IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.656 of 2001 Judgment reserved on:11.8.2008. Decided on: August 13, 2008. State of H.P. …Appellant. VERSUS Roshan Lal & Ors. ….Respondents. Coram The Hon’ble Mr.Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellant: Mr Anshul Bansal, Addl.A.G. For the respondents: Mr Ajay Chandel, Advocate. Kuldip Singh, Judge: This appeal has been directed against the judgment dated 16.3.2001 passed by learned Additional Chief Judicial Magistrate, Sarkaghat in Police challan No.233- i/98 (189-ii/98) acquitting the respondents under Sections 325, 323, 34 IPC. 2. The prosecution case, in brief, is that on 19.7.1998 at about 2.30 p.m. PW-4 Chamel Singh complainant was sleeping in his house situated at village Kangu-ka-Gehra, he heard some noise outside, Chamel Singh came out and saw Whether the reporters of the local papers maybe allowed to see the judgment? Yes …2… that accused Roshan Lal was beating Bina Devi wife of brother of Chamel Singh with fist blows, he made an attempt to rescue her. Rattan Chand accused also appeared on the spot and caught Chamel Singh from scrotum. Chamel Singh felt giddiness, Smt.Krodhu Devi aunt of Chamel Singh intervened and tried to rescue complainant Chamel Singh. On this all the accused started pelting stones on the complainant party. Chamel Singh sustained injury on his head and other parts of the body due to pelting of stones. Ashok Kumar son of Chamel Singh came there to save his father but he was also given beatings. Chamel Singh became unconscious on the spot and was taken to hospital at Sarkaghat. The matter was reported to the police. Chamel Singh was medically examined, several injuries were found on his person. The X-Ray examination of Chamel Singh was also conducted, one injury on the person of Chamel Singh was found to be grievous and other simple. Ashok Kumar was also medically examined and simple injuries were found on his person. The recoveries were made. On completion of investigation, challan was presented. The accused were charged for having committed offence punishable under Sections 325, 323, 34 IPC to which they pleaded not guilty and claimed trial. The prosecution examined 15 witnesses. The statements of accused were …3… recorded under Section 313 Cr.P.C., no evidence in defence was led. The learned Additional Chief Judicial Magistrate acquitted the accused on 16.3.2001. Hence, this appeal. 3. I have heard learned Additional Advocate General for the appellant, Mr.Ajay Chandel, learned counsel for the respondents and gone through the record. On behalf of the appellant, it has been submitted that the prosecution has proved the case against the respondents beyond reasonable doubt. The learned Additional Chief Judicial Magistrate has not properly appreciated the evidence and has erred in acquitting the respondents. The learned counsel for the respondents has supported the impugned judgment of acquittal recorded by learned Additional Chief Judicial Magistrate. He has submitted that the learned Additional Chief Judicial Magistrate after proper appreciation of the material on record has rightly acquitted the respondents. 4. It has come on record that cross cases were filed against the parties. Kamla Devi accused had suffered injuries on her person. This has been proved by PW-11 Dr.Ashok Chauhan. It has also come in evidence that Kamla Devi accused remained admitted in hospital at Sarkaghat for about 20 days. In the light of evidence, which has come on record, it is to be seen who was aggressor. PW-1 Bina Devi has stated that family members of Roshan Lal were crossing …4… time and again through her threshing floor for the construction of their house. She objected to this. On this accused had thrown her on the ground and gave her beatings with kick and fist blows. On hearing her cries her brother in law Chamel Singh came on the spot and tried to rescue her from the accused. The accused had given beatings to her, Chamel Singh was also given beatings. She has stated that only Chamel Singh and she were beaten. She was rescued by Krodhu Devi, Meera Devi, Parvati Devi and Kirna Devi. The quarrel took place for quite some time and both the parties grappled together. 5. PW-2 Dropti Devi has stated that she saw Roshan Lal and Bina Devi were quarrelling and grappling. Thereafter, Chamel Singh came there and then they started grappling. Chamel Singh was not having anything with him. PW-3 Parvati Devi has stated that Roshan Lal initially gave beatings to Bina Devi and thereafter he gave beatings to Chamel Singh. The family members of Roshan Lal came there and started pelting stones, she tried to intervene but Rattan Lal pushed her. Chamel Singh sustained injuries and became unconscious. She thereafter took Chamel Singh in the house. PW-1 has not stated that Chamel Singh had become unconscious and he was taken in the house by PW-3 Parvati Devi. PW-4 Chamel Singh has stated that he was …5… given beatings as a result of which he sustained fractures. Rattan Chand accused caught him from scrotum and he became unconscious. He was saved by Meera Devi and Krodhu Devi. PW-2 and PW-3 have nowhere stated that Chamel Singh was caught hold by Rattan Chand from scrotum. He has admitted that her sister-in-law had fenced the threshing floor which caused the dispute. PW-5 Ashok Kumar has stated that on hearing the noise he and Vijay Kumar came to the spot and saw that his father Chamel Singh had been laid on the ground by Roshan Lal and his family members. They were beating him with dandas and stones. He rescued his father and brought him to his house. He arranged a Jeep from Awha Devi Medical Store. This witness has nowhere stated that Chamel Singh became unconscious nor he has stated that Rattan Chand caught hold Chamel Singh from scrotum. He has not named any person specifically who gave beatings to Chamel Singh. He has shown his ignorance how the wife and daughters of Roshan Lal suffered injuries. PW-6 Vijay Kumar has stated that when they were bringing Chamel Singh to his residence at that time somebody had thrown a stone which hit Ashok Kumar. This witness has given different version regarding the prosecution case. PW-7 Kaura Devi has stated that only heated arguments took place between the parties. In the …6… meantime, Chamel Singh sustained injury on his head. She has not supported the prosecution case. PW-8 Meera Devi has stated that family members of Roshan Lal were giving beatings to Chamel Singh. All were giving beatings with stones and bricks. In cross examination, she has admitted that in the cross case she is an accused. She has also stated that grappling between the two parties continued for about 30-45 minutes. She has further stated that it was not possible to point out who sustained which injury from whom. PW-10 Krodhu Devi has stated that accused and Chamel Singh grappled and they rescued Chamel Singh. In cross examination, she has stated that Bina Devi was preventing daughters of the accused from carrying water. She has stated that due to quarrel wife of the accused remained admitted in the hospital for about 15-20 days. PW-11 Dr.Ashok Chauhan examined Chamel Singh and Ashok Kumar and issued MLC Ext.PW-11/A and Ext.PW-11/B respectively. In cross examination, he has stated that the injuries could be caused by fall on hard surface. He has also stated that on the same day he examined Smt.Kamla Devi wife of Roshan Lal and found simple injuries on her person. PW-12 Dev Raj Radiographer has stated that he had not done the X-Ray in the instant case. PW-14 Bhupinder Singh has stated that he conducted the investigation in the case. …7… In the cross examination, he has stated that both the parties instituted cross cases. The two groups fought together but there was no pre planning and the quarrel took place all of a sudden. He has answered in affirmative that quarrel took place as Bina Devi stopped children of Roshan Lal from carrying water through the passage. PW-15 Roop Singh has proved Rapat Ext.PW-4/A. 6. It has come in evidence that in the cross case the complainant party is an accused. PW-3 Parvati Devi has stated that both the parties were pelting stones on each other, wife of accused Roshan Lal remained admitted in the hospital for about 20 days. PW-14 Bhupinder Singh Investigating Officer has stated that occurrence took place as complainant party stopped the children of Roshan Lal from using the passage. In other words, as per prosecution, there is a passage which accused party was using and when the accused party was stopped from using the passage then the dispute had arisen. PW-14 has also stated that occurrence took place all of a sudden without pre medication. The complainant party initiated the quarrel and thereafter both the parties grappled together. There is no evidence on record that accused party reacted more. The learned Additional Chief Judicial Magistrate on the basis of material on record has come to the conclusion that …8… complainant party was aggressor. In these circumstances, it cannot be said that accused party voluntarily caused hurt on the person of complainant party. The prosecution has miserably failed to prove the case against the accused persons beyond reasonable doubt. The view taken by the learned Additional Chief Judicial Magistrate is possible view which requires no interference. Resultantly, the appeal fails and is accordingly dismissed. Bail bonds, furnished by the respondents, are discharged. August 13, 2008. ( Kuldip Singh ), J. (soni)