IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.361 of 1999 Reserved On: 13.7.2010 Decided on: 12.11.2010 State of H.P …..Appellant. VERSUS Sher Mohd. & ors. …..Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the Appellant: Mr.Vivek Singh Thakur, Additional Advocate General. For the Respondents: Shri Sunil Awasthy, Advocate. Deepak Gupta,Judge This appeal by the State is directed against the judgement dated 10.5.1999 delivered by the Learned Sessions Judge, Chamba in Sessions Case No.11 of 1998 whereby he acquitted the accused of having committed offences punishable under Sections 302 and 323 read with Section 34 of the Indian Penal Code. 1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes …2… 2. The prosecution story, in brief, is that the relationship between the accused persons and the complainant Kishan Chand and his grand son, deceased Hem Raj were strained and inimical on account of a dispute over some land known as “Khala”. 3. The prosecution story is that on 8.8.1997 Kishan Chand and Hem Raj (deceased) were sitting in their house at village Mallah. The accused persons came to the spot armed with dandas and stones. They trespassed into the courtyard of Kishan Chand and thereafter, the accused Sher Mohd. asked Kishan Chand to come out of the house. However, it was Hem Raj who came out of the house and Sher Mohd, accused gave a blow of the stone on his head as a result of which Hem Raj sustained injuries, fell down and became unconscious. When Kishan Chand tried to lift Hem Raj, all the accused persons gave beatings to him also. Sher Mohd., accused gave a blow of a danda on the left arm of Kishan Chand who raised an alarm. Thereafter, the witnesses Chain Lal and Gian Chand came to the spot and then the accused fled away. Chain Lal and Gian Chand took Kishan Chand and Hem Raj to the District Hospital, Chamba and a case under Sections 307 and 452, IPC …3… was registered at Police Station, Chamba. Next morning, Hem Raj died as a result of the injury received by him and therefore, the case was converted into one under Section 302, IPC. The police completed the investigation. On the basis of the evidence, challan was filed and the accused were charged with having committed the offences detailed here-in-above. The accused pleaded not guilty to the charges levelled against them and claimed trial. After trial, the accused were acquitted. Hence the present appeal by the State. 4. To prove its case, the prosecution examined a number of witnesses. PW/1 Rajinder is the real brother of the deceased, Hem Raj. According to him, the accused and his brother Hem Raj had been quarrelling in respect of the right to graze their cattle over the land (Khala). He stated that on the date of incident, he was in his own house inside the kitchen. He heard the cries of his brother from the house of Kishan Chand. He went to the spot and there the accused Sher Mohd. in his presence gave a blow with a stone on the head of Hem Raj. Thereafter, Hem Raj fell down and then Sher Singh, accused gave beatings to Kishan on his left hand. When this witness intervened, he was also given a blow of a danda on his …4… right leg. In the meantime, Gian Chand and Chain Lal also reached the spot. Thereafter, the accused ran away. Hem Raj was first taken to the Hospital, Saho and then to Chamba. Kishan Chand and Chain Lal were also with them. Next morning, Hem Raj unfortunately died. Though this witness identified the stone, Ext.P/1 which was allegedly used by the accused Sher Mohd. to hit Hem Raj, in cross examination, he first stated that he had not handed over the stone to the police but later stated that he had handed over the stone to the police. According to him, the stone was containing stains of blood but in fact, Ext.P/1 does not contain any blood stains. This witness was put a suggestion that the ‘Khala’ over which the dispute took place had been allotted to Sher Mohd. in Nautor. He could not deny this fact and admitted that Sher Mohd. had fenced the ‘Khala. Despite this, he and his brother had been grazing their cattle in the ‘Khala’. Though in the examination-in-chief, this witness stated that he had seen Sher Mohd. giving a blow of the stone to Hem Raj, in cross-examination, he stated that by the time he reached the spot Hem Raj was lying unconscious and had already sustained the injury. According to him, Chain Lal and Gian Chand reached …5… after him. This witness also admitted that the accused Sher Mohd. also sustained an injury. 5. PW/2 Chain Lal stated that on 8.8.1997 in the evening at about 4.15 p.m., he saw the four accused going towards village Mallah carrying dandas in their hands. He followed them. When he was near this village, he heard the cries from the house of Madho and saw that Hem Raj was lying unconscious in the courtyard of Kishan. He had an injury on his head. All the four accused were present there with dandas. Rajinder (PW/1), Gian Chand and Kishan Chand (PW/3) were also present there. Thereafter, the accused persons fled away. He admitted that Hem Raj is his ‘Mama’s’ son. He also admitted that Sher Mohd., accused had sustained an injury on his head but could not state how Sher Mohd sustained this injury. 6. Sh.Kishan was examined as PW/3. According to him, Sher Mohd., accused and the other three accused came into his house and asked Hem Raj to come out of the room. Sher Mohd, accused started abusing the witness and complained that he had destroyed his crop and grass. This witness stated that the accused persons attacked them, i.,e., Kishan and Hem …6… Raj and they too retaliated. He clearly stated that in the scuffle, he could not say who inflicted which injury upon whom. He also could not see who inflicted the injuries upon him. However, an injury was received by Hem Raj on his head. This witness admitted that before the fight took place, some arguments took place for about 4 to 5 minutes. He admitted that a fight took place between them. This witness also admitted that Gujjars normally carry dandas with them. 7. This is the entire evidence on record. There is no manner of doubt that the deceased died as a result of an injury on his head. The statement of Rajinder (PW/1) cannot be relied upon since he has given two contradictory versions. Firstly, he stated that Hem Raj was given a blow with the stone in his presence by Sher Mohd., accused but in cross-examination, he stated that by the time he reached the spot, Hem Raj had already sustained the injury. The prosecution alleges that Sher Mohd., accused had in addition to the injury caused on the head of Hem Raj also given a blow of danda on the left arm of Kishan and on the right leg of Rajinder. 8. As far as Kishan, PW/3 is concerned, he clearly stated that he cannot say who caused what injury to …7… whom. It has also come in evidence that Sher Mohd., accused also received injuries. In fact, though Rajinder went to the hospital alongwith Kishan and Chain Lal, there is no evidence on record to show that he received any injury whatsoever. 9. It would be pertinent to mention here that the incident occurred on 8.8.1997 and according to Rajinder (PW/1), he received an injury on the same day. If he had gone to hospital and had suffered the injury, he would have shown himself to the doctor on the same date itself. However, Dr.Mohan Kumar, PW/5 stated that he examined Rajinder only the next day on 9.8.1997 and he found a simple injury on the right leg of Rajinder. It would also be pertinent to mention here that on the day when the doctor was examined in Court, Rajinder was not present and the doctor could not identify the person in respect of whom he had issued the medical certificate. 10. PW/3 Kishan clearly stated that in his presence, Sher Mohd., accused did not give any blow of the stone on the head of Hem Raj. PW/2 Chain Lal has also not seen the blow being given to the deceased. The only witness who could have seen the blow being given is Kishan but he does not implicate any one of the accused …8… particularly. In fact, he could not even identify two of the accused. 11. Keeping in view the aforesaid evidence, the learned Trial Court held that the prosecution has miserably failed to prove its case and the accused had the benefit of acquittal. In view of the doubts in the prosecution story, we see no reason to set aside the well reasoned judgment passed by the learned Trial Court. We find no merit in the appeal which is accordingly rejected. Bail bonds, if any, furnished, by the accused are ordered to be discharged. ( Deepak Gupta ) Judge. November 12, 2010 (Sanjay Karol) (m) Judge