1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 115 of 1999 Decided on September 16, 2010 _________________________________________________________ State of H.P. …Appellant. Versus Bir Singh and others. ...Respondents. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge. ¹Whether approved for reporting? For the appellant: Mr.R.K. Sharma, Senior Additional Advocate General, with Mr. Rajinder Dogra, Additional Advocate General, For the respondents: Mr. Neeraj Sharma, Advocate. Justice R.B. Misra,J. ( Oral) The present Criminal Appeal has come up for adjudication after the grant of leave to appeal under Section 378 (3) of the Code of criminal Procedure has been granted in reference to judgment dated 2.11.1998, passed by Learned Sessions Judge, Shimla,H.P., in Sessions Trial No. 33-S/7 of 1997, for the offence under Sections 148, 307, read with Section 149 and Section 336 read with Section 149 of the Indian Penal Code, acquitting the alleged accused / respondents. 2. The prosecution story is that on 27.3.1996, at 12.30 P.M., one Murtu Devi wife of Hira Singh, resident of village, Kood, Pargana Jais, Thana Theog, went to police station, Theog, and lodged a report that her husband, namely, Hira Singh and his two brothers owned only 2-2 Bighas of land in village Kood, 2 and because of only very small holding, they were granted three Bighas of land, under Nautor Rules, to each of them. However, on 27.3.1996, in the morning, her husband Hira Singh and his two brothers went to the said land to graze the cattle, where accused-respondent Kedar Singh, accompanied by other accused persons, went to the land allotted to Hira Singh under Nautor Rules and started digging a portion of it. When Hira Singh objected to it, all the six accused persons pounced upon him and on cries of Hira Singh for help, his wife Smt. Murtu Devi and his two brothers came to the spot and observed that accused Rajesh alias Bittu was armed with an iron pipe, accused Chhote Lal was armed with a Khukri, accused Kedar Singh was wielding a Lathi and accused Bir Singh was carrying a Gainti and all the six accused were giving beatings to Hira Singh. On intervention, the accused persons threw stones upon them, Hira Singh suffered multiple injuries. However, victim / injured taken to hospital, Theog, for treatment. Accordingly FIR No.22 of 1996 was registered. On medical examination of Hira Singh (victim / injured) the doctor has observed 10 cm x skull bone deep in antero posterior direction lateral and left to suggital suture, 2 cm from mid line on fronto parietal region. In addition to that he had suffered fracture on left leg. Two simple injuries, one on the left eye and another on the left leg, were also noticed. 3. After investigation, all the six accused were charged for the above offences. In order to prove its case, the prosecution has examined as many as 9 prosecution witnesses, 3 whereas, the accused / respondents through their statement under Section 313 of Cr.P.C., have denied the prosecution case. 4. Out of the prosecution witnesses, majority of them are of formal nature. The material witnesses are PW.3 Hira Singh injured, his wife PW.4 Smt. Murtu Devi and his brother PW.5 Narain Singh, both of whom claim to be the eye witnesses, PW.1 Doctor Ashwani Tomar, who conducted the medico legal examination of injured Hira Singh, PW.6 Devinder Singh Head Constable and PW.9 Partap Singh, ASI. 5. PW.3 Hira Singh victim / injured has stated that he was he was alloted three Bighas of land about 22-23 years back and on 27.3.1996, when he was grazing cattle on the said land, all the six accused came there, armed with above said weapons, and started digging his said nautor land. According to PW.3, first of all Kedar Singh dealt a blow of Danda on his head, due to which he fell on the ground and soon thereafter some one hit him with some object from behind and he became unconscious. In the cross-examination, PW.3 Hira Singh has stated that people told him, during the recent settlement operation, that the land which had been given to him under Nautor Rules was different from the piece of land of which he was in occupation. PW.3 has further stated that accused Kedar Singh was the first to appear on the scene from Theog side and other accused persons came 10-12 minutes later. PW.3 has denied the suggestion that his brothers Ratti Ram and Narain Singh assaulted accused Kedar Singh in a pre-planned manner, while he was returning with containers of milk from Theog side and accused Kedar 4 Singh raised alarm, on which his son Rajesh came there and tried to rescue his father. PW.3 has further denied that Rajesh was dealt a blow of Danda on his head by him, upon which he retaliated and happened to cause injuries. PW.3 has admitted that a case has been registered, against him and his two brothers, by Rajesh at Police Station, Theog on 27.3.1996 itself, on the basis of that report, a case has been filed against him and his above named two brothers. 6. PW.4 Smt. Murtu Devi, wife of Hira Singh (victim / injured) in support the prosecution case, has stated that on 27.3.1996, her husband Hira Singh, had gone with the cattle to the field which had been granted to him under Nautor Rules, in the morning, and about 10.00 A.M., she saw accused Kedar Singh accompanied by other five accused going towards the said field and on reaching the field, all the six accused persons started giving beating to her husband and when her husband cried for help, she went to his rescue but the accused tried to assault her too, then she ran away from the spot and went straight to the police station where she lodged the FIR. PW.4 Smt. Murtu Devi has further stated that her husband's two brothers Ratti Ram and Narain Singh were also attracted by the cries of her husband and when they tried to rescue him, the accused persons threw stones at them, however, they withdrew and went back to their house. PW.4 has categorically stated that accused persons were armed with a Danda, Gainti, an iron pipe and Chhote Lal was armed and a Khukhri. 5 However, in cross-examination, PW.4 has stated that her husband and his two brothers were armed with Dandas and they assaulted accused Kedar Singh injured, while he was returning with milk container from Theog. PW.4 specifically stated that all the accused persons went to the place of occurrence from the village, in a group. However, testimony of PW.3 Hira Singh and PW.4 Murtu Devi, is contradictory to each other, as Hira Singh (victim / injured) had categorically admitted that accused Kedar Singh had come to the spot from Theog side and other accused persons appeared from village side, 10-12 minutes later. 7. PW.5 Narain Singh has deposed that all the six accused persons went to the spot and started digging the nautor land which had been allotted to Hira Singh (victim / injured). PW.5 has further stated that first of all accused Kedar Singh gave a Danda blow on Hira Singh's head and thereafter Rajesh Verma alias Bittu, accused, dealt blows of iron pipe on various parts of the body of Hira Singh. PW.5 has further stated that when he and his brother Ratti Ram went towards the place of occurrence to rescue Hira Singh, all the six accused threw stones at them, due to which they could not help their brother. PW.5 has further stated that the place where the occurrence took place is 50-60 yards away from the field which the accused were digging and that place is part of the path leading to Theog. 8. PW.1 Doctor Ashwani Tomar has proved that Hira Singh victim / injured was having four injuries including a lacerated wound on the head and fracture of the left leg and that 6 those injuries appended to have been caused with blunt weapons within six hours of the medico legal examination conducted by him. In cross-examination, PW.1 has stated that accused Kedar Singh and Rajesh were also got medically examined by the police on 27.3.1996, at 12.30 P.M., and he noticed the injuries mentioned in the medico legal examination Ex.DA and DB, on the person of accused Kedar Singh and Rajesh respectively. PW.1 has admitted that the injuries which he noticed on the person of injured Hira Singh PW.3, accused Kedar Singh and Rajesh could have been suffered at the same time in the same incident. As per certificate Ex.DA, accused Kedar Singh found fracture of nasal bone and fracture of sixth and seventh ribs of left side. Accused Rajesh as per certificate Ex.DB, had a lacerated wound on the scalp which was 5 cm. in length and was skin deep. 9. PW.6 Devinder Singh, went to the spot after the registration of the case and found that injured was lying there and he managed to take him to the hospital at Theog. 10. PW.9 Partap Singh ASI, has stated that he had taken into possession various weapons and piece of iron pipe Ex.P1 produced by accused Rajesh, Gainti Ex.P3 produced by accused Bir Singh, Khukri Ex.P7 produced by one Ratti Ram and Danda Ex.P2 had been produced by accused Kedar Singh. 11. From the analysis of the prosecution witnesses and materials on record, it appears that the incident did not take place at the place and in the manner alleged by the 7 prosecution. According to the earliest version given to the police, vide FIR Ex.PK, the incident took place on the nautor land, allegedly allotted to Hira Singh victim / injured by the Government, when accused persons tried to dig up a portion of that land, with a view to raising some structure. However, according to PW.3 Hira Singh, the place of occurrence is at a distance of 10-15 yards from the village. According to Smt. Murtu Devi, the place of occurrence is at a distance of 10-15 yards from her house. According to PW.6 Devinder Singh, the place of occurrence is about 100 meters away from the house of injured Hira Singh. As per testimony of PW.6 Devinder Singh, the place where the incident took place is at a distance of 4-5 meters from the land of the injured Hira Singh. But as per testimony of PW.5 Narain Singh, the incident took place at a point 50-60 yards away from the nautor land, which the accused had allegedly dug up. As such, contradictions are being noticed about the place and in respect of the land which Hira Singh victim / injured claims to be granted to him by the Government under Nautor Rules. PW.3 Hira Singh, PW.4 Smt. Murtu Devi and PW.5 Narain Singh have not explained as to how accused Kedar Singh and his son accused Rajesh suffered the injuries. 12. In view of the apparent contradictions and inconsistencies in ocular evidence and in the medical evidence, the learned Sessions Judge has rightly arrived at a conclusion that the prosecution has failed to prove its case beyond reasonable doubts. In our considered view, there is no scope of interference in the findings given by learned Sessions Judge. In 8 view of the aforesaid facts and circumstances, the present criminal appeal, being devoid of any merit, is dismissed. 13. The bail bonds furnished by the accused/respondents are hereby discharged. (R.B. Misra) Judge September 16, 2010 (V.K. Sharma) (Purohit) Judge