh Kumar gave beatings with iron Chimta and iron road. He was rescued by Brij Lal and Roshan Lal. The Medico Legal Certificate of the injured was obtained by the police and FIR Ex.PW-4/B was registered. The matter was investigated by the police and the challan was put up in the Court after completing codal formalities, under section 207 of the Code of Criminal Procedure. 3. Prosecution examined as many as ten witnesses in support of its case. Accused were examined under section 313 of the Code of Criminal Procedure. Their defence is of simpliciter denial. 4. Mr. Rajesh Mandhotra, learned Deputy Advocate General has strenuously argued that the prosecution has proved its case against the respondents- accused. 5. Mr. N.S. Chandel has supported the judgment of the learned trial court. 3 6. We have heard the learned counsel for the parties and perused the record carefully. 7. PW-1 Dr. Milap Sharma has narrated that he examined accused Bumber Thakur on 25.8.1995 at 9.20 P.M. He found following injuries: i) Abrasion over middle part of left fore-arm front 4x2cms. ii) Abrasion 2x2cm over medial aspect of right hand. iii) Abrasion over right glutel area 2cmx2cm.” 8. PW-1 Dr. Milap Sharma issued Medico Legal Certificate Ex.PW-1/A. According to him, all the injuries were simple in nature caused within the duration of less than twelve hours and weapon used was blunt. 9. PW-3 Dr. J. Goswami examined Parvesh Kumar on 25.8.1998 at about 1.30 P.M. He found following injuries on his person: i) “CLW scalp 2” long over mid-parietal region extending forwards from occipital region bleeding plus. ii) Cut injury left nostril ½ inch long with avulsion of 1” piece of skin from lateral side, bleeding plus. iii) Cut injury 1” long over left cheek ½ " below left eye, bleeding plus. iv) Cut injury above upper lip on the left side 1” long bleeding plus. 4 v) Blunt trauma abdomen with numerous linear abrasions and tenderness all over. vi) CLW left side of chest wall near sternum. vii) Eccymosis left lower eye-lid, no visual impairment.” 10. In his cross-examination, PW-3 Dr. J. Goswami has admitted that the injured himself has stated to him that the injuries were received by him in a scuffle with students. According to him, all the injuries mentioned in Ex.PW-3/A could be caused in scuffle or with nail scratches inflicted during scuffle. He had categorically stated in his cross- examination that he had not referred the patient to Shimla for further examination. 11. PW-5 Parvesh Kumar is the complainant himself. He has narrated that on 25.8.1995, he was going to his Class. He was accosted by accused No.1. In the meantime, two other accused caught hold of him and accused Bumber Thakur started giving blow with knife. He received injuries on his hands and below his left eye and eyelid. Accused Rajesh Kumar gave him beatings with Chimta and accused Anil was having iron rod in his hand. He also gave beating to him with iron rod. He was also given beatings with fists and kicks blows. He raised alarm. On hearing his cries, Brij Lal and Roshan Lal came on the spot. He became unconscious and on regaining consciousness, 5 his statement Ex.PW-4/A was recorded. He remained admitted at District Hospital and I.G.M.C. Shimla upto 5.9.1995. He was also operated upon. He has admitted in his cross-examination that Dr. J. Goswami had examined him first of all at District Hospital, Bilaspur and he had shown him his injuries. On the suggestion, he denied that he was conscious at the time he was examined. He did not know which of the doctors had referred him to I.G.M.C. Shimla. He denied the suggestion that he ran away from the hospital. 12. PW-6 Roshan Lal has supported the version of PW-5 Parvesh Kumar. 13. PW-7 Dr. K.L. Gupta has narrated that PW-5 was admitted in the Hospital, Surgery Ward, Unit-II as a case of blunt trauma abdomen alleged to have physical assault on 26.8.1995. According to his opinion, injured had sustained injuries which was dangerous to his life. 14. PW-8 Ram Prakash is the father of PW-5. According to him when he visited the hospital, his son was not conscious. He was administered glucose. According to him, he regain consciousness at 6.30/6.45 P.M. He then narrated that his case was referred from District Hospital, Bilaspur to I.G.M.C. Shimla where he remained admitted from 26.8.1995 to 6.9.1995. 15. PW-9 is Subhash Chand. According to him, Bumber Thakur disclosed in his presence that he was having 6 knife, which he had concealed beneath the stone in between the science block and stadium. Statement of the accused was recorded vide Ex.PW-9/A. Accused Anil Kumar also made disclosure statement that he was having iron rod, which he had concealed behind the office of Principal in the bushes. His statement was recorded vide Ex.PW-9/B. Accused Rajesh Kumar was also interrogated and he also made disclosure statement Ex.PW-9/C. According to Ex.PW-9/C he had thrown the Chimta on the stairs of the college complex. Bumber Thakur had produced the knife Ex.P-1 vide recovery memo Ex.PW-9/D. Saria was also got recovered by another accused Anil Kumar which was taken into possession vide memo Ex.PW-9/E. Chimta was not traceable as per spot Ex.PW-9/F. Sketch of the knife Ex.PW-9/G was prepared at the spot. Iron rod Ex.P-2 was also taken into possession on the spot. 16. PW-10 Birbal Ram was the Investigating Officer. He visited the District Hospital and came to know that PW-5 Parvesh Kumar has received injuries. He visited hospital at 4.00 P.M. According to him, Parvesh Kumar was unconscious. He recorded the statement of PW-5 Parvesh Kumar under section 154 of the Code of Criminal Procedure, which is Ex.PW-4/A. He also prepared the site plan Ex.PW- 10/A. He recorded the statements of accused under section 27 of the Indian Evidence Act. 7 17. PW-5 has stated that he became unconscious after he was given beatings by the accused persons, however, PW-3 Dr. J. Goswami has deposed that injured was conscious and alert when he was brought before him. PW-8 Ram Prakash has also deposed that PW-5 was unconscious. This statement is contradictory to the statement made by PW-3 Dr. J. Goswami. PW-5 was admitted in District Hospital, Bilaspur. How he has reached I.G.M.C. Shimla has not been explained by the prosecution. It has not come in the statement of any of the doctors, who examined the injured that they have referred him to I.G.M.C. Shimla. It has also not come in the statement of Dr. K.L. Gupta (PW-7) that the patient was referred from District Hospital, Bilaspur. The injured has not disclosed to the doctor about the weapon of offence, i.e. knife or Chimta or iron rod. According to PW- 3, injured was examined by him at 1.30 P.M. However, the FIR Ex.PW-4/B was recorded at 7.15 P.M. This delay has not been explained by the prosecution. The Investigating Officer was also informed by one constable that incident has taken place in the college. The disclosure statements, on the basis of which recoveries have been effected by the police, are also not free from doubt. The recovery of knife and iron road has been made from an open place, which was easily accessible to general public. It is not believable that a fight could take place when a large number of police personnel 8 were deputed in the college campus due to ensuing elections. Prosecution has not explained the injuries received by Bumber Thakur. There are discrepancies, improvements and inconsistencies in the statements made by the witnesses and the trial court was fully justified in acquitting the respondents. 18. In view of the aforesaid discussion, we find no merit in the appeal and the same is dismissed. Bial bonds furnished by the accused are ordered to be discharged. (Deepak Gupta), J. (Rajiv Sharma), J. 2.6. 2010 *awasthi*