IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.Appeal No. 519 of 2000 and Cr. Revision No. 45 of 2000. Judgment reserved on: 4.4.2011. Decided on:________26.7.2011. ___________________________________________________________ 1. Cr.A. 519 of 2000: State of H.P. … Appellant. Versus Bhagwanti Devi and others. … Respondents. 2. Cr. Revision. 45 of 2000: Sat Dev and others. … Petitioners. Versus State of H.P. … Respondent. ___________________________________________________________ Coram: Hon’ble Mr. Justice R.B. Misra, Judge. Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 Yes. For the appellant : Mr. R.K. Sharma, Sr. Addl. AG with Mr. Rajinder Dogra, Addl. AG for the appellant in Cr.A. No. 519 of 2000 and for the respondents in Rev. Rev. No. 45 of 2000. For the respondents: Mr. M.S. Chandel, Advocate for the respondents in Cr.A. No. 519 of 2000 and for the petitioners in Cr.Rev. No. 45 of 2000. ___________________________________________________________ Justice V.K. Sharma, Judge (Oral). As both the above titled criminal appeal and criminal revision arise out of the impugned judgment dated 7.4.2000 passed by the learned Additional Sessions Judge (1), Kangra at Dharamshala (Camp at Una), H.P. in Criminal Appeal No. 46/94, Bhagwanti Devi & others versus The State of H.P., raising common questions of facts and law, the same are taken up for disposal by a common judgment. 2. The respondents herein in Criminal Appeal No. 519 of 2000, State of H.P. versus Smt. Bhagwanti Devi and others, namely (1) Bhagwanti Devi, (2) Sat Dev, (3) Sukh Dev, (4) Rattan Chand and (5) Kushal Chand, out of whom those mentioned at serial number (2) Sat Dev, (3) Sukh Dev and (4) Rattan Chand are 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 petitioners in the above Criminal Revision No. 45 of 2000, Sat Dev and others versus State of H.P., who shall hereinafter be referred to as ‘the accused’ and denoted as A-1, A-2, A-3 so on and so forth, were tried by the learned Additional Chief Judicial Magistrate, Court No.1, Una, H.P., for the offences under Sections 147, 148, 323, 324, 325, 326, 342, 447 and 506 of the Indian Penal Code (in short IPC) read with Section 149 IPC and were ultimately convicted vide judgment dated 23.5.1994 as under:- “Keeping in view my findings on the foregoing points, case of the prosecution succeeds under Sections 148, 323, 324, 325, 326 and 447 of the Indian Penal Code. It however fails under Section 342 of the Indian penal Code. Since all accused except Bhagwanti were armed with deadly weapons, the charge under Section 148 and not under Section 147 is proved against them. In other words, the case under Section 147 also, fails. Hence, while the accused are acquitted of the offences under Sections 147 and 342 of the Indian Penal Code, they are convicted of the offences under Sections 148, 323, 324, 325, 326 and 447 of the Indian Penal Code. I now proceed to hear them on the quantum of sentence.” 3. Consequently, they were sentenced in the following terms:- “Convict Bhagwanti, who is stated to be sixty years of age, requires to be dealt with more leniently than the other convicts as her participation in the crime was not beyond instigating her accomplices. Hence, while convict Bhagwanti is sentenced to pay a fine of Rs. 200/- for each of the offences under Sections 148, 323, 324 and 447 of the Indian Penal Code, she is sentenced to undergo simple imprisonment till rising of the Court and to pay a fine of Rs. 200/- for each of the offences under Sections 325 and 326 of the Indian Penal Code. In default of payment of fine of Rs. 200/- awarded for each of the offences under Sections 148, 323, 324, 325, 326 and 447 of the 3 Indian Penal Code, she shall undergo simple imprisonment for 15 days for each of these offences. The sentences of imprisonment shall, however, run concurrently. Each one of the remaining convicts is sentenced to undergo simple imprisonment for 3 months and to pay a fine of Rs. 500/- for the offence under Section 148 of the Indian Penal Code, two months and fine of Rs. 500/- u/s 323 of the Indian Penal Code, three months and fine of Rs. 500/- u/s 324 of the Indian Penal Code, six months and fine of Rs. 500/- u/s 325 of the I.P.C., six months and fine of Rs. 500/- u/s 326 of the Indian Penal Code and two months and a fine of Rs. 500/- u/s 447 of the Indian Penal Code. In default of payment of fine under these sections, each one of them shall undergo further simple imprisonment for one month under each sections. The sentences of imprisonment in their case too, shall run concurrently. The total fine amount of Rs. 13,200/- if realized, shall be paid as compensation to the injured Ram Murti, Kanta Devi and Rakesh Kumar i.e. Rs. 5200/- to complainant Ram Murti, Rs. 4,000/- to Kanta Devi and Rs. 4,000/- to Rakesh Kumar.” 4. Co-accused Ram Lok died during the trial. 5. Being aggrieved by their conviction and consequent sentences imposed upon them by the learned trial Court under the aforesaid judgment dated 23.5.1994, A-1 to A-5 carried the matter in appeal to the Court of the learned Additional Sessions Judge (I), Kangra at Dharamshala (Camp at Una), H.P. in Criminal Appeal No. 46 of 1994, Bhagwanti Devi and others versus State of H.P., decided on 7.4.2000. The appeal was partly allowed in the following terms:- “In view of my findings on point No.1 above, the appeal is partly allowed. The impugned judgment convicting all the accused under Sections 148 and 447 IPC is set aside, while conviction of accused Sat Dev, Rattan Chand and Sukh Dev, remains intact, it stands modified to the extent that accused Sat Dev is convicted under Section 326, 324 IPC, whereas accused Rattan Chand is convicted under 4 Section 325 IPC and accused Sukh Dev is convicted under Section 323 IPC. However, accused Bhagwanti Devi and Kushal Chand stand acquitted under Sections 326, 325, 324,323, 148, 447 IPC. On the sentence part, in relation to accused Sat Dev, Rattan Chand and Sukhdev, the trial Court has already taken a lenient view, rather it appears to have been exceptionally liberal in imposing the sentence on them. As such, no interference is called for on this aspect of the case. As such, the imprisonment and sentence of fine as imposed by the trial Court on each of the said accused under Sections 326, 325, 324 and 323 IPC shall remain the same. However, the amount of fine if already deposited by the other accused namely Kushal and Bhagwanti shall be refunded to them, however, after the expiry of time limitation, for filing an appeal, and in the event of which the same be dealt with in accordance with the directions of the ld. Appellate Court.” 6. Feeling aggrieved and dissatisfied with the impugned judgment dated 7.4.2000, as far as the same relates to acquittal of A-1 Bhagwanti Devi and A-5 Kushal Chand, acquittal of the remaining accused for the offences under Sections 148 and 447 IPC and not convicting all the accused for the offences under Sections 326, 325, 324, 148 and 447 IPC, the State is in appeal. 7. On the other hand, A-2 Sat Dev, A-3 Sukh Dev and A-4 Rattan Chand have challenged the impugned judgment dated 7.4.2000 to the extent the same has up-held their conviction as modified and consequent sentences imposed upon them, by way of the revision petition. 8. Factual matrix of the case emerging out of the record and noticed by the learned courts below, may be stated thus:- 9. In brief the case of the prosecution was that the land comprised in Khasra No. 1269, Khewat No. 13 min, Khatauni No. 193 min, situate in village Basal is owned and possessed by the complainant Ram Murti (PW-1). The accused, whose houses are in close proximity to this land had been interfering with the 5 complainant’s possession thereon. A civil litigation regarding this land was also going on between the parties. On the fateful day of October 28, 1989 at around 4.30 p.m. when complainant Ram Murti and his wife Kanta Devi (PW-2) got this land ploughed through a tractor driven by one Sant Ram (PW-6), the accused emerged on the scene and challenged them. While accused Sat Dev was wielding a sword, the remaining accused were armed with lathis (sticks). It is alleged that just then A-1 Bhagwanti and A-4 Rattan Chand instigated their co-accused to do the complainant party to death. A-2 Sat Dev then dealt a sword blow on the complainant’s head from where blood oozed out, while the remaining accused assaulted him with sticks. As Kanta Devi intervened to rescue her husband from further assault of the accused, A-2 Sat Dev dealt another blow of sword that landed on her hand. Injuries on her head were also inflicted by him with the same weapon. Other accused also joined hands in beating up Kanta Devi who as a result sustained various injuries including a grievous one on her right middle finger. Further case of the prosecution is that PW Rakesh Kumar also intervened to rescue his sister Kanta devi and brother- in-law Ram Murti (complainant) from the clutches of the accused, but he too, was assaulted by them. It is alleged that while A-2 Sat Dev chopped his left index finger at the middle inter phalangeal joint with the sword he was wielding, the remaining accused, beat him up with sticks. Sant Ram, the tractor driver, too, was scared away by the assailants. It was only after arrival of certain villagers that the accused were dissuaded from assaulting the victims further. It is also alleged that after the occurrence was over Jaspal (not examined) went towards the spot in search of the complainant but he was caught by the accused. He was then wrongfully confined by them in a room. 6 10. Report of this occurrence was lodged with the police by the complainant on the same evening at around 5.50 p.m. whereupon a formal F.I.R. was drawn against the accused at Police Station, Una. The investigator then immediately rushed to village Basal and caused Jaspal to be set at liberty with the assistance of the village Pradhan Krishan Chand (PW-5) at around 10 p.m. Jaspal had also sustained multiple abrasions on the anterior aspect of his arm. The injured were then got medically examined by the Investigating Officer. One of the injuries i.e. on the left index finger sustained by Rakesh Kumar was grievous. During investigation blood stained clothes of the complainant and his wife, as also the weapons of offence were recovered by the Investigator. The spot was also got photographed by him. 11. On completion of investigation, the accused were sent up to face trial. On being charged they did not plead guilty and claimed trial. Prosecution evidence followed. In all 17 witnesses were examined by the prosecution. 12. On close of the prosecution evidence the accused were examined by the learned trial Court under Section 313 Cr.P.C. Whereas, A-2 Sat Dev and A-4 Rattan Chand raised the plea of alibi, the remaining accused pleaded innocence and false implication besides raising the plea of self defence and tendered in evidence daily diary report (DDR) Ext. DX and medico legal certificate Exts. D1 to D3 regarding injuries suffered by A-1 Bhagwanti Devi, A-3 Sukh Dev and A-4 Rattan Chand. 13. We have heard the learned Senior Additional Advocate General and the learned counsel for the parties and gone through the record. 14. In the facts and circumstances of the case, we deem it appropriate to deal with the appeal against acquittal filed by the State first. 7 15. We have no hesitation to state at the very outset that the impugned judgment dated 7.4.2000 to the extent the same amounts to acquittal of A-1 Bhagwanti Devi and A-5 Kushal Chand, acquittal of the remaining accused for the offences under Sections 145 and 448 IPC and not convicting all the accused of the offences under Sections 326, 325, 324, 148 and 447 IPC is concerned, the same is based on correct appreciation of the evidence on record and the same does not call for any interference at the hands of this Court for the reasons to be enumerated here-in-below. 16. A perusal of DDR Ext. PA on the basis of which FIR Ext. PW15/A was recorded would go to show that it does not find any mention about the presence of A-1 on the spot scene at the material time and her participation in the alleged occurrence accept that she was also a party to the pre-existing dispute and consequent litigation between the parties relating to the land in dispute bearing Khasra No. 1269. Similarly, as far as A-5 Kushal Chand is concerned, no overt act is established against him during the occurrence. 17. On perusal of the depositions of the injured witnesses, namely, PW-1 Complainant Ram Murti, his wife PW-2 Kanta Devi, PW-4 Rakesh Kumar and PW-6 Sant Ram coupled with medical evidence, it is manifest that injuries suffered by them are unerringly attributable to A-2 Sat Dev, A-3 Sukh Dev and A-4 Rattan Chand and they are individually liable for the same. 18. Now we take up the revision petition filed by A-2 Sat Dev, A-3 Sukh Dev and A-4 Rattan Chand against their modified conviction and the consequent sentences imposed upon them under the impugned judgment dated 7.4.2000. 19. As already noticed in their statements under Section 313 Cr.P.C., A-2 Sat Dev and A-4 Rattan Chand had raised the plea of alibi. However, since a plea of alibi and a plea of self 8 defence are mutually destructive to each other, the latter plea is not available to them. 20. The submissions made by the learned counsel for the revision petitioners are to the effect that the position of the tractor as shown in site plan Ext. PW-17/A unerringly points out that the same was standing in the land belonging to A-1 Bhagwanti Devi. Meaning thereby that it was the complainant party who were the aggressors giving rise to the right of private defence of person and property to the accused. This aspect of the case was initially dealt with by the learned trial Court and thereafter, by the learned First Appellate Court in quite detail and it was found on appreciation of the evidence on record that in all probability the tractor was shifted from the place of occurrence to the land belonging to A-1 Bhagwanti Devi after the occurrence had taken place in the land bearing Khasra No. 1269 belonging to the complainant PW-1 Ram Murti. The plea of right of private defence, as already stated, cannot be available to A-2 Sat Dev and A-4 Rattan Chand who had raised the plea of alibi. In so far as A-3 Sukh Dev is concerned, suffice it to say that no such right was available to him as well, as neither he is owner of the land bearing Khasra No. 1269 nor claims himself to be so. Even if it is assumed for a moment for the sake of argument that any such right was available to him, the injury caused by him to PW-2 Kanta Devi bears no co-relation to the injuries suffered by him as per MLC Ext. D3 which are simple and superfluous, lacerated wounds. Thus, in any case even if there was any right of private defence available to him, he had definitely exceeded the same. 21. An alternative submission made by the learned counsel for the revision petitioners for extending the benefit of Section 4 of the Probation of Offenders Act in their favour does not 9 deserve any favourable consideration taking into consideration the facts and circumstances of the case and is accordingly declined. 22. In view of what has been stated hereinabove, both the appeal and the revision petition are devoid of any merit and are accordingly dismissed. (R.B. Misra) Judge. (V.K. Sharma) Judge. July 26, 2011. (cr)