IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 467 of 1999 Judgment reserved on : 15.7.2010 Date of Decision : October 25 , 2010 State of Himachal Pradesh Appellant Versus Shuker Deen & others Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes. For the appellant : Mr. Rajesh Mandhotra, Deputy Advocate General for the appellant. For the respondent : Mr. Anup Chitkara, Advocate, for the respondents. Sanjay Karol, J. For an offence, which is alleged to have been committed on 13.7.1995, accused were put to trial. In terms of judgment dated 6.7.1999 passed by the learned Sessions Judge, Chamba, H.P. in Sessions Case No. No. 37 of 1995, titled as State of H.P. versus Shuker Deen and others, the accused stand acquitted of the charged offences. 2. As per the case of the prosecution accused Shuker Deen had given up his rights of grazing his cattle at a place known as Whether reports of Local Papers may be allowed to see the judgment? 2 Jaffudhar. The same were relinquished in favour of his real brother Sh. Abdulla (PW-17). Accused Shuker Deen had not grazed his cattle at the said place for the last 15 – 16 years. On 13.7.1995 PW-17, his son Israel (PW-12) and daughter-in-law Smt. Begum (PW-13) were grazing their cattle at Jaffudhar. At about 8.00 a.m. accused came there with their cattle to forcibly take possession of the grazing area. When PW-17 protested, accused attacked him and his family members with lathis. Accused Shuker Deen and Noor Deen gave blows with lathies to PW-13 due to which she fell on the ground. At that time she was carrying her son named Saif on her back. He also fell on the ground. Thereafter accused Noor Deen gave a blow of lathi which hit the abdomen of Saif Ali due to which he died at the spot. Accused Hasham gave blows of lathis to PW-12 on the legs and arms. Accused Nawab Deen gave a blow with a stone on the head of PW-17 and accused Gulam Rasool and Fateh Mohammad threw stones on Sh. Barkat Ali, Sh.Sher Mohammad and Sh. Abdulla. The incident was witnessed by Sher Mohammad (PW-1), Sh. Yusuf (PW-14) and Sh. Ismail who intervened and saved the injured from the clutches of the accused. Thereafter PW-1 lodged a report with the police at Police Station, Sadar Chamba where F.I.R. No. 170/1995 (Ext. PA) dated 13.7.1995 was registered under Sections 147, 148, 149, 447, 302, 323 of the Indian Penal Code. Inspector Ram Swarup (PW-18) was deputed to carry out the investigation. He got the spot photographed through Sh. Khialo Ram (PW-5), prepared inquest report (Ext. PR), brought the dead body of 3 deceased Saif Ali to the District Hospital at Chamba where post mortem was done by Dr. C. B. Singh (PW-4) who gave his report (Ext. PE). As per opinion death occurred due to rupture of liver leading to hemorrhage and circulatory failure. The Investigating Officer also took into possession three blood stained stones (Exts. P1 to P3) vide seizure memo (Ext. PB). Site plan (Ext. PT) was prepared and dandas (Exts. P9 to P13) were also taken into possession vide seizure memo (Ext. PC). Sh. Barkat Ali, PW-12 and PW-13 were got medically examined through Dr. S. K. Soni (PW-16) who issued M.L.C.s (Exts. PO, PP & PQ). Sealed articles were sent for chemical examination and report (Ext. PU) obtained by the police. After completion of investigation challan was presented in the Court for trial. 3. The accused were charged for having committed offences punishable under Sections 323, 325, 302 and 148 read with Section 149 of the Indian Penal Code to which they pleaded not guilty and claimed trial. 4. In order to prove its case prosecution examined 18 witnesses. Statements of the accused under Section 313 Cr. P.C. were recorded in which the accused took the following common defence:- “Jhaffudhr is grazing field and I was issued earlier permit of grazing by the forest department and in 1995, Smt. Began ands/Shri Israil and Barkat Ali had tried to capture that grazing field forcibly from us and in that process, they had caused injuries to us. We are permit holders of that grazing field. It is a false case and I am innocent. 4 S/Shri Israil and Abdulla have no permit for grazing in respect of Jaffudhar.” 5. Accused examined one witness in his defence. 6. The Court below acquitted the accused of the charged offences. Hence the present appeal. 7. It is not in dispute that Saif died due to the injuries as opined by the Doctor. Injuries also stand proved on the bodies of both the parties. The question is who is the assailant. 8. The genesis of the prosecution story stands contradicted by the evidence produced by the parties on record. We feel the prosecution witnesses not to be convincing, reliable and their version improbable and unconvincing. No clear, cogent and convincing evidence has come on record to prove the complicity of the accused to the charged offences beyond reasonable doubt. 9. That accused Shuker Deen had rights to graze his cattle at Jaffudhar stands proved by Sh. Naresh Kumar (DW-1). He alone was the permit holder to graze buffaloes at Jaffudhar. According to this witness Abdulla (PW-17) and Sh. Israel (PW-12) never obtained any permit for the purposes of grazing their cattle. From the testimony of this witness it is apparent that atleast up to the year 1993-94 accused Shuker Deen had grazing rights in his favour. It is true that permit issued in his favour was not renewed but then it is a matter of fact that no permit was ever issued in favour of the complainant party. However according to PW-13, PW-14 and PW-17 these rights 5 stood relinquished in their favour. However except for the bald statement there is no other legal evidence to establish this fact. 10. Now Sh. Sher Mohammad (PW-1), Sh. Barkat Ali (PW-2) have not supported the prosecution. The witnesses were declared hostile. In their cross examination nothing material could come out in support of the prosecution. PW-1 is the real brother of accused Shuker Deen and Abdulla (PW-17). He admits not to have witnessed the occurrence of the incident. He only found injuries on the body of Sh. Barkat Ali and no injuries were found on the body of PW-13 and PW-14. He admits that prior to the date of the incident accused had also grazed his cattle at the disputed site. Version of Barkat Ali (PW-2) is more or less to this effect. 11. Significantly PW-12 and PW-13 admit that they had prevented all the accused from grazing their cattle at Jaffudhar. At that time admittedly they were possessed with dandas in their hands. They also admit to have given blows to the accused persons. They have explained that the accused were the assailants but then this statement of theirs does not inspire confidence. From the statements of these witnesses it appears that it was a free for all. Now Israel and Abdulla had no rights to graze their cattle at Jaffudhar. They also had no right to prevent anyone else to graze the cattle there. PW-12 admits to have inflicted a blow with a danda on accused Noor Deen. Now importantly this witness admits that his earlier version recorded by the police, with which he was confronted (Ext. DA), is incorrect. He had named both accused Suker Deen and 6 Nawab Deen to have given a blow to his son. In Court he states that only accused Shuker Deen to have given a blow of danda to his son Saif. He admits that he had wanted to turn out the cattle belonging to the accused which was objected to by them. He further admits that he had not got it recorded with the police that accused Hasham had given blow with a danda or that accused Nawab Deen had given blow with a stone. According to him after accused Shuker Deen gave blow to his wife she fell on the ground with her face downward and the child fell ahead of her with his face upward. According to him only a single blow of danda was given to the child. Now who gave that blow? In Court he himself contradicts his statement. 12. That apart, according to PW-13 she had tied the child on her back with his face towards her back. She fell on the ground in such a manner that side of her waist touched the ground and the child fell behind her back. Thus she contradicts the version of her husband. According to her the child was lying at a distance of four feet towards her back and Noor Deen was standing in front of her at a distance of two feet. If she was in front of the child then how could Noor Deen give a blow to Saif Ali. She does clarify that the article with which she had tied the child on her back had opened resulting into the falling of the child and the mother separately on the ground. Importantly she admits that police never recorded her statement and that she deposed the incident for the first time in the Court. Most importantly she states that when she sustained injuries her husband ran away from the spot and returned only after ten 7 minutes. None was present when he came back. According to her Yusuf (PW-14) and Ismail had arrived before the arrival of her husband. Now this version of hers stands contradicted by PW-14 according to whom he had seen both the parties fighting with each other and further deposed that “I had asked Israil and Noor Din as to who had killed the child. Sh. Israil was claiming that Noor Din had given a blow which had caused the death of child, whereas accused Noor Din was claiming that it was Israil who had killed the child, but, I could not ascertain the truth”. 13. Thus from the record it is not clear as to whether it was any one of the accused or PW-12 who had given blow of danda, if any, on the abdomen of the child resulting into his death. 14. Importantly according to PW-18 he recovered the dead body from the spot on the day following the incident. Now this further renders the prosecution story to be extremely doubtful. The dead body and that too of a child would not be allowed to remain in open for more than 20 to 24 hours. According to the Doctor the injuries being ante mortem could have been suffered 5 to 6 hours prior to the death. All this renders the prosecution version to be extremely doubtful and the defence of the accused as has come out in the cross examination of the prosecution witnesses that the child was unwell to be probable. Importantly PW-1 and PW-3 admit it to be correct that Saif s/o Sh. Israel (PW-13) remained admitted in the hospital due to illness. Now this statement remains uncontroverted. 8 15. From the statements of the prosecution witnesses which we feel do not inspire confidence it cannot be said that the prosecution has been able to weave the ring of truth. Prior to the incident hot exchanges had taken between the parties. Undisputedly accused were prevented from grazing their cattle. The complainant party also had weapons/lathies in their hands. 16. According to the learned counsel, accused acted by way of their private defence. The law on this aspect is evidently clear. In Darshan Singh versus State of Punjab and another, (2010) 2 SCC 333 it has been held that: “The following principles regarding right of private defence emerge: (i) Self-preservation is the basic human instinct and is duly recognised by the criminal jurisprudence of all civilized countries. All free, democratic and civilized countries recognize the right of private defence within certain reasonable limits. (ii) The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger and not of self-creation. (iii) A mere reasonable apprehension is enough to put the right of self-defence into operation. In order words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised. 9 (iv) The right of private defence commences as soon as a reasonable apprehension arises and it is coterminous with the duration of such apprehension. (v) It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude. (vi) In private defence the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property. (vii) It is well settled that even if the accused does not plead self-defence, it is open to consider such a plea if the same arises from the material on record. (viii) The accused need not prove the existence of the right of private defence beyond reasonable doubt. (ix) The Penal Code confers the right of private defence only when that unlawful or wrongful act is an offence. (x) A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self-defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened.” 17. We are conscious of the fact that a child can never be an assailant and plea of self defence against a helpless child can never lie. No plea of private defence can ever be taken against a helpless unarmed child. However in the instant case it cannot be said with 10 certainty that which of the accused had given blows, if any, to the child. 18. The complainant party appears to be the aggressors. In the instant case prosecution has failed to explain the injuries sustained by the accused persons. Importantly the Investigating Officer (PW- 18) admits that accused Shuker Deen and Barkat Ali (PW-2) received injuries in relation to the very same incident. He could not state as to who else also received injuries. 19. Further stones (Exts. P1 to P3) were recovered by PW-18 in the presence of Sh. Mussa (PW-3). In cross examination this witness states that he was not sure as to whether stones were stained with blood or not. 20. Recovery of the lathis also would not link to the accused persons. The chemical examiner’s report (Ext. PU) also does not link the accused to the incident. Admittedly the accused are gujjars and it is their practice to carry dandas with themselves in jungle. 21. Prosecution has failed to prove common intention of all the accused to commit the alleged crime. 22. The accused persons have had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down in Mohammed Ankoos and others versus Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the persons has resulted into travesty of justice. No ground for interference is called for. The 11 present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. (Deepak Gupta), Judge. (Sanjay Karol), Judge. October 25 , 2010 (PK)