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Himachal Pradesh High Court · body

2016 DIGILAW 2721 (HP)

State of H. P. v. Poshu Ram

2016-12-23

SURESHWAR THAKUR

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JUDGMENT : Sureshwar Thakur, J. The accused/respondents herein stood convicted by the learned trial Magistrate for theirs committing offences punishable under Sections 147, 323 and 506 read with Section 149 of the Indian Penal Code, thereupon on theirs standing aggrieved by the verdict of the learned trial Court, they carried an appeal therefrom before the learned Additional Sessions Judge, Mandi, H.P. whereby the latter reversed the findings of conviction recorded upon the accused/respondents by the learned trial Court. The State of Himachal Pradesh stands aggrieved by the verdict of the learned Additional Sessions Judge, Mandi wherefrom it by preferring an appeal here before concerts to beget its reversal. 2. The brief facts of the case are that on 22.01.2004 at 12 noon, the complainant Mehar Chand alongwith his father Shri Baru Mal, brother Raj Kumar and Jaswant Singh and grand father namely Jhabu Ram was sowing maize crop in his fields. The accused Paras Ram, Paushu Ram, Damodar Dass and Bhagat Ram without any reason went into the land of the complainant and told him that why they were sowing and ploughing the fields. The complainant said that the fields belong to them and they have to sow the crop in the fields. At this, the accused persons started beating the complainant and his family members with dandas and stones. The accused Damodar said that they will do away with their lives. In the meantime, accused Tek Singh, Bhagat Ram and Bhima Devi also came on the spot and started beating the complainant and his family members and complainant and his family members sustained injuries. The complainant and his family members were rescued by one Shiv Lal and Chobe Ram from the clutches of the accused persons. The complainant and his family members left from the spot and their agricultural tools remained in the fields, which were also broken by the accused persons. The complainant and his family members went to Mandi to report the matter. But, from there they were directed to report the matter at Police Station, Aut, District Mandi, H.P. on 23.4.2001, the complainant Mehar Chand alongwith his father Shri Barumal visited the Police Station Aut and reported the matter to the police and a case was registered. The complainant and his family members went to Mandi to report the matter. But, from there they were directed to report the matter at Police Station, Aut, District Mandi, H.P. on 23.4.2001, the complainant Mehar Chand alongwith his father Shri Barumal visited the Police Station Aut and reported the matter to the police and a case was registered. Medical examination of the complainant Mehar Chand and injured Barumal and Raj Kumar was carried out and the MLCs of the complainant and the injured persons were obtained and placed on record. Further, investigation was carried out. During the investigation, site plan Ex. PW-4/A was prepared. Shirt Ex. P-1 and T-shirt Ex. P-6 were taken into possession vide seizure memo Ex. PW-2/A Dandas Ex. P-1 to Ex. P-3, stones Ex. P-4 and Ex. P-5 were also taken into possession vide seizure memo Ex. PW-1/C. 3. After completing all codal formalities and on conclusion of the investigation into the offences, allegedly committed by the accused a Challan was prepared and filed in the Court concerned. 4. A charge stood put to the accused by the learned trial Court for theirs committing offences punishable under Sections 447, 147, 323 and 506 read with Section 149 of the Indian Penal Code to which they pleaded not guilty and claimed trial. 5. In order to prove its case, the prosecution examined eight witnesses. On closure of prosecution evidence, the statements of the accused under Section 313 of the Code of Criminal Procedure, were recorded in which they pleaded innocence and claimed false implication. 6. On an appraisal of the evidence on record, the learned trial Court returned findings of conviction against the accused/respondents herein. In an appeal preferred there against by the accused/respondents before the learned Additional Sessions Judge, Mandi, the latter Court set aside the conviction and consequent sentences recorded upon the accused/convicts by the learned trial Court for theirs committing offences punishable under Sections 147, 323 and 506 read with Section 149 of the Indian Penal Code. 7. The learned Deputy Advocate General has concertedly and vigorously contended qua the findings of acquittal recorded by the learned Appellate Court standing not based on a proper appreciation of evidence on record, rather, theirs standing sequelled by gross mis-appreciation of material on record. 7. The learned Deputy Advocate General has concertedly and vigorously contended qua the findings of acquittal recorded by the learned Appellate Court standing not based on a proper appreciation of evidence on record, rather, theirs standing sequelled by gross mis-appreciation of material on record. Hence, he contends qua the findings of acquittal being reversed by this Court in the exercise of its appellate jurisdiction and theirs being replaced by findings of conviction. 8. The learned counsel appearing for the respondents has with considerable force and vigour contended qua the findings of acquittal recorded by the learned Appellate Court below standing based on a mature and balanced appreciation of evidence on record and theirs not necessitating interference, rather theirs meriting vindication. 9. The learned trial Magistrate had imputed credence to the testifications of ocular witnesses to the relevant occurrence. Both PW-6 and PW-8 ocular witnesses to the occurrence, in their respective testifications deposed a version qua the occurrence bereft of any taint of any inter se contradictions occurring in their respective testifications embodied in their respective examination-in-chief vis-à-vis their respective cross examinations besides their respective testifications are bereft of any blemish of any intra se contradictions, whereupon the learned trial Magistrate stood constrained to conclude qua the prosecution efficaciously proving the relevant charge for which the accused/respondents stood subjected to trial before him. Furthermore, unflinching proof borne on MLCs comprised in Ex. PW-5/A to PW-5/C loudly pronouncing qua the victims-complainants in sequel to theirs standing struck with kicks and fist blows besides with dandas blows also with stones pelted upon their respective person by the accused/respondents, receiving injuries on their respective persons also constrained the learned trial Magistrate to conclude qua the prosecution succeeding in proving the charge against the respondents/accused. Dandas comprised in Ex. P-1 to P-3 stood recovered at the instance of the co-accused concerned also two stones exhibited as Ex. P-4 and Ex. P-5 too stood recovered at the instance of the co-accused concerned, recoveries whereof stood effectuated from the persons of the relevant co-accused concerned under a common memo borne on Ex. PW-1/C, efficacy of contents borne whereon standing firmly proved by the witnesses thereto, did also purvey ample sustenance to the learned trial Magistrate to pronounce an order of conviction upon the accused/respondents. 10. PW-1/C, efficacy of contents borne whereon standing firmly proved by the witnesses thereto, did also purvey ample sustenance to the learned trial Magistrate to pronounce an order of conviction upon the accused/respondents. 10. Be that as it may, the learned First Appellate Court had benumbed, the effect of the aforesaid credible efficacious pieces of evidence adduced by the prosecution before the learned Magistrate whereupon the latter had concluded qua theirs holding credit worthiness for sustaining the charge to which the accused-respondents stood subjected to, merely on anvil qua with the complainant besides the accused-respondents standing evidently embroiled in a land dispute thereupon the testifications of ocular witnesses who testified as PWs 6 and 8 warranting disimputence of credence thereon. Though the aforesaid reason assigned by the learned first appellate Court to discard the aforesaid sinewed evidence is per se flimsy besides specious nonetheless, when a perusal of the testification embodied in the cross examination of PW-7 unveils qua his sustaining the espousal of the respondents-accused qua the latter in the exercise of right of private defence of property whereon an imminent threat emanated from the victims-complainants arising from the latter proceeding to take forcible possession of the disputed land from the accused-respondents whereon possession stood uncontrovertedly held by the latter, in sequel whereof a scuffle ensued inter se the accused-respondents vis-à-vis the victims-complainants, thereupon the purported penal misdemeanor of the accused-respondents engaging in a scuffle with the victims-complainants in course whereof injuries stood entailed upon the victims is visibly free from any trace or element of penal inculpability significantly when it stood spurred from the accused-respondents legitimately thwarting the illegitimate concert of the victims to take forcible possession of the disputed land from them. However, with both the learned Courts discarding the import of the aforesaid acquiescence occurring in the cross examination of PW-7 wherein he sustains the apposite espousal of the respondents-accused in evident exculpation of their guilt qua the relevant charge, thereupon renders the verdicts recorded by both the learned Courts below to stand ingrained with a vice of theirs mis-appraising the legal worth of the relevant germane evidence aforesaid qua the relevant statutory exculpatory factum probandum. 11. A closest reading of the testification occurring in the cross examination of PW-7, unveils qua his voicing therein qua the accused-respondents holding possession of the disputed land whereon the complainants-victims concerted to take its forcibe possession from the accused-respondents. 11. A closest reading of the testification occurring in the cross examination of PW-7, unveils qua his voicing therein qua the accused-respondents holding possession of the disputed land whereon the complainants-victims concerted to take its forcibe possession from the accused-respondents. He has also echoed in his cross examination qua at the relevant time the accused-respondent ploughing their fields whereon the complainants-victims igressed for dislodging the evident possession thereat of the accused-respondents where after a scuffle ensued inter se the respondents-accused and the victims-complainants. Necessarily when uncontrovertedly an acquiescence emanates from the testification embodied in the cross-examination of PW-6 qua the victims-complainants assaying to dislodge the accused-respondents from the settled possession they held qua the disputed land, for consummating whereof they concomitantly igressed upon the disputed land renders the igression mounted thereon by the victims-complainants being construable to be an illegitimate onslaught thereon besides rendered them to be construable to be the initiators of aggression upon the disputed land, possession whereof thereat stood evidently held by the accused-respondent whereupon the latter stood empowered to, for protecting their settled possession thereon besides for thwarting the illegitimate aggression perpetrated thereupon by the victims-complainants significantly when obviously an imminent danger to the property of the accused-respondents emanated from the aggression mounted thereon by the victims- complainants for hence unsettling the possession thereat thereon of the accused-respondents also for warding off the imminent threat to their property, to in the exercise of the right of private defence of property hence repulse the relevant aggression/igression mounted thereon by the victims-complainants. A corollary of the aforesaid discussion is qua the scuffle which occurred on the land whereon the accused-respondents held settled possession standing sequelled by the accused-respondents concerting to repulse the aggression mounted upon their land by the victims-complainants for hence the latter thereupon forcibly assaying to re-claim its possession from the accused-respondents, conspicuously when the omission of the accused-respondents to not preempt the untenable concert of the victims-complainants, would beget the ill fate of theirs loosing possession of the disputed land. In aftermath, the scuffle, if any, which occurred on the disputed land, possession whereof thereat, stood held by the respondents-accused also in its course if injuries stood sustained by the victims-complainants arising from the accused-respondents assaulting them in the manner enunciated in the testifications of PW-6 and PW-7, yet the infliction if any by the accused-respondents of injuries upon the victims-complainant warrant exculpation, on anchorage of the purported penal misdemeanors, ascribed to the accused-respondents for the reasons afore stated falling within the domain of their standing statutorily excepted from the ambit of penal in culpability, more so when, the injuries, if any sustained by the victims-complainants in the scuffle which erupted on the disputed land inter se the accused-respondents vis-à-vis the victims-complainants being amenable for an inference standing erected qua theirs also standing inflicted in the exercise by the accused of the right of private defence of property, hence, thereupon given the minimality of injuries entailed upon the persons of the victims-complainants, it has also to be aptly concluded qua the accused-respondents not exceeding the tenable exercise by them of the right of private defence of property besides of their respective persons, conspicuously when for the reasons afore stated an imminent evident threat stood aroused qua it by the victims-complainants. 12. Consequently, the reason assigned by the learned Additional Sessions Judge, Mandi in pronouncing an order of acquittal upon the respondents-accused though warrants it standing upheld nonetheless with both the learned Courts below omitting to mete apposite deference to the impact of the acquiescence afore stated occurring in the cross examination of PW-6 an eye witness to the occurrence hence thereupon both the learned Courts below visibly misdirected themselves, whereupon this Court holds qua the judgment of conviction pronounced by the learned trial Court warranting reversal as tenably done by the learned Additional Sessions Judge, Mandi. Consequently, there is no merit in this appeal and the same is dismissed. The impugned judgment recorded by the learned Additional Sessions Judge, Mandi is affirmed.