IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Criminal Appeal No. 263 of 2003 Judgment reserved on : 25.6.2010 Date of Decision : August 10, 2010 State of Himachal Pradesh Appellant Versus Sahab Singh and another Respondents Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the appellant : Mr. Ram Murti Bisht, Deputy Advocate General for the appellant. For the respondents : Mr. Ajay Sharma, Advocate, for the respondents. Sanjay Karol, J. For an offence, which is alleged to have been committed on 30.1.2003 the accused persons were put to trial. In terms of judgment dated 7.4.2003 passed by the learned Judicial Magistrate, Ist Class (I), Dharmshala, H.P. in Criminal Case No. 15-II/2003, titled as State of Himachal Pradesh versus Sahab Singh and another the accused persons stands acquitted of the charged offence. Whether reports of Local Papers may be allowed to see the judgment? 2 2. Sahab Singh (accused No. 1) is the real brother of the complainant Sh. Duni Chand and Asha Devi (accused No. 2) is the daughter in law of accused No. 1. It is the case of the prosecution that with respect to joint land belonging to the complainant and accused No. 1 in village Nerti, civil litigation initiated by the complainant was pending. An independent application for demarcation and partition of the land was also pending. On 23.1.2003 accused Sahab Singh started raising construction over the said land. The complainant did not protest against the same. Later the complainant called certain respectable members of the area who mutually partitioned the land jointly held between the complainant and the accused. On 30.1.2003 at about 2.00 p.m. the complainant started raising a boundary wall. This was objected to by accused No. 1 who not only abused but also gave a blow of danda to the complainant. In the meanwhile complainant’s son Sh. Ravi Kumar came at the spot to rescue his father. Even he was given a blow of a danda by the said accused. Accused No. 2 pelted stones on Ravi Kumar and was hit on his forehead. The matter was reported to the police and F.I.R. No. 19/2003 (Ext. PW 3/A) dated 30.1.2003 was registered with Police Station, Shahpur, Distt. Kangra, H.P. Investigation was carried out by HC-Madan Lal (PW-9) who visited the spot. He seized the danda and got the injured, Ravi Kumar and the complainant medically examined at the Community Health Centre, Shahpur where complainant Duni Chand was referred for X- 3 ray which was got done by the investigating agencies. The medical opinion and record was taken on record by the police. 3. With the completion of investigation challan was presented in the Court for trial. The accused were charged for having committed offences punishable under Sections 323, 325 read with Section 34 of the Indian Penal Code to which they did not plead guilty and claimed trial. 4. In order to prove its case the prosecution examined nine witnesses and statements of the accused under Section 313 Code of Criminal Procedure were also recorded. The learned Judicial Magistrate, Ist Class, (I), Dharmshala, acquitted the accused of the charged offences. Hence the present appeal. 5. In order to prove the charge against the accused prosecution has to prove beyond reasonable doubt that the accused persons had a common intention of voluntarily causing grievous hurt with a dangerous weapon likely to cause death. 6. That Sh. Duni Chand (PW-5) and his son Sh. Ravi Kumar (PW- 6) received injuries is proved from the statements of Dr. M.K. Saxena (PW-4) and Dr. J.R. Azad (PW-8). They have proved the relevant medical record to this effect. The injury is grievous is also not in dispute. Now according to PW-4 this injury could have been caused due to fall on a stony surface or in a road accident. The doctors do not state the probable duration of the injuries received by the complainant party. 4 7. Be that as it may be, the fact that the complainant party received injuries by itself would not prove that the same were inflicted by the accused persons. 8. From the statement of Sh. Desh Raj (PW-1) patwari, it has come on record that accused Sahab Singh had filed an application for partitioning of the land which was still pending before the appropriate authorities. PW-5 also admits that the land in question was joint and that litigation inter se between the two brothers was pending before the Civil Court in which stay order had been passed. The litigation pertained to the land in question. 9. PW-6 also admits that on the land in question house of accused is there. 10. According to PW-5 after the property was partitioned he started raising a wall on 30.1.2003 when he was given a blow by accused No. 1. His son also came at the spot who was also given a blow of danda. Accused No. 2 pelted stones on his son. Sh. Prabhat (mason) and other labourers present on the spot intervened and rescued them. Now prosecution has not examined the neighbourers which even according to PW-5 were having their houses in the neighbourhood. He admits that at that time Sh. Ram Krishan, Sh. Porkhi Ram, Sh. Chaudhary Ram, Sh. Ram Singh, Sh. Chando Ram and Sh. Girdhari Lal and others were present on the spot. Now the investigating agencies have not associated such persons present on the spot. Sh. Prabhat (mason) only has been examined in the Court. Now Sh. Prabhat (PW-7) was under the employment of PW-5. His 5 version has to be appreciated with circumspection. Possibility of his falsely supporting the employer cannot be ruled out. 11. The prosecution could not prove the recovery of the danda as the witness to the recovery namely Sh. Rasalu Ram (PW-2) did not support the prosecution at all. He was declared hostile and inspite of being cross examined nothing material could come out from his statement. 12. The prosecution also has not proved the fact that the land in question stood actually partitioned by respectable members of the area. Admittedly litigation between the parties was pending. There was no occasion for the complainant to have raised the boundary wall. The accused were already having their house on the land in question. Thus the self serving statement of the complainant party does not inspire confidence. In my considered view there is no cogent, clear and convincing material to link the accused with the charged offence. The prosecution witnesses do not inspire confidence. 13. The accused persons have had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down in Mohammed Ankoos and others versus Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the persons has resulted into travesty of justice. No ground for interference is called for. The 6 present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. (Sanjay Karol), Judge. August 10, 2010 (PK)