IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.Appeal No.320 of 2002 Date of decision: 7.1.2009 ------------------------------------------------------------------------------------- State of H.P. Appellant. Versus Gurdial Singh & another Respondents The Hon’ble Mr. Justice V.K.Ahuja, J. Whether approved for reporting1? For the Appellant: Mrs. Subh Mahajan, Advocate. For the respondents: Mr. Himmat Negi, Advocate vice Mr. Ajay Sharma, Advocate. V.K.Ahuja,J (Oral) This appeal has been filed by the State of H.P. against the judgment of the Court of ld. CJM, Una dated 31.10.2001 vide which the respondents were acquitted of the charge framed against them under Sections 325,323/506 read with Section 34 IPC. Briefly stated, the facts of the case are that on 31.5.1999 at about 8.15, a report was lodged with the police by Piara Singh who came to the Police Post City, Una accompanied by his sons Gurmeet Singh and Surmukh Singh. He alleged that he has three sons who are married and are living separately and he is living with his son Surmukh Singh. In the morning, he had gone out for easing out and he was prevented by Gurdial Singh and his wife Swaran Kaur from using the path that he is having no right to passage. He told that the passage was joint and on this, the respondents started giving abuses to him and giving beatings Whether the reporters of Local Papers may be allowed to see the Judgment? 2 with Dandas. He was inflicted a Danda blow on his right shoulder, right hand and other parts of his body. During the quarrel his son Surmukh Singh came to the spot who also suffered injuries on his right hand when he tried to save him. He further stated that his son Gurmit Singh and one Swaran Kaur came there and in case they had not come to the spot, he would have been killed by the respondents. On this report, a case was registered and after investigation the challan was filed before the learned trial Court who tried the respondents resulting in their acquittal. From a perusal of the record of the case, it is clear that the prosecution had examined nine witnesses to substantiate its case. The statements of the complainant and the two other eye witnesses can be said to be material which are being referred to. The complainant stepped into the witness box as PW-3 and stated that when he was coming back, the respondents objected to him saying that it was not a common path and started abusing him and giving blows with Lathis. He further stated that Gurdial Singh started giving blows with Dandas with which he was given blows on his right shoulder and right hand and Swaran Kaur respondent gave blows with fists. He raised an alarm and his sons Gurmeet Singh and Surmukh came to the spot and while rescuing, they also suffered injuries. He further stated that besides his son, one labourer working nearby also came to the spot. In cross-examination, he was confronted with his report Ex.PW-3/A made to the police, in which he did not make any reference to the said labourer having come to the spot. Further, his statement suggests that the said labourer was working with him and was living in his house and was also having food in his house for the last number of days but surprisingly, he forgot to 3 mention the name of the said labourer having witnessed the occurrence or having come to the spot on the day of occurrence alongwith the sons of the complainant. The complainant admitted in his cross examination in regard to the criminal dispute between the parties. He also admitted about a case under Section 107/151 IPC in which the other party had been granted bail. He denied that their land was joint. He also stated that respondent had got the entries made in his favour during settlement in regard to one Khasra number. He also admitted that the disputes are going on in between him and his sons for the last two years in which a stay order has been granted and the appeal filed by him as against the respondents was dismissed by the Settlement Officer. He stated that he was given 5-6 Danda blows and blood oozed out which is contrary to the testimony of PW-7 Smt, Swaran Kaur that only one Danda blow was given in her presence no blood oozed out either on the clothes or on the ground which suggests that she was not present on the spot and may not have witnessed the occurrence. PW-6 Vibhishan Kumar, the said labourer has stated that the complainant was given a Danda blow by the respondent and Swaran Kaur gave blows with fists and the complainant was rescued by his son and son’s wife. This witness has stated in cross examination that shoes of the complainant were blood stained but the blood had had not fallen on the ground. This was never stated by the complainant or by PW-7 Smt. Swaran Kaur nor any such shoe blood stained, was taken in possession. In cross examination he has stated that when she reached the spot the complainant was sitting on the ground which shows that he had not witnessed the act of giving beatings with Danda by the respondent Gurdial Singh or fist blows by his wife. The 4 statement of PW-7 Swaran Kaur in cross examination shows that there are other disputes in between the parties in which she is also involved which shows her interestedness since she was also a defendant in the case filed by the respondent. She further stated in her cross-examination that she is having litigation for the last two years which clearly suggests her interestedness. From the above discussion of the evidence, it is clear that the statement of the complainant has not been corroborated on material particulars by the testimony of PW-6 Vibhishan Kumar and PW-7 Smt. Swaran Kaur and both of them are interested to help the complainant. The son of the complainant Surmukh Singh who came to the spot and rescued the complainant, was not examined by the prosecution who was a material witness in the facts of the case. The accused have also proved the MLCs. of respondents Gurdial Singh and Swaran Kaur Ex.D-2 and Ex.D-3 from the testimony of PW-2 Dr. Puja Jaswal which shows that the accused had also suffered injuries at that time which have not been explained by the prosecution. It is further in the testimony of PW-3 complainant Piara Singh that a criminal case was also made out against them for the same occurrence in which they were bailed out and the case was fixed on the same date in Court. It was suggested to the complainant that they were forcibly trying to divert the flow of water which was objected to by the respondents on which they gave beatings to him which suggestion was denied by him. In these facts and circumstances, the possibility that, that might be the cause leading to the quarrel cannot be ruled out. It was also suggested to PW-7 Smt. Swaran Kaur that the respondents were complaining about the diversion of the water which suggestion 5 was admitted by her and she admitted that the respondents had stopped them from diverting the water. The accused party also examined DW-1 Anil Kumar Criminal Ahlmad, DW-2 Vinod Kumar and DW-3 Girdhari Lal, Record Keeper who had proved the copies of the statements etc. which shows that both the parties were having litigation between them and they have deposed against one another. In view of the above discussion, the findings recorded by the learned trial Court that the prosecution had failed to prove its case beyond any reasonable doubt against the respondents, cannot be said to be perverse calling for interference by this Court and as such, there is no merit in the appeal filed by the appellant, which is dismissed accordingly. Bail bonds furnished by the respondent shall stand discharged. 7th January, 2009 (V.K. Ahuja), (sds) Judge