HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No.: 185 of 1994 Reserved on: 19.8.2008 Decided on: 21.8.2008 State of Himachal Pradesh ………Appellant. Versus Hira Singh and others. ………Respondents. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For appellant: Mr.Rajesh Mandhotra, Deputy Advocate General. For the respondents: Mr.Ajay Kochhar and Mr.Bimal Gupta, Advocates. Per V.K. Ahuja, J: This is an appeal filed by State of Himachal Pradesh against the judgment of the court of learned Sessions Judge, Shimla, dated 28.9.1993, vide which the respondents were acquitted of the charges framed against them under Sections 147, 148, 149, 323, 342, 307 and 506 of the IPC read with Sections 25, 27, 54 and 59 of the Arms Act. Briefly stated the facts of the case are that on 22.8.1989, a statement was made by the complainant Narain Dass to a police officer H.C. Karam Singh, ___________ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. Police Station, Dhalli, who met him on way. In the statement, the complainant had alleged that they own a ghasni land near their house in the Village. It was alleged that Smt.Yashoda Devi wanted to take forcible possession for which litigation was going on since 1986. It was alleged that during day time at 6.00 p.m., when the complainant, alongwith his other family members, were coming back after cutting the grass from their ghasni, the accused persons, numbering 11, came to their house, gave filthy abuses to them and started giving beatings to them with dandas, fists and stones. Some of the persons of the complainant party suffered injuries. It was also alleged that respondent Ram Dass was having a gun in his hand and he fired from the gun and some persons appeared at the spot, who had seen the occurrence. On this report, a case was registered and after investigation, the challan was filed before the Court and after committal, the case was tried by the learned Sessions Judge under the above mentioned Sections leading to the acquittal of the respondent. We have heard the learned counsel for the parties and have gone through the record of the case. On appraisal of the record of the case, it is clear that one of the major charges against the respondents was under Section 307 IPC that one of the respondents, namely, Ram Dass had given a threat and had fired from his gun. This charge was required to be proved by the prosecution before the respondents could be held guilty under Section 307 IPC. On this point, the complainant Narain Dass, who appeared in the witness box as PW-5, has also stated that Ram Dass fired shot with the help of double barrel gun. He did not state either in the report lodged by him or in his statement in court that this gun shot was fired at him or any of his family members. Thus, it appears that the gun shot was fired in the air only and he nowhere stated that he and other family members saved themselves from the said gun shot fired by Ram Dass. The said gun was required to be taken into possession and was required to be sent to the expert to prove that the said shot had been fired from the gun at the relevant time. PW-2 Deep Ram, MHC, Police Station, Dhalli, had stated that one double barrel brij loading gun, six live cartridges and one empty cartridge were deposited with him by Karam Singh and these articles were sent by him to Forensic Science Laboratory, Chandigarh through Constable Ram Dutt, who corroborated this statement as PW-3. The report of the Central Forensic Science Laboratory Ext.PW-11/F was also received. A perusal of the same shows that the cartridge mark C-1 had been fired through the right barrel of the gun, which was sent to him. However, the Investigating Officer, who appeared in the witness box as PW-11, Karam Singh, had rather stated in his cross examination that no report of Ballistic Expert was received nor the weapon was sent to Ballistic Examiner. It is surprising that the Investigating Officer of the case is stating that the gun was not sent nor any report was received though the said report has been tendered in evidence in the statement of this witness himself as Ext.PW-11/F. Moreover, the occurrence had taken place on 22.8.1989 and the gun in question was taken in possession on 12.9.1989, after a lapse of about 21 days. It cannot be said that the used cartridge was the same which was fired on the day of occurrence. Therefore, the learned trial Court had rightly concluded that the charge under Section 307 IPC was not substantiated. Coming to the evidence, the learned trial Court had concluded that both the parties had suffered injuries and it cannot be said as to which of the party was the aggressor. A perusal of the record shows that the charge was framed in regard to the injuries caused to four persons, namely, Narain Dass, Hari Ram, Tulmu Devi and Ganeshi Devi. Out of these, only two injured, namely, Narain Dass and Hari Ram, were examined by the prosecution. The said Narain Dass has been examined as PW-5, who has stated that the accused persons came near their house, who were having dandas and they beat them and then three of the accused persons came inside their house and beat him as well as his family members. He did not state as to who suffered the injuries amongst his family members, except naming himself as one of the injured. In cross examination he admitted the previous enmity, when in the year 1986, a case of injury was registered against him and his father, the copy of the said FIR has been proved in evidence as Ext.D-1. In regard to the civil litigation, the copy of the judgment was tendered in evidence as Ext.D-2, which refers to the ownership and possession of the accused party. He has admitted that there remains a dispute in regard to the ghasni land but during investigation, as stated by this witness, no revenue papers were given by them to the police to show their ownership over the land. He denied the suggestion that they gave beatings to Chet Ram accused or he gave beatings to Yashoda Devi and serious injuries were caused to both of them. The medical certificate pertaining to PW-5 Narain Dass was proved from the statement of Medical Officer examined in this case as PW-1, who proved nine simple injuries on his person. The other injured Hari Ram has been examined as PW-6, who is the brother of the complainant PW-5 Narain Dass. He has stated that he was given beatings by the accused and he became unconscious. He did not state about the injuries suffered by PW-5 Narain Dass or the other members of his family. He denied the suggestion that on that day, they gave beatings to Yashoda Devi and Khem Chand. His MLC was proved from the statement of PW-1 Dr.Atul Mahajan, which proves three simple injuries on his person, which were lacerated wounds, small abrasion and a circular bruise. The prosecution had also proved the MLC of Khem Chand respondent, who had suffered two injuries on his person, which were bruises. They had also proved the MLC of Yashoda Devi, respondent, who had suffered three injuries, which were bruises and injury No.1 on her person was found to be grievous, while other injuries were minor in nature. The prosecution had not examined the other injured for the reasons best known to them. In the FIR Ext.PW-5/A, the complainant had named that on hearing their cries, Surtia, Gita Ram and Nandi Devi came to the spot. Out of them, only Gita Ram was examined who did not support the prosecution story in full, while witness Surtia named in the FIR was not examined in the Court and Nandi Devi was reported to be dead. In place of these persons, the prosecution had also examined another eye witness, namely, PW-10 Chet Ram, who was not named in the FIR and whose statement has to be taken with more care and caution. He has stated that he saw no injuries being inflicted and has not substantiated the prosecution story. From the above discussion of the evidence it is very much clear that the origin of the fight was not clear and in this free fight, both the parties had suffered injuries and the injuries on the person of the accused party were more serious in nature and more in number. The learned trial Court had rightly concluded on the basis of the evidence that the guilt of the accused persons cannot be said to have been established beyond any reasonable doubt and the findings recorded by the learned trial Court cannot be termed as perverse calling for an interference by this Court. In view of the above discussion, we accordingly hold that there is no merit in the appeal filed by the State of H.P., which is dismissed accordingly. The bail bonds furnished by the respondents shall stand discharged. (Deepak Gupta), Judge. August 21, 2008. (V.K. Ahuja), (TILAK) Judge.