State of Himachal Pradesh vs Gulshan Singh and Another

Surinder Singh, J.—Learned trial Court convicted the Respondents for the offences punishable under Sections 452, 324 read with Section 34 of the Indian Penal Code and sentenced them under each of the Sections to undergo rigorous imprisonment for six months and to pay a fine of Rs. 5,000/-, in Case No. 166-I of 1998 13th/14th December, 2000. In default of payment of fine the learned trial Court also ordered to further undergo simple imprisonment for a period of six months. The said judgment of conviction and sentence was challenged in Criminal Appeal No. 47/2001/2000, by the Respondents and vide judgment dated 14th March, 2003 the learned Additional Sessions Judge, allowed the appeal and acquitted the Respondents. Now the acquittal of the Respondents passed by the learned Additional Sessions Judge has been challenged in this appeal by the State.

Heard and gone through the evidence on record.

Precisely, the case of the prosecution is that on 22nd October, 1998 at about 10.00 a.m. complainant Jagtar Singh was plucking the fruits from Amla tree, located about 50 meters from his house. In the meantime, Respondent Gulshan Singh came there, he claimed the tree to be in his ownership and warned him not to pluck Amla fruits. He is also alleged to have hurled the abuses and then left the place with a warning to teach him a lesson. Further, the prosecution story goes on like this that after about 15 minutes when the complainant was in his house taking tea, Respondent Gulshan Singh carrying a small-axe (Takuya) came alongwith Respondent Kesha alias Rakesh Kumar to his house. He hit him with the axe on the left side of his head, Rakesh Kumar dealt a Danda blow. On seeing this, his son Vishal, who had just returned from the fields after grazing the cattle intervened and relieved him from their clutches. Thereafter the matter was reported to the police and FIR Ext.PW-3/A was got registered. He was got medically examined.

Police reached the spot, prepared the site plan and recovered the small-axe (Ext.P.1) and took it into possession vide memo Ext.PW-7/B and also Danda (Ext.P.2) vide memo Ext.PW-7/C in the presence of the witnesses. Police also collected Medico Legal Certificate Ext.PW-1/A alongwith X-ray films from the hospital. After recording the statements of the witnesses and completing Challan, presented it in the Court for the trial of the Respondents.

Although, complainant Jagtar Singh corroborated the version given in the FIR, but there is no independent corroboration to his version. The house where the alleged incident took place is surrounded by 5/6 houses nearby within the radius of 20 yards. Had this incident taken place in the manner alleged by him, definitely someone from the vicinity would have heard the noise and come for the rescue of the complainant. But conveniently he chose his son Vishal to support his version. It is not spelt out where were the other occupants of his house. Pertinently, Investigating Officer also did not enquire about the incident from the vicinity to come to the truth. But he placed implicit reliance on the statements of the complainant and his son.

It is apparent from the record that Gulshan Singh had also staked his claim to Amla tree and there is no evidence to prove that the said Amla tree belongs to the complainant alone, which was an apple of contention.

On the close scrutiny of the statements of the complainant and his son, I find it discrepant, not satisfactory and also confidence inspiring to convert the acquittal into conviction, more particularly when the parties are locked into civil litigation with respect to the land over which Amla tree is standing. Obviously, they are inimically disposed of to each other.

Further, the recovery witness of small-axe PW-5 Kashmira did not support the prosecution and another witness Dharam Singh was not examined. Thus the recovery of the alleged weapon of offence is also not proved.

PW-2 Dr. V.K. Raizada stated that injury No. 1 caused to the complainant could be caused by striking with a tin-sheet existing on the roof, which goes consistent to the defence taken by the Respondents.

Therefore, in view of above circumstances, more specifically when parties are nursing grudge against each other and locked horn in the civil litigation it will not be prudent to act upon the testimonies of the complainant and his son. The grounds of acquittal, as recorded by the learned Additional Sessions Judge, are borne out from the record, therefore, calls for no interference, as such the appeal is dismissed.

The Respondents are discharged of their bail bonds entered upon by them at any stage during the proceedings of this case.

Send down the record forthwith.