IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 244 of 2003 Date of decision: 21.07.2010 Chuhar Singh ... Appellant Versus State of H.P. … Respondent Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant: Mr. J.S. Guleria, Assistant Advocate General. For the respondent: Mr. Rakesh Jaswal, Advocate. V.K. Ahuja , J. (Oral): This is an appeal filed by the appellant under Section 374 Cr.P.C. against the judgment of the Court of learned Sessions Judge, Kangra at Dharamshala, dated 1.5.2003/2.5.2003, vide which the appellant was held guilty under Sections 353 and 332 I.P.C. and was sentenced as under:- Under Section 353 I.P.C.: Simple imprisonment for one year and to pay a fine of Rs.2000/- and in default thereof, to further undergo simple imprisonment for a term of three months. Under Section 332 I.P.C.: Simple imprisonment for six months and to pay a fine of Rs.1000/- and in default thereof, to further undergo simple imprisonment for a term of two months. 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 2. Briefly stated, the facts of the case are that on 14.9.2000 HC Ramesh Chand was on traffic duty being Incharge of traffic of Police Station Kangra. He alongwith PW-3 constable Gorakh Singh was on traffic duty at Tehsil Chowk, Kangra. It was alleged that the accused was driving truck bearing registration No. PB-32-B-7410, came there from Jawalamukhi side and halted the same at the centre of the road obstructing the traffic. Ramesh Chand, HC, enquired from the accused as to where he wants to go, who told that he wants to go to Palampur. The road to Palampur was pointed out by HC Ramesh Chand. HC Ramesh Chand showed the road towards Palampur asked the accused to take his vehicle to one of the road, but the accused in speed drove away the truck on Tanda Road. Consequently, Ramesh Chand accompanied by constable Gorakh Singh, chased the canter on a scooter. When HC Ramesh Chand attempted to over take the truck, the accused from driver window, showed a Barchhi to scare them. The truck was ultimately stopped at near Sadarpur road and the documents of the truck were demanded for inspection. Accused took out kirpan from his person and hit Ramesh Chand on his chest, resultantly, the shirt and baniyan of the complainant got torn, who sustained injuries. Thereafter, a telephonic message was sent to Police Station Kangra and S.H.O. Surinder Singh came to the spot, recorded the statement of the complainant Ramesh Chand under Section 154 Cr.P.C., who was also sent for medical examination. Thereafter, the case was registered and after investigation, the challan was filed by the Court of learned Additional Chief Judicial Magistrate, Kangra, and after committal, the 3 case was tried by the learned Sessions Judge, as detailed above, leading to the conviction of the appellant. 3. I have heard learned counsel for the parties and have gone through the record of the case. 4. On appraisal of the evidence led by the prosecution, it is clear that the prosecution case rests upon the testimony of the complainant/injured PW-2 HC Ramesh Chand, PW-2 Constable Gorakh Singh and another eye witness, namely, PW-5 Mast Ram, whose statements need to be appreciated carefully. 5. A perusal of the statement of PW-2 HC Ramesh Chand shows that he has stated in support of the complaint lodged by him that the vehicle was taken by the respondent and when he stopped, he gave a blow with kirpan and hit him on his chest. His shirt and baniyan were torn and the blood came out. He asked the constable to intimate Police Station and thereafter, the S.H.O. came to the spot. He was sent for medical examination and clothes were also taken into possession. In cross-examination, he admits that Raj Kumar was not on duty at Tehsil Chowk. He denied his knowledge that on that day the accused was also medically examined in the hospital. A perusal of the statement of PW-6 Inspector Surinder Singh and Investigating Officer in this case shows that Chuhar Singh was also sent for medical examination by him after coming to Police Station. However, this witness has denied his knowledge but denied the suggestion in this regard. In cross-examination PW-2 HC Ramesh Chand further stated that he cannot say how the accused suffered injuries. He also does not know that beard of accused was also pulled by some person and hair removed from his beard. He further 4 stated that he did not check the documents of canter, as they were not shown to him by the accused, so there was no question of challaning him. He also denied his knowledge that when the police reached, the accused was bleeding from head. He also does not know he was having injuries on other parts of the body. This suggestion he has denied, though he was present at the spot when the S.H.O. came and he was sent for medical examination and the accused was arrested at that time. Therefore, he should have been aware if there were injuries on the person of the accused at that time. He denied the suggestion that both hands of accused were tied by the villagers with rope. He denied the suggestion that he and villagers gave beatings to the accused. 6. PW-3 Constable Gorakh Singh has corroborated the statement of PW-2 on material particulars. He admits that many persons had gathered on the spot and the public gathered there thrashed the accused. No reasons have come up on record in regard to the injuries on the person of the accused suffered by him in the same transaction. He admits that when the accused was beaten, his clothes were torn and it had become difficult for them to save him from crowd. He also admitted that shopkeepers was standing nearby at the time of occurrence. He admitted the suggestion in regard to change of the traffic staff when the DIG found a traffic staff constable taking bribe from a driver, self stated, it was another traffic staff which had earlier replaced them. He admitted the suggestion that the accused refused to show the documents on demand and grappling took place between the accused and Ramesh, which continued for 2-3 minutes. He also stated that when grappling 5 took place, about 60-70 persons from nearby area collected. It is clear from the above discussion that at the time of occurrence and thereafter also, many persons were present at the spot whose number was given as 60-70, who must have witnessed the occurrence at the relevant time. In such circumstances when the independent witnesses had witnessed the occurrence, they should have been associated and should have been produced during trial of the case. However, the police associated PW-5 Mast Ram, an independent witness, but he did not support the prosecution of having witnessed the occurrence or that the injuries were inflicted in his presence. Therefore, non-joining of the independent witnesses who were sufficient large in number, though present at the spot, but were not examined or associated, makes the statements of PW-2 HC Ramesh Chand and PW-3 Constable Gorakh Singh, doubtful particularly when the complainant themselves are the aggrieved party who are police officials and in such circumstances, independent witnesses should have been associated during investigation and should have also been produced by the prosecution. 7. Apart from the above, it has come up in the testimony of PW-1 Dr. Yashwant Singh Verma that he examined on the same day the accused person and many injuries were found on the person of the accused. He also handed over a copy of the MLC to the police at that time, but it was not shown to him during his examination. He also admitted that the accused had told him that he was pulled from beard and some hair were uprooted. I am unable to understand as to how the Doctor remembered all these facts orally, but since no allegations were made as against him in his cross-examination that he 6 has deposed falsely, therefore, his statement goes unrebutted. It has come up in the statement of PW-6 Inspector Surinder Singh that the accused was also sent for medical examination and MLC of accused was also appended with the challan and, therefore, it should have been proved during the trial of the case, so that some explanation could be considered if given by the witnesses in regard to the injuries on the person of the accused which were sustained by him at that time. The public would not have given injuries on the person of the accused without any rhyme or reason and no reasons have been given by either of the two witnesses in regard to the injuries and, therefore, there is no explanation by both the eye witnesses in regard to the injuries on the person of the accused. Moreover, as per the MLC Ext. PA proved from the statement of PW-1 Dr. Yashwant Singh Verma, the injury on the person of the complainant was simple in nature, which was incised wound. According to PW-1 injury on the person of the complainant was superficial and it was not a stab wound, which appears to have been caused by dragging of some object. Once the injury in question on the person of the complainant was simple and there was only one injury on his person, but there were many injuries on the person of the accused as admitted by the Medical Officer, these injuries were required to be explained by the prosecution and, therefore, the origin of the case is not clear from the facts as have been brought on record. 8. The learned counsel for the appellant had relied upon the observations made in Paras 18 and 19 in case Babu Ram and others Vs. State of Punjab, (2008) 2 Supreme Court Cases (Cri) 727. 7 The observations made in Paras 18 and 19 are relevant and are being reproduced below:- “18. It is a well-settled law that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences: “1. that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version. 2. that the witness who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; 3. that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.” (See Lakshmi Singh v. State of Bihar, SCC p. 401, para 12.) 19. Further, it is important to point out that the omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one.” 9. It is, therefore, clear that the above decision applies to the present facts and the prosecution has suppressed the genesis and the origin of the occurrence and, therefore, has not presented the true version. The accused has taken the defence in his statement under Section 313 Cr.P.C. that the police officials proclaimed that he was an extremist and, therefore, he was given beatings by the public, which has not been so stated by either of the two witnesses or proved by the prosecution. Therefore, the evidence of the occurrence is not 8 clear on record, but the fact remains that the accused has suffered more injuries than on the person of the complainant which was superficial in nature. PW-6 Surinder Singh, Investigating Officer, admits that documents of vehicle were in order and number plate was not missing. Therefore, there was no reason for accused to run away from the spot. 10. In view of the above discussion, the prosecution story cannot be relied upon to hold that the evidence as against the appellant stood proved under Sections 353 and 332 I.P.C. 11. In view of the above discussion, I accordingly hold that the guilt of the accused was not established beyond any reasonable doubt and the findings recorded by the learned District Judge convicting and sentencing the appellant to the contrary are liable to be set aside and the appeal is accordingly accepted and those findings are set aside resulting in the acquittal of the appellant. The bail bonds furnished by the appellant shall stand discharged. Fine if recovered, shall be refunded to the appellant. ( V.K. Ahuja ), July 21, 2010 Judge (BSS) 9 10