JUDGEMENT Justice Sanjay Karol J. For an offence, which is alleged to have been committed on 25.9.2002, accused were put to trial. In terms of judgment dated 25.8.2004 passed by learned Addl. Sessions Judge, (Presiding Officer, Fast Track Court), Solan, in Case No. 45 FT/7 of 2004/2003 titled as State of H.P. vs. Hans Raj & Ors. accused stands acquitted of the charged offences. 2.It is the case of prosecution that on 25.9.2002 someone telephonically informed the police at Police Post Kunihar that fight between Hans Raj (accused No.1), Desh Raj (accused No.2), Dev Raj (accused No.3) (one group) and Chaman Lal (PW-11) and Karam Chand (PW-12) (another group) was taking place in the bazaar at Kunihar which may result into blood shed. Sh. Hari Ram (PW-8), attended the call and made entries in the roznamcha (Ext.PW-8/A) at 8.15 a.m. Inspector Geeta Ram was deputed to visit the spot. There at 11.00 a.m. he recorded statement (Ext.PW-10/A) of Reeta Devi (PW-10) under Section 154 Cr.PC. He sent the same to the Police Station, Arki where F.I.R No. 96/2002(Ex.PW-14/A) dated 25.9.2002 was registered under Sections 307, 323, 147, 148, 149 and 506 of I.P.C. Matter was further investigated by HC Rajinder Singh (PW-15) and ASI Sohan Singh (PW-16). Investigation revealed that accused Dev Raj had given blows with a knife (Ext. P-2) to S/Sh. Chaman Lal (PW-11) and Karam Chand (PW-12) in the presence of Reeta Devi (PW-10), S/Sh. Tejender Singh (PW-1) and Sanjay Kumar (PW-2). Injured were taken to the local hospital at Kunihar and were referred to the IGMC hospital at Shimla. Smt. Reeta Devi, did not go to Shimla but came to the shop from the hospital at Kunihar. She was accompanied by her father-in-law Sh. Het Ram (PW-4). On the way, they met accused Dev Raj, Desh Raj and Hans Raj being taken by the police in a gipsy. At that time Brahm Prakash (accused No.4) came and handed over darat (Sketch Ex. PW-1/D) to accused Desh Raj who in turn gave blows with the same, first to Het Ram(PW-4) on his neck, Sanjay Kumar(PW-2) and finally to one Ashleem Mohd. Three persons were also taken to the hospital at Kunihar where also some of them were referred to IGMC hospital Shimla. During investigation, accused handed over knife to the police. PW-1/D) to accused Desh Raj who in turn gave blows with the same, first to Het Ram(PW-4) on his neck, Sanjay Kumar(PW-2) and finally to one Ashleem Mohd. Three persons were also taken to the hospital at Kunihar where also some of them were referred to IGMC hospital Shimla. During investigation, accused handed over knife to the police. Accused Desh Raj made a disclosure statement (Ext.PW-3/A) in the presence of C. Rakesh Kumar (PW-3) and independent witness Nigju Ram, which led to recovery of darat. Blood stained clothes of accused were also recovered by the police and sent for chemical analysis. Duringinvestigation police recorded statements of witnesses. Dr. R.G. Negi (PW-5) medically examined Chaman Lal (PW-11). Dr. Sangram Pathania (PW-7) medically examined injured S/Sh. Sanjay Kumar (PW-2), Het Ram (PW-4), Karam Chand (PW-12) and also Chaman Lal (PW­11). He also examined injured Ashleem Mohd.. Dr. Bhavesh Devkaran (PW-13) examined some of the injured persons. Medical record including MLCs of all the injured persons were taken on record by the police. With the completion of investigation challan was presented in the Court for trial. 3.Accused were charged for having committed offences punishable under Sections 307, 326, 323 & 506 all read with Section 34 of the Indian Penal Code, to which they did not plead guilty and claimed trial. 4.In order to establish its case prosecution examined as many as 16 witnesses and statements of the accused under Section 313 Cr.PC were also recorded, in which accused Hans Raj, accused Desh Raj and accused Dev Raj took the following common defence:- “The complainant alongwith their relatives came with sharp edged weapon and attacked us and put police jeep on fire as a result of which jeep was damaged and I sustained burn injuries and they also inflicted incised wound on us. A case against them is pending for trial before ACJM Arki u/s 147, 148, 149, 325, 341, 435 IPC. When the police intervened these persons ran away and in the melee sustained injuries.” 5.Accused Brahm Prakash took the following defence: “I am relative of accused persons Desh Raj, Dev Raj and Hans Raj. Therefore, I have been falsely implicated in this case. These accused persons were beaten by the complainant and the witnesses.”In defence, accused tendered their respective MLCs, Ext.DX, Ext. DY & Ext. DZ. Therefore, I have been falsely implicated in this case. These accused persons were beaten by the complainant and the witnesses.”In defence, accused tendered their respective MLCs, Ext.DX, Ext. DY & Ext. DZ. 6.The Court below acquitted the accused of the charged offences for the reason that testimonies of prosecution witnesses stand materially contradicted, rendering them unworthy of credence. 7.Having minutely gone through the material on record, we find that prosecution has not come out with the whole truth. We also find version given by the accused persons to be more probable. We also find that prosecution has failed to disclose, much less explain, the injuries sustained by accused No.1, 2 & 3, which allegedly were inflicted by the complainant party on the very same day of the incident. Prosecution also failed to disclose that accused had also got cross FIR registered against the complainant party/injured in the instant case and criminal trial in relation thereto, is also pending before appropriate court and all members of the complainant party, including PW-2, PW-4, PW­10, PW-11 & PW-12 are accused in the said case. There appears to be no justification for the police/prosecution not to have explained the same in these proceedings. Police was already aware that fight between two groups was going on in the bazaar hence it could have conveniently disclosed the factum of cross FIR and injuries sustained by all. Silence has rendered prosecution story to be doubtful if not false. 8.Medical record of the injured witnesses examined in the present case reveals that grievous and simple injuries were received by them. This fact cannot be disputed by anyone. But then prosecution would still have to establish its case, beyond reasonable doubt, by leading clear, cogent, reliable and convincing evidence and show as to whether all or any of the accused persons had conspired to commit the crime and who amongst them had given blows with a knife and darat to whom. 9.We find that most crucial person i.e Geeta Ram, who reached the spot after receiving intimation about group clash and also registered FIR has not been examined in Court. His testimony would have unfurled the whole truth and disclosed the exact picture about the actual events which took place after police reached at the spot. PW-8 categorically states that Geeta Ram was deputed to visit the spot. Rajinder Singh and Sohan Singh have also not disputed this fact. His testimony would have unfurled the whole truth and disclosed the exact picture about the actual events which took place after police reached at the spot. PW-8 categorically states that Geeta Ram was deputed to visit the spot. Rajinder Singh and Sohan Singh have also not disputed this fact. Undisputedly statement of Reeta Devi (PW-10) was recorded by Geeta Ram on the spot. 10. Now this version of the prosecution, to us, appears to be absolutely false for the reason that Reeta Devi in her testimony categorically states that much before her statement was recorded on the spot by the police, she herself had visited the police station and then gone to the hospital where her husband Chaman Lal was undertaking medical treatment. Now if Reeta Devi had already visited the police station, then why is it that police did not record her statement in the police station itself. After all cognizable offence had taken place. Allegedly this witness saw the accused giving blows with a knife to Chaman Lal (PW-11) and Karam Chand (PW-12). 11. It is the prosecution case that Geeta Devi also witnessed the accused inflicting injuries with a darat to Het Ram (PW-4), Sanjay Kumar (PW-2) and Ashlem Mohd.(not examined). Undisputedly Chaman Lal and Karam Chand were referred for further treatment to IGMC Shimla. Reeta Devi states that she did not go to Shimla with her husband and while she was returning to her shop with Shri. Het Ram, accused persons who were being taken away by the police in a gipsy gave blow with a darat to Het Ram. Now no police official has been examined to corroborate this version. We are aware that statement of an independent witness, if otherwise inspire confidence, does not require corroboration but in the instant facts, as we shall see the events unfurling hereinafter, we find it to be necessary, for the foundation of the prosecution story appears to be false and version of Reeta Devi not worthy of credence. She does not appear to be a truthful witness. Her version stands materially contradicted by the version given by Sh. Sanjay Kumar (PW-2), who states that Reeta Devi had in fact accompanied her husband from Kunihar to IGMC, hospital at Shimla. She does not appear to be a truthful witness. Her version stands materially contradicted by the version given by Sh. Sanjay Kumar (PW-2), who states that Reeta Devi had in fact accompanied her husband from Kunihar to IGMC, hospital at Shimla. Now if this were so then obviously Reeta Devi could not have been present on the spot at 11 a.m. when her statement (Ext.PW-10/A) was allegedly recorded by the police. She could not have been present at the same time at two different places. This totally knocks down the prosecution case. The very genesis of the prosecution story appears to be untrue. 12. From statement (Ext.PW-10/A) of Reeta Devi (PW 10), following points can be deduced:(i) That there is only one incident.(ii) The place of incidents is also one. present on the spot before the complainant arrived at the spot. (iv)There is no case that anyone other than complainant’s husband, his brother and her father-in-law sustained injuries and it is also her case each of them sustained one injury. (v)Except herself, the accused persons, the injured and the wives of Dev Raj, Desh Raj and Hans Raj none else was present on the spot. 13. At this stage, it would be relevant to also extract the relevant portion of her testimony in Court. It reads as under:- “My husband Chaman Lal has been running a tea shop for the last 9 years in main bazaar Kunihar. He also sells sweets. On 25.9.2002 at about 8.30 A.M. I had gone to my husband’s shop to fetch milk for myself. Adjacent to our shop there is a building of Geeta Ram. Accused persons except this man (pointed towards Brahm Prakash) are sons of Geeta Ram. When I arrived at my shop, Pinku was standing in the first floor of his house and was hurling abuses on my husband, I asked from my husband as to why the accused was hurling abuses on him. The husband said that even he did not know why accused Pinku was hurling abuses. Then three accused persons who were sons of Geeta Ram came down and entered out shop. They took my husband forcibly away in front of the shop. Accused Suraj gave a knife blow to my husband on his chest. My husband asked me to call his brother Karam Chand. I went to him and brought him to the spot. Then three accused persons who were sons of Geeta Ram came down and entered out shop. They took my husband forcibly away in front of the shop. Accused Suraj gave a knife blow to my husband on his chest. My husband asked me to call his brother Karam Chand. I went to him and brought him to the spot. When I came back I found my husband lying unconscious on the road. As Karam Chand bent down to pick my husband up, accused Suraj present in the court (pointed towards Desh Raj) gave a knife blow to Karam Chand on his back. As Karam Chand stood up accused Suraj gave another blow to him with the same knife, this time on the stomach. The three accused persons namely the sons of Geeta Ram put lock to their gate and went inside the gate. Many people gathered there. My husband and his brother were taken to hospital. When knife blow was given to my husband, Kanshi Ram and Babbu were present there. There are many other shops and residential houses adjoining our shop and the building of Geeta Ram. My husband and his brother were referred to Shimla for treatment. After my husband was referred to Shimla, I went back from Kunihar hospital to my shop as the shop was open. My father-in-law had also come to the hospital at Kunihar. He lives in village Dayaras. He was to go back to village. He accompanied me from the hospital to the shop. On the way he also enquired from me as what had happened and why it had happened. When we were at a distance of about 25 feet from our shop police jeep met us. The jeep was stationary when we reached there. The three accused persons namely sons of Geeta Ram were there near the jeep. This man (pointed towards Brahm Prakash) came and handed over a darat to Suraj (pointed towards Desh Raj). This man then gave a darat blow on the neck of my father-in-law. My father-in-law fell down unconscious. His neck injury was bleeding profusely. Many people who were already present there took my father-in-law to Kunihar hospital. When drat blow was given to my father-in-law, at the same time Ashleem and Sanjay were beaten. Sanjay sustained injury on the head while Ashleem sustained injury on the arm.” (emphasis supplied) 14. My father-in-law fell down unconscious. His neck injury was bleeding profusely. Many people who were already present there took my father-in-law to Kunihar hospital. When drat blow was given to my father-in-law, at the same time Ashleem and Sanjay were beaten. Sanjay sustained injury on the head while Ashleem sustained injury on the arm.” (emphasis supplied) 14. Significantly version as originally given by this witness to the police stands materially contradicted by PW-2, who categorically states that “a scuffle took place between accused Dev Raj, Desh Raj and Hans Raj on one side and Chaman Lal and Karam Chand on the other side. During the scuffle Desh Raj gave blows with a knife to Chaman Lal and Karam Chand.” He states that scuffle continued for about 10-15 minutes and each party slapped and gave blows with fists and kicks to each other. In fact this version stands supported by Karam Chand, who states that certain heated exchanges took place between him and the accused and thereafter accused Desh Raj gave a blow with a knife to him. Again this fact totally knocks down the prosecution story. It belies and shatters the version given by PW-10, in Court. 15. Further, according to the police, darat was recovered pursuant to the alleged disclosure statement (Ext.PW-3/A) made by accused Desh Raj. Now Sh. Nigju Ram, independent witness to the disclosure statement has not been examined in Court. No doubt other witness Sh. Rakesh Kumar, a police official, has supported the prosecution version but considering the facts in totality, we find that his statement required corroboration for the simple reason that blow with the darat was allegedly given in a public place and in the presence of police officials where general public in large number was present. This fact undisputedly stands admitted by all the complainant’s witnesses, including Sh. Het Ram who states that at the time when blow was given to him with the darat, there were people both in front and behind him. Now if this was so, then where was the occasion for the accused to have concealed weapon of offence and that too just near the place of occurrence of the incident. In this regard, testimony of PW-2, who is a witness to recovery memo (Ext.PW­1/A) of darat is also important. Now if this was so, then where was the occasion for the accused to have concealed weapon of offence and that too just near the place of occurrence of the incident. In this regard, testimony of PW-2, who is a witness to recovery memo (Ext.PW­1/A) of darat is also important. He states that before he reached the police post memo was already prepared and he signed at the place where police asked him to do so. Thus prosecution version with regard to the disclosure statement also does not appear to be true. 16.Accused undisputedly have established that cross FIR was registered and in relation to the very same incident in which they also sustained injuries. 17. Now coming to the contradictions in the testimonies of the witnesses, with approval, we firstly reproduce the self contradictions embellishments/improvements observed in the statement of PW-10, by the Court below: “(i) She stated on oath that the accused persons Dev Raj, Desh Raj and Hans Raj trespassed into her husband’s shop and dragged him out. No such case is there in her statement under Section 154 Cr.PC. (ii) In the statement made to the police she did not set up a case that her husband asked her to go to call his brother Karam Chand. As per such statement to police Karam Chand was already present there. But on oath she stated that she was sent by her husband to call his brother Karam Chand. (iii)She stated on oath that knife blows were given to Karam Chand one on the stomach and other on the back, while her case before the police was that only one blow in the stomach was given; (iv) As per her statement under section 154 Cr.PC drat blow to her father–in-law Het Ram was given in the same incidence in which knife blows were given to her husband and the husband’s brother. The place of occurrence, that is, where the three were injured is one and the same. But on oath she stated that drat blow to her father–in-law was given at a different place and about 20 to 25 minutes after the first occurrence in which knife blows were given to her husband and brother of her husband. The place of occurrence, that is, where the three were injured is one and the same. But on oath she stated that drat blow to her father–in-law was given at a different place and about 20 to 25 minutes after the first occurrence in which knife blows were given to her husband and brother of her husband. (v)In her statement on oath she deposed about the presence of Asleem and Sanjay and their sustaining injuries but these facts do not find mention in statement under section 154 Cr.PC.” 18. Also she states that accused went inside the shop and dragged her husband (PW-11), who in fact states that he was already present near the water tap outside the shop. Her version that after Chaman Lal was given a blow with knife she went to call Karam Chand, from his residence. But even this version stands belied by Karam Chand himself, who states that PW-10 had come to meet him at his restaurant. Her version that after receiving a blow with the knife Chaman Lal became unconscious stands belied by Chaman Lal himself, according to whom he had himself walked up to the hospital in an injured condition. PW-1 states that when blow was given by Des Raj to Chaman Lal, PW-10 was not present as she had already left for home. At that time Chaman Lal alone was present and Karam Chand came after some time. 19. Whether PW-1 and PW-2 independently witnessed occurrence of incident or not, we find there is inherent contradiction in this regard. PW-1 states that incident was witnessed by PW-2. In this regard, question put by the Court to PW-2 and answer given by him would reveal inherent contradiction. It reads as under:- “Q. According to you the scuffle between the five persons was going on. During the scuffle knife injury happened to be caused and you could not see the knife injury being given?Ans. It is correct.” 20. With each passing contradiction, we find the prosecution case becoming weak and defence taken by the accused appearing to be more probable.None of the prosecution witnesses have truthfully, in a convincing manner deposed who amongst them had stabbed whom. 21. Noticeably in the statement (Ext.PW-10/A), there is no reference of any vehicle much less a police gipsy. In Court PW-10 refers meantime about the same. Now in his examination-in-chief, Sh. 21. Noticeably in the statement (Ext.PW-10/A), there is no reference of any vehicle much less a police gipsy. In Court PW-10 refers meantime about the same. Now in his examination-in-chief, Sh. Het Ram (PW-4) is totally silent about the same but in his cross-examination he states that jeep was moving which version stands belied by PW-2 and PW-10 who state that it was in a stationary position. Be that as it may be, if the vehicle was moving then prosecution story that accused Brahm Prakash came and handed over darat to accused Dev Raj, who in turn gave a blow to PW-4 is rendered doubtful. How could the accused sitting in a moving vehicle give a blow with the darat to a person who was surrounded by large number of people outside the vehicle. In this regard we also find that there is contradiction in the testimonies of PW-4 & PW-10. Whereas PW-4 states that accused Dev Raj was outside the jeep but PW-10 states that all the accused were inside the jeep with the police officials. Contradiction which may appear to be minor stands magnified with the further version of PW-4, according to whom, blow was given to him by accused Dev Raj and not accused Desh Raj which in fact is the version of PW-10. As such, identify of the assailant itself is in doubt. This lends credence to defence of the accused that injuries were suffered by all in a group clash and not in the manner in which the prosecution would want us to believe. This also lends credence to the hypothesis that PW-10 was in fact not present at the spot and was introduced as a witness and her statement was not recorded by the police on the spot but later on. 22. Significantly PW-10 admits that her statement wasrecorded by the police not once but twice. Second statement is not on record. She states that she had gone to the shop of her husband to get milk which version stands refuted by PW 2, according to whom, Reeta Devi was washing utensils near the shop when the accused started spitting which in fact led to provocation, quarrel and then the fight. Also trial Court has recorded her demeanour in the following terms as under:- “(the witness is sweating. A glass of water arranged.). Also trial Court has recorded her demeanour in the following terms as under:- “(the witness is sweating. A glass of water arranged.). At one stage there is a recital that Desh Raj gave a drat blow to Het Ram and knife blow to Chaman Lal. Thus at this stage there is an omission about knife blows to Karam Chand. However at a later stage there is a recital that her husband, his brother and her father-in-law were murderously assaulted by the accused persons with drat and knives. Here again there is no specific recital that knife blows were given to Karam Chand. I do not know whether the accused persons sustained injuries and for how many days they remained hospitalized. (On court questing stared that I do not know whether they remained hospitalized or not.” 23.PW-11 admits that there is civil litigation pending between the complainant and the accused persons. He further states that Des Raj took him to the hospital which version stands belied by Sanjay Kumar, according to whom it was he, and one another person who had actually taken PW-11 to the hospital. 24. Significantly PW-2 states that darat shown to him in Court is not the one with which accused Desh Raj had given a blow. At this juncture we may also note that there is yet another contradiction in his statement. He states that Het Ram was given blow by accused Dev Raj and not Desh Raj. Everyone has a different version to give. It is absolutely difficult to discern the exact truth. He further states that accused Desh Raj first gave a blow with a darat to Ashleem Mohd., then to Het Ram and finally to him. On this aspect PW-4 is totally silent. He does not even mention presence of Ashleem Mohd. and is silent about any blow given to Sanjay Kumar. 25. We find that prosecution has not examined independent witnesses as referred to by the witness in their testimonies. No independent witness has been associated by the prosecution except for Tejinder Singh (PW-1) who did not materially support the prosecution. Police has not examined Krishan Lal who took statement (Ext.PW-10/A) to the police station on the basis of which FIR was registered. Ashleem Mohd. has not been examined. Babbu and Kanshi Ram as referred to by PW-10 who allegedly witnessed the incident have not been examined. Police has not examined Krishan Lal who took statement (Ext.PW-10/A) to the police station on the basis of which FIR was registered. Ashleem Mohd. has not been examined. Babbu and Kanshi Ram as referred to by PW-10 who allegedly witnessed the incident have not been examined. Chhaju Ram referred to by PW-11 has not been examined. There examination was absolutely imperative. 26. We also find that except for Sanjay Kumar all the injured witnesses have denied that accused suffered injuries or were hospitalized, though they admit that shop of the accused remained closed for quite some time. Obviously there are feigning ignorance. Kunihar is a small place. Accused and complainant were known to each other from before. It is normal for co-villagers to know about illness or hospitalization of any person in the village. 27. Thus we find that there are inherent and material contradictions in the statement of prosecution witnesses. Their testimonies are not worthy of credence. It is not safe to rely upon the same. To us it appears that prosecution has not come out with the whole truth and as such it cannot be said that prosecution has been able to prove, beyond reasonable doubt, by leading clear, cogent, convincing and material piece of evidence, that accused had common intention of voluntarily causing grievous hurt by means of a sharp weapon which was likely to have caused death or that they criminally intimidated the complainant party and intentionally committed an act so as to cause death of the injured person. 28. Accused have had the advantage of having been acquitted by the Court below. Keeping in view the principles laid down in Mohammed Ankoos and others 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 accused 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.