HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No. : 390 of 1993 Decided on: 2.3.2009 State of Himachal Pradesh ……… Appellant. Versus Amar Singh and others ………Respondents. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? Yes. For the Appellant: Mr.Rajesh Mandhotra, Deputy Advocate General. For the respondents: Mr.Rakesh Jaswa, Advocate. Per V.K. Ahuja, J.: This is an appeal filed by the State of H.P. against the judgment, dated 31.5.1993, of the court of ld. Additional Sessions Judge, Mandi, vide which the respondents were acquitted of the charge framed against them under Sections 307 and 325 read with Section 34 of the IPC. Briefly stated the facts of the case are that on 22.1.1991 at about 2.15 p.m., a report was lodged with the police by one Bhagmal that on 21.1.1991, there was a marriage of one Mangal Singh in their village and the marriage party was going near their house at 3.00 p.m. It was further alleged that when the marriage party reached their house, they were dancing and making noise and animals in their nearby area started running here and there. On this, his mother Smt.Mangati Devi asked the baratis not to make noise or dance near their house ___________________________________________ Whether reporters of local newspapers may be allowed to see the judgment? - 2 - since the animals are under fear. He further alleged that his mother came in the house and Govind Singh and Amar Singh, who were also going in the marriage party, entered the courtyard of their house and started giving blows with danda, stones, legs and fists to his uncle Bhagat Ram. He stated that out of fear, he ran away from the place and when he returned, he found that his uncle Bhagat Ram was lying in a unconscious state in an injured condition. He further alleged that his uncle had been admitted in the Civil Dispensary, Dharampur and since his house was at a distance from Sarkaghat, he could not lodge the report yesterday. On this report, a case was registered and after investigation, the challan was filed before the learned Judicial Magistrate, who committed the case to the learned Sessions Judge, Mandi, who assigned the case to the learned trial Court for disposal. The learned trial Court tried the respondents under Sections 307 read with Section 34 and 325 read with Section 34 IPC leading to their acquittal. We have heard the learned counsel for the parties and have gone through the record of the case. The submissions made by the learned Deputy Advocate General for the State were that there was sufficient evidence on record to show that these injuries were caused by the respondents and as such, the findings of the learned trial Court to the contrary are liable to be reversed. On the other hand, the learned counsel for the respondents had supported the impugned judgment for the reasons given therein supplementing it by the submission that the learned trial Court had rightly observed that the complainant party was the aggressor and since the accused persons had also suffered injuries at that time, the origin of the fight was not clear and since both the parties had suffered injuries, it was a case of free fight. Thus, it was submitted that the findings of the learned trial Court acquitting the respondents are liable to be upheld. - 3 - On appraisal of the record of the case, it is clear that the report was lodged with the police by PW-1 Bhagmal in which he had alleged that his mother had objected to the members of the marriage party to their dancing in front of their house and cattle shed. He had alleged that the respondents entered their house and gave beatings to his uncle Bhagat Ram with dandas, stones and legs and fists. He nowhere alleged that which of the respondents gave blows with dandas and which of the respondents inflicted blows with stones or legs and fists. He stated in general about the beatings having been given and in his report, he had only named Govind Ram and Amar Singh, respondents, having entered the verandah of their house and there was no mention of the other respondents having entered his house. However, when he was examined as PW-1 in court, he specifically named all the four respondents having entered the house and also attributed the fact that Govind Ram was having wooden danda in his hand, while Balak Ram was having a curved stick in his hand. He further stated that Govind Ram caught hold of Bhagat Ram from his neck, while Amar Singh gave a baint blow upon his head. He further stated that Paras Ram gave fist and leg blows on the chest and face of Bhagat Ram, while Balak Ram uttered to finish Bhagat Ram and throw him. He had now come up with another plea that Govind Ram took out knife and inflicted knife blow on the chin of Bhagat Ram, who became unconscious. He also stated that blood came out of the mouth and head of Bhagat Ram and he alongwith other persons carried Bhagat Ram to Dharampur Hospital. He was confronted with his report Ext.PA in which he had stated that the moment accused entered the house and started beating Bhagat Ram, he became frightened and ran away from the spot. He now came up with the plea that the fight continued for about 1/2 hour. It is clear that he had changed the entire version when he appeared in the witness box, though in the first report lodged by him Ext.PA with which he was confronted, he had stated differently and had not given the details of the occurrence and had - 4 - alleged that he ran away from the spot. There was no mention of any knife blow having been given on the person of Bhagat Ram by Govind Ram, respondent, about which he has stated when he appeared in the court. PW-2 Bhagat Ram, uncle of the complainant, has stated that the respondents entered their house, Govind Ram was having a danda while Amar Singh was having a baint with him and Govind Ram caught hold of him and started hurling danda blows on his head and Amar Singh also gave a baint blow on his head. He further stated that Paras Ram caught hold of him and gave leg and fist blows and Balak Ram uttered to kill him. He also stated about the knife injury about which there was no mention in the report lodged with the police. The third witness Mangati Devi, mother of the complainant, has also stated about the injuries given by Govind Ram with danda and knife and fist and leg blows given to Bhagat Ram by Paras Ram. She came up with the plea that accused pelted stones as a result of which their utensils and doors were broken, which was never stated by the complainant or PW-2 Bhagat Ram. She clearly admitted that their relations with the accused persons are strained and they are not on visiting terms with them at the time of marriages etc. She also admitted that a case for this occurrence is also going on at Sarkaghat. She denied the suggestion that Govind Ram had received cut injury on his hand by a drat in the hand of Bhagat Ram PW-2. She came up with the plea that Govind Ram had tried to snatch the drat from the hand of Bhagat Ram. The fact that Bhagat Ram was having a drat in his hand at that time gives credence to the plea taken by the accused persons that it was a case of free fight and they also suffered injuries. She stated that the quarrel continued for about 1-2 hours and both the parties grappled with one another. The fact that a cross case was registered stands established from the evidence and the learned Deputy Advocate General had conceded that a cross case was also registered for the same occurrence and the complainant party was tried for that occurrence resulting in their acquittal. - 5 - The learned trial Court, after reference to the evidence, had concluded that it was a case of free fight and according to the conclusion arrived at by the learned trial Court, the complainant party was the aggressor party, which findings cannot be termed as incorrect or perverse in view of the evidence on record. It is also clear that the case was registered against the complainant party under Section 325 IPC, which clearly shows that one of the members of the accused party, namely Govind Ram, had suffered injuries on his person, which clearly leads to the inference that it was a case of free fight and both the parties had suffered injuries. In such circumstances, when two cross cases were registered against both the parties for the same occurrence and both the parties had suffered injuries and the case appears to be of free fight, it cannot be said that what was the origin of fight and as to whether the accused persons were the aggressor, rather the learned trial Court had concluded and rightly so that the complainant party appeared to be an aggressor. In such circumstances, when some injuries were caused on the person of one of the members of complainant party, namely, Bhagat Ram, the accused persons cannot be held liable. Moreover, the complainant had changed his version since in the first report, he has stated that he ran away from the spot and thereafter, came up with the different version about the occurrence. In view of the above discussion, it follows that the final findings recorded by the learned trial Court holding that the prosecution had failed to prove their case beyond any reasonable doubt cannot be termed as perverse calling for an interference by this Court and as such there is no merit in the appeal filed by the State of Himachal Pradesh, which is dismissed accordingly. The bail bonds furnished by the respondents shall stand discharged. (Deepak Gupta), J. March 2, 2009. (TILAK) (V.K. Ahuja), J. - 6 -