IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.56 of 1999 Decided on: 19th May, 2010 State of H.P …..Appellant. VERSUS Prem Chand & ors. …..Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice Rajiv Sharma, Judge. Whether approved for reporting?1No For the Appellant: Mr.Vivek Singh Thakur, Additional Advocate General with Mr.Rajesh Mandhotra, Dy.Advocate General. For the Respondents: Mr.Ban Bhushan, Advocate vice Mr.Ajay Sharma, Advocate. Deepak Gupta,Judge (Oral) This appeal by the State is directed against the judgement dated 1.9.1998 delivered by the Learned Sessions Judge, Una in Sessions Trial No.10 of 1998 1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes …2… whereby he acquitted the accused of having committed offences punishable under Sections 307, 323 read with Section 34 of the Indian Penal Code and Section 25 of the Indian Arms Act. 2. The prosecution case, in brief, is that one Onkar Singh owned some land in Village Lakroh, Teeka Kandi, Mauja Thara, Tehsil Bangana, District Una. According to the prosecution, this land was acquired for the construction of the Bhakra Dam and thereafter, this land was sub-merged in the Govind Sagar Lake which is reservoir of the Bhakra Dam. According to the prosecution, during winter months, the water recedes and the land, in question, becomes fit for cultivation. It is alleged that Onkar Singh used to give this land for cultivation to accused Rattan Chand. Thereafter, Rattan Chand, his brother Prem Chand and his sons namely Joginder Singh and Kashmiri Lal, the four accused, used to cultivate this land. According to the prosecution, in the year 1994, Onkar Singh gave this land for cultivation to Wattan Chand, Rukam Deen and Kuldip Singh who sowed wheat on the land in the month of December, 1994. About a fortnight later, on 18.12.1994 when the wheat had started sprouting, Wattan Chand had gone to …3… the land alongwith Rukam Deen, Yusuf, Shamak Deen, Dharam Singh, Karan Singh, Kuldip Singh and Onkar Singh to plough the land. When they started ploughing the land, Rattan Chand alongwith other accused persons came to the spot. Prem Singh, accused was armed with a gun and Rattan Chand was holding an axe in his hand and the sons of Rattan Chand were armed with dandas. Then the accused persons entered the field and started ploughing it by uprooting the already sown wheat. The complainant side requested the accused persons not to interfere in the possession of their land. When the accused did not accede to their request, then an altercation took place between these two sides. Prem Chand, accused fired a shot from the gun and one pellet hit the right arm of Karan Singh. The other accused persons gave lathi and axe blows to Yusuf, Dharam Singh, Shamak Deen and Rukam Deen. 3. On the basis of these allegations, an FIR No.91/94 was registered with the Police Station, Bangana on 18.12.1994. Karan Singh was got medically examined. After completion of investigation, the report was filed before the learned Chief Judicial Magistrate, Una who committed the case to the Sessions Court. Thereafter, the …4… 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. 4. From the evidence on record, there is no manner of doubt that a fight did take place between the two sides. It is also proved on record that the accused persons were four in number whereas from the complainant side, there were seven persons. There is also material on record to suggest that there were other persons, maybe policemen, who were standing on one side. Be that as it may in such a situation, the first thing which has to be ascertained is who was the aggressor party. 5. Admittedly, Onkar Singh was no longer owner of the land. He did not have any right in the land since the land had been acquired for the construction of the Bhakra Dam and the land vested with the Union of India. Since the land did not belong to Onkar Singh (PW/2), the question of his leasing out the land to one party or the other does not arise. …5… 6. Even if the version of Onkar Singh that he was leasing out the land to the accused is accepted to be correct, the fact is that this land was being leased out to the accused right from the time when the Bhakra Dam was constructed till 1994, i.e., a period of more than three decades. Thus the accused had been cultivating the land from more than three decades even as per the version of the prosecution. 7. The story of the prosecution is that in December, 1994 for the first time, Onkar Singh leased out the land to Wattan Chand, Rukam Deen etc. According to Onkar Chand, in the year 1994, his uncle Ram Singh and mother asked Wattan Chand, Dharam Singh, Karan Singh and others to cultivate the land. On 17.12.1994, Yusuf Deen and his father Rukam Deen came to Onkar Singh and complained that the accused persons are not permitting them to cultivate the land. Thereafter, he alongwith the complainant side went to the land but on that day, nobody was there. Next day, i.e., on 18.12.1994, the complainant side requested Onkar Singh that they would be sowing the crop in the fields in his presence and, therefore, he accompanied them. When Wattan Chand and the others were ploughing the fields, the …6… accused persons came there alongwith the plough and oxen and started ploughing the fields. Thereafter, an altercation took place and Prem Chand fired a shot from his gun. 8. PW/1 Wattan Chand however, does not state that he had taken the land for cultivation but according to him, in the year 1994, Onkar Singh gave the land for cultivation to Rukam Deen. There is a material contradiction between the statements of PW/1 and PW/2 in this behalf. Whereas according to Onkar Singh (PW/2), it was his uncle and mother who gave the land for cultivation to Wattan Chand, Dharam Singh etc., according to PW/1, it was PW/2 who gave the land for cultivation to Rukam Deen alone. Neither Onkar Singh nor his uncle had any right to give this land on lease. 9. There is another material contradiction in the statement of these witnesses. According to Wattan Chand (PW/1), about 10-15 days before the quarrel in question, two or three fields had been sown by him and wheat had sprouted in those fields but he did not say that he had been given these fields. It is not clear, in what capacity, he ploughed the same. His other statement is also very telling. According to him, he, Rukam Deen, …7… Onkar Singh, Dharam Singh, Yusuf, Shamak Deen and few others on 18th December, 1994 went to sow wheat in the fields. We do not understand what was the need for more than 10 persons to go to the fields only for the purpose of sowing wheat. It is apparent that they had gone to the fields with the intention of taking the possession of the fields. 10. It may be true that the accused side may not have any ownership in the land in question but even as per the version of the prosecution, it was the accused side which for more than thirty years had been cultivating the land. Therefore, the accused had some possessory claim over the land in question and the complainant had no right to cultivate the land. If any altercation took place during this course, it was the complainant side which was the aggressor party. 11. The fact that the complainants were aggressor is also evident from the fact that all the four accused suffered injuries and some of which are grievous in nature, as is apparent from Exts.DA to DD. It was for the prosecution to explain the injuries on the person of the accused persons. There is virtually no explanation in this regard. …8… 12. As far as the gun shot injury on the person of Karan Singh is concerned, the prosecution has miserably failed to prove that this gun shot injury was caused by the gun owned and possessed by accused No.1, Prem Chand. We have gone through the reports of the Ballistic Expert, Exts. 18/A and 18/B. In these reports, it is clearly mentioned that it is not possible to ascertain whether the gun shot emanated from the gun being carried by Prem Chand. It is also in the statement of Wattan Chand that Karan Singh and Dharam Singh were also owning guns. The possibility of these guns having been used during the altercation cannot be ruled out. 13. In view of the above discussion, we find no merit in the appeal which is accordingly dismissed. Bail bonds, if any, furnished by the accused are ordered to be discharged. ( Deepak Gupta ) Judge. 19th May, 2010 (Rajiv Sharma) (m) Judge