1 HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.522 of 2000 Decided on September 27, 2010 State of H.P. …Appellant. VERSUS Shiv Singh & anr ….Respondents. Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge Whether approved for reporting?1 For the Appellant: Mr.R.K. Sharma, Sr. Addl. AG with Mr. Rajinder Dogra, Addl. AG For the Respondents: Mr. Rakesh Jaswal, Advocate. R.B.Misra, Judge (Oral) The present criminal appeal has come up for consideration after the leave to appeal has been granted under Section 378 (3) of the Code of Criminal Procedure, in reference to judgment dated 20.5.2000 passed by learned Addl. Sessions Judge, Shimla, Circuit Court at Rohru in Session Trial No. 17-S of 1996, thereby acquitting the respondents/accused for the offence under Section 307/34 of IPC. 2. The prosecution case is that PW-3 Suresh Kumar made statement Ex PW-3/A under section 154 Cr.PC that during the night intervening 16/17.4.1995 around 3 AM, he along with one Romesh PW-7 went to village Chunjer to perform pujja in the Whether the reporters of the local papers maybe allowed to see the judgment? 2 temple of ‘Mata Kali’ around 10 AM. While returning from the temple, they noticed the cricket match going on in the ground at village Chunjer. They were also interested to play the match and as such stayed there for some time. The match, however, could not be played due to rain. At about 5 PM, PW-3 started along with said Romesh Kumar PW-7, Narain Singh PW-4 and one Rajinder to their native placed and when reached at Nauridhar, the son of Gulab Singh, namely Romi met them on the way. Said Romi called them by gesture to come their house. They did not went there. Said Romi thus opened the dogs on them. The dogs started chasing them and the accused persons came behind them. Accused Shiv Singh was having Draft Ex P-4 with him, whereas accused Jatinder the sword Ex P-2. Accused Jatinder assaulted PW-4 Narain Singh with the sword and inflicted the blow on his head and the injured started bleeding. Accused Shiv Singh dropped the Drat, which was in his hand and taken the sword from his co-accused Jatinder. He, therefore, inflicted blows with sword on both the arms of PW-4. The said witness fell to the ground. Thereafter the accused Shiv Singh gave beatings to him. The said accused gave the fist blows on his face and blood started coming out from his mouth. Sh. Gulab Singh was also accompanying the accused persons at that time. After assaulting PW-3 and PW-4, accused persons fled away from that place. The matter was reported and investigated. Accused persons were charged for the aforesaid offences and the case was committed to Session Court. 3.. In order to prove its case, prosecution has examined as many as 11 witnesses, whereas through their statements under 3 section 313 Cr.P.C, accused denied the same. Defence examined four witnesses. 4. PW-1 Dr. Mrs. P. Sharma examined PW-4 Narain Singh and noticed the following injuries on his person. i) Two incised wounds on right palm of the size 1 “ x 3 mm, vertical in direction at the line of little finger. ii) One incised wound on right arm 2” x 3 mm horizontal in direction. iii) `One incised wound on left arm 3” x1/2 “ giruzontal in direction. Iv) One incised wound on right side of face at the level of ear horizontal indirection 1 “ x 2 mm. v) One incised wound on right side of head near frontal bone 3” x bone deep, oblique in direction, a portion of frontal bone was seen half cut. vi) One incised wound on right side of (pariental bone) vertical in direction of the size 3 “ x bone deep. PW-1 also gave medical opinion, which is as below: On that day, he was not in a position to make any statement. He was advised X Ray of skull and referred to Radiologist for opinion. Shehas taken in possession the clothes Ex P-6 to Ex P-11, which were worn by PW-4 when brought to the hospital. She found injuries 5 and 6 grievous and the remaining simple in nature and influcted with a sharp edged weapon. The duration of the injuries was found eight hours. She issued the MLC Ex PW-1/A 5. On the same day, PW-1 also examined PW-7 Suresh Kumar and found the clean incised wound below lower lip on the chin of the size ½ cm x 2 ml. This injury was simple having been caused by sharp edged weapon within the duration of 8 hours. 4 PW-2 Dr. P.C. Gupta, Radiologist, noticed fracture of right frontal bone on the person of PW-4. 6. On analysis of the prosecution witnesses and materials on record we notice that the complainant and accused belong to the same village, namely, Ganga Nagar, Tehisl Rohru. District Shimla. Accused Jatinder, however, belongs to village Nauridhar. The distance in between the two villages as per the evidence available on record is around 1 ½ Kms. Admittedly, on 13.11.1994, PW-4 and accused Shiv Singh quarreled, however, at that time, with the intervention of the respected persons of the locality, dispute was resolved. Accused persons have closely related with each other because Shiv Singh is the real uncle of the accused Jatinder. We also notice that the injured PW-4 accompanied by seven others, namely, PW-3 Suresh, PW-7 Ramesh, Rajinder, Naresh, Khem Singh, Pinku and Jonda, lashed with sticks made a criminal trespass into the house of the accused Jatinder at village Nauridhar around 7 PM on the day of occurrence and started assaulting accused persons and the other members of their family. Not only this, PW-4 Narain Singh even picked up a sord lying inside the house of the accused Jatinder and attempted to cause injury thereby to the mother of the said accused and consequently in that episode, PW-4 Narain Singh was injured. The occurrence was of 16.4.1995. DW-1/A was entered there at the instance of Gulab Singh, the father of accused Jatinder. Therefore, it remained unexplained as to what the police did thereafter till 17.4.1995 at 3 AM when the statement Ex PW-3/A of PW-3 was recorded allegedly in the police station, Rohru by PW-10 because 5 as per the version of PW-3 he reported the matter in police station, Rohru at 3.30 AM where he had gone along with PW Suresh. It appears that FIR was registered after due deliberations and consultation falsely with a view to implicate the accused persons by concealing the factual position qua the incident. The defence version that the complainant party had trespassed into their house with the intention to assault them cannot be ruled out. The defence version also find support form the statement of DW-2 Amin Chand and DW-4 Kalawati, because as per their version, the mother of accused Jatinder came to them and sought their help to save her family members being assaulted by the complainant party. DW-2, no doubt did not visit the place of occurrence on that very day. According to him when he went to the house of Gulab Singh on the next day around 11 AM, he found the blood stains on the floor as well as on the walls of the house. Not only this, he has given the distance of the house of Sohan Singh from that of Gulab Singh as 100 meters and PW Rattan Singh stated to be the real brother of injured PW-4 Narain Singh. Not only this, according to DW-3 Madan Lal, he accompanied Gulab Singh to Kharapather to lodge the report there. Thus, there is no reason to disbelieve the defence version that it is the complainant party who was aggressors and because as per their own version, they were five in numbers ,vis PWs 3,4,7 and Rajinder as well as Naresh, whereas that of the accused eight in number, they could have done away with the accused persons and other members of their family, had the accused persons not acted in their private defence. In the present 6 case, there is no doubt that the accused persons assaulted injured PW-4, but while doing so, they acted in their private defence. 7. On analysis of the prosecution witnesses and materials on record we notice that the complainant party were inimical to each other and PW-4 Narain Singh received injuries on his person. However, prosecution has miserably failed to prove that it is the accused persons who have firstly set the dog free on the complainant party and thereafter assaulted the complainant party. Finding apparent contradictions and inconsistencies emanating from the records, learned Addl. Sessions Judge, has rightly arrived at conclusion that the prosecution has failed to prove its case beyond reasonable doubt and because of enmity also, prosecution case becomes suspicious. Therefore, in our considered view, we find no scope for interference in the impugned judgment of the learned Addl. Sessions Judge. The criminal appeal, being devoid of merit, is accordingly dismissed. 8 The bail bonds, furnished by the accused/ respondents, are discharged. ( R.B.Misra ), J. 27th September, 2010 ( V.K.Sharma ), J. (sl) 7