IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 322 of 2005 Date of decision: 21.12.2011 State of H.P. ... Appellant Versus 1. Shiv Ram S/O Sh. Durga Ram 2. Nathu Ram S/O Sh. Jagat Ram 3. Nek Ram S/O Sh. Manshi Ram 4. Mohan Lal S/O Durga Ram 5. Ram Nath S/O Durga Ram 6. Hans Raj S/O Jagat Ram 7. Brahmi Devi W/O Shiv Ram 8. Promila Devi W/O Sh. Sohan 9. Kamli Devi W/O Sh. Hans Raj 10. Banti Devi W/O Sh. Ram Nath 11. Sarika Devi D/O Sh. Shiv Ram 12. Joginder Singh S/O Sh. Ram Nath 13. Reeta Devi d/o Nathu Ram 14. Sarita Devi W/O Sh. Udham Singh 15. Banti Devi W/O Sh. Kanshi Ram 16. Kala Devi W/O Sh. Hans Raj All residents of Brarta, Ill. Anantpur, Teh. and Thana Sarkaghat, Mandi, H.P. ….. Respondents Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant: Mr. J.S. Guleria, Assistant Advocate General. For the respondents: Ms. Ranjana Parmar, Advocate. V.K. Ahuja , J. (Oral): This is an appeal filed by the State of H.P. under Section 378 Cr.P.C. against the judgment of the Court of learned Sub 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 Divisional Judicial Magistrate, Sarkaghat, dated 12.7.2004, vide which he acquitted the respondents of the charge framed against them under Sections 147, 148, 325, 323 and 506(ii) IPC read with section 149 IPC. 2. Briefly stated, the facts of the case are that on 1.3.1998, at 2.15 P.M., a report was lodged with the police by PW-3 Sheela Devi, accompanied by her husband. She alleged that today in the morning at 7.00 A.M., when she was giving bath to her children in her house, Hans Raj respondent came to her courtyard from his cow-shed and started raising voices “Bachao - Bachao”. On hearing his cries, other respondents came in furtherance of their common intention and all the respondents gave beatings to her, her Jethanis Meera Devi PW-6, Rita Devi PW-4 and Lajja Devi PW-2. They were given beatings by the respondents with Dandas, handle of Kulharu, Belcha, hockey and legs and fists. She alleged that she and her other relatives suffered injuries on various parts of their body. She alleged that they were rescued by Hem Raj, Guddi Devi, Lata Devi and Pano Devi etc. While leaving the place, they also gave a threat to take away their lives. The injured got themselves medically examined and on completion of the investigation, the challan was filed before the learned trial Court, who tried the respondents, as detailed above, leading to their acquittal. 3. I have heard the learned counsel for the parties and have gone through the record of the case. 4. On appraisal of the evidence led by the prosecution, it is clear that according to the complaint lodged by the complainant, 3 she and three of her Jethanis suffered injuries at that time. The statements of four injured can be said to be most material. 5. PW-3 Sheela Devi is the complainant herself, who again reiterated the allegations made that firstly Hans Raj came, cried and then the remaining accused persons came there and gave beatings to them. According to her, the beating was given in the courtyard and she has already named accused persons, who came to the spot. She admitted in her cross-examination that their village is a big village consisting of 50-60 houses near their house. There are 4-5 houses and those persons may be present in their house at that time. She admitted that the accused persons have filed a cross-case against them in regard to the beatings. She denied her knowledge in case Rita Devi had filed a private complaint in regard to this occurrence, but again admitted that the said complainant has been filed. She also admitted that the house which was being constructed, there is a stay order. In cross-examination, she clearly stated that no blow was given with Kulharu, but it was given with a handle of Kulharu. There was only one Danda with the accused persons. No accused had used Belcha while giving blows. She admitted that house of PW-8 Hem Raj, an eye witness, who came there and rescued them, is at a distance of ½ K.M. from their house. She also admitted that Guddi and Pano who had rescued them, are their neighbours (gharait). 6. The other injured examined by the prosecution is PW-2 Lajja Devi, who has stated that in the morning she had gone to her cow-shed and she heard the cries and saw that 16 persons 4 came to her cow-shed and she was given beatings with Kulharu in their cow-shed and with handle of Kulharu, a blow was also given over her head and the accused persons also torn her clothes. This was not so stated by the complainant when she appeared in the witness box as PW-3 and the occurrence has been shifted to cow-shed. Whereas as per the complainant, it has taken place in the courtyard of her house. She did not name or identify the accused persons present in Court. She admitted in cross-examination that 200 persons from the village were witnessing the occurrence at a distance of 5 - 7 Mtr. 7. The third injured examined by the prosecution is PW-6 Meera Devi, who has also stated that she heard the cries of Hans Raj, came out and 16 accused persons came there having Kulharu, Belcha, Dandas, hockey etc. and they gave blows to several ladies. She had also not named all the accused persons, who came there and has also not identified them being present in Court. Therefore, statements of both these witnesses do not establish the identity of the accused persons She stated that she was given blows with hockey, Kulharu and the women threw stones and she was also thrown from the upper storey. This fact was not stated by the complainant in her statement that this witness was thrown out from the first storey. She also admitted that 50-60 persons had gathered there. 8. The next injured who has been examined by the prosecution is PW-4 Rita Devi, who has also stated that she had gone towards her cow-shed and she heard the cries and 16 5 persons including Shiv Ram etc. came to the cow-shed and she was given beatings in the cow-shed with the handle of Kulharu. 9. PW-5 Smt. Karju has stated that she was cooking meals. 16 persons came there, gave them beatings with lathis, Dandas and stones. She stated that her sister was also injured. She has also not identified the accused persons in Court nor named them and as such, the identity of the accused persons was not established from her testimony also. She stated that stones were being thrown for 2-3 hours. In cross-examination, she has stated that her daughter-in-law had also fallen from the stairs. She had also fallen from the stairs and, therefore, possibility that she suffered injuries in that process was not ruled out. 10. Apart from the above, the prosecution had examined two of the eye witnesses out of the three persons, named by the complainant in her statement with the police. The first is PW-1 Pano Devi, who when examined turned hostile and stated that no stones blows were given by the accused persons on the complainant party. She was declared as hostile and was allowed to be cross-examined by the learned A.P.P for the State. The other eye witness examined by the prosecution is PW-8 Hem Raj, who had been named in the FIR, has stated that he heard the cries from the house of Sheela Devi, went there and found that 15-18 persons were present there, who were quarrelling among themselves. He further stated that when he reached the spot, all those persons had left the spot. He was declared hostile and was allowed to be cross-examined by the learned A.P.P. for the State. 6 11. From the above discussion, it is clear that it appears to be a case of free fight in between the parties and a cross-case as per the admissions made by the witnesses, were also registered. The stones were thrown continuously for 2-3 hours, as has come up in evidence and the possibility that the complainant party suffered injuries in that process cannot be ruled out. The identity of the accused persons was not established and they were also not named by the other witnesses except the complainant herself. It is also in evidence that the occurrence was witnessed by several persons of the village and there are many houses near the place of occurrence and the persons must be present since the occurrence had taken place in the early hours of the morning. However, the prosecution examined only two eye witnesses, who had not supported the statement of the complainant and, therefore, on the basis of the evidence produced by the prosecution, it cannot be said that the final conclusion drawn by the learned trial Court holding that the prosecution has failed to prove its case beyond any reasonable doubt, is perverse calling for an interference by this Court. 12. In view of the above discussion, I accordingly hold there is no merit in the appeal filed by the appellant, which is dismissed. The bail bonds furnished by the respondents shall stand discharged forthwith. December 21, 2011 ( V.K. Ahuja ), (BSS) Judge