IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Criminal Appeal No. 320 of 2001 Date of Decision: 4th March, 2008 State of Himachal Pradesh Appellant Versus Dhani Devi and others Respondents Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? Yes. For the appellant: Mr. Vivek Thakur, Addl. Advocate General. For the respondent: Mr. Rajnish Maniktala, Advocate. Sanjay Karol, J. (Oral) The present appeal arises out of judgment dated 10.8.2000 passed by Judicial Magistrate, Ist Class, Baijnath, District Kangra, H.P. in Criminal Case No. 80-II/99/95, titled as State vs. Dhani Devi and others, acquitting the accused of the charged offence. As per the case of the prosecution, FIR bearing No. 42 of 1995 under Sections 323, 341, 506 and 34 IPC was registered with Police Station Baijnath, District Kangra, H.P.. The same was lodged on the complaint of Charan Dass (PW-4). As per the complaint, on 23.3.1995 at about 7 – 7.30 a.m. the complainant’s father Shri Rulia Ram (PW-3) was going to the fields when he was stopped and abused by accused Kirpa Ram and Dhani Devi. Shortly thereafter, accused Sarwan Kumar came Whether the reporters of Local Papers are allowed to see the Judgment? 2 with a Darat (sickle) in his hand and was followed by accused Rajmal. The said accused persons started beating PW-3 with stone and danda as a result of which he suffered injuries. The incident was witnessed by Parkash Chand. Hearing the cries of Rulia Ram (PW-3), complainant Charan Dass (PW-4) along with his wife Smt. Asha and his mother Smt. Sheela came at the spot. The accused persons gave beatings to them due to which they also sustained injuries. The matter was investigated by the police and the injured PW-3, PW-4 and Smt. Sheela and Smt. Asha were got medically examined through Dr. Nirdosh Gupta (PW-8). MLC reports are Ext.PW-8/A to Ext.PW-8/D. X-ray and films are Ext.PW-6/A and Ext.PW-6/C and Ext.PW-9/A. The weapon of offence, namely, Danda and stones were recovered vide recovery memo Ext.PW-5/A and Ext.PW-1/A. The recovery was effected in the presence of Parkash Chand (PW-5), Masedu Ram (PW-1), Bhambri Ram (PW-2). With the completion of the investigation, Challan was presented in the Court for trial and the accused were charged for an offence under Sections 323, 325, 341, 506 read with Section 34, IPC. The accused did not plead guilty and claimed trial. In order to prove its case, the prosecution examined 10 witnesses and the statements of accused under Section 313, Cr.P.C. was also recorded. In defence, the accused persons have stated that they are neighbours and have been falsely implicated in the case. Accused Dhani Devi has also stated that there is prior dispute pending between the parties and a complaint with regard to path being used by the accused persons is pending investigation with the police. The accused have placed on 3 record, the complaint Ext.DA lodged by them against the complainant party with regard to the very same incident and the MLCs Ext.D-1 to Ext.D-3 pertaining to accused Rajmal, Kirpa Ram and Smt. Dhani Devi, respectively. Perusal of the same would show that the said accused persons had also received simple injuries. The accused were medically examined on the date of the incident itself. Considering the material on record, the Court below acquitted the accused of the charged offence on the ground that the complainant and the prosecution witnesses had materially improved their statements and in view of the complaint lodged by the accused party, the prosecution failed to prove, beyond reasonable doubt, that the accused persons were aggressors and had in fact committed the charged offence. I have considered the material on record and also heard the learned counsel for the parties. Masedu Ram (PW-1), Bhambri Ram (PW-2) and Parkash Chand (PW-5) have witnessed the recovery of Danda, the stones and bricks with which the complainant party was allegedly beaten up. From the testimony of Dr. Nirdosh Gupta (PW-8) and Dr. Dinesh Sood (PW-9) and Radiographer Sarwan Kumar (PW-6), it is clear that the complainant (PW-4) and Rulia Ram (PW-3) sustained injuries on their bodies. The injury sustained by PW-4 is simple. However, injuries sustained by PW-3 are grievous in nature. The witness has also medically examined Smt. Asha Devi and Smt. Sheela Devi, who also suffered simple injuries but the said injured ladies have not been examined by the prosecution during trial. 4 Hari Nand (PW-7) is the Investigating Officer, who has admitted in his cross-examination that during investigation he had found that there is a dispute between the parties with regard to path. Stones were proved as Ext.P-1 to P-8 and P-9 and Dandas as Ext.P-1, Ext.P-12 and Ext.P-13. On the basis of the complaint, an FIR was recorded by ASI Bhagwan Dass (PW-10) and the matter was investigated by Hari Nand (PW-7). From the statements of these witnesses, one thing is certain that the complainant party did suffer injuries on their bodies and scuffle took place between the two parties and between them there is a dispute with regard to path. In Ram Swarup and others vs. State of Haryana, reported in 1993 Supp (4) SCC 344, the Court has held as under:- “It was rightly urged on behalf of the appellants that this is not the correct approach for judging in cases of bilateral clash as to which party is the aggressor. This question cannot be determined on the basis of the number of injuries found on the side of the complainant or the accused person. For the purpose of recording a finding as to whether the prosecution party or the accused party was the aggressor, all the evidence adduced on behalf of the parties and relevant circumstances have to be taken into consideration. It need not be pointed out that in such cases it cannot be urged that there are two parallel versions of the occurrence before the court. The real onus is on the prosecution party to prove its case, including the manner of occurrence beyond all reasonable doubts; the accused has only to raise a doubt in the mind of the court or to satisfy the court that the defence version disclosed by the accused was a probable version of the occurrence.” 5 In order to ascertain as to whether the accused persons had committed the charged offence and as to whether the prosecution has been able to prove its case beyond reasonable doubt, the statements of Rulia Ram (PW-3) and Charan Dass (PW-4) need to be examined. Their statements have to be examined with circumspection for the simple reason that it has already come on record that a cross-complaint was filed by the accused party in relation to the very same incident in which even they sustained injuries. The version of the witnesses, as disclosed by them during trial raises a doubt with regard to complicity of the accused in the commission of crime and also prima facie raises a probable version of occurrence as reported by the accused persons. In this background, the onus, therefore, lies heavily on the prosecution to prove beyond reasonable doubt that the accused had committed the offence for which they were charged. PW-3 and PW-4 have undoubtedly supported the case of the prosecution. However, a close scrutiny of their statements would show that they have clearly improved their version in the Court. PW-4 was confronted with FIR (Ext.PW-4/A) and report lodged by the accused party (Mark DA). In the Court he has stated that accused Sarwan Kumar had threatened him with dire consequences, which fact was not found to have been reported by him in Ext.PW-4/A. He has further stated that his father Rulia Ram (PW-3) was hit by Kirpa Ram with Danda and accused Raj Kumar had caused injuries with his teeth. Both these facts have not been recorded in the FIR. PW-4 in his statement has also referred to the presence of Kusum Devi as member of the aggressor party. This fact was not disclosed by him to the police while recording the FIR or in 6 subsequent statement under Section 161, Cr.P.C. Her presence has also not been mentioned by PW-3 in his statement. The fact that scuffle took place between the complainant and accused party has been admitted by both PW-3 and PW-4. In fact PW-4 has stated that the accused persons attacked them as there was a prior dispute pertaining to path. In the FIR, PW-3 has mentioned the presence of Shri Parkash Chand, who is stated to have witnessed the entire occurrence of incident. On Oath PW-4 has also referred to the presence of Joginder Singh s/o Shri Mast Ram and Kultar, who have witnessed the incident. Importantly, these persons have not been associated by the Investigating Agency and have also not been examined in the Court as witnesses by the prosecution. In my view, they alone, as independent spot witnesses, could have narrated true and correct sequence of events and thrown light on the fact as to which of the two was the aggressor party. It has been proved on record that the accused persons also sustained injuries and the police was aware of the same. These injuries have not been explained by the prosecution which further probabilises the case of the defence that the complainant party was the aggressor. The fact that the accused persons had been using the path is admitted by the complainant. The investigating agency, to my mind, ought to have also investigated the complaint filed by the accused simultaneously to ascertain the fact as to which of the two parties was the aggressor. Importantly, this was not done. The animosity between the complainant party and the aggressor is yet another reason for disbelieving the 7 testimony of the spot witnesses. The prosecution has not come out with the complete facts, material and witnesses. Therefore, the statements of the interested spot witnesses, namely, PW-3 and PW-4 cannot be relied upon to prove the case of the prosecution beyond reasonable doubt. There is no corroboration of the same. To my mind, it cannot be held that the accused persons had voluntarily caused hurt or restrained or in furtherance of common intention criminally intimidated the complainant party. The essential ingredients required to constitute an offence under Sections 323, 325, 341 read with Section 34, IPC have not been made out by the prosecution against the accused. The accused persons had the advantage of having been acquitted by the Court below. In my view, the trial Court has considered the record in its entirety and there is no perversity in appreciating the same. There is a probable version showing the innocence of the accused in the case, therefore, it cannot be said that the accused have committed the offence, which the prosecution has been able to prove beyond reasonable doubt. . The appeal is accordingly dismissed. Bail bonds stand discharged. 4th March, 2008 (Sanjay Karol) (C) Judge.