Decided on October 12,2012

Gajendra Singh And Others Appellant


- (1.) Appellants are three in number. Two of them are brothers and the other one is their brother-in-law. The victim is a cousin of the appellants. The First Information Report was lodged by the brother of the victim. He was not a witness to the incident. Witnesses to the incident were the victim himself and one Deva (PW4). Victim sustained one lacerated wound injury on the back of his head. This injury was allegedly inflicted by the appellants, according to the First Information Report. According to the injured, PW1 (Karam Singh), and PW4, injury was caused by appellant Gajendra, while the other two appellants were holding the victim by hand. This incident, according to PW1, occurred when PW1 wanted to have main water channel to be opened for bringing water to the cucumber field taken by him from the Bhotias. It was contended that the appellants prevented him from taking such water. It was contended that, while he was returning towards his home and had walked for about 40 / 50 meters, appellants assaulted him in the manner as mentioned above inside his cucumber field. This incident was seen by PW4 from his house, little away from the cucumber field. According to PW4, he heard some cries and, then, looked up and saw what was happening.
(2.) The incident took place at 09:30 p.m. of 27 th April, 1997. PW4, though held out that he saw the incident, but did not say how could he see in the dark what was happening in a cucumber field. The Investigating Officer, who prepared the site plan, did not indicate existence of any artificial light in the vicinity. PW4 did not hold out that it was the moonlit night and, accordingly, there was no difficulty on his part in seeing what was happening. According to the evidence of PW1, he was unsuccessful in obtaining water in the water channel from the main channel, as he was prevented by the appellants. PW1, accordingly, was returning to his home. While he returned about 40 / 50 meters, in order to reach his house and came to the cucumber field, from the back, appellants came and, then, two of them held him and the other used the backside of fawda (spade). PW1 was examined by Dr. S.S. Rawat (PW3). PW3 deposed that the injury was simple in nature and the same could be caused by blunt substance, blunt side of fawda (spade) and also by falling. On being prevented by the appellants, PW1 could not bring water in the water channel to his field from the main water channel and, thereafter, he was returning to his home. What was the necessity of the appellants, then, to catch hold of PW1, and that too, 40 / 50 meters away from the place of obstruction for the purpose of assaulting PW1, was not explained. That the injury, in question, was caused by fawda (spade), was not established, except an assertion to that effect by PW1 and PW4. The alleged fawda (spade) was not recovered. According to doctor, the injury in question could also be caused by hard blunt substance or by falling.
(3.) Although the appellants were charged for having committed offence punishable under Section 308, read with Section 34, of the Indian Penal Code, appellants have been convicted under Section 324 of the Indian Penal Code. In the absence of a definite conclusion that the injury was caused by using the fawda (spade), appellants could not be convicted under Section 324 of the Indian Penal Code. As aforesaid, apart from assertions on the part of PW1 and PW4, there is no other evidence of use of fawda (spade) by the appellants. Furthermore, if the appellants were having a fawda (spade) and they were intending to use the same on PW1, there is no just reason why they should use the blunt side thereof and not the sharp side of the same.;

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