IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 8 of 2004. Judgment reserved on : 02.11.2010. Decided on: January 5, 2011 __________________________________________________________ Deva Kumari and others. …. Appellants. Versus State of Himachal Pradesh. ….. Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellants : Mr. Anuj Nag, Advocate. For the respondent : Mr.J.S.Rana, Assistant Advocate General. _______________________________________________________ SURINDER SINGH,J: 1. The appellants were tried for the offences punishable under Sections 307 and 323 read with Section 34 of the Indian Penal Code, but on completion of the trial, they were convicted for the offences punishable under Sections 326 and 323 read with Section 34 of the Indian Penal Code and each of them were sentenced to undergo rigorous imprisonment for a period of one year and to pay fine of `10,000/- each under Section 326 of the Indian Penal Code and in default of Whether reporters of the Local papers are allowed to see the judgment? - 2 - payment of fine, to further undergo simple imprisonment for a period of six months. Since the offence under Section 323 I.P.C. is covered by the major offence, no separate sentence was passed. As the convicts herein to be referred as ‘accused persons’ hereinafter are from the same family felt aggrieved by the impugned judgment of conviction and sentence, as such, filed the present appeal. 2. The factual matrix of the case germane to this appeal can be stated thus. PW3 Faquir Chand was a ‘Baildar’. On 28th June, 1998 at about 7.30 p.m., while returning to his home, he noticed that his cow had entered into the barren field of the accused persons. From there, his daughter goaded the cow to home. Accused Deva Kumari started abusing her for causing damage to her field. On this, complainant told her to assess the damage, so caused and refrain from abusing her. Despite this, she did not stop. In the meantime, her son accused Kuldip Singh approached him and caught hold from his shirt-collar and threw on the ground. Tilak Raj accused another son, dealt a - 3 - blow with the danda on his back side on the shoulder, while he was lying on the ground. Accused Deva Kumari brought an axe and hit on his head from its blunt side. On getting this bleeding injury, he got unconscious. His clothes were also smeared with blood. (b) It is further alleged that PW4 Vinod Kumar, his son intervened, but the accused persons also gave him beatings. Accused Kuldip Singh had bit his finger with his teeth. Angrej Singh, the brother of PW4 aforesaid also reached the spot alongwith one Parma Nand. On seeing Parma Nand, accused persons fled away from the spot. Thereafter Parma Nand lifted the injured and brought home. He informed the villagers. PW4 Vinod Kumar took him to the CHC Jawalamukhi and the doctor referred him to the Zonal Hospital, Dharamshala. Vinod Kumar (PW4) was medically examined at Zonal Hospital Dharamshala. His father remained admit in the aforesaid hospital for 7-8 days. Police was - 4 - informed. Later the statement Ex.PW4/A of said Vinod Kumar was recorded. (c) PW7 Dr. Sunita had examined Faquir Chand (72 years) on 28.7.98 at 11.15 p.m. and noticed the following injuries:- (i) There was lacerated wound measuring 7 c.m. X 2 c.m. on scalp and the junction of parietal and frontal bones. Bleeding was present. There was fracture of parietal bone. (ii) There was haematoma formation on left eye. Injured was conscious. The x-ray of the skull was advised and as per report Ex.PW1/A, there was depressed fracture of skull frontal bone. The injuries were opined to the grievous and dangerous to life, having been caused within six hours with the blunt weapon. The said doctor issued MLC Ex.PW7/A. (d) PW4 Vinod Kumar was also examined on 29.6.98 at 12.45 p.m. by the doctor aforesaid, and noticed the following injuries on his person:- - 5 - (i) Abrasion measuring 4 cm x 0.5 cm on skull in occipital region. Heamatoma formed. (ii) Abrasion measuring 3 cm x 0.5 cm on the left side of anterior chest wall. (iii) Lacerated wound on index finger of right hand measuring 2 cm x 0.5 cm. The injuries were simple in nature having been caused within six hours. The doctor issued MLC Ex.PW7/B. These injuries were opined to be caused with the dandas of bamboo Exts.P2 and P3 (e) On 29.6.98 at 1.30a.m., accused Deva Kumari was also medically examined on the request of the police. She was found to have sustained the following injuries:- (i) Heamatoma measuring 4cm x 2 cm on skull on the occipital region. (ii) Heamatoma measuring 3 cm x 2 cm on the left temporal region. (iii) Abrasion measuring 4 cm x 0.5 cm on the left wrist. All these injuries also simple, caused with blunt weapon having been caused within 12 hours and issued MLC Ex.PW7/C. - 6 - (f) On the same day, accused Kuldip Singh was also medically examined. He was found to have sustained the following injuries:- (i) Lacerated wound on Pinna of left ear measuring 4 cm x 0.5 cm. (ii) Lacerated wound measuring 2 cm x 0.5 cm on right cheek. (iii) Abrasion measuring 8 cm x 0.5 cm on back These injuries were simple in nature, caused within 12 hours and the doctor issued MLC Ex.PW7/D to this effect. (g) On 29.6.1998, Pawan Kumar son of accused Deva Kumari was also examined. He also sustained injuries and two abrasions, which were found simple in nature. His MLC was also handed over to the police. (h) PW1 Dr. J.R. Azad is a Radiologist. He took x-ray of the skull of Fquir Chand. X-ray report Ex.PW1/A showing the fracture of skull frontal bone. The x-rays were taken under the supervision of PW2 K.S. Rathore, Radiographer. (i) PW9 Dr. Atul Mahajan, produced the record of hospitalization of Faquir Chand w.e.f. - 7 - 29.6.98 to 4.7.98 in I.G.M.C. Shimla, in the department of Neurosurgery for head injury management, thereafter he was referred to Jawalamukhi hospital for further management of the head injury. (j) PW16 SI/SHO Govind Ram received a complaint Ex.PW5/A from the S.D.M. Dehra, which culminated in to FIR Ex.PW16/A. Thereafter, he conducted the investigation of the case, visited the spot on 5.7.98 and prepared site plan Ex.PW16/C. (k) On 7.8.98, accused Deva Kumari produced the ‘axe’ Ex.P1, which was taken into possession vide seizure memo Ex.PW6/B. The axe was sealed with seal impression ‘X’ after preparing its sketch Ex.PW6/C. On 7.7.98, accused Tilak Raj produced danda Ex.P2, which was also sealed with the same seal and taken into possession vide memo Ex.PW6/A. He collected the Medico Legal Certificates of the complainant party as well as accused persons. - 8 - (l) After recording statements of the witnesses and completing the investigation, challan was presented in the court for the trial of the accused persons for attempted murder as aforesaid. Accordingly, they were charge- sheeted, to which they pleaded not guilty and claimed trial. 3. Prosecution examined its witnesses to prove the charges and the accused were also examined under Section 313 of the Code of Criminal Procedure. Their case was denial simplictor, however, they stated that they were innocent and that this case was planted against them. They took up the stand that the complainant and his son attacked and assaulted them at 9 p.m. in their house on the day of alleged occurrence and gave merciless beatings, because of the enmity and to that effect a criminal case was lodged and is pending against them in the Court of Judicial Magistrate, Dehra and this case was a counter blast. The learned trial Court called upon to enter into their defence, but no evidence in defence - 9 - was led by them. At the end of trial, they were convicted and sentenced as aforesaid. 4. Mr. Anuj Nag, learned counsel for the appellants vehemently argued that the evidence on record clearly exhibits that it was a false case foisted by the complainant party against them and in fact they had attacked the appellants in their house and in scuffle they might have sustained the injuries. Learned counsel further ventilated that the accused persons had sustained injuries in the said incident, which were not explained by the prosecution, but the learned trial Court did not appreciate the evidence on record in the right perspective, therefore, the impugned judgment of conviction and sentence is bad in law. 5. On the other hand, Shri J.S. Rana, learned Assistant Advocate General supported the impugned judgment of conviction and sentence. 6. I have given my thoughtful consideration to the rival contentions of the parties and have carefully and cautiously examined the evidence on record. - 10 - 7. PW3 Faquir Chand and his son PW4 Vinod Kumar have made similar statements and stated the manner in which they were attacked by the accused party. In fact, evidence on record shows that the accused persons are the neighbour of the complainant party. The husband of Deva Kumari was serving in Army somewhere outside. Accused had purchased this land in that village and settled down there. Since then complainant party who was averse to it started causing damage to their crop by letting lose their cattle. In cross- examination, PW3 had denied having caused any damage to the crop in the field owned by the accused persons by letting lose his cattle. He denied that about 2-3 days prior to the incident, he was summoned by the Panchayat asking him to refrain from causing such damage. He also denied that on 28.6.98, at about 9 p.m. he alongwith his son Vinod Kumar and Angrej Singh went to the house of the accused persons and attacked them and in that incident, Vinod Kumar his son inflicted lathi blow on the accused Deva Kumari and Kuldip and Kuldip in an attempt to - 11 - save his mother was also beaten up. He also denied that Angrej Singh and Vinod Kumar both inflicted the lathi blows on accused Tilak Raj and his brother Pawan Kumar. He further denied that when his son Angrej Singh had attempted to inflict blow on Kuldip Singh, it missed the target and hit him (Faquir Chand) on his head and fell down. Pertinently, he admitted that he was facing trial in the court of Judicial Magistrate Ist Class, Dehra for the same incident. 8. PW4 Vinod Kumar in his cross-examination admitted that the accused persons were outsiders and settled down in his village, but denied that he alongwith his father had been creating problems to them and had been causing damage to their crops. He also denied that on 27.6.98, their cattle had destroyed the crop of the accused persons and also denied that during the night of 28.6.98 at about 10 p.m., he alongwith his brother and father attacked the accused persons and gave them beatings. He also denied that his maternal uncle being a Local Minister had intervened and prevented the police to register a case on behalf - 12 - of the accused persons, however admitted that both the parties were having cross-cases with respect to the same incident. He denied that they were the aggressor in the alleged occurrence. 9. PW5 Uma Devi, Member of the Panchayat stated that the villagers had gathered on the spot and they moved application Ex.PW5/A to the SDM for taking action against the appellants-accused persons, goes to show that the whole villagers were against the accused being outsider. This fact is also clear from the statement of PW6 Vijay Kumar, Pradhan of the Gram Panchayat. He stated that he was informed on 29.6.98 that there was a fight between the accused and the complainant party and Fquir Chand had sustained injuries, but he did not initiate any proceedings, rather on the pressure of the public moved a joint application Ex.PW5/A to the SDM, pursuant to which, FIR was lodged and police visited the spot. In cross-examination, he admitted that accused persons and complainant party both frequently altercate. - 13 - 10. PW7 (number wrongly mentioned by trial Court) Munshi Ram stated that after the incident, they prepared the application Ex.PW5/A. Being a co-villager, he also contributed money for the treatment to Faquir Chand. 11. PW7 Dr.Sunita while substantiating the above facts had also issued the Medico Legal Certificates of the accused persons. She admitted in cross-examination that the injuries caused to Deva Kumari, her sons Pawan Kumar and Kuldip Singh could be caused by dandas and blunt weapons such as ‘axe’. According to her complainant during his medical examination did not disclose the names of the persons who gave beatings to them. She also stated that injury on the person of Faquir Chand complainant and his son Vinod Kumar could be caused by a fall on the had surface. She also stated that Pawan Kumar and Kuldip Singh both are the same person, who were examined by her on 29.6.98, if it was so, then it is not understood why she gave two different MLCs i.e. Ex.PW7/D and Ex.PW7/E that too with respect to different injuries. - 14 - 12. PW8 Rameshwari Devi did not support the case of the prosecution. 13. Further Ex.D1 is a complaint filed by accused Deva Kumari against the complainant party, for the offences punishable under Section 3 of the SC/ST (Prevention of Atrocities) Act, 1989 before the Special Judge after the alleged incident, in the month of August, 1998, wherein the notice of accusation was framed against Faquir Chand and his sons. Further Ex.D5 is copy of police challan at the behest of accused Deva Kumari against the complainant party under Sections 451, 323 and 506 read with Section 34 of the Indian Penal Code, which was prepared with respect to FIR No.134 of 1998. It is admitted that prior to the incident in question, a case was also pending against the complainant party. 14. On the careful scrutiny of both the evidence aforesaid, it is apparent that the cross cases with respect to the same occurrence were pending against each other. It is not known as to who was the aggressor. The production of the ‘axe’ by Deva Kumari is denied and according to - 15 - the doctor, the injuries caused on the person of the accused can also be caused by blunt side of the axe, whereas, the injuries on the person of the accused have not been explained. The grievous injury, which has been caused to Faquir Chand on his head was also attributed by the accused persons to one of his sons as the blow which was aimed at the son of accused Deva Kumari missed the target and hit Faquir Chand. Further the doctor has also opined the injuries on the persons of the complainant Faquir Chand and his son Vinod Kumar both can be sustained by fall. It appears that there was a free fight inter se the parties, in which both the parties sustained injuries and the possibility of causing the grievous injury to Faquir Chand by a fall cannot be ruled out. 15. In the facts and circumstances of the case, it cannot be said that the accused persons were the aggressors. Therefore, in my opinion, the prosecution could not prove the case against the appellants beyond reasonable doubt, the benefit of which has to be given to them. - 16 - 16. For the aforesaid reasons, appeal is allowed, the impugned judgment of conviction and sentence passed against the appellants is set- aside. Consequently, the appellants stand acquitted by giving them the benefit of doubt. The fine amount, if any paid/deposited, be refunded to the accused persons. 17. The respondents are discharged of their bails bonds, entered upon by them at any time during the proceedings of this case. The matter stands disposed of. January 5, 2011. (Surinder Singh), (Pds) Judge.