IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 236 of 1999 Reserved on: 1.6.2010 Date of Decision: 13.7.2010. State of H.P. …Appellant. Versus. Bhim Sain and others …Respondents. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for Reporting? No. For the appellant: Mr. Rajesh Mandhotra, Deputy Advocate General. For the Respondents: Mr. Neeraj Kumar Sharma vice Mr. Vinay Thakur, Advocate. Per Deepak Gupta, J. 1. This appeal by the State is directed against the judgement dated 14.1.1999 passed by the learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr in Criminal Appeal No. 12 of 1997 whereby he set-aside the judgement of the learned Chief Judicial Magistrate, Kinnaur at Reckong Peo in Criminal Case No.170/2 of 1993 whereby the respondents were convicted for having committed offences punishable under Sections 147, 148 and 2 326 read with Section 149 IPC and sentenced as under:- “i) to undergo simple imprisonment for a term of three months and to pay a fine of Rs.500/- each under Section 147 IPC. ii) to undergo simple imprisonment for a term of one year and to pay a fine of Rs.1,000/- each under Section 148 IPC. iii) to undergo simple imprisonment for a term of four years and to pay a fine of rupees 2000/- each for the offence punishable under Section 326 read with Section 149 IPC. All the sentences were ordered to run concurrently and in default of payment of fine each of the convicts was ordered to suffer simple imprisonment for six days, 11 days and 21 days respectively for each default. It was further ordered that out of total amount of fine (rupees 17,500/- 50 percent of it will go to the complainant, namely, Pawan Kumar as compensation. It was also ordered that the convicts shall be entitled to claim set off in the period of awarded sentence as against the period already spent by each of them while in judicial custody”. 2. The prosecution story briefly put in is that PW-1 Pawan Kumar who was studying in B.A at Chandigarh had come to his village Kanam. On 26.12.1992 Losar festival was being celebrated in the village. A large number of persons from village Kanam and other nearby villages had gathered to celebrate the festival. They were all singing and dancing. At about mid night complainant PW-1 was also dancing. PW-7 Mangal Dhawaj was sitting on 3 one side watching the festivities. In the meantime, accused Titarjeet caught hold of Mangal Dhawaj, dragged him and pushed him down to the ground. The complainant intervened with a view to protect Mangal Dhawaj. All the accused persons alongwith one Himat Singh, who died during the course of the trial, started beating Mangal Dhawaj and accused Bhim Sain gave two or three blows with a dagger to the complainant which missed him. Thereafter, Bhim Sain gave another blow of the dagger on the back of the complaint near the spinal cord. A bleeding injury was suffered by the complainant. As a result of this stab his coat, shirt and vest were also cut. The complaint was taken to the Primary Health Centre, Spillo by PW-3 Birender Singh, PW-4 Chander Kirti, PW-9 Topdhan Singh and Paldun Dorje PW-8 amongst others. 3. At the hospital the statement of injured Pawan Kumar was recorded under Section 154 Cr.P.C Ext.PW-1/A, on the basis of which F.I.R. Ext.PW-8/A was registered. On completion of investigation, respondents alongwith Himat Singh deceased were challaned and charged with having committed the offences punishable under Sections 147, 148, 326 4 read with Section 149 IPC. The learned trial Court found the accused guilty and sentenced them as detailed here-in-above. The accused filed an appeal, which has been allowed by the learned Sessions Judge who set-aside the conviction and sentence passed upon the accused. Hence, the present appeal by the State. 4. A perusal of the statement of PW-7 Mangal Dhawaj shows that he was sitting on one side while other persons were dancing. Accused Titarjeet approached him and asked him, “what are you doing?” According to Mangal Dhawaj, this question was asked in a sarcastic tone and as such he did not respond. Thereafter, Titarjeet called Mangal Dhawaj, “you foolish person.” In response thereto Mangal Dhawaj retorted, “you bloody fool, shut up.” It is thus apparent that the incident started due to a minor altercation. Every body was singing, dancing and drinking. Why and how Mangal Dhawaj thought that the tone of the accused Titarjeet is sarcastic, is not clear. In any event, it was Mangal Dhawaj who used the more derogatory language which led to the fight. It is, however, apparent that even if this version is believed then also it is apparent 5 that there was no pre-mediation on behalf of the accused. Therefore, the learned trial Court gravely erred in convicting the accused for offences under Sections 147, 148 and 149 IPC. The learned lower Appellate Court rightly held that since the occurrence started suddenly, on the spur of moment, in the heat of passion the accused could only be held liable for the individual acts committed by them and could not have been convicted under Sections 147, 148 and 149 IPC. At best it may be said that the accused picked up a fight with Mangal Dhawaj. However, they had no intention of causing injury to PW-1. It was only when PW-1 intervened and tried to protect Mangal Dhawaj that he was allegedly given a blow with the dagger. The evidence clearly shows that the accused had not come with the intention to beat Pawan Kumar and therefore, each of the accused could only be held responsible for the individual acts and could not be held guilty of having committed offences by taking recourse to Section 147 IPC. 5. As far as the individual acts are concerned, the accused were not charged with having assaulted Mangal Dhawaj. In fact, there is no medical 6 evidence to show what was the injury, if any, caused to Mangal Dhawaj. According to the witnesses produced by the prosecution there were 250-300 persons present in the hall of the temple where the festivities were going on. A large number of persons were performing a Nati, which is a dance performed by a group of persons, who form a circle while dancing. It is obvious that when there were so many persons present in the hall and a Nati was being performed the occurrence could not have been witnessed by everybody. It has also come in the evidence that during this period when the incident took place there was failure of electricity. 6. The witnesses examined in the case are closely related to each other. It has also come in the evidence of PW-4 Chander Kirti, the main eye witness, that there is a dispute between his family and the family of Bhim Sain accused regarding a path. This dispute is still pending. When there were so many people why were only the persons who were closely related examined and the others given up. According to PW-1 when Mangal Dhawaj was being beaten up by Titarjeet, he alongwith Chander Kirti intervened and Bhim Sain gave him 2-3 blows 7 with a dagger which he warded off but then one blow was given on his back by Bhim Sain. PW-4 Chander Kirti gave a similar version. PW-3 Birender Singh had also given a similar version but he himself had not seen that Bhim Sain causing an injury with the dagger to PW-1. According to PW-8 Paldan Dorje, Bhim Sain gave a blow of a knife to Pawan Kumar. Similar is the statement of PW-9 Topdhan. 7. The learned lower Appellate Court did not believe the witnesses on account of the fact that they were all closely related and no independent witnesses were examined. Furthermore, the learned lower Appellate Court held that the recovery of the weapon has not been satisfactorily proved. Bhim Sain accused was apprehended in village Kanam on 29.12.1992 and he was brought to Rampur Bushahr on 30.12.1992 when he allegedly made a disclosure statement Ext. PW-9/A in the presence of Ishwar Chander DW-1 and constable Joginder Singh, PW-10, in which he allegedly disclosed that he had cleaned and kept the dagger in his luggage which was lying in the bus stand at Rampur. The most surprising aspect of this statement is that this statement is alleged to have been made at Rampur 8 itself. Why was Bhim Sain brought from Kanam to Rampur Bushahr ? This clearly shows that the statement was made at Kanam itself or the statement has been fabricated at a later stage. There is no explanation why Bhim Sain was taken to Rampur. Therefore, this disclosure statement cannot be taken at its face value. 8. The alleged statement Ext.PW-9/A is stated to have been witnessed by DW-1 who has not supported the prosecution version. In fact his version is that ASI Prem Chand alongwith a constable came to his house at Rampur on 30.12.1992 and told him that accused Bhim Sain had stabbed Pawan Kumar. He further stated that Bhim Sain would not be released on bail unless a Chhura is produced by the witness. Thereafter DW-1 Ishwar Chander purchased the Chhura from the shop of Pratap Singh and handed over the same to Prem Chand, ASI. This makes the statement extremely doubtful and no reliance can be placed on the same. 9. It is more than apparent that this dagger is not the weapon of offence since Pawan Kumar the complainant himself stated that the dagger shown to him in Court is much larger in size than the 9 weapon which was used to inflict injury upon him. The weapon of offence was not shown to the other witnesses. According to PW-4 Chander Kirti the dagger used was 10 to 12 inches in length whereas Pawan Kumar deposed that the dagger used was 8 to 12 inches in length. The dagger produced in court is larger. 10. The learned lower Appellate Court also found that the injury was never described by the doctor as a grievous injury. There was only a single wound about 3.5 cm away from the spinal cord. This wound was merely half an inch deep and the said injury by no stretch of imagination can be said to be a grievous injury or dangerous to life. 11. Another factor which goes against the prosecution is that the holes on the garments of the injured are different in size. In fact on the shirt of the injured there are two cut marks whereas even according to the prosecution there was only one stab wound. The two holes on the shirt are much larger than the holes found on the coat. The hole found on the sweater is different in size to the hole of the shirt. This clearly shows that these holes were manipulated lateron. 10 12. The learned lower Appellate Court was fully justified in acquitting the accused. We find no reason to interfere with the well reasoned judgement of the learned trial Court. The appeal is accordingly dismissed. The bail bonds furnished by the accused are ordered to be discharged. ( Deepak Gupta ) Judge. 13th July, 2010 ( Sanjay Karol ) ™ Judge.