IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.574 of 1996 Reserved on: 20.4.2010 Decided on: 18.6.2010 State of H.P …..Appellant. VERSUS Sewak Ram & anr. …..Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No For the Appellant: Mr.Rajesh Mandhotra, Deputy Advocate General. For the Respondents: Mr.Romesh Verma, Advocate. Deepak Gupta,Judge. This appeal by the State is directed against the judgement dated 15.3.1996 delivered by the Learned Sessions Judge, Sirmaur District at Nahan in Sessions Trial No.39-N/7 of 1994 whereby he acquitted the accused of 1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes …2… having committed offences punishable under Sections 307, 323 and 504 of the Indian Penal Code. 2. The accused are husband and wife. Sewak Ram, accused was charged with having committed an offence punishable under Section 307, IPC since he caused grievous injury to Vidya Sagar by means of a ‘Darat’ with the intention or knowledge that Vidya Sagar could have died due to the said injury. Sewak Ram and his wife, Kanta Devi, accused were also charged with having caused injury to Vidya Sagar and his cousin Maya Dutt in furtherance of their common intention. Lastly both the accused were charged with provoking Vidya Sagar and Maya Dutt to cause breach of peace by intentionally insulting them. Thereafter, the accused were summoned. They were charged with having committed the offences detailed here-in-above. They pleaded not guilty to the charges levelled against them and claimed trial. After trial, the accused have been acquitted. Hence the present appeal by the State. 3. Vidya Sagar, injured appeared in the witness box as PW/1. According to him, on 25.8.1993 at about 5.00 p.m., he and his cousin, Maya Dutt were cutting grass from a maize field in Village Barthiyan. Both the …3… accused came to the field armed with ‘Daratis’. They abused them and threw stones at them. Sewak Ram dealt a blow of a ‘Drati’ on his chest. When he tried to ward off, the blow of it first hit the middle finger of his left hand and then landed on his chest. According to him, he became unconscious and regained consciousness 4-5 days after the occurrence. In cross-examination, this witness denied that he and Maya Dutt are the issues of one mother, Ishwari Devi. He admitted that he and Maya Dutt were also carrying Daratis to cut the grass. According to him, they were working at a lower level and the accused threw stones at them from a field at a higher level. This witness admitted that Sewak Ram and Maya Dutt first had a joint Khata and owned the land jointly. He however, denied the suggestion that the field in question was earlier in the possession of Sewak Ram and it was Sewak Ram who had sown the maize crop. He did not know whether there was any litigation between the parties and Sewak Ram had obtained a stay order from the Court. 4. According to Maya Dutt (PW/2), the field in question came into his possession on June 14, 1993 when the Patwari and the Kanungo came to the spot and …4… delivered the possession of the said field to him pursuant to the order of partition. Thereafter, he sowed the maize crop in the field. On 25.8.1993 when he and Vidya Sagar (PW/1) were cutting grass from the field, the accused persons came there and started throwing stones on them. According to PW/2, Several stones hit him and he shouted for help. In the meantime, Sewak Ram, accused dealt a blow of a drati to Vidya Sagar who tried to ward off the blow and the drati first cut the middle finger of his left arm and landed on his chest. Thereafter Sewak Ram and Kanta Devi ran away from the spot on seeing Lachhi Ram and Om Dutt. Vidya Sagar was taken to the Primary Health Centre, Sarahan. This witness admitted that prior to the partition of the field in question, the same was in the possession of the accused Sewak Ram. This witness also admitted that at the time when the possession was delivered to him, neither Sewak Ram nor any person from his village was present. According to him, the proceedings regarding delivery of possession were ex parte. 5. According to PW/3, Om Dutt, he saw Sewak Ram and Kanta Devi, accused throwing stones on Maya Dutt from their own fields. He went to the scene of …5… occurrence and asked the two sides as to why they were quarrelling. Accused Sewak Ram then gave Vidya Sagar a blow with a darat and ran away. According to him, it took about 4-5 minutes for the quarrel to begin and to finish. He denied the suggestion that the parties had a scuffle and in that scuffle, Vidya Sagar suffered injuries with his own drati. 6. PW/6, Hari Ram was the Kanungo. According to him, on 14.6.1993, he alongwith Prem Pal, Patwari went to the spot to deliver the possession of part of Khasra No.14 to Maya Dutt. According to this witness, Sewak Ram, accused was called but he did not come. In cross- examination, he admitted that he did not have the copy of the ‘Mousavi’ nor was he carrying any instrument of measurement when the possession was got delivered to Maya Dutt. 7. Prem Pal, Patwari was examined as PW/12. He has proved the report No.349 regarding the delivery of possession. He admitted that the report, in question, did not bear the signatures of the Kanungo. According to this witness, this is not required. He however, admitted that the possession can be delivered not by the Patwari but by the Kanungo. …6… 8. The accused also led evidence. DW/1, S.I Garka Ram proved that Kanta Devi, accused had lodged an FIR on 26.8.1993 at 10.00 a.m and that she was also medically examined in the PHC, Sarahan but later the said FIR was cancelled. DW/2 Dr.J.P.Sharma, proved the medico-legal certificate in respect of Kanta Devi, accused. 9. From the evidence on record, it is apparent that Sewak Ram was initially in possession of the field in question. This fact has been admitted by Maya Dutt himself. The possession of the field was allegedly handed over in the presence of the Kanungo and the Patwari. However, other than the bald statement of the Kanungo, there is nothing on record to show that he was actually present on the spot when the possession was delivered. We fail to understand how possession of the field could have been delivered without demarcation of the same especially when the Khata was joint. The Patwari and the Kanungo admitted that when the possession of the field was delivered, they were neither carrying the ‘Mousavi’ nor any instrument to measure the field. The accused were also not present. Therefore, the accused would not have known as to possession of what portion of land …7… has been delivered. Since the accused were already in possession of the property, they had not been dispossessed of the same legally and they had a right to protect their property. 10. The learned Trial Court rightly held that the prosecution has failed to explain the injuries on the person of the accused persons. Even the injuries on the person of Maya Dutt and Vidya Sagar do not tally with their evidence. It cannot be said with certainty who was the party in possession of the land. Admittedly Sewak Ram was previously in possession of the said land and in our view, the possession of a part of the Khata could not have been delivered without measurement and demarcation. A fight did take place between the two sides and in such a situation, it cannot be said that the accused were the aggressors. The accused persons were only trying to protect their property and in this melee, injuries have been caused to both sides. 11. Keeping in view all the aforesaid points, the learned Trial Court rightly acquitted the accused. We find no reason to interfere with the well reasoned judgement passed by the learned Trial Court. The appeal being without merit is accordingly dismissed. …8… Bail bonds, if any, furnished by the accused are ordered to be discharged. ( Deepak Gupta ) Judge. June 18, 2010 (Rajiv Sharma) (m) Judge