HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.119 of 2002 Decided on: June, 17, 2011. State of H.P. …Appellant. VERSUS Raj Pal ….Respondent Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 For the Appellant: Mr.R.K.Sharma, Sr.Addl.A.G. For the respondent: Ms. Archana Dutt Advocate (Amicus Curiae). Surinder Singh, Judge (Oral) Respondent was acquitted for the offence punishable under Section 326 of Indian Penal Code by the learned trial court in criminal case No. 20/2 of 2000 decided on 1.6.2001. 2. The State felt aggrieved by the acquittal of the respondent, as such, filed the present appeal. 3. In short, the prosecution case, can be summed up thus. On 14.12.1999 in the afternoon, injured Dinesh went to lop the viyul tree (fodder tree) which was located near the house of accused. But the accused/respondent on seeing him lopping the tree, raised an objection and a quarrel enraged between them . As per case of the prosecution, the accused threw stones on Whether the reporters of the local papers maybe allowed to see the judgment? …2… Dinesh, thereafter he wielded sword in such a way that it hit left side of the head of the complainant. Amar Nath (PW-1), father of injured Dinesh was also on the spot. He also sustained injuries. The alleged incident was witnessed by Bhagwan Singh (PW-5). The matter was reported by PW-1, aforesaid, to the police, which culminated into the FIR Ext PW-1/A. 4. PW-7 Dr. Bakshish Singh medically examined the complainant Amar Nath and noticed that there was an abrasion 2 Cm x 1 Cm over left side of scalp on the left temporal region 5 cm above mastoic process. There was no active bleeding. Abrasion was radish in colour. No other external injury was noted. The injury was opined to be simple in nature caused by the blunt weapon. The said doctor also examined PW 2 injured Dinesh Kumar and found an incised wound 15 cm x 1 cm on the left side of scalp just behind the ear. Part of the ear was evulsed from its root, which was actively bleeding. Margins of wound were found sharp There was no evidence of fracture. The doctor also found that there was moderately severe conductive hearing loss on the left ear. Thus, this injury was opined to be grievous in nature having been caused with the sharp edged weapon and the medico legal certificate to this effect is Ex PW-7/G. PW-7/D is the opinion of the ENT expert of District Hospital, Nahan. Police also effected the recovery of sword from the spot and after taking into possession the wearing apparels of the injured and medico legal certificate, evidence and recording statement of the …3… witnesses, challan was presented in the court for trial of the accused/respondent. 5. Respondent was accordingly charge-sheeted for the offence punishable under Sections 323 and 326 of IPC. Prosecution examined its witnesses. At the end of trial, he was acquitted on the ground that there was a cross case instituted by the respondent with respect to the same incident and various injuries found on the person of the accused remained unexplained, as such, the very nexus of the incident was suppressed. Accordingly, accused/respondent was given benefit of doubt. 6. Sh.R.K. Sharma, learned Senior Additional Advocate General vehemently argued that the learned trial court did not appreciate the evidence on record in the right perspective and further that in the circumstances aforesaid, the injuries sustained by the respondent were minor in nature and the prosecution was not obliged to explain the same. 7. We have examined the above arguments and reappraised the evidence on record and find that the findings of acquittal, recorded by the learned trial court, are borne out from the record firstly for the reason that with respect to the same incident, there was a cross case instituted by the respondent. Nothing has come on record as to what had happened to his case. The respondent has probablized the defence by examining DW-1 Bakshish Singh who had medically …4… examined him on the date of incident itself at 6.10 PM and proved the medico legal certificate issued by him in respect of the injuries found in the person of the respondent. There were as much as two sharp edged injuries on the right arm towards distal end at the place of elbow joint and a lacerated wound on the scalp right parietal region. Multiple abrasions were also noticed on the shoulder and back relatable to the time of incident. The respondent was also having swelling on the right arm above elbow joint. All the injuries were simple in nature and had been caused with the blunt weapon. The case of the respondent has been that the land of the parties is abutting each other. The viyul tree is located at the boundary of both the lands. Respondent claimed it to be his own and admittedly, there was a civil litigation pending between the parties with respect to the said land. However, the boundaries were not demarcated. When the complainant was lopping the tree aforesaid, respondent desisted him from the illegal activity which sprouted a quarrel between them. It is alleged that thereafter Dinesh Kumar, along with his father PW-1 accompanied by 2-3 persons, chased him with ‘sickle’ and ‘lathis’. They followed him up to his house. He was roughed up and given beatings. DW-1 supports the version. 8. Keeping in view the aforesaid circumstances which have appeared in the case, the injuries on the person of the respondent which remained unexplained, probablizes the defence. The above facts clearly show that the incident in …5… question has not taken place in the manner as projected by the prosecution witnesses. The learned trial court is right in concluding that the occurrence took place at the house of the respondent and in any case, the sword was used, by the respondent to attack, could only be said to be in exercise of his private defence after having sensed danger. PW-5, Bhagwan Singh, who is stated to have witnessed the incident, stated that the viyul tree was being lopped by Kaushalaya and Dinesh aforesaid, whereas the prosecution case is that it was being lopped by Dinesh and Amar Nath was standing below the viyul tree. The respondent is alleged to have made these persons an accused in the counter case. By the number of persons who were with the complainant, the intention could not be of lopping the fodder tree but they had some illegal design in their mind. Even Bhagwan Dass stated that Amar Nath, Dinesh, Asha and Neena etc. had chased him upto the house of the accused and inflicted injuries on the person of the accused/respondent. 9. Therefore, for the aforesaid reason, the acquittal of the respondent cannot be interfered with. As such, the appeal merits dismissal and is accordingly dismissed. 10. The respondent is discharged of his bail bonds entered upon by him at any time during the proceedings of this case. (R.B.Misra), J. June 17, 2011 (Surinder Singh ), J. …6… (sl) …7…