IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Revision No. 41 of 2009 Date of decision : June 17, 2009 Mast Ram and others …Petitioners Versus State of H.P. …Respondent Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Petitioners: Ms. Ritta Goswami, Advocate For the Respondent: Mr. Ramesh Thakur, Assistant Advocate General. Surjit Singh, Judge (Oral) Present revision petition is directed against the judgment, dated 17.1.2009 of learned Sessions Judge, Kinnaur at Rampur, whereby appeal filed by the revision petitioners against the judgment dated 11.10.2007 of learned Chief Judicial Magistrate, Karsog, has been dismissed and their conviction and sentence for offences, under Sections 336, 337, 338 and 427 read with Section 34 IPC, upheld. 2. Case of the prosecution, which led to the trial and conviction of the petitioners, is like this. In December, 2005, Panchayat elections had taken place. Candidate, supported by PW-1 Nar Singh, PW-4 Baldev Singh, PW-5 Dabe Ram and several other persons, was elected as Pardhan of the Panchayat. A procession was taken out by PW-1 Nar Singh and other persons to celebrate victory of their candidate. This caused Whether reporters of the local papers may be allowed to see the judgment? …2… annoyance to the supporters of the defeated candidate. Present petitioners were among the supporters of defeated candidate. Around 7.30 PM, when PW-1 Nar Singh and 10-12 other supporters of the candidate, who had won the election, were returning to their village, stones were pelted at them from the upper side of the path. The site, from which the stones were being pelted, was behind the house of PW-3 Naju Devi. One of the stones hit PW-1 Nar Singh on his head due to which he sustained a grievous injury. He was taken to hospital at Ani, where he made a statement, under Section 154 Cr. P.C, Ext.PW1/A, on the basis of which case was registered against the present petitioners. Investigation was done and ultimately petitioners were challenged, under sections 336, 337, 338, 427 read with Section 34 IPC. 3. Trial Court convicted the petitioners of all the aforesaid offences and sentenced them to varying terms of imprisonment and amounts of fine. Appeal was filed by the petitioners in the Sessions Court which has been dismissed. 4. It may be stated, at the very outset, that this was not a case of rash or negligent act or a case of mischief. Otherwise also, there cannot be a situation in which a person can be said to have committed the offence of mischief by his rash or negligent act. For the offence of mischief, criminal intention or knowledge has to be there, while in the case rash or negligent act both these things are missing and it is only the negligence or the rashness which makes the act punishable. …3… Both the Courts below have overlooked this elementary thing of criminal jurisprudence. 5. As a matter of fact, the allegations, which were made against the petitioners, amounted to an offence, under Section 325 read with Section 34 IPC and not a case of rash or negligent act or a case of mischief. 6. From the evidence on record, the allegations cannot be said to have been proved beyond reasonable doubt. Incident had taken place on 20th December, 2005 at 7.30 PM, when it was supposed to be quite dark. PW-1 Nar Singh, in his statement, under Section 154 Cr. P.C, did not specifically say that any of the petitioners had pelted stones at him, but he simply stated that he suspected that petitioner Mast Ram and his men pelted stones, because during day time, when vote counting was going on, Mast Ram had an altercation with him. While in the witness box as PW-1 also, Nar Singh stated that on account of darkness he was not in a position to identify the persons, who were pelting stones. 7. PW-3 Naju Devi turned hostile and did not support the prosecution version. No doubt the other two witnesses, namely PW-4 Baldev Singh and PW-5 Dabe Ram did state that they had seen present petitioners pelting stones from behind the house of PW-3 Naju Devi, but in view of the testimony of PW-1 Nar Singh that it was dark and he could not identify the perpetrators of the crime, their statements cannot be believed. 8. In view of the above stated position, revision petition is allowed. Judgment of the trial Court, convicting and …4… sentencing the petitioners for the aforesaid offences, as also the judgment of the Sessions Judge, affirming the judgment of the trial Court, are set aside. Petitioners are acquitted. June 17, 2009 (ss) ( Surjit Singh ), J