IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 367 of 2002 Reserved on: 23.4.2010 Date of decision: 15.05.2010 State of Himachal Pradesh ... Appellant Versus Phanchku Ram @ Parma Nand & Ors. … 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: Mr. R.L. Chaudhary, Advocate. V.K. Ahuja , J.: 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 Divisional Judicial Magistrate, Rajgarh, vide his judgment dated 5.1.2002, passed against respondents No. 4 to 7, who were acquitted of the charges framed against them. 2. Briefly stated, the facts of the case are that on 17.2.2000, a report was lodged with the police by one Govind Singh that he was coming back to his house after taking leave from school and he was accompanying his wife Smt. Santosh Negi. When they reached near their house, there is a land belonging to him by the side of the path and in that land, Phanchku, his wife Sevti Devi , his sons 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 Ram Lal, Kedia, Devender and his son-in-law and others were raising construction over his land. He asked them as to why they were raising construction of a house over his land, on which they gave him abuses. Phanchku was having an axe, while Ram Lal and Devender were having Kassis and they came after forming an unlawful assembly and started giving him beatings. Phanchku gave an axe blow upon him but he was saved by his wife. Ram Lal gave Kassi’s blow on his head and a blow was also given by Devender and he suffered injuries on his head. The other had caught-hold of him and gave him fist blows. He raised an alarm and one Gian Singh Negi and Narvir Singh reached the spot and rescued him. He also alleged that 24 plants of Khurmani which were planted by him 15-20 days ago were also uprooted by them and acused also gave him threats. On this report, a case was registered and after investigation, the challan was filed before the learned trial Court, who framed charge as against the respondents under Sections 148 read with Section 149 I.P.C., 447 read with Section 149 IPC, 427 read with Section 149 IPC, 323 and 325 read with Section 149 and under Section 506 read with Section 149 IPC. All the respondents were tried by the learned trial Court. On conclusion of the trial, respondents No. 1 to 3 were held guilty by the learned trial Court under Sections 323 and 325 read with Section 34 I.P.C., but they were acquitted of the charges framed against them under Sections 148, 447, 427 and 506 read with Section 149 IPC. 3. Being aggrieved by the judgment passed by the learned trial Court acquitting respondents No. 4to 7 of the charges framed against them, the present appeal has been filed by the State of H.P. against the judgment of acquittal. 3 4. I have heard learned counsel for the parties and have gone through the record of the case. 5. Complainant Govind Singh Negi could not be examined since he died. The prosecution case rests upon the testimony of his wife Smt. Santosh Negi PW-9 and statements of two of the witnesses who came to the spot, namely, Gian Singh Negi PW-1 and Narvir Singh PW-2, who had rescued him at that time. The statements of these three witnesses can be said to be material. 6. A perusal of the statement of PW-1 Gian Singh Negi shows that he has stated that Phanchku Ram brought an axe and gave a blow over the head of Govind Singh, which was stopped by Govind Singh’s wife. He further stated that Ram Lal and Devender brought Kassis and attacked him, resultantly, Govind Singh fell down and remaining accused gave abuses. He reached the spot and they had been rescued by that time. He further stated that Narvir came after 5 minutes of his reaching the place. He stated that plantation had been done by Govind Singh which had been uprooted by the respondents 10-12 days earlier, though the allegations made in the complaint were that the plantations made 10-12 days ago were uprooted on the day of the occurrence. No specific act had been attributed to any of the accused persons except 1-3 in the testimony of this witness. On the basis of the evidence, the learned trial Court also observed that the presence of the other accused persons at the spot may be there since their house was nearby and as such, they may be present in the nearby vicinity. 7. PW-2 Narvir Singh, the other witness, has stated that when he reached there, a quarrel was going on. He had named all the 4 accused persons. But when he reached, Govind Singh had fallen and blood was oozing out and Gian Singh was rescuing him and Govind Singh’s wife was also trying to rescue her husband. This clearly shows that he reached the spot after 5 minutes of the reaching of PW-1 Gian Singh as per him. The blood had already oozed out and he had not attributed the blows to any of the accused persons. He also stated that the plants were not there but it does not lead to any inference that the plants had been removed on that day or 10-12 days prior to the occurrence. He further stated that Phanchku Ram was having an axe, while two of the accused Ram Lal and Devender were having Khilnas (Kassis) and the accused were also giving abuses and threats, but he has not stated by whom these were being given and they were speaking together and giving threats or abuses. He also stated that Gian Singh had also reached prior to him and he was alone and when he reached the spot, Govind Singh had fallen on the ground and Gian Singh was rescued by him apart from Santosh Negi wife of Govid Singh. He clearly stated that no blows were given in his presence by the accused persons. 8. PW-9 Santosh Negi wife of the complainant has stated that when she reached the spot six persons named by her were constructing a shed in their land and when they asked the accused persons, they started giving abuses and had asked them not to raise the construction, on which Phanchku Ram brought an axe and accused Ram Lal and Devender were having Kassis and gave blows to her husband. She raised an alarm and the axe had fallen from her and Gian Singh Negi came to the spot and rescued her husband. She also stated that all the plants were uprooted at that 5 time by the accused and these were thrown at the spot. All these witnesses have not attributed any specific act to the respondents and no specific part has been attributed to them of giving abuses, threats or that they came armed with weapons or were the members of the unlawful assembly. 9. The net conclusion drawn by the learned trial Court holding that keeping in view the evidence, the case as against respondents No. 4 to 7 was not proved. These findings cannot be said to be perverse keeping in view the statements of the witnesses. Therefore, in view of the above discussion, it follows that the findings of learned trial Court acquitting respondents No. 4 to 7 do not call for a interference by this Court. Insofar as other respondents No. 1 to3 are concerned, who were held guilty and convicted accordingly, the appeal as against them as stated at the bar has already been decided and allowed in their favour. 10. In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the State of H.P. and as such, the same is liable to be dismissed, which is dismissed. The bail bonds furnished by the respondents shall stand discharged. ( V.K. Ahuja ), May 15, 2010 Judge (BSS) 6