IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Criminal Appeal No. 261 of 2003 Judgment reserved on : 25.6.2010 Date of Decision : August 9 , 2010 State of Himachal Pradesh Appellant Versus Satish Kumar and others 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/State. For the respondents : Mr. S. K. Sharma, Advocate, for the respondents. Sanjay Karol, J. For an offence, which is alleged to have been committed on 14.1.2001 the accused persons were put to trial. In terms of judgment dated 5.3.2003 passed by the learned Special Judge, Sirmaur District, at Nahan, H.P. in Sessions Trial No. 7-ST/7 of 2002, titled as State of Himachal Pradesh versus Satish Kumar and others, the accused stands acquitted of the charged offences. 2. It is the case of the prosecution that on 14.1.2001 Sh. Ratti Ram (PW-9) lodged a complaint (Ext. PW 7/A) with the S.H.O. Police Whether reports of Local Papers may be allowed to see the judgment? 2 Station, Paonta Sahib that he is owner in possession of the land comprised in khasra No. 389/340/217/12 measuring 2-11 bighas in village Salwala. On the said land he has a residential house. On the said date the accused persons formed an unlawful assembly and armed with deadly weapons like lathis, dandas, axes came in a tractor bearing No. HP-17-3787 and started abusing him and forcibly ploughed his land. They also destroyed his crop growing in the field. They also uttered the following words “TU CHURA HAI, KALENDA HAI, TU NEECH ADMI HAI AGAR IS JAMIN MEIN AYA TO TUJHE JAN SE MAR DENGE”. His room was forcibly opened and his articles damaged. A suit against Smt. Santro Devi is pending. His uncle Sh. Ghassi Ram had contested an election for the post of Pradhan against Smt. Sudesh Chaudhary wife of accused Virender Singh. The accused persons who are from the upper caste abused him and threatened him of dire consequences. On the basis of the complaint (Ext.PW 7/A), F.I.R. No. 32/2001 (Ext. PW 7/B), dated 14.1.2001 was registered with the Police Station, Paonta Sahib under Sections 147, 148, 149, 447, 448, 427, 506 IPC and under Section 3(iv),(v),(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 against the accused persons. 3. The matter was investigated by the police and after completion of investigation challan was presented in the Court. The accused persons were charged for having committed offences punishable under Section 147, 148, 447, 448, 427, 506 all read with Section 149 of the Indian Penal Code and also under Section 3 3(1)(v)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 to which they did not plead guilty and claimed trial. 4. In order to prove its case prosecution examined nine witnesses and the statements of the accused under Section 313 of the Code of Criminal Procedure were recorded. Accused Satish Kumar took the following defence:- “The complainant Ratti Ram has inimical attitude towards us as wife of Virender Chaudhary namely Sudesh Chaudhary contested Panchayat Elections against PW-1 Ghasi Ram and also filed Election Petition against him. Complainant Ratti Ram is not in possession of the disputed land rather its possession is with Smt. Santro Devi.” The defence of the other accused persons is almost on similar lines. 5. The Court below acquitted the accused persons of the charged offences. Hence the present appeal. 6. Heard the learned counsel for the parties and also perused the record. 7. It cannot be disputed that relations between the complainant party and the accused persons is inimical. 8. As per the version of Sh. Ghasi Ram (PW-1), on 14.1.2001 at about 2.30 p.m. he was with HC- Raj Kumar in connection with an inquiry pertaining to one Sh. Baishakhu Ram. In the meanwhile two girls came on the spot and informed that land of Sh. Ratti Ram (PW- 9) had been ploughed. Accordingly he along with HC- Raj Kumar 4 and the other persons present there went to the spot and saw the accused persons present there with lathis, darats and axes. Accused Satish Kumar was ploughing the field with a tractor. All the accused persons broke open the lock of the door of the room owned by Sh. Ratti Ram and threw out the luggage. They abused Sh. Ratti Ram and also destroyed his crop and cut the grass from the land. 9. The narration of version of the prosecution witnesses about the alleged incident is more or less on the same lines. Having minutely examined the statements of the parties, I am of the view that there are material contradictions in the statements of the witnesses rendering their version to be doubtful. In my considered view the Court below had succinctly examined the statements of the parties and given its findings which are reproduced herein below: “10. From the scrutiny of the entire oral as well as documentary evidence on record, it has been proved on record that there is a dispute with regard to some land which Ratti Ram (PW9) is claiming to have purchased from Chaudhary Balbir Singh husband of accused Smt. Santro Devi. It has also been proved that the dispute is only with regard to the possession of disputed land. The prosecution has examined nine witnesses, only PW1, PW3 and PW9 have stated that the accused persons were abusing complainant Ratti Ram, but all of them have given a different version. PW1 Ghassi Ram has stated that accused persons were shouting KOLI, CHUHRE, CHAMAAR, KOLTE TUM YAHAN SE BHAG JAO NAHIN TO HAM TUMHE JAAN SE MAAR DE GE. PW3 has stated that they were abusing Ratti Ram saying 5 CHUHRA, CHAMAAR, KOLI, KALENDA and also threatened with dire consequences. PW9 complainant Ratti Ram has stated that the accused persons were abusing him saying TUH CHUHRA HAI, KALENDA HAI, TU NEECH ADMI JHAI AGAR IS JAMIN MEIN AYA TO TUJHE JAAN SE MAAR DE GE. Meaning thereby that all these witnesses have given different versions which simply proves that either they were not present at the spot or they are only making false statements against the accused persons. However, PW4 Khatri Ram, who is having his house adjacent to the disputed land has denied any dispute at the spot. This witness has very specifically stated that the land is in possession of Santro Devi and Ratti Ram is trying to take forcible possession after the land was purchased by him from Balbir Singh, the husband of accused Santro Devi. He has stated that the accused persons never abused any person who belongs to scheduled caste in the village. Even this witness also belongs to the scheduled caste. The complainant in his cross-examination has admitted that he had already given in writing to the Panchayat that if Sudesh Chaudhary withdraws her election petition against Ghassi Ram Pradhan, his uncle, he shall withdraw the allegations of the present case levelled against the accused persons. Meaning thereby that the dispute arose only at the instance of Ghassi Ram (PW1), who is the Pradhan of Gram Panchayat. Further, the complainant himself has stated that his writing regarding withdrawal of the case was produced by the accused persons to Dy. S.P., but the Police Officer has insisted for his affidavit. Further, there are houses of many people adjacent to the disputed land as has been stated by PW4, but the prosecution has failed to 6 produce any witness from the surrounding area. PW2 Ramesh Chand, who according to the prosecution was also present with the complainant and Gassi Ram at the spot, has nowhere stated that who were the persons ploughing the field or abusing the complainant. He has only named Deep Chand, Varinder, Chetan, Santro Devi, Vinod and 8-10 more persons were present, meaning thereby that the witness was not present at the spot. 11. Further, it has come in evidence of all the witnesses that at the time of incident Head Constable Raj Kumar was also present at the spot and he was in the village in connection with some inquiry. PW1 Ghassi Ram has stated that when he had gone at the spot HC Raj Kumar and other persons also sent there and he had seen the accused persons ploughing the land of Ratti Ram, but it is strange that the prosecution has failed to produce witness Raj Kumar, Head Constable, who was the best witness to prove the allegations of the complainant. There is no explanation by the prosecution why HC-Raj Kumar has been withheld and in such a situation an adverse inference has to be drawn against the prosecution. Even otherwise all the witnesses of the spot have given different version regarding the abusive language used by the accused, therefore, their testimony cannot be believed. PW9 Ratti Ram complainant nowhere stated that the accused persons ever uttered words CHAMAAR, KOLI whereas PW1 Ghassi Ram has stated that the accused persons have uttered KOLI, CHAMAAR, KOLTE, which clearly proves that a false case has been filed against the accused persons only in order to take the possession of the disputed land which complainant Ratti Ram is claiming to have been purchased by him from Balbir 7 Singh, the husband of accused Santro Devi. It has also been proved by the prosecution witness PW4 Khatri Ram that the disputed land is in possession of Santro Devi from the very beginning and the complainant wants to take forcible possession of the same, which Santro Devi was not allowing and for which there is a dispute. The complainant and his witnesses have proved that PW Khatri Ram was also present at the spot, but this witness has not supported the prosecution case. He has specifically stated that the accused persons never used filthy language against any scheduled caste people in the village. It is the case of the prosecution that the accused persons were armed with Lathies, Darats and axes as has been stated by PW1 Ghassi Ram and PW9 Ratti Ram, but PW2 Ramesh Chand has nowhere stated that the accused persons were having axes and Darats etc. with them. He has simply stated that the accused persons were having Dandas in their hands. The prosecution case is full of doubts and it is settled principle that whenever any doubt is created in the prosecution case, the benefit of the same is to be given to the accused persons. The entire case of the prosecution becomes doubtful when they have withheld the material witness HC Raj Kumar. The case is further becomes doubtful when all the witnesses have made different versions about the abusive language used by the accused persons to Ratti Ram. Even the complainant himself has stated that he had given writing that if Smt. Sudesh Chaudhary withdraws her election petition against his uncle Ghassi Ram, he shall withdraw all the allegations levelled against the accused persons which clearly proves that false allegations were 8 leveled against the accused persons. The complainant and his witnesses have tried to prove that he is having one room house within the disputed land and the accused persons after breaking open the lock also damaged the luggage inside the room, but the prosecution has miserably failed to produce any evidence or proving the list of the articles which were allegedly damaged by the accused persons.” 10. From the record it could not be shown as to how the said findings are factually incorrect or based on erroneous appreciation of the material on record. 11. There is no dispute that prosecution witnesses are closely related to each other. Sh. Ghassi Ram is related to the complainant Sh. Ratti Ram. The land in question is alleged to have been purchased from the husband of Smt. Santro Devi. Now Santro Devi has four children and accused Vinod is one of them. Sh. Balbir Singh is brother of accused Virender whose wife Smt. Sudesh Chaudhary had contested election for the post of Pradhan against Sh. Ghassi Ram (PW-1). Sh. Parma Ram (PW-3) admits Sh. Ratti Ram to be his uncle. 12. The star witness of the prosecution Sh. Khatri Ram in fact has demolished the case of the prosecution. He was not even declared hostile. Relevant extract of his testimony is reproduced as under:- “I have seen the disputed land. I belong to scheduled caste. My house is adjacent to the disputed land. It is correct that the disputed land is in possession of Smt. Santro Devi from the very beginning. It is 9 correct that Ratti Ram want to take the forcible possession of the land as Santro Devi was not allowing Rati Ram to take possession after the land was purchased by Rati Ram from her husband Balbir Singh. The accused never abused or used filthy language against the people of scheduled caste community in the village. It is correct that Smt. Santro Devi accused was belonging to Scheduled caste before her marriage with Balbir. She is having four children from Balbir. It is correct that accused persons are having good relations with all scheduled caste people in the village. It is correct that Santro Devi is only ploughing the disputed land and Rati Ram has no concern whatsoever with the land.” 13. Sh. Deepak Kumar (PW-5), patwari also admits that mutation pertaining to the alleged sale of land by Sh. Balbir to Sh. Ratti Ram stands rejected and the land as per the record is inherited by legal representatives of Sh. Balbir. He admits that he has not seen Sh. Ratti Ram cultivating the land in question. Therefore case of the prosecution appears to be doubtful. 14. Most importantly HC-Raj Kumar who allegedly witnessed the occurrence of the incident at the spot has not been examined by the prosecution. Why so? Is not evident from record. He was the most material witness who could have thrown light on the actual events which had taken place at the spot. Being a police personnel he must have taken some action against the accused persons. It is not the case of the parties that complaint (Ext. PW 7/A) was handed over by 10 the complainant at the spot. In fact the complaint does not even mention the presence of the Head Constable. The whole edifice of the story woven by the prosecution thus falls. 15. It cannot be said that the prosecution case has been proved by any clear, cogent and convincing material on record. 16. 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 present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. (Sanjay Karol), Judge. August 9 , 2010 (PK)