IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 410 of 2002 Date of decision: 20.07.2011 State of H.P. ... Appellant Versus Gurdia … Respondent Coram : The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant: Mr. R.K. Sharma, Sr. Addl. A.G. and Mr. Rajender Dogra, Addl. A.G.. For the respondent: Mr. Sandeep Chauhan, Advocate, vice Mr. Bimal Gupta, Advocate. V.K. Ahuja , J. (Oral) : This is an appeal filed by the State of H.P. under Section 378 Cr.P.C. against the judgment of the Court of learned Sessions Judge, Sirmour District at Nahan, dated 18.3.2002, vide which the respondent was acquitted of the charge framed against him under Section 307 I.P.C. 2. A petition was filed under Section 378 (3) Cr.P.C. for grant of leave to appeal, which was granted by the Court and the appeal was admitted for hearing. 3. Briefly stated, the facts of the case are that a case was registered by the police on the statement made by Hari Ram, 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 complainant, under Section 154 Cr.P.C., which was recorded on 3.4.1999 at 9.40 P.M. In the said statement, the complainant had alleged that on 3.4.1999, at about 3/3.30 P.M. when he was cutting of Tunni tree, the respondent hereinafter referred to as the accused, suddenly came alongwith a gun and stated as to what he was doing. Thereafter, the accused became furious, took out his gun and fired upon him, which fire hit him on his left shoulder from behind. He suffered from the injuries because of the gun shot and he also alleged that the gun shot had been fired by the accused since he had sold the tree of Tunni. Thus, it was alleged that the accused had attempted to kill him. On this report, a case was registered and after investigation, the challan was filed before the Court of learned Additional Chief Judicial Magistrate, Nahan, who committed the case to the Court of learned Sessions Judge, who tried the respondent under Section 307 I.P.C., leading to his acquittal. 4. We have heard learned counsel for the parties and have gone through the record of the case. 5. The prosecution had examined 12 witnesses to substantiate its case. The accused had not denied the question in his statement under Section 313 Cr.P.C. that he was having a gun and gun shot was fired by him, but the manner in which it was allegedly fired has been disputed by the accused. 6. The submissions made by the learned Senior Additional Advocate General appearing for the appellant were that the statement of injured Hari Ram is there, which may be perused by the Court and it was also submitted that the facts of the case not in dispute that gun shot was fired by the accused, but the only question worth consideration is as to whether the findings of learned trial Court are correct or not 3 that it was a case of right of private defence exercised by the accused in regard to his property as well as himself. 7. The most material witness in the case can be said to be complainant Hari Ram himself, who has been examined as PW-1. He has stated that the accused came and started hurling stones at him and also fired a shot from his gun, which hit on his shoulder and went out from front side of his shoulder. He admitted himself that he did not receive any injury from the stones, though he had stated that the accused had hurled stones at him. He admitted that his land was mortgaged with the accused, from which he had sold few trees to contractor Balbir Singh, who could not lift whole of the wood. He admitted that the accused was inimical with them and he did not want that the wood be lifted, which was lying in his land. He admitted that the land of the accused adjoins their land and according to the demarcation report Ext. PE proved in the case, it had been found on demarcation that the land from which the tree was allegedly found cut, was co-owned by the accused alongwith other persons. This clearly shows that the land from which the tree had been allegedly cut belongs to the accused and as such, there was a bonafide dispute with the accused in regard to the tree, which had been allegedly cut by the complainant, for which a dispute arose in between the parties. 8. In his further cross-examination, the complainant denied that he was removing the logs of the wood belonging to the accused unauthorisedly when the dispute took place. But this cannot be ruled out in view of the demarcation report referred to above. He denied the suggestion that the accused had asked him as to why he was removing his wood. The complainant denied the suggestion that he attacked the 4 accused with his sickle and then to save himself, the accused fired the gun shot in the air, but when he turned, the said shot hit his left shoulder from back side. The fact that the complainant was having a sickle at that time was admitted by the eye witness at the spot, namely, PW-2 Kapil Dev, who has stated that there was a sickle with the accused and he has also stated about the size of the sickle which was more than one foot and its sharp edged portion was about 10 inches. PW-2 Kapil Dev also stated that the sickle was taken in possession by the police, but the Investigating Officer appearing as PW-11 has denied that the same was taken in possession. The fact that the police did not take in possession the said sickle, which was with the complainant goes to show that the investigation in question cannot be said to be fair. The Investigating Officer had denied that the investigation has revealed that Hari Ram had attacked Gurdia with Darat, but the possibility that the complainant had attached the accused at the relevant time with the sickle cannot be ruled out in view of the fact that the complainant was having a sickle with him at that time. 9. It has been clearly suggested to the complainant that the gun shot was fired in the air but when he turned, it hit him at his shoulder and the possibility that it was fired in the air and had accidentally hit the complainant cannot be ruled out. The complainant has no where stated that the gun shot was aimed at him to kill him or the accused had any intention to kill him when he fired from the gun. However, in the facts and circumstances of the case that the gun shot was fired in the air, cannot be ruled out. The learned trial Court on the basis of the evidence had concluded that since the tree in question belongs to the accused and he had fired in his defence to save himself 5 from the attack with sickle as well as to save his property. This conclusion drawn in the facts and circumstances of the case cannot be said to be perverse calling for an interference by this Court. A view has been taken by the learned trial Court that the accused had fired in his self defence, but that view on the basis of the evidence cannot be said to be perverse calling for an interference by this Court. The fact that the complainant had suffered the gun shot was not disputed which also stands proved from the statement of Medical Officer PW-12 Dr. Kailash Chander Barwal, who had examined the complainant and found the wound on the shoulder and had proved his report MLC Ext. PB, which was not disputed. 10. From the above discussion, it is clear that the findings recorded by the learned trial Court cannot be said to be perverse calling for an interference by this Court and as such, we, therefore, hold that there is no merit in the appeal filed by the appellant, which is dismissed accordingly. The bail bonds furnished by the respondent shall stand discharged. ( R.B. Misra ), Judge ( V.K. Ahuja ), July 20, 2011 Judge (BSS) 6