IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 659 of 2001. Date of decision:17.05.2011 __________________________________________________________ State of H.P. .....Appellant. Vs. Guru Dutt and another. .....Respondents. Coram The Hon'ble Mr. Justice R.B. Misra, J. The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? No. __________________________________________________________ For the appellant : Mr. R.K. Sharma, Sr. Additional Advocate General. For the respondent: Mr. Himat Negi, Advocate vice Mr. Ajay Sharma,Adv. Justice V.K. Sharma, J. (Oral) The State is in appeal against acquittal of the respondents, who shall hereinafter be referred to as the accused, for the offences under Sections 325 and 323 read with Section 34 of the Indian Penal Code (IPC) by the learned Chief Judicial Magistrate, Una, H.P. vide judgment dated 27.6.2001. 2. Initially the accused were sent up to face trial to the Court of Sessions under Sections 325, 307 and 323 read with Section 34 IPC. However, the learned Sessions Judge concluded that since the offence under Section 307 IPC was not made out, the case was made over to the learned trial Court for framing of charge and trial under Sections 325 and 323 read with Section 34 IPC. 3. Briefly stated the case of the prosecution was that on 21.6.1994 at about 11.00 p.m. brother of the complainant (PW-1 Vijay Kumar) by name Madan Mohan was sleeping in the field adjoining to the house of the complainant which was under construction at that time. It was about this time that the complainant on hearing the cries of his brother “Maar Diya Maar Diya”, rushed to the spot and found that A-1 1 Whether reporters of Local Papers may be allowed to see the judgment? No. 2 Guru Dutt and his mother A-2 Krishna Devi were abusing Madan Mohan. In the meantime, A-1 Guru Dutt gave a blow with wooden ‘kari’ on the head and face of Madan Mohan. On this the complainant raised alarm which attracted his nephews, Amit and Ashutosh and brother Jagmohan along with other villagers to the spot scene. On their arrival the accused went away from there. Injured Madan Mohan was shifted to Rural Hospital, Daulatpur. On getting telephonic information about the occurrence, ASI Dharam Singh reached the hospital. However, injured Madan Mohan was not in a fit condition to make statement and as such statement of the complainant was recorded, on the basis of which FIR was registered. 4. Injured Madan Mohan was examined by PW-3 Dr. Ashish Lakhi, who had noticed the following injuries on his person and had observed as under:- 1. A lacerated wound 4.5 cm long was present on the occipital region of skull on left side 5 cm above the left ear. Edges were not sharp. Margins not well defined. Bleeding was present. Wound was 2 mm wide, 4 mm deep stitches applied and x.ray showed fracture of left side of skull. 2. A swelling was present on the left side of lower jaw. On examination unnatural mobility was present. Crapitus was present. It was tender. Advised x-ray mandible which showed fracture of left mandible. 3. A lacerated wound 1.5 cm long, 6 mm deep, 2 mm wide was present on the left side of lower jaw. Bleeding was present. Edges not sharp. Margins not well defined. Stitches applied. 4. A swelling was present on the left arm. Mild tenderness was present. Advised x-ray left humerus and shoulder joint which did not show fracture of any of the bones. 3 Injuries No. 1 & 2 were grievous. Injuries No. 3 & 4 were simple. All these injuries were inflicted by a blunt weapon within 6 hours of examination. I issued MLC Ext. PW-3/A, which is in my hand and bears my signatures. X- ray films are Ext. PW-3/B to Ext. PW-3/E. The red encircled opinion in the back of Ext. PW-3/A is also in my hand. The opinion Ext. PW-3/F with regard to patient not fit to give statement is also in my hand. All the injuries are possible with the weapon Ext. P6 shown to me today in the Court.” 5. The weapon of offence was recovered by the police pursuant to the disclosure statement made by A-1 Guru Dutt. 6. On completion of investigation the accused were sent up to face trial. On being charged, they did not plead guilty and claimed to be tried. The prosecution evidence followed. In all, it examined 12 witnesses. 7. On close of the prosecution evidence, the accused were examined under Section 313 Cr.P.C., wherein, they pleaded innocence and false implication. However, they did not lead any evidence in defence. 8. We have heard the learned Senior Additional Advocate General for the appellant/State, learned counsel for the respondents/accused and gone through the records. 9. The accused have been acquitted by the learned trial Court mainly on the grounds of discrepancies in the ocular evidence vis-à-vis medical evidence, identity of A-1 Guru Dutt and recovery evidence not being up to the mark. 10. The occurrence relates to 21.6.1994. It is in evidence in the statement of PW-1, Shri Vijay Kumar that injured Madan Mohan had lateron died on 22.7.1995, that is, after more than one year from the alleged occurrence. Though according to him the injuries suffered by Madan Mohan in the alleged occurrence had resulted in cancer due to 4 which he had died, yet such assertion on the face of it appears to be just a make belief story and does not seem to have any nexus or co-relation with the incident and death of injured Madan Mohan. Further more there is also no expert evidence to arrive at such inference. 11. Admittedly, statement of injured Madan Mohan could not be recorded earlier soon after the incident. As it is admitted by PW-9 ASI Dharam Singh I.O. that though on 22.6.1994 he was fit to make statement, but he had not recorded his statement at that time. The statement of the injured was also not recorded in the Court as by that time he was no more. 12. Admittedly, the alleged occurrence had taken place during night at about 11.00 p.m. In such circumstances, in the absence of any evidence as to what was the source of light with the help of which the complainant and other eye witnesses had identified the assailants, particularly, A-1 Guru Dutt, it is difficult to come to a definite conclusion that it was A-1 Guru Dutt alone and none else, who was the assailant in this case and was responsible for causing injuries to injured Madan Mohan. In this regard a reference may also be made to the statement of PW-1, Vijay Kumar, who has stated during cross-examination that at the time of occurrence A-1 Guru Dutt was wearing only an underwear. However, PW-2, Raghubir Chand has stated that A-1 Guru Dutt was wearing a white coloured Payajama and Baniyan at that time. 13. Now coming to the ocular evidence about the occurrence, it would be seen that though apart from PW-2, Vijay Kumar some other persons were also stated to be eye witnesses to the occurrence, yet a perusal of their testimonies would go to show that except PW-2 Vijay Kumar all others had arrived at the spot after the alleged occurrence was already over. The initial version about the occurrence as stated to the 5 police by PW-2, Vijay Kumar finds mention in his statement Ext. PW-1/A, wherein he had stated that when he reached the spot, he found that both the accused were hurling abuses at injured Madan Mohan and were proclaiming that he (Madan Mohan) had been hurling abuses at them day in and day out and soon thereafter A-1 Guru Dutt, who was holding the ‘kari’ in his hand gave a blow of the same to injured Madan Mohan on his head and face as a result of which the injuries started bleeding profusely. However, while appearing in the Court as PW-1, he (Vijay Kumar) has stated that both the accused were abusing injured Madan Mohan and were giving beatings to him. A-1 Guru Dutt had also given a blow with ‘kari’ to injured Madan Mohan in his presence. In cross-examination, he has stated that in his presence only one blow was given. In such circumstances, the conflict between the ocular and medical evidence cannot be lightly overlooked and more so when the version of injured Madan Mohan about the occurrence is not available, albeit the settled legal position that in case of conflict between ocular and medical evidence, it is the ocular version which is to be given precedence. 14. The recovery evidence is also not up to the mark. Disclosure statement Ext. PW-4/B is in the nature of an inculpating confession and as such, the confessional part thereof is liable to be excluded from consideration. Though PW-6, Amit Kumar has also stated that the weapon of offence was got recovered by A-1 Gutu Dutt in his presence, yet on perusal of recovery memo Ext. PW-4/C, it is manifest that he was not a witness to the same. 15. It is in evidence that there was civil litigation pending between the parties. It may be that there was enmity between them on this score. However, enmity is a double edged weapon. It can be the cause for false implication or motive for causing harm to the enemy. 6 16. Another incongruity appearing in the prosecution evidence is that admittedly both the accused are related to each other as son and mother, respectively. In the prosecution case, the second accused is named as Krishna Devi. However, the complainant, who has appeared as PW-1, has disclosed her name as Shakuntala Devi. This aspect remains unexplained. 17. In view of the above, we are satisfied that the learned trial Court was correct in concluding that the prosecution was not able to establish its case against the accused beyond reasonable doubt. Accordingly, we do not see any ground for interference with the impugned judgment and proceed to dismiss the appeal. (R.B. Misra) Judge (V.K. Sharma) Judge May 17, 2011 (cr)