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2017 DIGILAW 863 (HP)

State of H. P. v. Bawa Singh

2017-07-27

CHANDER BHUSAN BAROWALIA, TARLOK SINGH CHAUHAN

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JUDGMENT : Chander Bhusan Barowalia, J. 1. Since both criminal appeal and criminal revision have arisen from the same judgment, therefore, these are required to be considered and decided by a common judgment. 2. The Criminal Appeal No.467 of 2005 is maintained by the appellant/ State of H.P., (hereinafter referred to as “the appellant”) under Section 378 Cr.P.C., assailing the judgment of acquittal passed by the learned Additional Sessions Judge, Solan, H.P., in Criminal Appeal No.13-NL/10 of 2000, whereby the judgment of conviction and sentence passed by the learned the then Judicial Magistrate Ist Class, Nalagarh, District Solan, H.P., in Crl. Case No.19/2 of 1996, has been set aside against accused Bawa Singh (hereinafter referred as “the accused”) and Criminal Revision No.42 of 2007 is maintained by Diwan Chand (hereinafter referred as “the accused”) assailing the judgment of the learned Lower Appellate Court upholding the judgment of conviction and sentence imposed upon him by the learned Trial Court. 3. Tersely, the facts giving rise to the present appeal and revision, as per the prosecution, are that Pyare Lal, complainant was resident of village Nawangraon, Tehsil Nalagarh, District Solan, H.P. It has been alleged that the complainant was cultivating the land of Baba Ram Tehal Dass, Pujari of Ram Mandir, situated in village Nawangraon on ‘Batai’ basis. It has also been alleged that the land of Daulat Ram (father of the accused) was also situated adjoining to the said land and that on 21.11.1995, at about 3.00 P.M., the complainant, alongwith Baba Ram Tehal Dass, was sitting in the temple. The wife of the complainant, who had left the house earlier, returned to him and told that the accused Diwan Chand and his brother Bawa Singh were not permitting her to pass through the passage leading to her house. It has further been alleged that accused Diwan Chand had also chased her with ‘Kassi’. It has been averred that the complainant in order to drop her at his house, accompanied her. The complainant on way enquired from the accused persons, who were sons of Daulat Ram about the reasons for not permitting his wife to pass through the passage. It has been alleged that the accused started abusing the complainant and accused Diwan Chand gave blows with the axe on the left shoulder of the complainant. He also gave Lathi (stick) blows to the complainant. It has been alleged that the accused started abusing the complainant and accused Diwan Chand gave blows with the axe on the left shoulder of the complainant. He also gave Lathi (stick) blows to the complainant. On hearing hue and cry, Baba Ram Tehal Dass also reached at the place of occurrence. Accused Diwan Chand also gave blow with an axe on the head of Baba Ram Tehal Dass. It has also been alleged that Ram Asra, Gurbaksh Singh and other persons reached at the spot and rescued the complainant and Baba Ram Tehal Dass. The axe was snatched by the complainant from the accused Diwan Chand and was kept in the Temple. The complainant and Baba Ram Tehal Dass came to Nalagarh. The complainant, as such, made statement Ex.PW1/A under Section 154 Cr.P.C. to ASI, Police Station, Nalagarh, on 21.11.1995, at 6.00P.M. and the said statement culminated in recording of FIR, Ex.PA for the offence under Sections 341, 307 and 34 IPC. The police got the complainant and Baba Ram Tehal Dass medically examined. The doctor opined that the complainant had suffered grievous injury with a sharp edged weapon, as detailed in MLC, Ex.PA, issued after obtaining X-ray, Ex.PB and report, Ex.PC, whereas Baba Ram Tehal Dass suffered simple injury with a sharp edged weapon on his person, as per the detail given in MLC, Ex.PD, which was issued after obtaining X-ray, Ex.PE and report, Ex.PF. The police found commission of offence under Section 326 IPC. During investigation the police found that on 21.11.1995, accused, Diwan Chand was irrigating the land after drawing water through the land of the temple, which was in the possession of the complainant. It has been alleged that verbal conversation took place in between the accused and Rattani, when she was passing through the passage of accused and accused obstructed Rattani from passing through their passage and Rattani returned to the temple and disclosed this fact to her husband. Thereafter, the complainant accompanied his wife Rattani to enquire as to why accused Diwan Chand had obstructed her from passing through, upon which the accused started abusing the complainant and, in the meantime, accused Bawa Singh also reached at the spot and started quarreling with the complainant. Thereafter, the complainant accompanied his wife Rattani to enquire as to why accused Diwan Chand had obstructed her from passing through, upon which the accused started abusing the complainant and, in the meantime, accused Bawa Singh also reached at the spot and started quarreling with the complainant. It has also been alleged that accused Diwan Chand gave blow with an axe on the left shoulder of the complainant and the accused Bawa Singh also gave lathi blows to Baba Tehal Dass and Pyare Lal. Diwan Chand also gave blow with an axe on the head of Baba Tehal Dass and at that time Ram Asra, Gurbaksh Singh and other villagers also reached at the spot and rescued Baba Tehal Dass and the complainant. It has been averred that the complainant also snatched the axe from accused Diwan Chand. Said Diwan Chand also lodged FIR against the complainant and others, for the offence under Sections 325 and 34 IPC. After concluding the investigations, challan for the commission of offence under Sections 341, 326, 324 read with Section 34 IPC was filed against both the accused persons. The learned Trial Court found the accused guilty under Sections 341, 326, 324 read with Section 34 IPC and convicted and sentenced both the accused. 4. The accused persons in their statements, under Section 313 Code of Criminal Procedure denied the prosecution case in its entirety. Accused Diwan Chand stated that he was irrigating the fields and Baba Tehal Dass stopped, gave beatings to him and subsequently Baba Ram came and the complainant ran away on seeing him. On the other hand, Bawa Singh stated that Diwan Chand was irrigating the fields. He came to the fields on hearing the noise. Statements of MHC, Balraj Kumar and Avtar Singh were also recorded in defence. On the other hand, Bawa Singh stated that Diwan Chand was irrigating the fields. He came to the fields on hearing the noise. Statements of MHC, Balraj Kumar and Avtar Singh were also recorded in defence. After the completion of the trial, the learned Trial Court convicted accused Diwan Chand for the offence under Sections 341,324, 326 read with Section 34 IPC and sentenced him to simple imprisonment for a period of two years and to pay a fine of Rs.2,000/- for offence punishable under Section 326 IPC, sentenced to imprisonment for one year and to pay a fine of Rs.2000/- for the offence punishable under Section 324 IPC and sentenced to simple imprisonment for a period of 15 days for the offence punishable under Section 341 IPC and in default of payment of fine the convict was ordered to suffer simple imprisonment for a period of two months and accused Bawa Singh was sentenced to simple imprisonment for a period of one year and to pay a fine of Rs.2,000/- for commission of offence punishable under Section 326, sentenced to imprisonment for a period of six months and to pay a fine of Rs.1,000/- for the offence under Section 324 IPC and sentenced to simple imprisonment for a period of 15 days for the offence punishable under Section 341 IPC and in default of payment of fine he was to suffer simple imprisonment for a period of two months and one month. In the appeal maintained by the accused persons against the judgment of conviction recorded by the learned Trial Court, the learned Lower Appellate Court acquitted accused Bawa Singh for the offences and maintained the conviction of Diwan Chand. 5. Heard. Mr. V.S. Chauhan, learned Additional Advocate General has vehemently argued that the learned Lower Appellate Court has committed illegality in acquitting accused Bawa Singh and has not appreciated the evidence correctly and to its true perspective. The learned lower Appellate Court has failed to appreciate that the prosecution has proved the guilt of the accused persons conclusively and beyond reasonable doubt and so the judgment of acquittal of Bawa Singh by the learned Lower Appellate Court may be set-aside and accused Bawa Singh be convicted by upholding the judgment of learned Trial Court. 6. The learned lower Appellate Court has failed to appreciate that the prosecution has proved the guilt of the accused persons conclusively and beyond reasonable doubt and so the judgment of acquittal of Bawa Singh by the learned Lower Appellate Court may be set-aside and accused Bawa Singh be convicted by upholding the judgment of learned Trial Court. 6. The learned counsel appearing for the accused has argued that the judgment passed by the learned trial Court convicting accused Bawa Singh and Diwan Chand was not sustainable as the learned Trial Court has failed to appreciate the evidence correctly as the prosecution failed to prove the guilt of the accused persons beyond reasonable doubt. He has further argued that the lower Appellate Court though rightly acquitted Bawa Singh but has again miserably failed to take into consideration that the prosecution failed to prove the guilt of accused Diwan Chand beyond reasonable doubt and so the judgment of the learned lower Appellate Court convicting accused Diwan Chand suffers from illegality and required to be set aside and the judgment of acquittal of the accused Bawa Singh by the learned lower Appellate Court is required to be upheld. In rebuttal, the learned Additional Advocate General has argued that the judgment of conviction as recorded by the learned Trial Court is required to be restored to meet ends of justice, as the prosecution has proved the guilt of the accused beyond shadow of reasonable doubt. 7. Before discussing the evidence, which has come on record, this Court finds that to the same incidence, Criminal Case No.18/2 of 1996, was registered against the complainant party i.e. Pyare Lal, Baba Ram Tehal Dass and Rattani, under Section 325 read with Section 34 of the Indian Penal Code, in the Court of Sub Divisional Judicial Magistrate, Nalagarh and that ultimately resulted into the acquittal of the accused in that case. Meaning thereby that out of the same incidence, there were two cases one against the present accused and one against the complainant party. 8. To appreciate the arguments of the learned counsel for the parties, we have gone through the record of the case carefully and in detail. 9. PW-1, Dr. Meaning thereby that out of the same incidence, there were two cases one against the present accused and one against the complainant party. 8. To appreciate the arguments of the learned counsel for the parties, we have gone through the record of the case carefully and in detail. 9. PW-1, Dr. Sanjeev Kapoor, examined Pyare Lal, on 21.11.1995 and opined as under: “There was an incised wound 12 cm long elliptical in the shape of mid way between neck and shoulder on left side on vertical line joining the shoulder and neck. The margins were regular depth 7 cm upto S/C tissue muscle and bone cut through and through.” 10. It has also been opined that he was referred to X-ray and the X-ray revealed fracture of lateral end of the clavicle. The injury was grievous caused within 6 hours with sharp weapon. He also issued MLC, Ex.PA and X-ray, Ex.PB and X-ray report, Ex. PD. He had also examined Baba Tehal Dass (PW3) on the same day and observed following injuries on his person: “There was semi lunar wound on left ear base 10 cm. The skin flap was raised from the bone. Margins were regular, depth till bone, fresh bleeding and dirt were present in the wound.” 11. He was also referred to X-ray and no fracture was found. The injury was found to be simple in nature caused within 6 hours with sharp weapon. He also issued MLC, Ex.PD on this score and X-ray, Ex.PE and report Ex.PF. 12. The doctor had also examined accused Diwan Chand and observed the following injuries on his person: 1. Lacerated wound with rugged margins 3 cm in size, muscle deep on right eye outer angle. 2. A lacerated wound with rugged margins 7 cm size muscle deep bone intact over right fronto parietal area. 3. A lacerated wound 4 cm in length ragged margine bone deep over left fronto parietal area. 4. Swelling tenderness and haematoma. 5. Swelling over outer aspect of left ankle. He was also referred to X-ray of skull and right hand and X-ray revealed fracture of bony injury of right hand. He also issued MLC Ex.PG on this score. The doctor further opined that the injuries 1 to 3 and 5 on the person of accused Diwan Chand were simple an injury No.4 was grievous caused with blunt weapon within 6 hours.” 13. He also issued MLC Ex.PG on this score. The doctor further opined that the injuries 1 to 3 and 5 on the person of accused Diwan Chand were simple an injury No.4 was grievous caused with blunt weapon within 6 hours.” 13. The evidence on record suggests that the defence of the accused is that quarrel was due to a sudden quarrel started at the behest of the complainant party, as they wanted to use the water to irrigate their field and obstructed the accused from their turn for water to irrigate their land. It is admitted by the complainant party that scuffle has taken place for 4 to 5 minutes. 14. PW2, Pyare Lal deposed that he knows the accused persons and that his wife (Rattani) went to temple about two years ago, where Baba Tehal Dass was residing. He further deposed that he was also present there. When Rattani left from temple to go to her home at about 3.00 PM, the accused persons abused her and obstructed her path, whereupon she went back to the temple. When Pyare Lal (PW2) went alongwith his wife, accused Diwan Chand had an axe in his hand and Bawa Singh a stick (Danda) in his hand. Accused Diwan Chand tried to hit his head with axe and also hit on his left shoulder and Bawa Singh hit him with a stick on his back. Blood started oozing out due to hitting with axe. In the meantime, Baba Tehal Dass (PW3) came on the spot and asked them as to why they were beating Pyare Lal. Thereupon, accused Diwan Chand hit Baba Tehal Dass on his head with an axe and a lot of blood oozed out from his head and Bawa Singh also hit Tehal Dass with a stick. He deposed that Ram Asra, Gurbaksh, Kaka and Jasvir also reached at the spot and they saved them from the accused. He further deposed that blood started oozing out from his shoulder and from the head of Tehal Dass, which fell on their clothes. He further deposed that he picked up the axe from the spot and kept the same in the temple. Thereafter, he, alongwith Tehal Dass, came to Pajhera and went to Police Station, Nalagarh. Police also took them to hospital, where his medical examination was conducted, police recorded his statement, (Ex. PW1/A). He further deposed that he picked up the axe from the spot and kept the same in the temple. Thereafter, he, alongwith Tehal Dass, came to Pajhera and went to Police Station, Nalagarh. Police also took them to hospital, where his medical examination was conducted, police recorded his statement, (Ex. PW1/A). Police also took his blood stained clothes, i.e. sweater, shirt and Baniyan and sealed them in parcel, Ex.PW1/B. He also proved that Ex.P1, Sweater, Ex.P2, Shirt and Ex.P3, Baniyan are the same, which he had worn at the time of occurrence. He also proved on record Axe, Ex.P4 and MLC, Ex.PA, which bears his thumb impression. He deposed that the bone of his shoulder had sustained a cut. In his crossexamination, he has deposed that Baba Tehal Dass had been residing at the relevant place for the last 25 years. Before that, his Guru resided there. He deposed that, he had cordial relations with Baba Tehal Dass since he started visiting the temple. He also deposed that he alongwith his family, was cultivating the land of the temple also. He further deposed that the land of the accused persons was adjacent to that of the temple. The fields of the accused persons were towards east as well as west side. The land was irrigated with water from the Government Tubewell and the Operator, namely Avtar had fixed the water turn for irrigation of the fields and maintain record. He denied that on the day of occurrence, water was being supplied to the fields of Bawa Singh. He deposed that the temple was 400-500 yards away from the fields. He denied that it was the turn of the accused for water and that he quarreled with the accused persons. He denied the suggestion that his wife told that it was their turn. He deposed that Rattani was going to her house from temple when the quarrel took place. She could not reach her home due to quarrel. He further deposed that the accused persons had strained relations with them as about 25 years ago, father of the accused persons used to serve in the temple and now, he was serving there. He deposed that Diwan Chand chased his wife for 15-20 steps. His wife Rattani told him that the accused persons were obstructing her path. He deposed that the scuffle between them lasted for about 4-5 minutes. He deposed that Diwan Chand chased his wife for 15-20 steps. His wife Rattani told him that the accused persons were obstructing her path. He deposed that the scuffle between them lasted for about 4-5 minutes. When he inquired from the accused persons the reasons, they hit his head with an axe. He did not fall down and raised a noise and Baba Tehal Dass came on the spot. When Tehal Dass enquired as to why they hit Pyare Lal, they hit him also with an axe. He further deposed that Kaka and others saved Baba Tehal Dass. He was not rescued by anyone and he sat at one side. The quarrel took place in the field of Baba Tehal Dass. He (PW2) sustained injuries on his back, which he had shown to the doctor. He deposed that he had also informed the police about his injuries as well as that of Baba Tehal Dass. He denied the suggestion they hit the accused persons. He admitted that Diwan Chand and others were taken to Hospital at night. He denied the suggestion that they went to the spot to beat accused with a stick. 15. PW3, Baba Tehal Dass deposed that on 21.11.1995, at about 3.00 p.m., Rattani and Pyare Lal were in his Dera and when Rattani was going to her house, she came back and it was told that the accused persons were obstructing her while she was passing the passage, accused started abusing her and threatened with Kassi. Thereafter, Pyare Lal accompanied her and the accused persons started abusing them and accused Diwan Chand hit him with an axe on his shoulder. Due to the act of Pyare Lal, blood started oozing out and his clothes were torn. On hearing the noise, he came on the spot. In cross-examination, he deposed that Pyare Lal (PW2) and Rattani (PW4) had been serving with him for the last 20 years. However, self stated that the family of Daulat Ram (i.e. father of the accused) used to serve earlier. But they stopped serving when his Guru passed away. He further deposed that on that day, it was their turn for irrigating the fields and that there was no quarrel about water and also that it was the turn of the accused person to get water. But they stopped serving when his Guru passed away. He further deposed that on that day, it was their turn for irrigating the fields and that there was no quarrel about water and also that it was the turn of the accused person to get water. He denied the suggestion that Rattani had said that the accused persons were not permitting them to get water. Rattani did not tell him that the accused persons are using the water. He had heard the statement Ex.DB from portion ‘O’ to ‘O’ and stated that no such statement was given to the police by him. He further deposed that when he reached at the spot, Pyare Lal was injured at that time and the blood was oozing out from his arm. Further, that the stick blows were given in his presence and at that time 4-5 devotees had come in the temple and out of whom, Kaka and Jasbir had also reached on the spot. He also deposed that Rattani was not hit, as she had run away out of fear. He did not know whether blood had fallen on the spot or not. Further stated that when they reached the temple, the blood was oozing out and the axe was also stained with blood and they left for Nalagarh immediately. He further deposed that the blood stained clothes were kept in the custody of hospital and that he regained consciousness in the hospital and Diwan Chand came in the hospital at about 9 O’Clock. He denied the suggestion that police also came in the hospital. This witness deposed that the police came to the spot for collection of an axe and thereafter they went to the hospital. He further stated that he was discharged from the hospital after 8-10 days and that he did not tell Rattani about the axe, which Pyaru (Pyare Lal) had brought from the field and was handed over to the police. He admitted that when Pyaru brought the axe from the field, he and Rattani were present at the spot. He also admitted that neither he told about the site of incident nor told about the site of blood. Further stated that Bawa Singh had beaten him with stick blows and he had been saved from his clutches by Kaka and Jasbir. He also admitted that neither he told about the site of incident nor told about the site of blood. Further stated that Bawa Singh had beaten him with stick blows and he had been saved from his clutches by Kaka and Jasbir. He also admitted statement Ex.DB, however, stated that from ‘A’ to ‘A’, he had not given such statement to the police. Self stated that he did not tell the name of anyone and no villager came to the spot after the quarrel. He further deposed that he does not know whether Diwan Chand was irrigating his fields. He deposed that when he reached at the spot, the accused persons were beating Pyaru. He further denied the suggestion that Pyaru and he, himself were beating the accused persons and also that he came with stick and also beaten them. He denied the suggestion that on hearing the noise of the accused persons, some villagers gathered at the spot. Self stated that they came there on hearing the noise of Pyaru. PW3 has specifically denied that no villager was present on the spot. 16. PW4, Smt.Rattani deposed that on 21.11.1995, at about 3.00 P.M., she was coming from the Dera of Baba Tehal Dass to her home and her husband was at the Dera. The accused persons obstructed her from passing through the passage of the accused, upon which she returned to Dera and told her husband about the fact that the accused persons were threatening to kill her and then her husband came to drop her and the accused persons, when asked by her husband then accused Diwan Chand gave a blow with an axe on his left shoulder, due to which, blood oozed out and the clothes worn at that time were got torn. In the meanwhile, when she shouted, Tehal Dass came at the spot. The accused Bawa Singh had beaten her husband with sticks. When Baba Tehal Dass challenged the accused persons, then they had beaten him with stick blows and accused Bawa Singh had beaten him with a stick and blood started oozing out from his head. Gurbax, Ram Ashra and School children were also gathered at the spot. Further, she deposed that Kaka and Jasbir had rescued them from accused and in case Tehal Dass and her husband not rescued, in that eventuality, there was every danger to their life. Gurbax, Ram Ashra and School children were also gathered at the spot. Further, she deposed that Kaka and Jasbir had rescued them from accused and in case Tehal Dass and her husband not rescued, in that eventuality, there was every danger to their life. The weapon of offence i.e. Axe, Ex.P4 was taken by her husband to the Temple. The accused persons dragged Baba Ram Tehal Dass from his hair and Bawa Singh gave stick blows to him and, thereafter, they went to the temple and after that, they also went to Nalagarh Police Station. She deposed that the police went to the spot after three days. She also identified the clothes, Ex.P1 to Ex.P3, to be the same, which her husband had worn and the clothes Ex.P5 and Ex.P6 worn by Baba Tehal Dass. She also proved the axe, Ex.P4, by which the accused persons caused injury to her husband and Baba Ram Tehal Dass and with which the bone of the left shoulder of her husband got fractured. The Police visited the spot after three days and she had shown the axe, which she brought from the temple. Further, that the Police officials in the presence of Nambardar took the Axe after many days, however, when police came, then she told that, it was the same axe by which her husband was hit by the accused. The police was sitting in the temple and she was also present there. When the police visited the spot, at that time, many people gathered. Her thumb impression was taken by the police and the police did not enquire about the stick. She deposed that she does not know about the statement of Rali etc. and that Rali was not at the spot. She admitted as correct that there is road on the eastern side of the temple, which leads to the village. She denied the suggestion that it was turn of the accused persons for water on that day. She admitted the fact that there was Kassi in the hands of the accused persons. She further deposed that when they were quarreling she did not beat anyone nor saved anyone. The accused persons were beating her husband and Baba Ram Tehal Dass. She also deposed that accused Diwan Chand gave an axe blow to her husband and Baba Ram Tehal Dass and accused Bawa Singh gave four stick blows. She further deposed that when they were quarreling she did not beat anyone nor saved anyone. The accused persons were beating her husband and Baba Ram Tehal Dass. She also deposed that accused Diwan Chand gave an axe blow to her husband and Baba Ram Tehal Dass and accused Bawa Singh gave four stick blows. After two minutes Baba Ram Tehal Dass came alone and other persons came after some time and saved Baba Tehal Dass from the clutches of the accused. The accused persons dragged Baba Tehal Dass from his hair. She denied the suggestion that she does not know what happened thereafter, because she went to call her son so that he may save Baba from the clutches of the accused persons. She does not know whether there were injuries in the head of Diwan Chand. She denied that Baba Tehal Dass came with a Danda and gave a blows to the accused persons. She also denied the suggestion that Tehal Dass went to the spot to save her husband. Self stated that accused Diwan Chand took her husband by dragging from his hair. She also deposed that a case has been registered in the Court against complainants and her with respect to the present quarrel. She also denied the suggestion that she came with a stick with her husband, however, self stated that he is lame and walks with the help of a stick. 17. PW5, Gurbaksh Singh has stated that the accused persons were known to him, about two years ago, in the month of Kartikeya, a quarrel took place in between the accused persons and complainant adjoining to their fields. He further stated that Dere Wala Baba and Pyaru also gave beatings to the accused persons and Pyaru had beaten them from the back portion of the axe. Diwan Chand folded his hands before Baba Tehal Dass praying that he has no enmity with him and if there is any dispute between Pyaru and Rattani, that is separate issue. Further stated that Diwan and Pyaru received injuries and blood was oozing out. In his crossexamination, he deposed that the police came on the spot next day. One was Station House Officer (Thanedar) and the another was a Constable. He showed his ignorance whether there was any injury on the head of Baba Tehal Dass. He stated that he has seen incident from nearby place. In his crossexamination, he deposed that the police came on the spot next day. One was Station House Officer (Thanedar) and the another was a Constable. He showed his ignorance whether there was any injury on the head of Baba Tehal Dass. He stated that he has seen incident from nearby place. No blood stains were found on clothes and also he did not see the blood stained cloths of Tehal Dass and Pyaru. Kaka and Jasbir were not at the spot. This incident took place about 2.30 p.m. When Rattani was coming alone, then he saw her. 18. The statement of PW5 also shows that it was Baba Tehal Dass and Pyaru, who gave beatings to the accused persons and Pyaru had beaten the accused persons with the back side of the axe. This also substantiates the fact that it is Pyaru, who has taken the axe to the temple. 19. Now, can the story of Pyaru be taken as correct that the axe used by the accused Diwan Chand and he has taken that axe to the temple after snatching from Diwan Chand? The answer is ‘No’. PW5 has further submitted that Diwan Chand folded his hands before Baba Ram Tehal Dass and prayed that he has no enmity with him and, if there is any dispute inter se Pyaru and Rattani, it is a separate issue. PW5 has seen the incidence from nearby, but he has denied that Pyaru and Baba Tehal Dass received any injuries. He has denied the suggestion that the clothes of Pyaru and Baba Tehal Dass were smeared with blood. He has specifically stated that accused Baba Tehal Dass was not present on the spot. 20. PW6, Kaka Singh has deposed that the police has recovered Sweater, Ex.P1, Shirt Ex.P2 and Baniyan, Ex.P3, vide recovery memo Ex.PW1/B of Pyare Lal. PW-6 and Pyare Lal put their thumb impressions on Ex.PW1/B. Similarly, he has proved the recovery of shirt, Ex.P5 and Buniyan Ex.P6, vide recovery memo Ex.PW3/A, i.e. clothes of Baba Tehal Dass. 21. PW7, Ram Swarup is a witness of recovery of axe Ex.P4, but in his cross-examination, he has stated that axe was not sealed in his presence. 22. PW8, Shamsher Singh has deposed that he has seen axe Ex.P4 and that the same was handed over to the police in his presence. 21. PW7, Ram Swarup is a witness of recovery of axe Ex.P4, but in his cross-examination, he has stated that axe was not sealed in his presence. 22. PW8, Shamsher Singh has deposed that he has seen axe Ex.P4 and that the same was handed over to the police in his presence. In cross-examination, he has stated that he has given the axe from the temple. 23. PW9, S.I., Guler Chand has deposed that he had recorded the statement of Pyare Lal (Ex.PW1/A) under Section 154 Cr.P.C., in the hospital at Nalagarh and on the basis of the same, FIR was registered. 24. PW 10, HC, Dharam Pal has deposed that he was posted as Investigating Officer at Police Post, Jogo on 07.12.1995. He received case file on 07.12.1995 and recovered the axe and taken the same into possession vide Ex.PW1/C, same was produced by Pyare Lal. He has further stated that he has taken into possession the clothes of Baba Ram Tehal Dass and that of Pyare Lal. 25. PW11, Gurmeet Singh had prepared the challan and presented the same in the Court. 26. PW12, ASI, Trilochan Dutt has deposed that he prepared the spot map, Ex.PW12/A and recorded the statements of Rattani, Gurbaksh alias Gurbachan and Baba Ram Tehal Dass, as per their version. In his cross-examination, he has deposed that the stick and axe were already taken into possession and also admitted that when Diwan Chand was irrigating his field, the quarrel has taken place. 27. From the statement of PW5, it is clear that there were 50-60 persons standing there, but the police has not recorded the statement of anyone of them. Further, case of the prosecution is that the blow was given with Kassi to Pyaru, but PW5 was examined by putting a specific question whether blow was given by axe to Pyaru. He has further stated that on that day, first of all, it was Diwan Chand and Rattani, who had altercations. He has stated that Diwan Chand asked Rattani not to go from there and Rattani hurled the abuses upon Diwan Chand. He stated that accused and complainant were his neighbors. He has denied his statement recorded by the police, Ex.PW5/A and stated that he has not given such statement to the police. He denied the suggestion that Diwan Chand gave a blow of axe and Bawa Singh gave blows with a lathi. He stated that accused and complainant were his neighbors. He has denied his statement recorded by the police, Ex.PW5/A and stated that he has not given such statement to the police. He denied the suggestion that Diwan Chand gave a blow of axe and Bawa Singh gave blows with a lathi. He denied the suggestion that when Baba Ram Tehal Dass came to save Pyaru and Rattani, at that time, Diwan Chand gave blow on the head of Baba Ram Tehal Dass. He stated that there were 50 to 60 persons on the spot. Further stated that these persons were standing there before him. He further stated that Pyaru was taken away from the spot. Though, PW5 was cross- examined at length, but nothing favourable to the prosecution has come. 28. As per the prosecution, the Seal, after use, was handed over to PW6, after the clothes were taken into possession vide recovery memo Ex.PW1/B and Ex.PW3/A, but the same was not produced by PW6 in the Court. This also creates suspicion with regard to the recovery of cloths. 29. Similarly, when PW7 has denied that the axe was not sealed in his presence, the recovery of axe also becomes doubtful. However, when the axe was given from the temple in the presence of PW8 and when PW5 has specifically stated that it was Pyaru, who used that axe in the fight, it is difficult to hold that the injury on Pyaru was caused with axe by accused Diwan Chand. 30. The statement of PW10 with regard to recovery of the axe is that it was recovered vide recovery memo Ex.PW1/C, at the instance of Pyare Lal, but PW9, (ASI Guler Chand), who is the witness of the recovery, has stated that on that day, when the axe was recovered, Baba Tehal Dass and Pyare Lal were in the hospital and axe was handed over by PW8 to the police. So, in these circumstances, the recovery of axe becomes highly doubtful. 31. As per the statement of PW12, ASI, Trilochan Dutt, the quarrel has taken place in the fields of Diwan Chand, when he was irrigating his fields. The statement of PW, who is an independent person shows that it was Baba Ram Tehal Dass and Pyaru, who gave beatings to the accused persons and Piaru was beating them with the back portion of the axe. The statement of PW, who is an independent person shows that it was Baba Ram Tehal Dass and Pyaru, who gave beatings to the accused persons and Piaru was beating them with the back portion of the axe. The fact that the axe was taken away by PW4 to the temple and ultimately, it was handed over by Pyaru to the police shows that the injuries to Pyaru was not caused with the axe and it was Pyaru who had used the axe in the quarrel and the axe belongs to Pyaru. In these circumstance also, it is improbable that the injuries on Pyaru and Baba Ram Tehal Das by the accused Diwan Chand with the axe and the story of prosecution becomes highly doubtful and the accused cannot be convicted for the offences they are charged with as the story of the prosecution with respect to the weapon used in the offence is highly suspicious. 32. From the above evidence on record, it is clear that Baba Ram Tehal Dass, Rattani and Pyaru had gone to the fields of Diwan Chand and Diwan Chand was attacked with an axe and there was a scuffle, in which, as per the prosecution, injuries were received by accused Baba Ram Tehal Dass and Pyaru. 33. That the injuries received by the accused Diwan Chand in the alleged incidence are as under: 1. Lacerated wound with rugged margins 3 cm in size, muscle deep on right eye outer angle. 2. A lacerated wound with rugged margins 7 cm size muscle deep bone intact over right fronto parietal area. 3. A lacerated wound 4 cm in length ragged margine bone deep over left fronto parietal area. 4. Swelling tenderness and haematoma. 5. Swelling over outer aspect of left ankle. He was also referred to X-ray of skull and right hand and X-ray revealed fracture of bony injury of right hand. He also issued MLC, Ex.PG on this score. The doctor further opined that the injuries 1 to 3 and 5 on the person of accused Diwan Chand were simple an injury No.4 was grievous caused with blunt weapon within 6 hours.” These injuries are not at all explained by the prosecution that how the accused received injuries. He also issued MLC, Ex.PG on this score. The doctor further opined that the injuries 1 to 3 and 5 on the person of accused Diwan Chand were simple an injury No.4 was grievous caused with blunt weapon within 6 hours.” These injuries are not at all explained by the prosecution that how the accused received injuries. Meaning thereby that the prosecution story become doubtful and suspicious and in these circumstances also, the prosecution has failed to prove and connect the injuries received by the accused persons in the incidence, are caused by accused and the same leads to the conclusion that the prosecution case is full of doubts, suspicions and manipulations and in these circumstances also, it will not be safe to record the conviction of the accused on the untrustworthy, contradictory, manipulated and unreliable evidence of the prosecution in the present case. 34. The prosecution has failed to prove the guilt of the accused persons beyond the shadow of reasonable doubt, as stated hereinabove that it is Diwan Chand, who caused injuries to Baba Ram Tehal Dass and Pyare Lal. So far as the presence of Baba Ram Tehal Dass and other accused persons is concerned, the same is proved by PW5 and other witnesses, who were present on the spot. The non-examination of these witnesses, who were present there, as it has come on record that there was 50-60 persons present on the spot when quarrel was going on, shows that the independent witnesses have not been joined by the prosecution. In these circumstances, it is difficult to hold that accused Diwan Chand and Bawa Singh have caused injuries to Pyare Lal and Baba Ram Tehal Dass in furtherance of their common intention and committed offences under Sections 341, 326 and 324 read with Section 34 IPC. So, the prosecution has failed to prove the guilt of the accused persons, as neither the recovery of axe and ‘Kassi’ is proved nor the statement of the witnesses, that it is accused Diwan Chand, who caused injuries to Baba Ram Tehal Dass and Pyare Lal. On the other hand, it is the prosecution witnesses, who have deposed that Baba Tehal Dass and Pyare Lal came with the axe in the fields of Diwan Chand, where he was irrigating the fields and attacked him. On the other hand, it is the prosecution witnesses, who have deposed that Baba Tehal Dass and Pyare Lal came with the axe in the fields of Diwan Chand, where he was irrigating the fields and attacked him. Further, the axe, in question, belongs to Baba Ram Tehal Dass, which is clear from the fact that the same was taken back to the temple by Pyare Lal and he came with same axe from the temple as per PW5. At the same point of time, the prosecution witness PW5 has specifically stated that it was Baba Ram Tehal Dass, who gave the blows to Diwan Chand and Diwan Chand prayed with his folded hands to Baba Ram Tehal Dass that he does not want to fight with him (Baba Ram Tehal Dass). This all goes to show that it was the complainant party, who was the aggressor. 35. In the present case, since the injuries of the accused are not explained by the prosecution, the same creates doubt with respect to fair investigation and also cast a doubt with respect to the prosecution story. In these circumstances, the accused persons cannot be held guilty of the offences they are charged with. 36. The net result of the above discussion is that the prosecution has miserably failed to prove the guilt of accused Diwan Chand and Bawa Singh. The prosecution is full of suspicions and the statements of the witnesses are full of contradiction rather no evidence is there in favour of the prosecution and it is otherwise supporting the accused persons. In these circumstances, both the accused persons are required to be acquitted and are accordingly acquitted by allowing the Criminal Revision of accused Diwan Chand. 37. Consequently, the Criminal Revision of Diwan Chand is allowed and the appeal against acquittal maintained by the State of Himachal Pradesh acquitting Bawa Singh by the learned Lower Appellate Court, is dismissed, as the prosecution has failed to prove the guilt of the accused persons beyond the shadow of reasonable doubt. 38. All the pending application(s), if any, also stand disposed of.