Himachal Pradesh High Court
Judgment Reserved On: 17.10.2024 vs State Of Himachal Pradesh on 16 November, 2024
Author: Sandeep Sharma
Bench: Sandeep Sharma
2024:HHC:11456
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No.66 of 2009
Judgment reserved on: 17.10.2024
Date of Decision: 06.11.2024
_______________________________________________________
Som Singh & another …….Appellants
Versus
State of Himachal Pradesh … Respondent
_______________________________________________________
Coram:
Hon’ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?1 Yes
For the Appellants: Mr. Rajneesh Maniktala, Senior Advocate
with Mr. Dinkar Bhaskar, Advocate.
For the Respondent: Mr. Rajan Kahol, Mr. Vishal Panwar and Mr.
B.C.Verma, Additional Advocate Generals,
with Mr. Ravi Chauhan, Deputy Advocate
General.
____________________________________________________
Sandeep Sharma, Judge(oral):
Instant criminal appeal filed under Section 374 of the
Code of Criminal Procedure, lays challenge to judgment of conviction
and order of sentence dated 26.03.2009 passed by learned Additional
Sessions Judge-1, Kangra at Dharamshala, Himachal Pradesh,
whereby learned trial Court, while holding appellants-accused
(hereinafter referred to as accused) guilty of their having committed
offence punishable under Section 307 IPC, convicted and sentenced
them to undergo rigorous imprisonment for three years and pay fine of
Rs. 20,000/-each.
1
Whether the reporters of the local papers may be allowed to see the judgment?
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2. For having bird’s eye view, facts shorn of unnecessary
details, but necessary for adjudication of the appeal at hand, are that
on 8.11.2000, person, namely Pancham Sharma, R/o Khajjan, gave
a telephonic information with regard to altercation/quarrel interse sons
of Sardari Lal and other persons, namely Narender and Sanjeevan on
account of boundary dispute. Though, police immediately proceeded
towards the spot after making necessary entry in the daily diary, but
by that time, injured stood already lifted to hospital for necessary
medical aid. Police after having reached Civil Hospital, Nurpur,
Kangra, Himachal Pradesh found that persons, namely Narender
Singh and his brother Sanjeevan had suffered serious injuries on
account of beatings given to them by opposite party. Doctor attending
upon aforesaid persons, opined that victim/injured Sanjeevan is not
capable of giving statement and as such, police proceeded to record
the statement of victim/injured Narender Singh under sections 154
Cr.P.C, who alleged that there has been a land dispute going on with
Chuni Lal son of Fakir Singh and his sons and on the date of alleged
incident i.e. on 8.11.2000, at 6.15 PM, while he alongwith his brother,
Sanjeevan and his brother-in-law, Surender Singh was in the house, a
tractor being driven by one boy from Talada also reached on the spot.
He alleged that persons, namely Som Singh and Narender, sons of
Sardari Lal alongwith Prem Singh, Kewal Singh and Bachan Singh
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alongwith some other persons alighted from the tractor and started
proclaiming to cultivate the Abadi land as well as the land in their
ownership. He alleged that person namely, Som Singh, who at the
relevant time was carrying a talwar(sword) after his having alighted
from tractor, gave a blow of talwar to Sanjeevan on his head and leg.
He further alleged that person, namely Narender Singh gave a blow of
darat on his head, as a result thereof, he as well as Sanjeevan
suffered grievous injuries. Complaint also alleged that remaining
persons, who at that relevant time were carrying danda, hockey and
darati in their hands, also gave them beatings. He alleged that
persons named by him had already given beatings in April, 2022 to
his mother and thereafter, case was registered against them under
sections 307 IPC. While disclosing that entire incident , which was
witnessed by persons, namely Pancham Sharma and Kuldeep @
Bittu, complainant also alleged that accused had come on the spot
with an intention to kill him as well as his brother, but they were
immediately taken to hospital by person, namely Kuldeep in his truck.
Complainant also claimed that accused had given beatings to him as
well as other persons on account of land dispute. On the basis of
aforesaid statement recorded under Section 154 Cr.P.C FIR No. 228
of 2000, dated 8.11.2000, Ex.PW8/A came to be registered at police
Station, Nurpur, District Kangra, Himachal Pradesh. After registration
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of case, police took into possession blood stains clothes of
complainant/injured Narender Singh as well as other injured, namely
Sanjeevan. Police also lifted blood stains soil and stone from the spot
and sent the same to SFSL for chemical analysis. Besides above,
police also procured MLCs rendered by doctors attending upon
victim/injured, wherein it came to be opined that injuries suffered by
victim/injured Sanjeevan, being grievous caused with sharp edged
weapon, could be dangerous to life. Though, injuries suffered by
brother-in-law of the complainant, namely Surender Singh were found
to be simple caused by blunt weapon, but injuries suffered by the
complainant Narender Singh were opined to be grievous as well as
simple caused by with sharp edged weapon. After having completed
necessary codal formalities, police lodged the FIR and started
investigation and ultimately, presented the challan in the Court of
learned Additional Chief Judicial Magistrate, Nurpur, which further
committed the case to learned Additional Sessions Judge, Kangra at
Dharamshala for trial. Learned Additional Sessions Judge being
satisfied that prima facie case exists against the accused named in
the FIR, charged them under sections 147,148, 326 and 307 read
with Section 149 IPC, to which they pleaded not guilty and claimed
trial.
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3. Prosecution with a view to prove its case examined as
many as 15 witnesses. Accused in their statements recorded under
sections 313 Cr.P.C., denied the case of the prosecution in toto and
claimed themselves to be innocent. To prove their innocence, all the
accused entered upon their defence and examined person namely,
Sham Sunder, Jr. Assistant, HRTC Pathankot (DW-1), who deposed
that accused Prem Singh was present in the office of HRTC workshop
Pathankot on 8.11.2000 between 10.00 am to 6.00 pm vide certificate
Ex. DW1/A.
4. Learned Additional Sessions Judge-I, Kangra at
Dharamshala, Himachal Pradesh on the basis of the pleadings as well
as evidence adduced on record by the respective party held accused
namely Som Singh and Narender Singh guilty of their having
committed offence punishable under section 307 IPC and accordingly
convicted and sentenced them to undergo rigorous imprisonment for
a period of three years and pay fine to the tune of Rs. 20,000/- each.
However, afore Court vide impugned judgment, proceeded to acquit
other accused, namely Bachan Singh, Kewal Singh and Prem Singh
on the ground that no cogent and convincing evidence has been
adduced on record to prove the charge framed against them. In the
aforesaid background, accused have approached this Court in the
instant appeal, praying therein for their acquittal after setting aside the
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judgment of conviction and order of sentence recorded by Court
below.
5. Precisely, the grouse of the appellants-accused as has
been highlighted in the grounds of appeal and further canvassed by
Mr. Rajnish Maniktala, learned Senior counsel representing the
appellants-accused, is that Court below has failed to appreciate the
evidence adduced on record by the prosecution in its right
perspective, as a result thereof, findings contrary to the record have
come to fore to the detriment of the accused, who are otherwise
innocent. Mr. Maniktala, while making this Court peruse the evidence
adduced on record, especially the charge framed against the
accused, vehemently argued that suspicion cannot take the place of
proof beyond reasonable doubt. He submitted that the story, as has
been propounded by the prosecution, casts a grave suspicion on its
authenticity. He submitted that the prosecution has to prove its case
beyond any reasonable doubt and suspicion cannot replace the
requirement of proof, but in the case at hand, Court below without
there being cogent and convincing evidence and merely taking note
of prior animosity interse parties to the dispute, proceeded to hold
appellants-accused guilty of their having committed offence
punishable under Section 307 IPC. He further submitted that recovery
of weapons of offence alleged to have been committed by the
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accused under Section 27 of the Indian Evidence Act ( for short
‘Act’) in the case at hand is doubtful because recovery of weapons
allegedly used by the accused never came to be effected in
accordance with the provision of Section 27 of the Act, which provides
that statement of accused recorded by the police Officer under
Section 27 of the Act is inadmissible in evidence and only the part
leading to the discovery of fact or discovery of weapon of offence,
consequent to disclosure statement, is admissible. He submitted that
since aforesaid procedure, as provided under Section 27 of the Act,
never came to be followed in the case of the accused, recovery, if
any, being non-est in the eyes of law could not have been taken into
consideration by the Court below, while holding accused guilty of their
having committed the offence punishable under Section 307 IPC. He
submitted that perusal of the evidence adduced on record, clearly
suggests that the disclosure statement was recorded by the
Investigating Officer in the presence of PW-10, Head Constable Hans
Raj. He submitted that it has come on record that police Station,
Nurpur is located within the town itself, but Investigating Officer never
called any independent witness. He submitted that second witness to
the disclosure statement namely, Kalyan Singh never came to be
cited as witness by the prosecution. While referring to the statement
made by the Investigating Officer, who allegedly had effected the
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recovery in terms of Section 27 of the Act, Mr. Maniktala, further
argued that he ought to have narrated the sequences of events that
led to the recording of the disclosure statement, while getting his
statement recorded in the trial Court because in the absence thereof,
disclosure statement does not fulfill the requirement of law and cannot
be relied upon. He submitted that in the present case, there are two
witnesses with respect to the recovery. Head Constable Yashpal, who
never was the witness to the disclosure statement is one such
witness, whereas other witnesses namely, Subhash and Kulwant had
also singed the recovery memo Ex. PW1/A. He submitted that
recovery was effected after one week from the date of arrest. As per
the version put forth by the prosecution witnesses, recovery was
effected from the bushes, which happens to be an open place.
Second witness examined by the prosecution PW-1, Subhash Singh
was turned hostile and he specifically denied that any recovery of
weapons of offence was effected before him. He submitted that
another witness cited by the prosecution i.e. Kulwant Singh never
came to be examined. Version put forth by Head Constable Yashpal,
who was never witness to the disclosure statement, could not have
been taken into consideration, especially when such version of his
was contradicted by another prosecution witness Subhash Singh. He
further submitted that no cogent and convincing explanation ever
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came to be rendered on record by the Investigating Agency for non-
production of independent witnesses from the area. To substantiate
his aforesaid arguments, Mr. Maniktala, placed heavy reliance upon
judgment passed by Hon’ble Apex Court in Harjit Singh and others
v. State of Punjab, (2002)6 SCC 739, wherein it has been held as
under:-
“50. Apart from the version of eyewitnesses discussed above, the
trial court attached importance to the fact that on a disclosure
statement of accused Satinderpal Singh, pistol alleged to have
been used by Inderjit Singh was recovered under memorandum
Ext. P-19. We have referred to the statement of Investigating
Officer Puran Singh (PW 9). He is unable to explain the reason for
not procuring the attendance and signature of independent
witnesses on the disclosure statement Ext. PV and memorandum
of recovery Ext. PU 1. We have noted that these memoranda have
been signed only by two police officers Faqir Chand and Virsa
Singh. It is unbelievable that all the accused persons who have
alleged to use their firearms/weapons kept all the arms concealed
in an open field in a gunny bag under a heap of straw. In the
absence of independent witnesses and the alleged place of
concealment being accessible to the public, the evidence of
disclosure statement and the consequent recovery of arms and
weapons do not at all inspire confidence. In any case, it is not a
piece of evidence which could be relied on by the trial court to
convict the accused by treating it as eyewitness account.”
6. Mr. Maniktala, further argued that it has come in the
investigation that Investigating Officer, PW-14 had not sent the soil/
stones where the blood of the complainant was alleged to have fallen
for serological/chemical examination. He submitted that it is admitted
fact that weapons of offence were also not sent for serological
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examination and such omission, if any, casts serious doubt on the
prosecution story and renders the recovery meaningless. To
substantiate his aforesaid arguments, he placed reliance upon the
judgment passed by Hon’ble Apex Court in State of MP vs. Kriparam
(2003) 12 SCC 675, wherein it has been held as under:-
“9. As noticed above, the prosecution has also relied on certain
recoveries made at the instance of A-1. Firstly, it is stated that the
bloodstained clothes worn by the accused at the time of arrest
were seized by the police. In regard to the place from where these
were seized, there is contradiction as to whether it was taken off
from the person of A-1 or was taken from a place where the
clothes were kept in his house. Be that it may, the prosecution
case is that these clothes were bloodstained though washed, still
the stains were visible hence were sent to chemical examination
which has established the stains were of blood. Therefore the
same was sent to serologist who opined that he could not give an
opinion as to the origin of the blood meaning thereby that the
bloodstain that was noticed by him on the clothes cannot be said
to be that of human origin. In such situation this circumstance of
recovery of bloodstained clothes will be of no assistance to the
prosecution.
10. Similar is the case in regard to recovery of an axe. In regard to
this, witnesses for the recovery say, they found a small stain of
blood on it. The serologist in regard to this blood also states that it
is not possible to find out the origin of the same. Therefore, even
this recovery would not in any manner help the prosecution in this
case. Even otherwise, if the prosecution case in regard to PWs 1
and 3 is not acceptable then these recoveries by themselves
would not take the prosecution case any further.”
7. Mr. Maniktala, further argued that though discrepancies/
omissions on the part of the Investigating Officer to effect recovery of
weapons allegedly used by the accused in the commission of offence
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and thereafter not sending the soil/stones where allegedly the blood
of the complainant had fallen for serological/ chemical examination
has rendered the story of the prosecution completely doubtful, but
even if aforesaid irregularities/ discrepancies committed by
Investigating Agency are not found to be fatal to the case of the
prosecution before this Court, this Court may not lose sight of the fact
that there is overwhelming evidence adduced on record by the
prosecution itself suggestive of the fact that ownership and
possession of the land for which the untoward incident took place
was of appellants-accused. He submitted that evidence adduced on
record by the prosecution itself suggests that on the date of alleged
incident, accused alongwith other accused named in the FIR had
come on the spot with a view to cultivate their own land but
complainant alongwith other persons namely, Sanjeevan and
Narender Singh not only unauthorizedly entered the land of the
accused, but also attempted to harm them. He submitted that FIR Ex.
PW8/A was lodged by the complainant Narender Singh and according
to him they had a land dispute with the accused and the accused
entered the disputed land proclaiming that they will cultivate the land.
While referring to Ex. D-4 i.e. judgment rendered by learned Sessions
Judge, Kangra at Dharamshala, wherein FIR no. 58 dated 18.04.2000
under sections 323, 324, 307 and 34 IPC was lodged by the
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complainant against the family members of the accused, Mr.
Maniktala, strenuously argued that in earlier criminal case registered
against the appellant-accused by the complainant party, complainant
party was found to be aggressor, who had allegedly entered the land
of the accused and in turn, accused alongwith other family members
exercised the right of private defence. He submitted that in the
previous case registered against the accused as well as family
members, they were not only acquitted, but a specific finding with
regard to complainant party being aggressor was also recorded. He
submitted that complainant and his family had filed a suit for
declaration and permanent prohibitory injunction against the accused
family claiming therein that they were owners in possession of land
comprised Khasra No.1019, alleging therein that defendants i.e
accused entered the suit land on 18.04.2000 armed with weapons
and tried to take forcible possession, but such claim of them was
negated. He submitted that afore date i.e. 18.04.2000 is also subject
matter of the incident recorded by learned Sessions Judge in
judgment dated 18.12.2002, Ex. DW-4. He submitted that appellants-
accused, who were defendants in the suit filed by the complainant
party, claimed in the aforesaid suit that they had purchased the said
land and they were owners in possession thereof. They also filed a
counterclaim seeking therein relief of permanent prohibitory injunction
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against the plaintiffs/claimants and the leaned Court after perusing the
record found appellant/ accused to be owner in possession of Khasra
No.1019 and accordingly, restrained the complainant from interfering
in the suit land. While referring to the statement given by prosecution
witness PW-4, Sanjeevan, Mr. Maniktala, argued that person, namely
Sanjeevan, who allegedly suffered injuries, admitted that earlier
incident of fight had taken place on the same land, but mistakenly
referred the land as Khasra No.1018. While referring to his cross-
examination, learned Senior counsel representing the accused
submitted that afore witness admitted that he did not disclose Khasra
number of the land in dispute to the police. While referring to
statement made by PW-5, Narender Kumar, Mr. Maniktala, further
submitted that afore witness admitted that he had not disclosed
Khasra number of the land where fight had taken place to the police.
While making this Court peruse statement given by afore witnesses,
Mr. Maniktala, strenuously argued that clear cut attempt came to be
made by the prosecution to conceal the factum of acquittal of the
accused in the criminal case registered against them in past at the
behest of the complainant. While referring to the statement of PW-13
Surinder Singh, wherein he admitted that Court had found the
possession of the accused over the land where the quarrel had taken
place, Mr. Maniktala contended that it is apparent from the record that
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on the date of alleged incident, accused alongwith other family
members had come on the spot to cultivate their land, but
complainant party arrived on the spot with an intention to cause harm
to the accused, who in turn, exercised their right of private defence.
While referring to statement of PW-14, Investigating Officer, wherein
he admitted that he did not seek the jamabandi of the land over which
the fight had taken place, Mr. Maniktala, further argued that once on
the basis of the evidence adduced on record by the prosecution, it
stood proved that alleged incident had taken place interse appellant-
accused and complainant party on the land in possession of the
accused qua which, they were declared to be owner by the competent
court of law, Court below, while holding appellant accused guilty of
their having committed offence under relevant provision of law, could
not have ignored aforesaid material aspect, rather should have
inferred accused to have exercised right of their private defence,
wherein they with a view to protect themselves could resist action of
opposite party, who in the event of not being stopped, would have
caused serious harm to them. He submitted that defence of protection
of possession of land in the ownership of accused is probablized on
the facts of the case, but such aspect of the matter has been
conveniently ignored by learned Additional Sessions Judge, while
passing the impugned judgment. He submitted that it has come in the
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evidence that accused Narender also suffered an injury on the
occipital region (head), but such injury never came to be explained by
the prosecution. While referring to the statement of PW-15, wherein
factum of injury to Narender in the alleged incident also came to fore,
Mr. Maniktala, submitted the prosecution must prove the case beyond
reasonable doubt and the accused is only to discharge the burden of
proof of acting in its private defence by preponderance of
probabilities. He submitted that accused and their families were not
only in possession of the disputed land, but they also specifically
proved their ownership, if it is so, they were entitled to protect the
possession and cannot be called as aggressors, rather complainant
party being aggressors, who had no right to enter the land, ought to
have been declared aggressors. In support of his aforesaid
contention, he placed reliance upon judgment passed by Hon’ble
Apex Court in case titled Vajrapu Sambayya Naidu and others v.
State of A.P. and others, (2004) 10 SCC 152,wherein it has been
held as under:-
“19. Once it is held that it was the defence party which was in
possession of the land in question, the complexion of the
entire case changes because in such event the appellants
cannot be held to be the aggressors. In fact, the trial court
also found that the appellants were only defending their
possession against the deceased and his family members.
The defence case is, therefore, probabilised, that they were
defending their possession when members of the prosecution
party sought to dispossess them by use of force. It was not
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clear evidence on record, that three of the appellants, namely,
A-2, A-9 and A-12 also received injuries in the same incident
and they were also got medically examined by the
investigating officer the same day. It was found that they had
also suffered several injuries caused by sharp-cutting
weapons. These injuries have not been explained by the
prosecution, which further probabilises the case of the
defence that the prosecution party was the aggressor. If the
defence party was in possession of the land in question, there
was really no reason for it to commit the aggression, and if at
all, it was the prosecution party which could have attempted
to dispossess the appellants herein by use of force.
20. The trial court came to the conclusion that the members of
the defence party though had a right of private defence of
property, they had exceeded that right by causing injuries
which ultimately resulted in the death of one of the members
of the prosecution party. This was on the assumption that the
members of the defence party had only a right of private
defence of property, which did not entitle them to cause the
death of any person in the exercise of that right. But the facts
of this case disclose that when they sought to exercise their
right of private defence of property, they were attacked by the
members of the prosecution party and three of them suffered
incised wounds. The case of the defence in this regard
appears to be probable and therefore though initially the
appellants had only the right of private defence of property,
once the members of the prosecution party started an assault
on them with sharp-cutting weapons, that gave rise to the
right of private defence of person as well. Since in the
circumstances, they must have apprehended that at least
grievous injury may be caused to them, if not death, they were
certainly entitled to use reasonable force to resist the
members of the prosecution party and their right of private
defence extended to causing death of any of the aggressors if
that became necessary. Unfortunately, the courts below have
not viewed the case from this angle. We are of the view that
the appellants were entitled to exercise their right of private
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circumstances of the case.
21. Even assuming that the right of private defence of persons
did not accrue to the appellants and that, in fact, they
exceeded their right of private defence of property, it has to be
seen as to which of the accused exceeded that right. It is well
settled that in a case where the court comes to the conclusion
that the members of the defence party exceeded the right of
private defence, the court must identify and punish only those
who have exceeded the right. Sections 34/149 IPC will not be
applicable in the case of persons exercising their right of
private defence. (See State of Bihar v. Nathu Pandey [(1969) 2
SCC 207 : (1970) 1 SCR 358] and Subramani v. State of
T.N. [(2002) 7 SCC 210 : 2002 SCC (Cri) 1659] ) For the same
reason, the appellants cannot be held guilty of the offence
under Section 148 IPC, because nothing is an offence which is
done in the exercise of the right of private defence.”
8. Lastly, Mr. Maniktala, argued that no cogent and
convincing evidence ever came to be adduced on record by the
prosecution that appellant-accused had an intention to inflict injuries
upon the person of complainant and other injured persons, which
could be dangerous to their lives. He submitted that bare perusal of
the facts of the case clearly reveals that there was land dispute
between the parties and complainant party claiming themselves to be
the owner in possession of the land entered the land qua which
accused and his family stood declared owner in possession by the
competent court of law. He submitted that once it had come on record
that said land was in the ownership and possession of the accused
party (Ex. D4 and Ex. D6), prosecution story that the accused party
came to dispossess the complainant party by cultivating the same
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ought to have been rejected being completely false. He submitted that
the facts of the case as put forth by him clearly strengthen the
defence case which probabilises their right to protect their property by
exercising the right of self defence. He submitted that there was no
intention to inflict such injury which, in ordinary case, would have
caused death and as such, conviction under sections 307 IPC cannot
be sustained. While making this Court apprise factum of compromise
arrived between parties, coupled with the fact that incident had taken
place 24 years back, Mr. Maniktala further argued that though case at
hand is a case of acquittal, but in case this Court does not find merit
in the contention raised on behalf of the appellant-accused, prayer
made on their behalf for granting benefit of probation under sections 4
of the Probation of Offenders Act ( for short ‘Act’) or Section 360
Cr.P.C may be accepted, especially when there is no cogent and
convincing evidence to convict accused under section 307 of IPC. He
submitted that though evidence adduced on record casts serious
doubt about the correctness of the story put forth by the prosecution,
but even if, version put forth by the complainant and other prosecution
witnesses is taken to be correct, offence, if any, under sections 323
and 325 can be said to have been committed by the accused and in
that eventuality, this Court having taken note of the fact that parties to
the dispute at one point of time had approached this Court by way of
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Cr.MMO No.14 of 2018,seeking therein quashment of FIR and in that
case, complaint had specifically stated before this Court factum of
compromise arrived interse them and the accused as well as their no
objection for quashing of the FIR lodged at their behest. He
submitted that since parties, after their having entered into the
compromise, are living happily and they have no grudge against each
other, coupled with the fact the accused are suffering continuously for
more than 24 years on account of pendency of criminal case
registered against them, this Court may proceed to consider the
prayer made on behalf o of the accused for grant of benefit of Section
4 of the Act after setting aside the judgment of conviction and order of
sentence recorded under Section 307 IPC.
9. To the contrary, Mr. Rajan Kahol, learned Additional
Advocate General, while supporting the impugned judgment of
conviction and order of sentence recorded by learned Court below,
vehemently argued that there is no scope of interference. He
submitted that there is overwhelming evidence adduced on record by
the prosecution suggestive of the fact that on the date of alleged
incident accused alongwith other family members not only
unauthorizedly entered the land in possession of the complainant
party, but also gave them merciless beatings. While referring to the
statements made by material prosecution witnesses, learned
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Additional Advocate General submitted that once it stands established
on record that accused had come on the spot with deadly weapons
with an intention to kill the complainant as well as other persons
namely, Sanjeevan and Narender, they rightly came to be convicted
under Section 307 IPC. While refuting the submissions made by Mr.
Maniktala, learned Senior counsel representing the accused with
regard to non-adherence of procedure as contained under Section 27
of the Evidence Act by the Investigating Agency while effecting
recovery, learned Additional Advocate General argued that though
bare perusal of the evidence adduced on record nowhere indicates
illegality, if any, committed by prosecution while effecting recovery,
rather same stands duly proved in accordance with law, but even if it
is presumed that recovery was not effected in accordance with law,
such fact may not be of much relevance for the reason that factum of
quarrel on the date of alleged incident as well as injuries suffered by
the complainant as well as other victim/injured is not in dispute, rather
such fact stands duly established on record. By referring to cross-
examination conducted by defence upon the prosecution witnesses.
Mr. Kahol, strenuously, argued that at no point of time suggestion,
worth the name, ever came to be put forth to the prosecution
witnesses with regard to non- adherence of the procedure adopted by
the Investigating Agency, while effecting the recovery. He submitted
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that pattern of prosecution itself suggests that factum of dispute on
the date of alleged incident as well as alleged beatings given by the
accused as well as their associates never came to be disputed, rather
attempt came to be made on behalf of the accused that they inflicted
injuries to protect their possession of land and their people. He
submitted that even if it is presumed that appellants-accused were
owner in possession of the land in question, they had no right
whatsoever to give merciless beatings to the complainant as well as
other victim/injured. While referring to MLCs adduced on record, Mr.
Kahol, strenuously argued that nature of the injuries suffered by the
complainant as well as other injured/victim, clearly reveals that those
were caused by sharp edged weapon and in case complainant and
other injured were not brought to the hospital, well within time, they
would have died on account of the injuries suffered by them. He
further submitted that very factum of carrying deadly weapons by the
accused as well as their associates at the time of alleged incident
itself suggest that they had come on the spot with an intention to kill
the complainant as well as his associates, which fact stands duly
corroborated with the placing on record MLCs suggestive of the fact
that injuries suffered by the accused could have been dangerous to
their lives. Mr. Kahol, further submitted that once factum with regard
to injuries suffered by the complainant as well as other victim/injured
22
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never came to be seriously disputed by the accused, rather those
were duly proved in accordance with law by leading cogent and
convincing evidence in the shape of medical certificate, plea raised by
learned Senior counsel with regard to chemical/serological
examination of the blood collected from the soil/stones by the
Investigating Agency and weapons of offence may not be of any
consequences, rather same deserves to be ignored being totally
inconsequential.
10. While responding to the submission made by learned
Senior counsel representing the accused with regard to discrepancies
in the statements of prosecution witnesses with respect to ownership
and possession of the land, for which incident allegedly took place,
Mr. Kahol, submitted that even if it is presumed that land upon which
alleged incident took place was in the possession of the accused,
they had no right whatsoever to attack complainant as well as other
victim/injured, who had been claiming themselves to be owner in
possession of the land in dispute. Learned Additional Advocate
General submitted that though there is nothing to suggest that
complainant party were aggressors, but even this Court presumed
them to be aggressors, nature of the injuries inflicted upon person of
the complainant as well as victim/injured nowhere suggest that the
accused exercised their right of defence because in that eventuality,
23
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they would have not caused injuries, which could be dangerous to the
life of the complainant as well as his associates, rather in that
eventuality, they would have caused such injury to the complainant’s
associates being aggressors, which could be sufficient to cause their
ouster from the spot of the dispute. Lastly, learned Additional
Advocate General, while fairly acknowledging factum with regard to
compromise arrived interse parties, at one point of time submitted that
compromise, if any, arrived interse parties before recording judgment
of conviction and order of sentence may not be of much relevance
and this Court having taken note of the nature of the injury suffered by
the petitioner, coupled with the evidence adduced on record,
suggestive of the fact that accused had come on the spot with an
intention to kill the complainant party, may not proceed to accept the
prayer made on behalf of the accused to grant them benefit of
Section 4 of the Act, especially when they stand convicted under
Section 307 of IPC.
11. Having heard learned counsel representing the parties
and perused material available on record, this Court though is not
persuaded to agree with Mr. Maniktala, learned Senior counsel
representing the appellant-accused, that prosecution failed to prove
beyond reasonable doubt that on the date of alleged incident no
incident, as came to be reported vide FIR Ex.PH had actually
24
2024:HHC:11456
happened, rather evidence adduced on record by the prosecution
clearly proves factum of quarrel interse complainant party and
accused as well as grevious injuries suffered by the accused in the
alleged incident on the given date. However, having taken note of the
evidence adduced on record by prosecution in its entirety, this Court
finds merit in the submissions of learned Senior counsel representing
the accused that Court below erred in concluding that accused
alongwith other co-accused had come on the spot armed with deadly
weapons with an intention to inflict such bodily injuries to the
complainant as well as other victim/injured, which could be dangerous
to their lives, if it is so, admittedly accused could not have been
convicted under Section 307 IPC.
12. Admittedly, in the case at hand, there is overwhelming
evidence adduced on record by the prosecution suggestive of the fact
that on the date of alleged incident quarrel had taken place interse
complainant party and accused on account of boundary dispute. As
per prosecution case, on the given date, complainant Narender
alongwith his younger brother Sanjeevan and his brother-in-law
Kuldeep was sitting at his home at the time of incident, but in the
meantime, accused reached on the land of dispute riding tractor.
Since accused proclaimed to cultivate the Abadi deh land, which was
allegedly claimed to be in possession of complainant party,
25
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complainant party objected to the cultivation by the accused and in
that process some altercation took place interse complainant party
and the accused. Allegedly, accused namely Som Singh and
Narender Singh both sons of Sh. Sardari Lal, who at that relevant
time were carrying deadly weapons i.e. sword and darat etc. inflicted
injury on the heads of complainant Narender and victim/injured
Sanjeevan, as a result thereof, they both suffered grevious injuries.
As per MLCs adduced on record, which subsequently came to be
proved by PW-2, T.K. Raoy, PW-3, Dr. Ashotosh Joshi, PW-11, Dr.
Ritesh Kumar Soni and PW-15, Dr. Anil Ohri, injuries suffered upon
the head of victim/injured Sanjeevan were opined to be grevious
caused by sharp edged weapon. Afore witnesses while rendering
aforesaid opinion categorically opined that injuries caused upon the
head of victim/injured Sanjeevan could be dangerous to life. Though,
injury suffered by complainant Narender was found to be grevious,
but not dangerous to life. Injuries suffered by another victim/injured
Kuldeep were opined to be simple in nature. Though, allegation was
made against other accused persons, namely Bachan Singh, Kewal
Singh and Prem Singh, who had allegedly come with accused Som
Singh and Narender Singh on the given date were also carrying
dandas/sticks in their hands and they had also given beatings to the
complainant party, but since no cogent and convincing evidence ever
26
2024:HHC:11456
came to be adduced on record against them, they were acquitted.
Interestingly, in the case at hand, accused came to be charged under
Sections 147, 148, 326 and 307 read with Section 149 IPC. To prove
aforesaid charge, prosecution placed heavy reliance upon the
statements made by PW-4, Sanjeevan Singh, PW-5, Narender Singh
and PW-7, Kuldeep Singh, they in unison stated that on the date of
alleged incident, while they were sitting in their home, accused Som
Singh and Narender Singh sons of Sardari Lal, Prem Singh, Kewal
Singh and Bachan Singh alongwith other persons came on the tractor
being driven by one boy from Talada over their land and started
proclaiming to cultivate the Abadi land, but when they were objected,
person namely Som Singh alighted from the tractor, who at the
relevant time was carrying talwar in his hand, gave blow of talwar on
the head of Sanjeevan, whereas accused Narender Singh, who was
carrying darat gave blow of darat on the head of complainant
Narender Singh as well as his brother-in-law Surender Singh and they
all suffered injuries. Interestingly, no evidence, worth credence, ever
came to be adduced on record with a view to prove charge of unlawful
assembly, if any, formed by the accused, named in the FIR, at the
time of the alleged incident. No doubt, as per story of the prosecution,
all the appellants/accused came on the spot on the given date, but if
evidence adduced on record, is read in its entirety, it clearly suggest
27
2024:HHC:11456
that accused, claiming themselves to be owner in possession of the
land, reached/arrived on the land in dispute and started proclaiming
that they would cultivate the same. All the prosecution witnesses in
unison deposed that accused alongwith other co-accused, named in
the FIR, after their having arrived on the land in dispute started
claiming themselves to be owner of the land. If the aforesaid version
put forth by the prosecution witnesses are taken into consideration
alongwith documentary evidence adduced on record by the accused,
this Court is persuaded to agree with learned Senior counsel
representing the accused that once accused were declared lawful
owners of the land in dispute by the competent court of law and
complainant party was restrained permanently from interfering with
the possession of the accused, coupled with the fact that at the time
of alleged dispute accused had started proclaiming to cultivate the
land being owner of the land, they could not have said to have formed
unlawful assembly.
13. Section 141 of IPC, which defines unlawful assembly,
provides that an assembly of five or more persons is designated as
“unlawful assembly”, if the common object of the persons composing
that assembly is to overawe by criminal force to resist the execution of
any law, or of any legal process; or to commit any mischief or criminal
trespass, or other offence; or by means of criminal force, or show of
28
2024:HHC:11456
criminal force, to any person to take or obtain possession of any
property, or to deprive any person of the enjoyment of a right of way,
or of the use of water or by means of criminal force, or show of
criminal force, to compel any person to do what he is not legally
bound to do, or to omit to do what he is legally entitled to do.
14. No doubt, as per explanation given below aforesaid
provision of law, an assembly which was not unlawful when it
assembled, may subsequently become an unlawful assembly,
but to prove charge of unlawful assembly, it is also required to
prove that members of unlawful assembly had common object to
overawe by criminal force or show of criminal force to resist the
execution of any law or to commit any mischief or criminal
trespass or take or obtain possession of any property, or to
deprive any person of the enjoyment of a right of way
15. In the case at hand, when there is overwhelming
evidence adduced on record that on the date of alleged incident
accused stood declared lawful owner of the land upon which
alleged incident had taken place, coupled with the fact that
dispute had allegedly taken place interse parties on account of
ownership, trial Court could not have concluded that accused
after having formed unlawful assembly reached on the spot of
29
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dispute with common object to obtain possession of the property
by using criminal force. As has been observed hereinabove,
evidence adduced on record by the prosecution itself suggest
that in past dispute qua land in dispute had taken place in the
year, 2020 and thereafter, FIR No. 58 of 2000 was registered
against the appellants/accused, but in such proceedings,
complainant party was held to be aggressor and Court, while
acquitting accused in afore case had specifically returned finding
that land in question, i.e Khasra 1019, which is subject matter of
the present FIR, is owned and possessed by appellants/
accused.
16. It is also not in dispute that in previous FIR lodged at
the behest of the complainant party, appellants/accused stand
acquitted. It is also not in dispute that though complainant party
filed civil suit claiming themselves to be owner in possession of
the land in dispute comprised Khasra No.1019, but in the counter
claim filed by the appellants/accused, seeking decree of
permanent prohibitory injunction, order came to be passed
thereby restraining the complainant party to interfere in the lawful
possession and ownership of the accused qua the land in
question.
30
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17. In view of above, it cannot be said that on the date of
alleged incident accused had arrived on the spot of the disputed
land with an intention and object to oust the complainant party
from their legal possession, rather they being lawful owner of the
land in dispute arrived on the spot with an intention to cultivate
the same, but before further action could be taken by them
dispute arose interse parties, which took an ugly turn. Having
taken note of aforesaid factum of ownership and possession of
the accused qua the land on which alleged quarrel took place
interse parties, this Court is further persuaded to agree with
learned Senior counsel representing the accused that by no
stretch of imagination, accused could be held to be aggressors,
rather they being lawful owner of the land upon which quarrel
took place were well within their rights to protect their
possession. Since allegedly complainant party after having seen
arrival of the accused on the land of the dispute objected to their
action of cultivating the land, coupled with the fact that one of the
accused Narender Singh also suffered injuries, there appears to
be merit in the contention of learned counsel for the
appellants/accused that injuries, if any, inflicted upon the person
of compliant as well as the victim/injured were on account of self
31
2024:HHC:11456
defence exercised by the accused to protect their property as
well as persons. However, having regard to the nature of the
injuries, coupled with the weapons allegedly used by accused,
while inflicting injuries upon the complainant as well as other
victim/injured, this Court has no hesitation to conclude that
accused acceded their right of defence because, while
exercising right of private defence as enshrined under Section
97, appellant/accused ought not have inflicted such injures on
the person of the complainant as well as other victim/injured,
which could be dangerous to their lives, but in such like situation,
they would have used that much power, which could be sufficient
to cause ouster of the complainant party from the land in dispute
as well as to protect themselves from the attack, if any, caused
by the complainant party.
18. Though, Mr. Rajnish Maniktala, learned Senior
counsel representing the appellants/accused, made serious
attempt to persuade this Court to agree with his contention that
on account of non-compliance of procedure laid down under
Section 27 of the Evidence Act with regard to recovery as well as
inaction of investigating agency to send blood collected from the
soil and stones as well as weapon of offence for
32
2024:HHC:11456
serological/chemical examination is fatal to the case of the
prosecution, but this Court in given facts and circumstances of
the case, where factum of alleged quarrel/fight interse parties as
well as infliction of injuries on the person of the complainant as
well as other victim/injured is not in dispute, rather stands duly
proved, is in full agreement with Mr. Rajan Kahol, learned
Additional Advocate General that omission, if any, on the part of
investigating agency to prove recovery in terms of Section 27 of
the Indian Evidence Act and non-sending of the blood from
soil/stones as well as weapon collected by the Investigating
Officer for serological examination, is of no consequence and
such defence put forth by the appellant/accused may not be
sufficient to conclude their acquittal from the offence alleged to
have been committed by them. If the entire defence put forth by
the accused is taken into consideration, at no point of time they
disputed factum of quarrel that took place interse them and
complainant party on the given date. They also did not dispute
factum with regard to complainant party having suffered injuries
in the alleged incident, rather pattern of cross-examination
conducted upon prosecution witnesses, clearly establishes
factum of quarrel, which took place interse complainant party
33
2024:HHC:11456
and the accused on the given date. Moreover, as has been
discussed in detail hereinabove, serious attempt came to be
made at the behest of the accused that injures, if any, caused by
the accused to the complainant party was in exercise of self
defence, which they were compelled to exercise to protect their
property and persons, if it is so, argument of non-compliance of
Section 27 of the Indian Evidence Act, as well as non-sending
the sample of blood soil/stone for serological examination may
not be of any help to the case of the accused, who admittedly
were not only party to the quarrel, but also inflicted grevious
injuries on the person of complainant as well as victim/injured.
However, having taken note of evidence adduced on record by
the accused with regard to their being declared owner of the
land in possession by the competent court of law as well as their
acquittal in criminal case registered against them in past by the
complainant party qua the incident which had taken place interse
complainant party and accused over the same piece of land i.e
Khasra No.1018, this Court is persuaded to agree with learned
counsel representing the accused that learned trial Court failed
to appreciate the evidence in its right perspective inasmuch as
commission of offence, if any, by the accused under Section 307
34
2024:HHC:11456
IPC is concerned. Since it stands duly proved on record that land
qua which dispute arose interse parties, was in possession of the
accused and they had come on the spot to cultivate the same,
coupled with the fact that complainant party objected to
cultivation of the land, which was in the possession of the
accused, Court below after having analyzed the evidence in its
totality led on record by the respective parties, ought to have
inferred exercise of right of self defence by the accused as
enshrined under Section 97. No doubt, evidence adduced on
record suggest that at the time of alleged incident accused were
armed with deadly weapons i.e. sword, darat and dandas etc.,
but if story of prosecution with regard to recovery of aforesaid
deadly weapons allegedly used by the accused is taken into
consideration, this Court is persuaded to agree with learned
counsel for the accused that once recovery of deadly weapons
allegedly used by the accused on the date of alleged incident
was not proved in accordance with law, very factum of use of
deadly weapons, if any, by the accused at the time of
commission of offence becomes doubtful. Needless to say,
statement of the accused recorded by the police officer under
Section 27 of the Indian Evidence Act is inadmissible in evidence
35
2024:HHC:11456
and only the part leading to the discovery of fact or discovery of
weapon of offence consequent to disclosure statement is
admissible. When the accused in police custody offers to make a
voluntary statement which might lead to discovery of weapon of
offence, it is incumbent upon the investigating officer to call for
two independent witnesses in the police station and it is only in
their presence that the Investigating Officer is expected to ask
accused to make statement. As per settled law, statement made
by the accused before two independent witnesses should be
recorded word to word in first part of panchnama and is to be
signed by the witnesses and thereafter the police party alongwith
these two independent witnesses and accused proceed to the
place disclosed by the accused and if the weapon of offence is
discovered, it is to be recorded in the second part of the
panchnama. In the absence of the aforesaid requirements of
Section 27 of the Evidence Act, the recovery becomes non-est in
the eyes of law. At this stage, it would be profitable to take note
of judgment passed by Hon’ble Apex Court in 2024 SCC Online
SC 561, which reads as under:-
“61. The statement of an accused recorded by a
police officer under Section 27 of the Evidence Act
is basically a memorandum of confession of the
36
2024:HHC:11456accused recorded by the investigating officer during
interrogation which has been taken down in writing.
The confessional part of such statement is
inadmissible and only the part which distinctly leads
to discovery of fact is admissible in evidence as laid
down by this Court in State of U.P. v. Deoman
Upadhyaya [State of U.P. v. Deoman Upadhyaya,
1960 SCC OnLine SC 8 : AIR 1960 SC 1125].”
62. Thus, when the investigating officer steps into the
witness box for proving such disclosure statement, he
would be required to narrate what the accused stated to
him. The investigating officer essentially testifies about
the conversation held between himself and the accused
which has been taken down into writing leading to the
discovery of incriminating fact(s).
61. The statement of an accused recorded by a police
officer under Section 27 of the Evidence Act is basically
a memorandum of confession of the accused recorded
by the investigating officer during interrogation which has
been taken down in writing. The confessional part of
such statement is inadmissible and only the part which
distinctly leads to discovery of fact is admissible in
evidence as laid down by this Court in State of
U.P. v. Deoman Upadhyaya [State of U.P. v. Deoman
Upadhyaya, 1960 SCC OnLine SC 8 : AIR 1960 SC
1125] .
66. Further, in Subramanya v. State of Karnata-
ka [Subramanya v. State of Karnataka, (2023) 11 SCC
255] , it was held as under :
78. If, it is say of the investigating officer that the appel-
lant-accused while in custody on his own free will and vo-
lition made a statement that he would lead to the place
where he had hidden the weapon of offence, the site of
burial of the dead body, clothes, etc. then the first thing
37
2024:HHC:11456
that the investigating officer should have done was to call
for two independent witnesses at the police station itself.
Once the two independent witnesses would arrive at the
police station thereafter in their presence the accused
should be asked to make an appropriate statement as he
may desire in regard to pointing out the place where he
is said to have hidden the weapon of offence, etc. When
the accused while in custody makes such statement be-
fore the two independent witnesses (panch witnesses)
the exact statement or rather the exact words uttered by
the accused should be incorporated in the first part of the
panchnama that the investigating officer may draw in ac-
cordance with law. This first part of the panchnama for
the purpose of Section 27 of the Evidence Act is always
drawn at the police station in the presence of the inde-
pendent witnesses so as to lend credence that a particu-
lar statement was made by the accused expressing his
willingness on his own free will and volition to point out
the place where the weapon of offence or any other ar-
ticle used in the commission of the offence had been
hidden. Once the first part of the panchnama is com-
pleted thereafter the police party along with the accused
and the two independent witnesses (panch witnesses)
would proceed to the particular place as may be led by
the accused. If from that particular place anything like the
weapon of offence or bloodstained clothes or any other
article is discovered then that part of the entire process
would form the second part of the panchnama. This is
how the law expects the investigating officer to draw the
discovery panchnama as contemplated under Section 27
of the Evidence Act. If we read the entire oral evidence of
the investigating officer then it is clear that the same is
deficient in all the aforesaid relevant aspects of the mat-
ter.”
19. Admittedly, in the case at hand, disclosure statement was
recorded by the Investigating Officer in the presence of PW-10, HC
Hans Raj and Kalyan Singh. Interestingly, afore Kalyan Singh was not
cited as witness by the prosecution. It is also not in dispute that
disclosure statement was never recorded in the presence of
independent witnesses, which was otherwise required as per the
38
2024:HHC:11456
mandate of section 27 of the Evidence Act. The requirement of law
that Investigating Officer, while giving statement in the Court, is
required to narrate the sequence of events that led to recording of the
disclosure statement. However, if the statement of the Investigating
Officer is read in its entirety, he nowhere narrated sequences of
events which led to recording of the disclosure statement.
20. In the present case, there are two independent witnesses
with respect to the recovery, HC Yash Pal, who was never the witness
to the disclosure statement. He stated that other witness i.e. Subhash
had also signed the recovery memo Ex. PW1/A. As per aforesaid
witness, recovery was effected after one week from the date of arrest.
He also stated that recovery was effected from the bushes which
happen to be an open place. Interestingly, second witness examined
by the prosecution PW-1, Subhash Singh turned hostile. He
specifically denied that any recovery of weapons of offence was
effected before him.
21. PW-10, HC Hans Raj has been examined to prove
recovery, who allegedly had signed the disclosure statement, but
since no reasons came to be put forth as to why independent
witnesses were not associated even when the police station was
located within Nurpur town, coupled with the fact that weapons
allegedly used by the accused came to be recovered from the bushes
39
2024:HHC:11456
i.e. open place that too after seven days of alleged incident, allegation
of use of deadly weapons by the accused at the time of alleged
incident for inflicting injury on the head of the complainant as well as
other victim/injured deserves to be rejected being wholly doubtful.
22. No doubt, on account of clear cut case with regard to
infliction of injuries on the person of the complainant as well as other
victim/injured on the given date by the accused, non-adherence of
the procedure provided under Section 27 of the Evidence Act for
effecting recovery may not be fatal to the case of the prosecution to
the extent that accused were acquitted of their having committed the
offence punishable under Sections 147,148, 326 read with Section
149 IPC, but certainly such omission may be sufficient for this Court
to agree with the submissions that though injuries were inflicted on
the persons of the complainant as well as victim/injured by the
accused on the given date, but not with the help and aid of the
weapon, which allegedly came to be recovered pursuant to the
statement given by accused under section 27 of the Indian Evidence
Act. Similarly, this Court finds that once it stands duly established on
record that accused had arrived on the land of the dispute being
owner in possession of the same and cultivation of land was objected
by the complainant party, coupled with the fact that no cogent and
convincing evidence ever came to be adduced on record suggestive
40
2024:HHC:11456
of the fact that appellant/accused had arrived on the spot with deadly
weapons with an intention to cause such injuries on the person of the
complainant as well as other injured which could be dangerous to
their lives, Court below ought not have convicted accused under
Section 307 IPC, rather in such situation, they could be at best held
guilty of their having committed offence punishable under Sections
323 and 325 of IPC.
23. No doubt, nobody is entitled to take law in his hand and
as such, this Court though is persuaded to agree with Mr. Rajan
Kahol, learned Additional Advocate General that even if accused are
considered to be owner of the land in question they had no right to
cause injuries to the complainant party being trespassers, but as has
been discussed hereinabove, evidence adduced on record clearly
suggest that in compelling circumstances, accused were compelled
to exercise their right of private defence as enshrined under Section
97, as a result thereof, they with a view to protect their possession as
well as to protect themselves from attack which appears to have been
done upon them as is evident from the injury suffered by one of the
accused Narender Singh, it can be safely concluded that though
injuries were inflicted upon the person of the complainant as well as
victim injured by the appellants/accused, but not with an intention to
cause them such bodily injuries, which could be dangerous to their
41
2024:HHC:11456
lives, but in self defence to protect their property as well as their
persons. Hence, there appears to be reason to interfere with the
findings returned by learned trial Court inasmuch as it proceeded to
hold accused guilty for their having committed the offence punishable
under Section 307 IPC.
24. For the reasons as well as discussion made hereinabove,
this is a fit case where conviction recorded under Section 307 IPC
against the accused deserves to be interfered with and the
appellants/accused deserve to be convicted under Sections 323 and
325 of IPC instead of Section 307 IPC.
25. Consequently, in view of the detailed discussion made
hereinabove as well as law taken into consideration vis-à-vis evidence
adduced on record, judgment of conviction and ordered of sentence
dated 26.03.2009 passed by learned Additional Sessions Judge-I,
Kangra at Dharamshala, Himachal Pradesh in Session Case No.31-
N/2005, is hereby modified and appellants-accused are held guilty of
offence punishable under Sections 323 and 325 Cr.P.C.
26. At this stage, learned Senior counsel representing the
appellants-accused stated that keeping in view the fact that appellants
have been facing the trial for the last 24 years and the fact that the
appellants-accused are not hard core criminals as such, they may be
extended benefit of Probation of Offenders Act. In support of the
42
2024:HHC:11456
aforesaid arguments, learned Senior counsel representing the
appellants-accused also invited the attention of this Court to the
judgment passed by this Hon’ble Court in Yudhbir Singh versus
State of Himachal Pradesh 1998(1)S.L.J. 58, wherein it has been
held as under:
“9. The only mitigating circumstance that
appears to be there is that the time gap of about
six years between the date of occurrence as well
as the date of decision of this revision petitioner.
During this entire period sword of present case
looming over the head of the petitioner was always
there. That being so, this court is of the view that
instead of sending the petitioner to jail as ordered
by the courts below, he is given the benefit of
Section 4 of the Probation of Offenders Act.
Accordingly, it is ordered that he shall furnish
personal bond in the sum of Rs. 5,000/- to the
satisfaction of the trial Court within a period of four
weeks from today to keep peace and to be of good
behavior for a period of one year from the date of
execution of the bond before the court below as
well as not to commit any such offence. In
addition to being given benefit of Section 4 of the
Probation of Offenders Act, petitioner is further
directed to pay a sum of Rs. 3,000/- each to PWs
Baldev Singh and Dilbagh Singh injured as
compensation. Shri R.K. Gautam submitted that
this amount of compensation be deposited with
the trial Court on or before 31.8.1997, who will
thereafter pay the same to said persons.”
27. In this regard, reliance is placed upon Hon’ble
Apex Court judgment Ramesh Kumar @ Babla versus State of
Punjab 2016 AIR (SC) 2858, wherein it has been held as under:
“7. Accordingly the appeal is allowed in part by
converting appellant’s conviction under Section 307 IPC
to one under Section 324 IPC. On the question of
sentence, it is pertinent to note that the occurrence took
place in 1997. In his statement under Section 313 of the
43
2024:HHC:11456code of Criminal Procedure the appellant gave his age
in 2002 as 36 years. He claimed that he and others went
to the place of occurrence on getting information that
his brother Sanjay Kumar was assaulted by Ramesh
Kumar (Complainant). He brought his brother to Police
Station and lodged a report. As noticed by trial court,
parties are involved in civil as well as criminal litigation
from before. High Court has noted that appellant, as per
custody certificate, is not involved in any other case. In
such circumstances, it is not deemed necessary to send
the appellant immediately to Jail custody after about 19
years of the occurrence when he appears to be 50 years
of age and fully settled in life.
8. In view of aforesaid, in our view the ends of justice
would be met by granting benefit of Probation of
Offenders Act to the appellant. We order accordingly
and direct that the appellant be released on executing
appropriate bond before the trial court to appear and
receive sentence of rigorous imprisonment for 1 (one)
year when called upon to do so and in the meantime to
keep the peace and be of good behaviour.”
28. The reliance is also placed upon Hon’ble Apex Court
judgment Hari Kishan and State of Haryana versus Sukhbir Singh
1988 AIR (SC) 2127, wherein it has been held as under:
“8. The question next to be considered is whether the
accused are entitled to the benefit of probation of good
conduct? We gave our anxious consideration to the
contentions urged by counsel. We are of opinion that
the High Court has not committed any error in this
regard also. Many offenders are not dangerous
criminals but are weak characters or who have
surrendered to temptation or provocation. In placing
such type of offenders, on probation, the Court
encourages their own sense of responsibility for their
future and protect them from the stigma and possible
contamination of prison. In this case, the High Court
has observed that there was no previous history of
enmity between the parties and the occurrence was an
outcome of a sudden flare up. These are not showing to
be incorrect. We have already said that the accused had
no intention to commit murder of any person. Therefore,
the extension of benefit of the beneficial legislation
applicable to the first offenders cannot be said to be
inappropriate.
9. This takes us to, the third questions which we have
formulated earlier in this judgments. The High Court has
44
2024:HHC:11456directed each of the respondents to pay Rs.2500/- as
compensation to Joginder. The High Court has not
referred to any provision of law in support of the order
of compensation. But that can be traced to section 357
Criminal Procedure Code Section 357, leaving aside the
unnecessary, provides:-
“357. Order to pay compensation:
(1) When a court imposes a sentence of fine or a
sentence (including a sentence of death) of which fine
forms a part, the Court may, when passing judgment,
order the whole or any part of the fine recovered to be
applied-
(a) in defraying the expenses properly incurred in the
prosecution;
(b) in the payment to any person of compensation for
any loss or injury caused by the offence, when
compensation is in the opinion of the Court, recoverable
by such person in a civil Court;
Xxxxxxxxxxxxxx
Xxxxxxxxxxx
Xxxxxx
(3) When a Court imposes a sentence, of which fine
does not form a part, the Court may, when passing
judgment, order the accused person to pay, by way of
compensation. Such amount as may be specified in the
order to the person who has suffered any loss or injury
by reason of the act for which the accused person has
been sentenced.
(4) An order under this section may also be made by an
Appellate Court or by the High Court or Court of
Session when exercising its power of revision.
(5) At the time of awarding compensation in any
subsequent civil suit relating to the same matter, the
Court shall take into account any sum paid or recovered
as compensation under this Section.
11. The payment by way of compensation must,
however, be reasonable. What is reasonable, may
depend upon the facts and circumstances of each case.
The quantum of compensation may be determined by
taking into account the nature of crime, the justness of
claim by the victim and the ability of accused to pay. If
there are more than one accused they may be asked to
pay in equal terms unless their capacity to pay varies
considerably. The payment also vary depending upon
the acts of each accused. Reasonable period for
payment of compensation, if necessary by installments,
may also be given. The Court may enforce the order by
imposing sentence in default.”
45
2024:HHC:11456
29. Since this Court has held appellants/accused guilty of
their having committed offence punishable under Sections 323 & 325
IPC, prayer made on their behalf for the grant of benefit of Section 4
of the Probation of Offenders Act, can be considered. At this juncture,
it would be apt to take note of the fact that vide order dated
09.09.2024, this Court had called for the reports of the District
Probation Officer, Kangra at Dharamshala with regard to the conduct
of the accused, which are on record.
30. It is not in dispute that FIR in the case at hand was
lodged against the accused 24 years back, as a result thereof, sword
of punishment, on account of their having committed the offence is
continuously hanging upon the head of the appellants/accused.
Having taken note of the sequence of the events coupled with the
factum of compromise arrived interse parties, which subsequently
became subject matter of Cr.MMO No14 of 2018, prayer made on
behalf of the accused deserves to be considered. Careful perusal of
the compromise, which can be seen from the record of the Cr.MMO
14 of 2018 summoned by this Court in the instant proceedings, clearly
reveals that after lodging of the FIR parties to the dispute, with a view
to maintain cordial relations in future entered into the compromise,
whereby both the parties settled their dispute amicably interse them.
In Cr.MMO No.14 of 2018 though complainant came before this Court
46
2024:HHC:11456
to state that they have no objection in compromising the matter and
they have no objection in quashing the FIR, but such prayer of them
at the relevant time was not accepted by this Court for the reason
stated in the judgment passed in Cr.MMO No.14 of 2018. However, in
the facts and circumstances where it stands established on record
that entire incident happened on account of land dispute qua which
both the parties are claiming their ownership and complainant party at
one point of time had an intention to resolve the matter by way of
amicable settlement, prayer made on behalf of the accused to grant
them benefit under Section 4 of the Act deserves to be allowed.
31. The reports of the Probation Officer concerned are
already on record, perusal whereof reveals that except for the present
case, there is no other case pending or filed against the appellants
and they have a good character and the concerned Gram Panchayat
has also recommended for their release. Moreover, the parties had
earlier approached this Court, for quashing of the FIR on the basis of
compromise, but at that time, the petition was dismissed as not
pressed. However, it is clear from the report of probation officer that
otherwise relations of the appellants in the society are good.
32. In view of the reports (supra), whereby the
recommendation has been made to release the appellants-accused
47
2024:HHC:11456
on probation, this Court deems it fit to grant them the benefit of
Section 4 of the Probation of Offenders Act, 1958 (In short the Act).
33. Accordingly, accused are extended benefit of Section 4 of
the Probation of Offenders Act and they are ordered to be released in
terms of the Section 4 of the Act. Accused are further directed to
furnish bonds in terms of Section 4 (3) and (4) of the Act before the
learned trial Court within fifteen days for a period of one year from
today to maintain good behaviour and not to involve in any unlawful
activity. Needless to say that accused will abide by the terms and
conditions of the bond in its letter and spirit, failing which, respondent-
state is always at liberty to approach the appropriate court of law to
make the beneficiary of the act i.e. accused, to serve the sentence as
imposed by the Court. Record be sent back forthwith along with the
copy of the judgment and order.
34. The appeal stands disposed of in the afore terms. The
bail bonds if any furnished by the appellants are hereby discharged.
(Sandeep Sharma),
Judge
November 06, 2024
(shankar)