IN THE HIGH COURT OF HIMACHAL RADESH SHIMLA Cr. Appeal No. 76/2005 Date of decision: 17.10.2011 State of H.P. …..Appellant Versus Bansi Ram and others ……Respondents Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 . For the Appellant: Mr. A.K. Bansal, Addl. Advocate General. For the respondent : Mr. B.C. Negi, Advocate. Surinder Singh, Judge. (Oral) Respondents were chargesheeted, tried and acquitted for the offences punishable under Sections 147, 323 read with Section 149 Indian Penal Code by the learned trial Court in case No. 11/2 of 2003/1999 decided on 18.9.2004. State felt aggrieved by the judgment of acquittal as such filed the present appeal. 2. Heard and gone through the evidence on record. 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes - 2 - 3. The facts giving rise to the present appeal are that on 27.2.1999 respondents are alleged to have uprooted/dismantled the kitchen of the complainant (PW1) Shri Munshi Ram with respect to which a report was lodged in the police Station. Thereafter on 7.3.1999 at about 7.30 a.m. Shri Pyar Chand son of Shri Bansi Ram, Shri Pawan Kumar (respondent No. 2) and Smt. Usha Devi wife of respondent No. 4 along with Bansi Ram (respondent No. 1) came to the spot and pelted stones on Shashi Kant (PW6) his son while he was clearing the dismantled portion of the kitchen and claimed the kitchen site to be their own. Complainant Shri Munshi Ram told them that the area would be got demarkated through the police but they did not adhere to it and hurled stones with the result he along with his son Shaashi Kant received injuries. From there, they were removed to the Hospital for medical treatment. While they were in C.H.C. Ghumarwin, a telephonic message was received by the police. Investigating Officer reached the hospital and recorded the statement of PW1 Munshi Ram Ext. PW1/A which culminated into the present FIR. 4. Police also visited the spot and prepared the site plan Ext. PW10/A and took into possession - 3 - the stones vide memo Ext. PW3/A along with blood stained clothes of Munshi Ram vide memo Ext. PW1/B. Injured Munshi Ram and his son Shashi Kant both were medically examined. They were opined to have sustained simple injuries. Police took into possession their Medico legal certificates. 5. During the investigation, police also took into possession the copies of jamabandies Ext. PW5/B and Ext. PW5/C and tatima Ext. PW5/A prepared by the Patwari PW5 Ram Lal. 6. Cross FIR was also lodged by the respondents. The present FIR and the cross FIR both were investigated by PW10 S.H.O. Nazeer Khan. It is not known as to what had happened to the FIR lodged by the respondents. However, in the FIR of complainant Munshi Ram and other respondents faced trial wherein they were acquitted which is under challenge by the State. 7. Shri A.K. Bansal, learned Additional Advocate General vehemently argued that the learned trial did not appreciate the evidence on record in the right perspective. There was no proof of enmity and the other witnesses of the prosecution were rejected on flimsy grounds. - 4 - 8. Contra Shri B.C. Negi, learned counsel for the respondents supported the impugned judgment of acquittal. 9. After having gone through the evidence on record and considering the rival contentions of the parties, in my opinion, the acquittal of the respondents passed by the learned trial Court is not perverse. It has come in the evidence of the prosecution witnesses that there is enmity inter se the parties. Their relations are acrimonious because of the cross-cases even prior to the alleged incident. It is also an admitted fact that PW3 Shri Rohli Ram, PW8 Shri Lekh Ram are the stock witnesses of the complainant who have been cited witnesses almost in all the cases filed by the complainant. The version of the complainant and his son Shashi Kant is that their house is down below the path and the house of the respondents is upside across the path. Even PW9 Nand Lal has stated that in between the properties of both the parties there is a path. According to the complainant they had kitchen across the path upside towards the property of the complainant. The prosecution did not get conducted the demarcation of the land in question nor PW5 Ram Lal patwari stated anything about the ownership - 5 - and possession of the land where the alleged kitchen was dismantled. However, a separate complaint was lodged by the complainant with respect to the demolition of the alleged kitchen. But so far as the present incident is concerned it appears to have sprouted from the dispute over the dismantling of the kitchen. In the complaint filed by the complainant there is only mention of Bansi Ram by name and wife of Bansi Ram Smt. Usha Devi. With respect to others neither the complaint nor the statement of the complainant has attributed any role to them. 10. Further from the evidence on record, it is not known who was the aggressor. PW9 stated that both the parties were hurling stones on each others, without mentioning the name of any of the persons as to who was actively involved in the commission of the alleged offences and he also did not say who was the aggressor. The result of the cross case filed by the respondents is also not known. When there were cross cases and the same Investigating Officer had investigated both the case, he should have filed the challan in both the cases in the Court which were required to be tried by the learned trial Court simultaneously in order to find out as to who was the - 6 - aggressor. Thus in the back-ground facts, the culpability of the respondents beyond doubt is not established and their acquittal passed by the learned trial Court is borne out from the evidence on record which requires no interference. The appeal sans merit and is accordingly dismissed. 12. The respondents are discharged of their bail bonds entered upon by them at any stage during the trial of this case. October 17, 2011 (Surinder Singh), (cm) Judge