CRIMINAL APPEAL 29 on 7 December 1999

HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr Appeal No.475 of 2000With Cr. Revision No.134 of 2001.Decided on: December 28,2010.

Criminal Appeal No.475 of 2000: State of H.P.

…Appellant.

VERSUS

Mast Ram & Ors.

….Respondents.

For the Appellant: Mr.R.K.Sharma, Sr. Additional Advocate General with Sh.Rajinder Dogra, Addl. AG.

For the respondents: Mr. Shrawan Dogra, Advocate.

______________________________________________________________________

Cr. Revision No. 134 of 2001.

Sant Ram …Appellant

VERSUS

State of H.P & ors For the Appellant: For the respondents:

….Respondents.

Mr. Shrawan Dogra, Advocate. Mr.R.K. Sharma, Sr.Addl. Advocate General with Mr.Rajinder Dogra, Addl. AG for respondent No. 1

Mr B.C. Verma, Advocate for respondents No. 2 to 9.

Coram

The Hon’ble Mr.Justice R.B.Misra, Judge. The Hon’ble Mr.Justice Sanjay Karol, Judge.

Whether approved for reporting?[1]

Sanjay Karol, Judge:

For an offence, which is alleged to have been committed on 14.8.1991, accused were put to trial. In terms of judgment dated 7.12.1999 passed by Additional Sessions Judge, Shimla, HP in Sessions Case No. 29-S/7 of 1992 titled as State of HP Vs. Mast Ram & others, accused stand acquitted of the charged offences.

2. It is the case of the prosecution that vide rapat rojnamcha (Ex PF) dated 15.8.1991 complainant Prem Singh (PW-6) lodged a report at police post, Nerwa. Same was entered by Deep Ram (PW-5). On the basis of the said report, FIR No. 140/91 dated 15.8.1991 (Ex PE) was recorded by Head Constable Madan Singh (PW-3) under section 147, 148,149, 323 IPC at Police Station, Chopal. Complainant got recorded that on 14[th] August, 1991, he was returning home from the school where he was working as a teacher. On the way he met Smt. Kubza (not examined), who informed him that accused Mast Ram had given beatings to his brother Bagh Singh (PW-9). Prem Singh immediately came home after meeting Bagh Singh there, enquired the cause of beatings. This was at about 6.00 PM. Bagh Singh told him that he was not aware of the cause of beatings given to him. Then Prem Singh along with his brother Dulla Ram (PW-13) went to enquire about the cause from accused Mast Ram. On way, he met Mast Ram (Accused No.1), Hari Singh (Accursed No.2) and Sant Ram. (Accused No.3) When Prem Singh made inquires from accused Mast Ram, all got furious. This resulted into a scuffle. Hari Singh hit Dulla Ram on the head and Mast Ram threw a stone on the right leg of Dulla Ram which resulted into fracture of the bone. Hearing the noise, Mohan Lal (Accused 4), Roop Singh(Accused-5), Dhajju (Accused-6) and Chajju (Accused-7) came at the spot armed with ‘Drat’, and also threatened the complainant and his brother. They also gave beatings. After some time, accused went away from the spot. Incident was witnessed by Ran Singh. Injured Dulla Ram, who has become unconscious after receiving injuries, was taken to the Primary Health Centre at Nerwa.

3. Investigation was commenced by SI Ujager Singh (PW-17) who got injured i.e. Dulla Ram (PW-13), Prem Singh (PW-16), Bir Singh (PW-11) and Bagh Singh (PW-9) medically examined from Dr. Geeta Ram (PW-12). During investigation, accused made disclosure statements. On the basis of disclosure statements accused got weapons of offence recovered. Accused Hari Singh made a disclosure statement (Ex PG) dated 2.9.1991 and also led to recovery of weapon of offence, i.e. ‘danda’ Ex P-7 vide recovery memo Ex PM.Accused Mohan Lal made a disclosure statement (Ex PH) and also led to recovery of weapon of offence, i.e. ‘danda’ Ex P-3 vide recovery memo Ex PN. Accused Chhaju Ram made a disclosure statement(Ex PJ) and also led to recovery of weapon of offence, i.e.’danda’ Ex P-4 vide recovery memo Ex PO.Accused Roop Singh made a disclosure statement (Ex PK) and also led to recovery of weapon of offence, i.e. ‘danda’ Ex P-5 vide recovery memo Ex PQ.Accused Dhajju Ram made a disclosure statement (Ex PL) and also led to recovery of weapon of offence, i.e. ‘danda’ Ex P-6 vide recovery memo Ex PR.

4. On 8[th]October, 1991, under directions of Superintendent of Police, Investigating Officer was changed and Chuni Lal (PW-18) conducted further investigation. He recorded statement of the witnesses of the complainant party. Investigation revealed that Madan Singh (PW-10) and Bagh Singh (PW-9) were grazing their cattle/sheep in the ‘Charandh’ (grazing area) owned by the State. Accused Mast Ram objected to the same. He caught Madan Singh (PW-10) from the collar of the shirt and pushed him below the ‘dhank’ (cliff). When Bagh Singh (PW-9) intervened accused Mast Ram also asked him to take away his cattle from the spot. But when Bagh Singh resisted, Mast Ram gave him a blow with an umbrella on the head which resulted into a bleeding injury.

5. Police recovered umbrella (Ex P1) vide recovery memo Ex PA dated 11.12.1991. Spot map was prepared at the spot. Stone (Ex P2), which accused Mast Ram threw at Dulla Ram (PW-13) was recovered vide recovery memo Ex P-17/C. On the basis of request made by the police (Ex P-T/1 to P-T/3), injured were got medically examined through doctor Geeta Ram (PW-12) at the Primary Health Centre, Nerwa. MLC of Dulla Ram (Ex P-T/5), Bir Singh (P-T/7), Bagh Singh (P-T/8), Prem Singh (P-T/9) issued by the doctor were taken on record by the police. According to the doctor, Bir Singh, Bagh Singh and Prem Singh suffered simple injuries. However, since Dulla Ram suffered both grievous and simple injuries, he was referred to the Ripon Hospital at Shimla for X-ray and further examination and treatment. On the basis of opinion (Ex P-4) given by doctor Gudarshan Gupta (PW-14), PW-12 opined that Dulla Ram had suffered a compound fracture on the right leg and a linear fracture on the left temporial region of the skull. According to the doctor, injuries were dangerous to life.

6. With the completion of the investigation, challan was presented in the court for trial. Accused was charged for having committed offences punishable under Section 147, 149,325, 307, 148 IPC, to which they did not plead guilty and claimed trial.

7. In order to prove its case, prosecution examined 18 witnesses and statement of the accused under section 313 Cr.PC was also recorded. In defence, accused also examined three witnesses in court. Court below acquitted the accused of the charged offences, hence the present appeal.

8. Before we deal with the depositions of the prosecution witnesses, we must place on record certain un-refutedand proven facts in relation to the incident in question and also subsequent proceedings arising therefrom.

9. In relation to the very same incident, PW-3 has proved that FIR No. 139/91 was got registered by Sh. Sant Ram (accused herein) against the complainant party. This was prior to the registration of the instant FIR bearing No. 140/91. Even Investigating Officers PW-18 and PW-17 admit this fact. Police had filed challan in relation to both the FIRs, all the accused persons, in relation to both the FIRs’, stand acquitted after trial by the court of learned Additional Sessions Judge, Shimla. In Sessions Trial No. 29-S/7 of 1992, present accused stand acquitted and in Criminal Case No. 19-S/7 of 1994, complainant party stand acquitted in terms of the judgment dated 7.12.1999. However, State has preferred appeal only in relation to the present accused persons. Feeling aggrieved of this fact, even the present accused have assailed the acquittal of the instant complainants by filing criminal revision No. 134/201. Both these cases are listed for hearing together.

10. In the instant case, accused have examined three witnesses. Sh. Hanif Mohammad DW-1has proved that vide bill (Ex DW-1/A) dated 11.12.1991 accused Mast Ram purchased an umbrella from his shop in the Bazar at Chopal. No doubt, bill memo does not mention name of the purchaser, but sale of umbrella to the accused stands proved from his testimony. This is in consonance with the defence taken by the accused that he purchased a new umbrella from the market at Chopal, and handed over the same to the police. The fact that the umbrella was taken into possession by the police at the police station, Chopal stands admitted by the Investigation Officer (PW-18) himself.

11. Dr. Vijay Thakur (DW-3) has proved that while being posted in the Civil Hospital at Chopal, on the asking of the police, on 15.8.1991 he medically examined Sant Ram, Roop Singh and Chajju Ram. They sustained injuries with sharp edged weapon and blunt object. Even PW-17, admits that accused Roop Singh, Chajju Ram and Sant Ram had received injuries on their bodies. Importantly, in the instant case, police/prosecution has failed to explain these injuries. Why so, has not been explained. In fact they have maintained stoic silence on this aspect and only when the Investigating Officer is cross examined they have come out with this fact. We feel investigation of prosecution agencies have been extremely unfair to the present accused.

12. With this background we shall now discuss the evidence led by the prosecution in the instant case.

13. In order to prove the injuries on the body of the complainant party, prosecution has relied upon the statement of Dr. Geeta Ram (PW-12). At the outset, we may mention that this witness is closely related to the complainant party. Though In court he denies this fact, but, however, according to Sh. Bir Singh (PW-11) Dr. Geeta Ram is son of his aunt. Now according to the doctor, Dulla Ram received following injuries i.e. “1. Lacerated wound over the frontal area of scalp just left to mid line. 4 cm long and 4 cm deep. Skull bone fracture is not present clinically. Margin of the injuries was found irregular. 2. There was lacerated wound over the right leg at the junction lower one/third and upper 2/3[rd] oblique/ in position about 3 CM long and one Cm in deep. Margin of the injuries were noted to be irregular. Compound fracture of right tibia at the junction of lower 1/3[rd] and upper 2/3[rd] . Bleeding is coming out through the wound (lower ad upper fragments). Clinically no fracture of fibula of right side.” Injured was further referred to the Ripon Hospital and after examination of the X-ray, the Doctor made an endorsement (Ex PT/6) on the MLC.

14. Importantly, prosecution has not placed on record the X ray examination allegedly conducted at the Ripon Hospital or for that matter any other hospital in Shimla. On what basis could PW-12 give his opinion is thus not evident from the record. Prosecution has relied upon the statement of PW-14 Dr. Gurdarshan Gupta to prove that Dulla Ram suffered a compound fracture. But this witness categorically states that the injured had given an alleged history of fall of stone which resulted into injury on the right leg and lacerated wound on the skull. Now this totally knocks down the prosecution case. Before the doctor, Dulla Ram did not state that it was accused Mast Ram who had thrown the stone at him. Be that as it may be, injury on the skull is not even alleged to have been caused due to throwing of stone.

15. In relation to the injuries suffered by Bir Singh, Bagh Singh and Prem Singh, doctor (PW-12) has opined the same to be simple in nature. He admits that injury could be suffered in a scuffle if the injured themselves were the aggressor party. He further admits the probable duration of injury in the case of Bir Singh was not mentioned by him and could be 3 to 5 days old. He also admits that injury found on the body of Bagh Singh could be caused with an object other than an umbrella. He further admits that he had not mentioned about the presence of blood on the clothes of the injured. Most importantly, he admits that if umbrella is directly hit on the head, the wound would be deeper. In our view doctor has adopted a partisan role contrary to his hippocratic oath. According to the accused, complainant party was the aggressor and thereafter it was free for all. None knew who had beaten them and with what object. None was also aware as to how they received injuries. Medical evidence renders the prosecution case to be doubtful and defence of the accused to be probable.

16. Umbrella in question is recovered in the presence of PW-1 Liaq Ram. Now this witness has not supported the prosecution and after being declared hostile, was cross examined by the Public Prosecutor. His statement does not reveal anything which would impeach his credibility. According to him, recovery memo (Ex PA) was already prepared prior to his arrival and he simply signed the same. He states that Umbrella handed over to the police by Mast Ram was not even sealed. Importantly, it is his unrebutted deposition that on the asking of the police the accused had purchased the umbrella and handed it over to the police. Thus version of the prosecution qua recovery of umbrella and injury sustained by Bagh Singh by way of blow from and umbrella given by Mast Ram is rendered extremely doubtful if not false.

17. As per the prosecution case, two incidents took place on 14[th] August, 1991. In the first incident, accused Mast Ram objected to the grazing of the cattle by Madan Singh (PW-10) and Bagh Singh (PW-9). He also gave a blow with an umbrella to Bagh Singh on the head. This incident is alleged to have been witnessed by Smt. Kubza. The second incident is in relation to the beatings given by the accused and the proclamation of threats made out by the accused who were armed with deadly weapons. This incident is alleged to have been witnessed by Ran Singh (PW-7) and Hari Singh (PW-16).

18. In our considered view, prosecution case, does not appear to be true in relation to the first incident. In fact it appears to be a concocted story. Smt. Kubza has not been examined in court and both Bagh Singh and Madan Singh, are accused in FIR No. 140/91. No blood was found on the clothes of Mast Ram or Bagh Singh. Injury on the head of Bagh Singh, allegedly caused with an umbrella, as has already been discussed above, appears to be doubtful. Further, according to Sh Prem Singh (PW-6) this incident took place at 4.30 whereas according to Bagh Singh, it took place at 6 PM. In court, Prem Singh states that he met Bagh Singh at the spot where he asked him to go home. Now, this version of his stands materially contradicted by his earlier statement (Ex PF), wherein he categorically states that after hearing about the incident from Kubza, he went home, enquired from Bagh Singh and was told that he was not aware of the cause of beatings given to him. Though Bagh Singh in court states that he had disclosed everything to his brother. Keeping in view the fact that prior FIR stood registered against Bagh Singh, this story appears to have been concocted.

against Bagh Singh, this story appears to have been concocted.

19. We also find that in court Prem Singh PW-6 has come out with a version which is totally different than the one recorded in the FIR. In court, he categorically states that on 14.8.1991 at about 5 PM, he was informed by Kubza that Mast Ram had given beatings to Bagh Singh and Madan Singh in the ‘Charandh’. Now in Ex PF, there is no mention about Madan Singh. In court, he further states that he went to the ‘Charandh’ and found Bagh Singh profusely bleeding who informed him that Mast Ram had given him a blow with an umbrella. Significantly, this version of his stands materially contradicted by his earlier version (Ex PF), wherein he states that he directly went to his house and met Bagh Singh there, Bagh Singh was profusely bleeding, also does not find mention therein. Further In court, it is the version of this witness that he met all the accused armed with ‘sticks’ and ‘drats’. His brother Dulla Ram also came there. When they enquired about the cause of the incident, accused gave them beatings. He further states that Hari Singh gave a blow with a stick to Dulla Ram, who fell down on the ground. Thereafter, Mast Ram inflicted a blow with a stone on the leg of Dulla Ram, which fractured the bone. Thereafter, when Sant Ram gave a blow he caught hold of the stick with his hand as a result of which both Mast Ram and Chajju Ram fell down. Then accused Dhajju Ram came running and gave a blow with a ‘drat’ on his right arm. But in his previous statement, his version is different. According to him, accused Dhajju Ram, Chajju Ram, Mohan Lal and Roop Singh came after Mast Ram and Sant Ram had finished giving beatings. We feel there is a strong reason for these improvement. Prem Singh himself was an accused in the cross case and was trying to explain the injuries suffered by the accused in the instant case. We find inherent contradictions in his statement which go to the root of the matter.

20. We also find that even otherwise his testimony does not inspire confidence. In cross examination, he admits that none from the complainant party suffered any injuries with a ‘drat’. He could not state as to whether the stone in question was stained with blood or not. Now this is unbelievable. Lacerated wound was found on the person of Dulla Ram. It is the specific case of this witness that after the incident, accused went away from the spot and Dulla Ram was lying injured in an unconscious state. It is the case of the prosecution witnesses that the injured was bleeding profusely. The stone in question is not found to be stained with blood. This itself renders the recovery of the stone to be doubtful.

21. We further find that with regard to presence of Ran Singh, who allegedly witnessed the incident, there is contradiction. According to Prem Singh, Ran Singh arrived at the spot at 5 0’clock which fact, Ran Singh himself contradicts by stating that he reached only about 6 0’clock. Presence of Ran Singh is not corroborated by any other witness. In any

event, Ran Singh categorically deposes that he does not know how the dispute arose. To us, it appears that Ran Singh has been subsequently introduced by the police. No doubt, in his examination-in-chief, Ran Singh has supported the prosecution case with regard to the beatings given by Mast Ram to Dulla Ram and Sant Ram to Prem Singh. But, however, in cross examination, he admits that Prem Singh is his cousin. He admits that he is on visiting terms with Prem Singh and does not take anything from the house of Mast Ram He is an extremely interested witness. In court, he could not identify which specific weapon of offence was in the hands of each of the accused. This witness states that except for Dulla Ram, Prem Singh and the accused, none else were present and it was only later on that Bagh Singh and Bir Singh arrived at the spot. Now this version renders the prosecution story with regard to presence of independent witness PW-16 to be extremely doubtful. To us, his testimony does not inspire confidence. His conduct is unnatural. He did nothing to prevent the scuffle, help in saving the complainant party or getting medical aid. His presence at the spot itself is doubtful.

22. Hari Singh (PW-16), is a medical practitioner and yet he ran away from the spot. He did not make any attempt of giving medical aid to the injured. His conduct is highly improper. In a parrot like statement he has corroborated the version narrated by PW-6. We find that this witness was not present at the spot at relevant time nor has he witnessed the occurrence of the incident. He is an interested witness. In other proceedings he made a statement in favour of Prem Singh with whom also he had come to the court to get his statement recorded in this case. He denies that any of the accused had sustained injuries in the incident. This is falsified from the record. He admits to have witnessed the incident, but, then why did he run away from the spot and what prevented him from intervening or giving medical aid to all. He also introduces a new case. According to him, accused had wanted to set the house of Prem Singh on fire which in any event is also not the prosecution case. Thus, his testimony does not inspire confidence.

23. Smt. Ketu Devi (PW-15) is not an eye witness and her testimony is of not much significance.

24. This leaves us with the testimony of Dulla Ram (PW-13), Madan Singh (PW-10) and Bir Singh (PW-11). In a parrot like statement, common thread running in their testimonies is that Mast Ram gave bow with a ‘danda’ and stone to Dulla Ram and Sant Ram gave a blow to Prem Singh on his arm. It is a stereo typed version. Importantly, all these witnesses are accused in cross case arising out of the very same incident. We find their versions not to inspire confidence. According to Bagh Singh, his blood stained clothes were shown to the police but they did not take the same. Now this version of his stands contradicted by the Investigating Officer, according to whom, no blood was found on the clothes of any of the injured persons. Further according to Bhag Singh,

Prem Singh suffered injuries with a blow of ‘drat’ given by Dhajju Ram. Now this version is materially contradicted by Prem Singh who himself has deposed that none received injuries with a ‘drat’. Even he could not identify the ‘drat’, which allegedly was being carried by the accused at the relevant time. Most importantly, he admits that ‘drafts’ were also recovered from the complainant party. For the very same reason, testimonies of Madan Singh and Bir Singh cannot be said to inspire confidence. Dulla Ram, in cross examination, admits that the police recorded his statement only once. Police has delayed recording of the statement of this witness. The incident took place on 14[th] August, 1991 and the statement was recorded some time in December, 1991. Importantly, he denies having made any statement Ex DA with which he was confronted with. Considering the statement of the doctor, it cannot be said with certainty that the complainant party suffered injuries with the weapons in question. From the testimony of all the relevant prosecution witnesses, it is apparent that Prem Singh and Dulla Ram had gone to the ‘Charandh’, the place where accused were allegedly present. The possibility of the complainant being the aggressors, cannot be ruled out.

25. Admittedly, Smt. Kubza, Sh. Sunder Singh and Sh. Vinod Singh witnessed the incident and Sh. Khyali Ram was a witness to the recovery memos. For reasons best known to them, prosecution has given up these independent witnesses. There is no justification on record for the same.

They were the best persons to have elicited complete truth in relation to the exact events which took place at the spot.

26. Prosecution witnesses admit that ‘drats’ in question are freely available in the market and houses of all the villagers. They were also recovered from the complainant party. Recovery of ‘draft’ from the accused is rendered doubtful. Testimonies of the police officials in this regard also does not inspire confidence. None of the prosecution witnesses has identified the ‘drat’ in question. None of the prosecution witnesses has deposed that the accused threatened to kill them with the ‘drat’. In fact, there is contradiction with regard to the presence of some of the accused at the spot.

27. According to PW-18, investigation was entrusted to him on the direction of the Superintendent of Police. What were these directions and why the Investigating Officer was changed, is not evident from the record.

28. From the record, hypothesis of the accused that the complainant party was the aggressor and the instant complaint was filed as a counterblast, is not altogether improbable. The court below has acquitted the accused of the charged offence. The view taken by the trial court is not at all impossible. Prosecution has been trying to conceal the true genesis of the occurrence and the manner and involvement of the persons in the incident

29. The accused has had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down in Mohammed Ankoos and ors Vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad (2010) 1 SCC 94, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the persons has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged.

30. At this stage, Mr. Shrawan Dogra, learned counsel for the Petitioners in Criminal Revision No. 134/2001, states that keeping in view the decision in Cr. Appeal No. 475/2000 and also that his clients wants to put a quietus to the entire controversy he does not press the Revision petition. As such, it is disposed of as not pressed.

(R.B.Misra), J.

December 28, 2010 (sl)

(Sanjay Karol),J.