IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 50 of 2000 Date of decision: 21.09.2010 __________________________________________________________________ The State of H.P. .....Appellant. Versus Parma Ram & Others. .....Respondents. Coram The Hon'ble Mr. Justice R.B. Misra, J. The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? __________________________________________________________________ For the appellant: Mr. R.K. Sharma, Sr. Addl. Advocate General. For respondents No.1 to 6: Mr. Ashwani K. Sharma, Advocate. For respondent No. 7: Ms. Monika Shukla, Advocate, Amicus Curiae. R.B. Misra, J (Oral). Ms. Monika Shukla, Advocate, has been requested to assist this Court as Amicus Curiae on behalf of accused-respondent No.7 and she has kindly agreed to the same. Accordingly, Ms. Monika Shukla, Advocate, has assisted this Court on behalf of accused-respondent No. 7 in response to the submissions made by Mr. R.K. Sharma, Sr. Additional Advocate General, for the appellant-State. 2. The present criminal appeal has come up for consideration after leave to appeal under Section 378 (3) of the 1 Whether reporters of Local Papers may be allowed to see the judgment? -: 2 :- Code of Criminal Procedure has been granted in reference to the impugned judgment and order dated 13.09.1999, passed by learned Additional Sessions Judge, Mandi, District Mandi, Himachal Pradesh, in Sessions Trial No. 33 of 1995, acquitting the alleged accused under Sections 147, 148, 149, 323, 324 and 302 of the Indian Penal Code. 3. Prosecution case in brief is that PW-1 Churamani, complainant, was in possession of land described in khewat No. 11 of khasra No. 3, measuring 3-19-5 bighas and correction of entries of the books was yet to be made. PW-7 Nokhu Ram (father of PW-1) had instituted an application for correction of entries, which was yet to be decided, however, on 16.09.1994, in the morning Shri Ramji Dass (since deceased) accompanied with Ganeshu Devi (sister of Shri Ramji Dass) and Kahni Devi (sister-in-law of Shri Ramji Dass) had gone to cut grass from the disputed land and at about 1 p.m., on 16.09.1994, PW-5 and Kahni Devi had returned to their house in village Batoli, whereas, Ramji Dass stayed back in the disputed land cutting the grass in absence of PW-5 and his sister-in-law. At about 1:30 p.m., on 16.09.1994, PW-1 Churamani had heard noise emanating from the land in dispute situate across Nullah. On hearing such noise, PW-1 Churamani, PW-2 Devi Ram, PW-4 Vishva Nath, PW-5 Ganeshu and PW-6 Harbans rushed towards the land in dispute and found accused persons quarreling with Ramji Dass. Accused No. 1 Parma Ram and accused No. 2 Maya Ram were armed with sickles, Ex. P-6 and Ex. P-7. Both of them caused one injury each to Ramji Dass with sickle. Another -: 3 :- injury with sickle on right side of back had been sustained by Ramji Dass. Consequent upon two injuries sustained by Ramji Dass (deceased) he fell down. Accused persons No. 3 to 7 had caused hurt to Ramji Dass with fist blows. 4. PW-1 Churamani had rushed to rescue his elder brother Ramji Dass. All the accused persons had caused hurt to PW-1 as well. PW-1 raised alarm and the accused-respondents escaped. PW-1, PW-2, PW-4 and PW-6 took Ramji Dass to their house where he succumbed to his injuries. Accordingly, FIR, Ex. PW-1/A, was lodged on 16.09.1994 at 6:30 p.m. and accused person were charged for the aforesaid offences. 5. In order to prove its case, prosecution examined as many as nineteen witnesses, whereas, accused through their statements under Section 313 Cr.P.C. denied the prosecution case and three defence witnesses were also examined. 6. In view of jamabandi, Ex. PW-8/A, for the year 1986-87 of khasra No. 3, PW-7 Nokhu had not been recorded in possession of the land in question. Khasra No. 3 was in possession of the accused persons and on 16.09.1994, in the morning, accused- respondents No. 1 to 6 had been cutting the grass from the land in dispute. 7. PW-3 has refused to support the possession of PW-7 Nokhu of the land in dispute. PW-10 Gusain residing at a distant of 1½ kilometers from the land in dispute, that is from different village, has also not supported the possession of the disputed land with Nokhu. -: 4 :- 8. DW-1 Dampu Ram has supported the accused- respondents No. 1 to 6 to indicate that the disputed land was in possession of the accused-respondents No. 1 to 6. Accused- respondents No. 1 to 6 had charged PW-1 Churamani and the members of the complainant party with criminal trespass. The complainant party had been requested not to trespass, but without any result, as such, the accused-respondents were compelled to institute suit for permanent injunction on 18.10.1993. However, order was passed in the application under Order 39 Rule 1 & 2 CPC restraining the parties from cutting and removing the grass. Instead getting the interim order vacated, the complainant party endeavoured to cut and remove the grass and as such the accused- respondents had approached the civil court to initiate action against the complainant for violation of the stay order. We also notice that the complainant party were cutting grass from the disputed land in violation of the order of the civil court. 9. On medical examination, injuries were noticed on the body of the deceased, whereas, in view of the report of PW-3 Dr. Kuldip Sharma, on medical examination injuries were also noticed on the body of PW-1 Churamani. In FIR, Ex. PW-1/A, dated 16.09.1994, PW-1 had nowhere stated that accused-respondents had caused hurt to him. Instead, PW-1 has stated that he had suffered injuries while saving his brother. PW-1 had suffered multiple abrasions and in that respect PW-13 Dr. Kuldip Sharma could not indicate the probable duration of infliction of such injuries on the person of PW-1. -: 5 :- 10. PW-2 Devi Ram has stated that large number of persons had seen the accused-respondents killing Ramji Dass. PW-1 Churamni, PW-2 Devi Ram, PW-4 Vishva Nath, PW-5 Ganeshu, PW-6 Harbans and PW-7 Nokhu were close relatives and are from one family, as such, their testimony is to be scrutinized very carefully. 11. We also notice that prosecution has not been able to produce any independent witness. In view of the testimony of PW-1 Churamani, made in cross-examination, large number of persons had gathered when the offence was being committed. The present incident was not such where no independent witness could be associated. The recovery of sickles, Ex. P-6 and Ex. P-7, could not be said to have been established, because PW-4, Vishva Nath, has stated that the recovery memo of sickle had been prepared at one time in one go. PW-1, PW-2, PW-4, PW-5, PW-6 and PW-7 have stated that none of the accused-respondents No. 1 to 6 suffered injuries on their person in the incident, whereas, PW-18 Kuldip Chand Rana has stated that he had not noticed any injuries on the person of the accused-respondents. 12. The prosecution has examined PW-19 Dr. S.K. Thakur, Medical Officer, according to him, on 16.09.1994 at 6:15 p.m. he noticed injuries on the person of accused-respondents Parma Ram, Maya Ram, Krishan Chand, Sundru Devi, Ravati Devi and Hima Devi. It is true that the injuries on the person of the accused- respondents No. 1 to 6 were not serious. Nevertheless, injuries could not be treated insignificant and superficial. Injuries were -: 6 :- visible as stated by the Medical Officer. It was the very case of the prosecution that the complainant party and the accused- respondents No. 1 to 6 had suffered injuries at one and at the same time and so was the evidence of three medical officers. 13. Apparently, PW-1 Churamani and other witnesses of the prosecution had played upon their imagination in denying having caused injuries on the person of accused-respondents No. 1 to 6. The accused-respondent No. 1 Parma Ram and accused- respondent No. 6 Hima Devi had suffered head injuries, consequent upon which they were admitted in Zonal Hospital. PW-18 Kuldip Chand Rana SI/SHO had also stated that he had not noticed any injuries on the person of accused-respondents No. 1 to 6. In any case, PW-1 Churamani and other witnesses of the prosecution had made criminal trespass and rioting by trespassing into the disputed land. PW-7 Nokhu, in his cross-examination, had admitted that both the parties had grappled with each other. 14. PW-7 had admitted that PW-1 Churamani, PW-2 Devi Ram, PW-6 Harbans and Ramji Dass (deceased) on one side and the accused-respondents on the other side had been grappling with each other. PW-1 Churamani and members of the complainant party wanted to forcibly cut and remove grass from the disputed land. As such, the complainant party can also not be treated as innocent. 15. PW-1 and his elder brother Ramji Dass (deceased) appeared to have attempted to drive away the accused-respondents from their own land and in this process had started indiscriminately -: 7 :- beating the accused-respondents. When the accused-respondents had resisted the act of PW-1 Churamani and his three companions, scuffle appeared to have taken place and in that scuffle there was a free fight. Consequent upon which accused-respondents No. 1 to 6 have also suffered multiple injuries at the hands of the complainant party. Hence the accused-respondents were entitled to protect their property and person by use of reasonable force. 16. In the facts and circumstances of the case and keeping in view the large number and nature of injuries inflicted by the accused-respondents in exercise of their right of private defence, it cannot be said that they have exceeded the right of private defence. The property of the accused-respondents was being taken by the complainant party in clear defiance of the order of the civil court and in the prevailing facts and circumstances, accused-respondents perhaps were having no other alternative, other than exercising their right of private defence of person and property. The accused- respondents had not caused more injuries than necessary in exercise of their right of private defence of person and property. There appears to be two injuries with sharp edged weapon on the person of Ramji Dass (deceased), the remaining two injuries could have been accidentally suffered by Ramji Dass. All the witnesses of the prosecution had stated that accused-respondents No. 1 and 2 had inflicted one injury each with sickle on the person of Ramji Dass (deceased). The accused-respondents No. 3 to 7 were stated to have caused hurt to Ramji Dass (deceased) with fist blows. The accused - respondents No. 3 to 7 could not have caused abrasions -: 8 :- and incised wound on the person of Ramji Dass with fist blows. 17. In the facts and circumstances, it could not be established that the accused-respondents had caused any hurt to any person of the complainant party after Ramji Dass (deceased) fell on the ground. In this situation, definite role cannot be assigned to any member of any party. In such scuffle no injury could be attributed to any person any party and injuries inflicted on the person of the complainant party also cannot be attributed definitely to a particular person of the accused-respondents party. 18. On analysis of the prosecution witnesses and the material on record, learned Sessions Judge has rightly arrived at the finding that the prosecution has failed to prove its case beyond reasonable doubt. In our considered view also, the prosecution has failed to bring home the guilt against the accused-respondents and we do not find any scope of interference in the judgment of the trial court. Appeal being devoid of merit is dismissed. 19. The Court appreciate the efforts made by Ms. Monika Shukla, Advocate, in assisting the Court on behalf of accused- respondent No. 7, as Amicus Curiae. (R.B. Misra) Judge (V.K. Sharma) Judge 21st September, 2010 (virender)