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Himachal Pradesh High Court · body

2016 DIGILAW 1185 (HP)

Baldev Raj v. State of H. P.

2016-06-27

SANDEEP SHARMA

body2016
JUDGMENT : Sandeep Sharma, J. Present Criminal Revision Petition filed under Section 397 read with Section 401 of the Code of Criminal Procedure, is directed against the judgment dated 22.10.2007 passed by learned Additional Sessions Judge-I, Kangra at Dharamshala, H.P in Criminal Appeal No. 32-D/03, affirming the judgment dated 15.10.2003, passed by learned Judicial Magistrate 1st Class, Baijnath in criminal Case No. 49-II-2002, whereby the present petitioner is convicted under Sections 326 and 323 of Indian Penal Code and sentenced to undergo simple imprisonment for two years under section 326 IPC and to pay fine of Rs. 500/- and to undergo simple imprisonment for three months under section 323 IPC and to pay fine of Rs.100/-. In default of payment of fine, to further undergo simple imprisonment for two months. 2. On 20.12.2007, this Court while admitting the instant Criminal Revision petition for hearing, suspended the sentence imposed by the Court below against the petitioner subject to his furnishing bail bonds in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of learned trial Court. However on 23.4.2016, when the matter came up for final hearing before this Court, petitioner-accused moved an application under Section 320 Cr.P.C read with Section 482 Cr.P.C placing therewith a compromise entered between the petitioner accused as well as complainant. 3. Careful reading of the averments contained in the application suggest that during the pendency of the present criminal revision petition, parties have entered into compromise, which has been placed on record alongwith the application, as referred hereinabove. Learned counsel representing the petitioner, prayed that since the matter has been compromised between the parties, this Court an exercise of its inherent power under Section 482 Cr.P.C can order for compounding the offence. However, Mr. Rupinder Singh Thakur, learned Additional Advocate General, representing the respondent-State opposed the aforesaid prayer having been made on behalf of the petitioner-accused. He stated that petitioner accused stands convicted by the learned trial Court and his conviction has been further upheld by the learned first appellate Court and as such, no public interest would be served, if the parties are allowed to compromise the matter at hand at this stage. Both the parties are present in person in the Court. 4. He stated that petitioner accused stands convicted by the learned trial Court and his conviction has been further upheld by the learned first appellate Court and as such, no public interest would be served, if the parties are allowed to compromise the matter at hand at this stage. Both the parties are present in person in the Court. 4. Careful reading of the contents of application filed under Section 482 Cr.P.C, suggest that on the complaint of the complainant, an FIR No. 107 of 2001, dated 8.10.2001 was registered against the petitioner accused at Police Station, Baijnath, District Kangra, HP and thereafter challan was presented before the Judicial Magistrate Ist Class Baijnath, wherein learned trial Court after satisfying itself that a prima-facie case exist against the accused, framed charges under Sections 323, 326 and 506 IPC, to which accused pleaded not guilty and claimed trial. Learned trial Court below after appreciating evidence on record convicted the accused for having committed the offence punishable under Sections 323 and 326 IPC and sentenced him to undergo simple imprisonment for two years under Section 326 IPC and fine of Rs.500/- and simple imprisonment for three months under section 323 IPC and fine of Rs.100/-. Aforesaid conviction and sentence imposed by the learned trial Court was further upheld by the learned Lower Appellate Court vide impugned judgment dated 22.10.2007. Hence, the present revision petition before this Court. 5. The application, which is duly supported by an affidavit of the petitioner-accused suggest that during the pendency of the present revision petition on the intervention of the respectable persons of the society, complainant and the petitioner-accused have compromised the matter in order to maintain cordial relations in future, compromise dated 29.4.2016 is also placed on record. It has been stated in application that compromise has been entered at their own sweet will and without any pressure from anybody in order to maintain good relations. 6. Since the application has been filed under Section 320 read with section 482 Cr.P.C, this Court deems it fit case to consider the present application in the light of the judgment passed by Hon’ble Apex Court in Narinder Singh and others versus State of Punjab and another (2014)6 SCC 466 , whereby Hon’ble Apex Court has formulated guidelines for accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue with the criminal proceedings. Perusal of judgment referred above clearly depicts that in para 29.1, Hon’ble Apex Court has returned the findings that power conferred under Section 482 of the Code is to be distinguished from the power which lies in the Court to compound the offences under section 320 of the Code. No doubt, under section 482 of the Code, the High Court has inherent power to quash the criminal proceedings even in those cases which are not compoundable, where the parties have settled the matter between themselves. However, this power is to be exercised sparingly and with great caution. Para Nos. 29 to 29.7 of the judgment are reproduced as under:- “29. In view of the aforesaid discussion, we sum up and lay down the following principles by which the High Court would be guided in giving adequate treatment to the settlement between the parties and exercising its power under Section 482 of the Code while accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue with the criminal proceedings: 29.1 Power conferred under Section 482 of the Code is to be distinguished from the power which lies in the Court to compound the offences under Section 320 of the Code. No doubt, under Section 482 of the Code, the High Court has inherent power to quash the criminal proceedings even in those cases which are not compoundable, where the parties have settled the matter between themselves. However, this power is to be exercised sparingly and with caution. 29.2. When the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed, the guiding factor in such cases would be to secure: (i) ends of justice, or (ii) to prevent abuse of the process of any Court. While exercising the power under Section 482 Cr.P.C the High Court is to form an opinion on either of the aforesaid two objectives. 29.3. Such a power is not be exercised in those prosecutions which involve heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society. 29.3. Such a power is not be exercised in those prosecutions which involve heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society. Similarly, for offences alleged to have been committed under special statute like the Prevention of Corruption Act or the offences committed by Public Servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender. 29.4. On the other, those criminal cases having overwhelmingly and pre-dominantly civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes should be quashed when the parties have resolved their entire disputes among themselves. 29.5. While exercising its powers, the High Court is to examine as to whether the possibility of conviction is remote and bleak and continuation of criminal cases would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal cases. 29.6. Offences under Section 307 IPC would fall in the category of heinous and serious offences and therefore is to be generally treated as crime against the society and not against the individual alone. However, the High Court would not rest its decision merely because there is a mention of Section 307 IPC in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of Section 307 IPC is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to proving the charge under Section 307 IPC. For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delegate parts of the body, nature of weapons used etc. Medical report in respect of injuries suffered by the victim can generally be the guiding factor. On the basis of this prima facie analysis, the High Court can examine as to whether there is a strong possibility of conviction or the chances of conviction are remote and bleak. Medical report in respect of injuries suffered by the victim can generally be the guiding factor. On the basis of this prima facie analysis, the High Court can examine as to whether there is a strong possibility of conviction or the chances of conviction are remote and bleak. In the former case it can refuse to accept the settlement and quash the criminal proceedings whereas in the later case it would be permissible for the High Court to accept the plea compounding the offence based on complete settlement between the parties. At this stage, the Court can also be swayed by the fact that the settlement between the parties is going to result in harmony between them which may improve their future relationship. 29.7. While deciding whether to exercise its power under Section 482 of the Code or not, timings of settlement play a crucial role. Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation, the High Court may be liberal in accepting the settlement to quash the criminal proceedings/investigation. It is because of the reason that at this stage the investigation is still on and even the charge sheet has not been filed. Likewise, those cases where the charge is framed but the evidence is yet to start or the evidence is still at infancy stage, the High Court can show benevolence in exercising its powers favourably, but after prima facie assessment of the circumstances/material mentioned above. On the other hand, where the prosecution evidence is almost complete or after the conclusion of the evidence the matter is at the stage of argument, normally the High Court should refrain from exercising its power under Section 482 of the Code, as in such cases the trial court would be in a position to decide the case finally on merits and to come a conclusion as to whether the offence under Section 307 IPC is committed or not. Similarly, in those cases where the conviction is already recorded by the trial court and the matter is at the appellate stage before the High Court, mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial court. Similarly, in those cases where the conviction is already recorded by the trial court and the matter is at the appellate stage before the High Court, mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial court. Here charge is proved under Section 307 IPC and conviction is already recorded of a heinous crime and, therefore, there is no question of sparing a convict found guilty of such a crime”. 7. Para 29.2 of the judgment of the Hon’ble Apex Court suggest that guiding factor for quashing the criminal proceedings in terms of settlement arrived between the parties would be to secure: (i) ends of justice, or (ii) to prevent abuse of the process of any Court. While exercising the power under Section 482 Cr.P.C. the High Court is to form an opinion on either of the aforesaid two objectives. 8. Careful perusal of para 29.3 of the judgment suggest that such a power is not be exercised in the cases which involve heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society. Apart from this, offences committed under special statute like the Prevention of Corruption Act or the offences committed by Public Servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender. On the other hand, those criminal cases having overwhelmingly and predominantly civil character, particularly arising out of commercial transactions or arising out of matrimonial relationship or family disputes may be quashed when the parties have resolved their entire disputes among themselves. 9. Admittedly, in the present case accused has been convicted under Sections 323 and 326 of Indian Penal Code, which are non-compoundable offences and could not be ordered to be compounded in terms of Section 320 IPC. Since, in the instant case application has been moved under Section 320 read with Section 482 Cr.P.C, this Court is empowered to quash the criminal proceedings in the case, which are not compoundable. But para 29.7 of judgment passed by Hon’ble Apex Court provides that while deciding whether to exercise jurisdiction under Section 482 Cr.P.C or not, timings of settlement play crucial role. But para 29.7 of judgment passed by Hon’ble Apex Court provides that while deciding whether to exercise jurisdiction under Section 482 Cr.P.C or not, timings of settlement play crucial role. The Hon’ble Apex Court has specifically observed that when conviction is already recorded by the learned trial Court and matter is at the appellate stage before the High Court, mere compromise between the parties would not be a ground to accept the same. 10. Admittedly in the present case, application for compounding the offence in question on the basis of compromise has been filed at the appellate stage, when accused has been already convicted by the learned trial Court. Hence, this Court is of the view that it is not a fit case, and a stage, where inherent power under Section 482 Cr.P.C can be invoked to order for compounding the offence. Accordingly, application moved by the petitioner-accused for compounding the offence on the basis of compromise having been entered into the parties is rejected at this stage. 11. Since for the reasons stated hereinabove, application bearing No. Cr.M.P. No. 449 of 2016 filed on behalf of the present- accused for compounding the offence stands rejected, this Court proceeded to decide case at hand on merits. 12. Mr. Ajay Sharma, learned counsel representing the petitioner, vehemently argued that the judgments passed by both the Courts below are not sustainable as the same are not based upon correct appreciation of the evidence available on record. He contended that both the Courts below while recording the conviction against the petitioner-accused have failed to notice major and substantive contradictions in the statements of the prosecution witnesses and, as such, great injustice has been caused to the petitioner accused. Mr. Ajay Sharma, learned counsel forcibly contended that both the courts below have miserably failed to acknowledge that independent evidence was available but for reasons best known to the prosecution they were not associated by the prosecution. He further contended that one independent witness Smt. Manorma Devi, who in fact is the eye witness, was cited as witness but later on was given up and as such, Court below should have drawn adverse inference against the prosecution. He further contended that one independent witness Smt. Manorma Devi, who in fact is the eye witness, was cited as witness but later on was given up and as such, Court below should have drawn adverse inference against the prosecution. He strenuously argued that both the Courts below have miserably failed to appreciate the material fact that it has come in the statement of the complainant that there was a long drawn civil litigation between the parties and they were not on good terms. Mr. Shama, further pleaded that since PW-1, Bimla Devi and PW-2, Fanti Devi in her statements categorically admitted that they are not having good relation with the petitioner- accused and litigation is pending in the Court, absence of independent witnesses in the present case was fatal to the case of the prosecution and as such, judgments passed by both the courts below are liable to be quashed and set-aside being unsustainable in the eyes of law. 13. During arguments having been made by him, he invited the attention of the Court to the statements made by the prosecution witnesses to demonstrate that there are major contradictions in the statements of the prosecution witnesses. He contended that the petitioner-accused has been falsely implicated in the present case due to personal enmity and litigation between the family of the petitioner-accused and complainant and as such, Court have committed material irregularity and illegality while convicting the accused under Sections 323 and 326 of IPC. He also contended that the prosecution miserably failed to prove its case within the parameters or basic ingredients of Sections 323 and 326 of the Indian Penal Code and sentenced the present petitioner-accused on flimsy grounds. Mr. Sharma contended that sentence awarded by leaned court below is harsh/excessive and cannot be allowed to be sustained. 14. Mr. Rupinder Singh Thakur, learned Additional Advocate General, representing the respondent-State, supported the judgments passed by both the Courts below and stated that no interference, whatsoever, of this Court is warranted in the present facts and circumstances of the case as judgments passed by both the Courts below are based on correct appreciation of the evidence available on record. 15. I have heard the learned counsel representing the parties and have carefully gone through the record made available. 16. 15. I have heard the learned counsel representing the parties and have carefully gone through the record made available. 16. True, it is that this Court has very limited powers under Section 397 of Criminal Procedure Code while exercising its revisionary jurisdiction but in the instant case, where accused has been convicted and sentenced, it would be apt and in the interest of justice to critically examine the evidence available on record that too solely with a view to ascertain that judgments passed by learned Courts below are not perverse and same are based on correct appreciation of evidence on record. 17. As far as scope of power of this Court while exercising revisionary jurisdiction under Section 397 is concerned, the Hon’ble Apex Court in Krishnan and another Versus Krishnaveni and another, (1997) 4 Supreme Court Case 241; has held that in case Court notices that there is a failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior criminal court in its judicial process or illegality or sentence or order. The relevant para of the judgment is reproduced as under:- “8. The object of Section 483 and the purpose behind conferring the revisional power under Section 397 read with Section 401, upon the High Court is to invest continuous supervisory jurisdiction so as to prevent miscarriage of justice or to correct irregularity of the procedure or to mete out justice. In addition, the inherent power of the High Court is preserved by Section 482. The power of the High Court, therefore, is very wide. However, the High Court must exercise such power sparingly and cautiously when the Sessions Judge has simultaneously exercised revisional power under Section 397(1). However, when the High Court notices that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior criminal court in its judicial process or illegality of sentence or order.” 18. Perusal of the material available on record suggest that on 8.10.2001, at about 9:00 AM, complainant Bimla Devi and Fanti Devi were cutting grass in their fields at Buhli Kothi and while they were talking to each other that someone had cut grass from their fields, accused persons, who were passing by that field heard the complainant Bimla Devi and Fanti Devi regarding removal of grass from their field by someone, came on the spot and started abusing the complainant. As per the story of the prosecution, accused Nikki Devi was holding danda in her hand and gave blow of the same on the left wrist of the complainant and accused Baldev gave a blow of darati on the small finger of the left hand of the complainant. Fanti Devi intervened and attempted to save the complainant from the clutches of the accused but accused Nikki Devi attacked her from behind by giving danda blow on her back. As per story of prosecution, third accused Krishan Lal kept instigating the other two accused to give more beatings to the complainant and Fanti Devi. As emerges from the record, occurrence was witnessed by Smt. Manorma Devi wife of Jindo Ram, R/o village Buhali Kothi, who as per prosecution challenged the accused and thereafter accused persons left the spot administering threats to the complainant and Fanti Devi to do away with their lives in future. The complainant immediately reported the matter to the police vide FIR Ex.PW1/A. She was medically examined and X-ray examinations were also conducted. Police thereafter procured their MLCs Ex.PW5/A and Ex.PW5/B and X-ray record Ex.PW8/A and Ex.PW8/B. Police during the course of investigation took into possession blood stained clothes of Bimla Devi Ex.P1 and Ex.P-2 vide memo Ex.PW1/B. Complaint also produced danda Ex.P-3 before the police, which was taken into possession vide memo Ex.PW1/C. As per story of the prosecution, accused Baldev Raj i.e. present petitioner produced sickle Ex.P-4, which was taken into possession vide memo Ex.PW1/D and the same was sealed in a cloth parcel with seal impression ‘P’ after preparing its sketch Ex.PW6/C on a piece of paper. Separate seal impression ‘P’ was also taken on a piece of cloth. The clothes of the complainant Bimla Devi were also sealed in a separate cloth parcel with seal ‘T’ and its seal impression Ex.PW6/B was separately taken on a piece of cloth. Separate seal impression ‘P’ was also taken on a piece of cloth. The clothes of the complainant Bimla Devi were also sealed in a separate cloth parcel with seal ‘T’ and its seal impression Ex.PW6/B was separately taken on a piece of cloth. Police after completion of the investigation found accused guilty of having committed the offence punishable under Sections 323, 326 and 506 read with Section 34 of IPC and accordingly filed challan in the competent Court of law. 19. The learned trial Court after satisfying itself that a prima facie case exist against the accused, charged the accused persons for having committed offences punishable under Sections 323, 326, 506 read with section 34 of IPC, to which they pleaded not guilty and claimed trial. 20. Learned trial Court on the basis of the evidence adduced on record by the prosecution as well as statement of the accused recorded under Section 313 CrPC concluded the trial and held that there is no evidence against accused Nikki Devi and Krishan Lal and accordingly acquitted them of the charges. However, learned trial Court below held the present petitioner accused Baldev Raj guilty of having committed the offences punishable under Sections 323 and 326 IPC and vide judgment dated 15.10.2003 convicted and sentenced him as per description given hereinabove. 21. Feeling aggrieved and dissatisfied with the judgment dated 15.10.2003, the present petitioner accused filed an appeal under Section 374 Cr.P.C in the Court of learned Additional Sessions Judge-I, Kangra at Dharamshala, however same was dismissed by the court of learned First Appellate Court vide judgment dated 22.10.2007 and judgment passed by learned trial court convicting the accused was upheld. 22. In the present case, prosecution with a view to prove its case examined as many as nine witnesses. PW-1, Bimla Devi, PW-2, Smt. Fanti Devi, PW-3, Guddi Devi, PW-4,Kapoor Chand, PW-5, Dr. S.K. Sood, PW-6 Inder Singh, PW-7, Krishan Kumar, PW-8 Dr. O.P. Ram Devi and PW-9, Om Prakash. 23. As has been noticed above, learned trial Court after conclusion of the proceedings acquitted the accused Chanchala alias Nikki Devi and Krishan Lal and convicted the present petitioner-accused Baldev Raj for the commission of the offence punishable under Sections 323 and 326 IPC. O.P. Ram Devi and PW-9, Om Prakash. 23. As has been noticed above, learned trial Court after conclusion of the proceedings acquitted the accused Chanchala alias Nikki Devi and Krishan Lal and convicted the present petitioner-accused Baldev Raj for the commission of the offence punishable under Sections 323 and 326 IPC. After careful perusal of the grounds taken in the criminal revision petition as well as arguments having been made on behalf of the petitioner, it clearly emerges that the judgment passed by the learned courts below have been assailed by the present petitioner-accused on the ground that since two witnesses of the occurrence examined by the prosecution were closely related to each other, Court below should not have accepted the version put forth by them in the absence of some independent witnesses of the locality. It has come in the statements of PW-1 and PW-2 that the relations of the complainant as well as accused were not very good as they have been litigating in the court of law. The absence of sole eye witness Manorama Devi, who was been given up without plausible reason by the prosecution has been also raised as a ground for setting aside the judgment passed by the learned trial court. 24. PW-1, Smt. Bimla Devi deposed before the learned trial Court that on 8.10.2001 at around 9:00 AM she along with Fanti Devi had gone to cut the grass and were talking with each other about removal of grass by some unknown person. The accused were going from there and they came at the spot and gave beatings to them. She specifically stated that the accused Baldev Raj was holding darati and gave a blow of the same on her small finger of the left hand, as a result of which, blood oozed out form the injury. She also stated that accused Nikki Devi gave a stick blow on her left hand and accused also gave beatings to Fanti Devi. Thereafter, she reported the matter to the police and her medical examination was conducted. She also stated that police came on the spot and recorded their statements and her Shirt Ex.P1 and Duptta Ex.P2 were taken into possession vide memo Ex.PW1/B. She also proved Ex.PW1/C, where danda produced by her was taken into possession by the police. She also proved that sickle Ex.PW1/D, was produced by accused Baldev Raj to the police. She also stated that police came on the spot and recorded their statements and her Shirt Ex.P1 and Duptta Ex.P2 were taken into possession vide memo Ex.PW1/B. She also proved Ex.PW1/C, where danda produced by her was taken into possession by the police. She also proved that sickle Ex.PW1/D, was produced by accused Baldev Raj to the police. Careful perusal of the cross-examination conducted of this witness suggest that defence has not been able to extract anything contrary to what she stated in her chief examination, however in her cross-examination she very categorically denied that she received injuries while cutting grass. 25. PW-2, Fanti Devi also stated that in June they were cutting grass and when she and Bimla Devi (PW-1) talking with each other about the theft of grass by some one from their field, accused Baldev Raj along with Nikki devi and Kirshan Lal came at the spot and started giving beatings to her. She specifically stated that accused Baldev Raj gave a blow of darti on the hand of Bimla Devi, as a result of which, blood started oozing out. She also stated that accused Nikki Devi gave a blow of danda to Bimla Devi. In her cross-examination, she denied the suggestion that accused never gave beatings to them. In cross-examination, she denied that a false case has been planted against the accused, however in her cross-examination she admitted that many cases are pending between the accused and them in the Court of law. 26. Careful perusal of the depositions made by these aforesaid material witnesses PW-1 and PW-2, suggest that they very specifically stated that accused Baldev Raj caused injuries to the left finger of PW-1 by sickle. Apart from this, defence has not been able to extract anything contrary to the stand taken by them in the examination-in-chief. Interestingly, no suggestion whatsoever, was put to these witnesses with regard to prior enmity and animosity with the accused. Record reveals that only suggestion put forth to these witnesses was with regard to the pending litigation of the land but no suggestion worth the name that accused has been falsely implicated in the present case was ever put forth to these witnesses. PW-1 in her cross-examination also denied that she received injury on her person while cutting grass. Record reveals that only suggestion put forth to these witnesses was with regard to the pending litigation of the land but no suggestion worth the name that accused has been falsely implicated in the present case was ever put forth to these witnesses. PW-1 in her cross-examination also denied that she received injury on her person while cutting grass. If statement of these witnesses PW-1 and PW-2 are read in conjunction, one thing clearly emerge that on the day of occurrence accused were present at the site of occurrence and they had some altercation with the complainant but the learned trial court below after appreciating the evidence available on record concluded that there is no evidence on record whether injury, if any, was ever caused to Fanti Devi. However, aforesaid witnesses have been very consistent and specific while stating that accused Baldev Raj has caused injuries on the left hand with sickle, which lateron was termed as grievous injury by the medical expert. 27. Statement given by PW-3, Guddi Devi may not be necessary to be dealt with at this stage as she only proved recovery memo Ex.PW1/C and Ex.PW1/B. However, in her cross-examination she also admitted that many cases are pending between the parties in the Court and she also denied the suggestion put forth to her that no recovery was effected in her presence. PW-4, Kapoor Chand is also witness to the recovery memos and as such, his statement is also not required to be dealt with, at this stage. 28. PW-5, Dr. S.K. Sood, stated that he examined the complainant Bimla Devi and opined injury No.1 on her person as grievous in nature caused with sharp edged weapon. He also stated that he examined Fanti Devi and opined the simple injury caused with blunt weapon. It has come in his statement that injury No.1 in MLC Ex.PW5/A can be caused by sickle, which was shown to him in the Court and injury No. 2 can be caused by danda Ex.P3. However, in Cross-examination, he admitted that injury No.1 to Bimla Devi can be caused while cutting grass with sickle and injury No.2 can be self inflicted also. However, in Cross-examination, he admitted that injury No.1 to Bimla Devi can be caused while cutting grass with sickle and injury No.2 can be self inflicted also. Similarly, PW-8, O.P. Ram Dev, who conducted x-ray of Bimla Devi and issued his opinion Ex.PW8/A stated in his cross-examination that on 8.10.2001 X-ray of Bimla Devi was conducted under his supervision and after perusing the same, he issued his opinion Ex.PW8/A. 29. PW-6, Inder Singh, who was the investigating Officer of the case stated before the Court that he during the investigation visited the spot and prepared spot map Ex.PW6/A. He also stated that during the investigation he recovered danda Ex.P3 vide memo Ex.PW1/C and dupatta and shirt vide memo Ex.PW1/B. He also deposed that on 18.10.2001 accused Baldev Raj produced darati Ex.P4 to the police, which was taken into possession vide memo Ex.PW1/D. In his cross-examination he denied that the danda and clothes were produced at police station by the complainant. 30. In the present case while hearing the arguments having been made on behalf of both the parties, Court had an occasion to peruse the record of the trial court made available to it. PW-1 and PW-2 namely Bimla Devi and Fanti Devi, who admittedly are closely related to each other being mother and daughter, are the only eye witness to the alleged incident. Though, as has been observed above, they both have been very candid and specific while specifically alleging that accused Baldev Raj caused injury on the small finger of the left hand of the complainant but fact remains that no independent witness whatsoever, was ever associated by the prosecution. Had the prosecution associated independent witness to support the version put forth by PW-1 and PW-2, this court would not have any difficulty to accept the version put forth by the aforesaid witnesses. As per the story of prosecution, Smt. Manoram Devi wife of Jindo Ram was an eye witness to the aforesaid alleged occurrence but for the reasons best known to the prosecution, she was given up and no explanation worth the name has been rendered on record for giving up the material witness. As per the own case of the prosecution, PW-3 had an occasion to see the entire occurrence which as per PW-1 and PW-2 occurred in the fields when they were cutting the grass. As per the own case of the prosecution, PW-3 had an occasion to see the entire occurrence which as per PW-1 and PW-2 occurred in the fields when they were cutting the grass. There cannot be any quarrel with regard to the law taken into consideration by the court below while holding that it is not the number nor the quantity of evidence produced by the prosecution that matter but it is the quality that counts. Similarly, there cannot be any difference of opinion as far as law laid down by the Hon’ble Apex Court that failure on the part of prosecution to produce any independent witness to the incident may not be fatal to the case of the prosecution. But in the present case both the courts while holding that the present petitioner accused guilty of offence having committed under sections 323, 326 IPC have miserably failed to take note of specific admission made by these prosecution witnesses i.e. PW-1 to PW-3 where they categorically admitted that many cases are pending between the parties in the court with regard to the land dispute. Once aforesaid admission with regard to the pendency of litigation between accused and complainant had come before the court, the court below while dealing with the statement given by these witnesses was required to deal with the same with great care and caution. Similarly, it stands duly proved on record that PW-1 to PW-3, who are only material evidence in the present case are closely related to each other and story put forth by them, especially in the light of the fact that they were not having good relation with the accused was required to be dealt with great care and caution and same could not be relied upon at first instance without there being corroboration, if any, from independent witness. As per the statement of PW-1, nobody was present at the spot of occurrence but as per own case of the prosecution, at the time of occurrence Smt. Manorma Devi was present, who had actually seen the entire occurrence but for the reasons best known to the prosecution she was given up. At this stage, the court has every reason to drawn adverse inference as far as decision of prosecution to give up aforesaid Manorma Devi who could be material evidence in deciding the present case. At this stage, the court has every reason to drawn adverse inference as far as decision of prosecution to give up aforesaid Manorma Devi who could be material evidence in deciding the present case. Both the courts below while holding the accused guilty of having committed the offence have repeatedly observed that no cross-examination was directed against the material fact deposed by PW-1 and PW-2 but careful perusal of the cross-examination of these prosecution witnesses suggest that specific suggestion with regard to pendency of litigation between the parties has been put to these witnesses. Apart from this, specific suggestion has been put to PW-1 that she had received injuries on her finger while cutting grass and as such, observation of the court below that no cross-examination was conducted on the material facts deposed by these prosecution witnesses appears to be far away from the record available on the file. 31. Now, if this case is viewed from another angle, both the courts below very conveniently used the statement of these prosecution witnesses while holding the accused guilty for having committed the offence. But interestingly, courts below on the basis of the same set of evidence came to the conclusion that prosecution has not been able to prove its case against the other accused Nikki Devi and Krishan Lal. Careful perusal of statement of PW-1 suggests that she stated that accused Baldev Raj and Nikki Devi and Krishan Lal had come on the spot and started giving beatings to her. She specifically stated that Nikki Devi gave danda blow to her and as such, findings of the learned trial court below that these prosecution witnesses have not uttered any word against Nikki Devi and Krishan Lal, appears to be contrary to the record, meaning thereby court below have appreciated the evidence in piece-meals and very conveniently ignoring the material admissions made by these prosecution witnesses, convicted the accused Baldev Raj. 32. PW-5, Dr. S.K. Sood in his cross-examination admitted that injury mentioned in MLC Ex.PW5/A can be caused while cutting grass with sickle and injury No.2 can be self inflicted. If the aforesaid statement of PW-5 is read in the context of the suggestion put forth by the defence to the PW-1 that she suffered this injury while cutting grass, it can also presumed that PW-2 suffered injury on her finger while cutting grass. If the aforesaid statement of PW-5 is read in the context of the suggestion put forth by the defence to the PW-1 that she suffered this injury while cutting grass, it can also presumed that PW-2 suffered injury on her finger while cutting grass. At this stage, it is not understood why the learned trial court disbelieved the version put forth by the prosecution witnesses that the accused Nikki Devi and Krishan Lal gave danda blow to Bimla Devi. 33. Rather, careful perusal of the statements of these prosecution witnesses suggest that these two prosecution witnesses have been very candid and specific in stating that accused Nikki Devi gave danda blow to Bimla Devi but interestingly, court below while dealing with this part of statement given by this witness came to the conclusion that there version appears to be shaky as far as Nikki Devi and Krishan Lal are concerned. In view of the aforesaid observation, this Court has no hesitation to conclude that the court below used the evidence given by PW-1 to PW-3 in piece-meals to convict the accused Baldev Raj and acquit other co-accused Nikki Devi and Krishan Lal. 34. In the present case interestingly all the three eye witnesses are closely related to each other and admittedly they were not having good relation with the accused. As per their own statements cases are pending in the court with regard to the land and as such, absence of independent witness is fatal to the case of the prosecution. Presence of independent witness could be crucial to ascertain the genuineness and correctness of the version put forth by these prosecution witnesses. As has been observed above, that version put forth by closely related person cannot be brushed aside solely on the ground of absence of independent witness, but in that eventuality, courts are required to deal with the statement of these interested/closely related witnesses with due care and caution. In the present case, as emerges from the record both the parties were inimical to each other and had been litigating for long time and as such, this court is of the view that in the absence of independent witness in the present facts and circumstances of the case, version put forth by the aforesaid prosecution witnesses could not be relied upon. 35. 35. This court while taking judicial note of the facts and circumstances as emerges from the record, is of the view that nature of the injury, which has been caused to PW-1 in the present case could be caused to her only while cutting grass because it has come in the statements of PW-1 and PW-2 that accused gave injury to the left hand of PW-1 with the sickle. It is not understood that how the accused could give injury to only left finger of PW-1 because none of the prosecution witnesses have stated that accused gave blow of sickle on the hand of PW-1 and as a result of which, injury was caused to the left hand, rather both the prosecution witnesses, who were eye witnesses to this incident stated that accused Baldev Raj caused injuries to left finger of PW-1 with sickle. Aforesaid statement with regard to injury to PW-1 and PW-2 rather compel this court to draw inference that actually PW-1 got injury while cutting grass but just with a view to falsely implicate the accused stated that he caused this injury with the sickle. Since there is no independent witness to the alleged incident coupled with the fact that, it stands proved on record that both the parties were inimical to each other, version put forth by the PW-1 and PW-2 could not be relied upon on its face value. 36. Admittedly, after perusing the statement of the prosecution witnesses as well exhibits placed on record, two views are possible in the present case and as such, the petitioner-accused is entitled to the benefit of doubt. The learned counsel for the petitioner-accused has placed reliance on the judgment passed by Hon’ble Apex Court reported in State of U.P. versus Ghambhir Singh & others, AIR 2005 (92) Supreme Court 2439, wherein the Hon’ble Apex Court has held that if on the same evidence, two views are reasonably possible, the one in favour of the accused must be preferred. The relevant paragraph is reproduced as under:- “6. So far as Hori Lal, PW-1 is concerned, he had been sent to fetch a basket from the village and it was only a matter of coincidence that while he was returning he witnessed the entire incident. The relevant paragraph is reproduced as under:- “6. So far as Hori Lal, PW-1 is concerned, he had been sent to fetch a basket from the village and it was only a matter of coincidence that while he was returning he witnessed the entire incident. The High Court did not consider it safe to rely on his testimony because he evidence clearly shows that he had an animus against the appellants. Moreover, his evidence was not corroborated by objective circumstances. Though it was his categorical case that all of them fired, no injury caused by rifle was found, and, only two wounds were found on the person of the deceased. Apart from this PW-3 did not mention the presence of either PW-1 or PW-2 at the time of occurrence. All these circumstances do create doubt about the truthfulness of the prosecution case. The presence of these three witnesses becomes doubtful if their evidence is critically scrutinized. May be it is also possible to take a view in favour of the prosecution, but since the High Court, on an appreciation of the evidence on record, has recorded a finding in favour of the accused, we do not feel persuaded to interfere with the order of the High Court in an appeal against acquittal. It is well settled that if on the same evidence two views are reasonably possible, the one in favour of the accused must be preferred.” 37. The Hon’ble Division Bench of this Court vide judgment reported in Pawan Kumar and Kamal Bhardwaj versus State of H.P., latest HLJ 2008 (HP) 1150 has also concluded here-in-below:- “25. Moreover, when the occurrence is admitted but there are two different versions of the incident, one put forth by the prosecution and the other by the defence and one of the two version is proved to be false, the second can safely be believed, unless the same is unnatural or inherently untrue. 26. In the present case, as noticed hereinabove, the manner of occurrence, as pleaded by the defence, is not true. The manner of the occurrence testified by PW-11 Sandeep Rana is not unnatural nor is it intrinsically untrue, therefore, it has to be believed. 27. Sandeep Rana could not be said to have been established, even if the prosecution version were taken on its face value. The manner of the occurrence testified by PW-11 Sandeep Rana is not unnatural nor is it intrinsically untrue, therefore, it has to be believed. 27. Sandeep Rana could not be said to have been established, even if the prosecution version were taken on its face value. It was pleaded that no serious injury had been caused to PW-11 Sandeep Rana and that all the injuries, according to the testimony of PW-21 Dr. Raj Kumar, which he noticed on the person of Sandeep Rana, at the time of his medical examination, were simple in nature.” 38. Consequently, in view of the aforesaid discussion, this Court has no hesitation to conclude that the judgment passed by both the Courts below are not based on correct appreciation of evidence available on record and as such, same are quashed and set-aside. Accused is acquitted of the charge. His bail bonds are discharged. The fine amount, if any deposited by the petitioner accused be refunded to him. The present criminal revision petition stands disposed of, so also pending applications, if any.