CR.A/34/2003 on 29 December 2012

1. Sanjay Kumar, son of Sh.Onkar Singh,

2. Tripta Devi, widow of Sh.Onkar Singh,

3. Bir Singh, son of Shri Chamaru Ram,

4. Rakesh Kumar, son of Shri Munshi Ram,

5. Swaran Singh, son of Shri Dharam Singh,

6. Ajay Kumar, son of Shri Bir Singh,

7. Kamla Devi, wife of Sh.Dharam Singh,

8. Bimla Devi, wife of Shri Bir Singh,

9. Raj Kumari, wife of Shri Harnam Singh,

10. Leela Devi, wife of Shri Jagdish Chand,

11. Chaman Lal, son of Shri Joginder Singh,

12. Romesh @ Billa, son of Shri Gupti Ram,

All residents of Village Churtha, , P.O. Narti, Tehsil and Police Station Shahpur, District Kangra, H.P.

13. State of H.P. through Secretary (Home), to the Government of Himachal Pradesh, Shimla.

………Respondents.

Criminal Appeal under Section 378(4)of

the Code of Criminal Procedure.

Coram:

The Hon’ble Mr.Justice Deepak Gupta, Judge.

The Hon’ble Mr.Justice V.K. Ahuja, Judge.

Whether approved for reporting? No.

For the Appellant: Mr.Ashwani K. Sharma, Advocate.

For the respondents: Mr.Ajay Chandel, Advocate, for

respondents No.1 to 12.

Mr.Rajesh Mandhotra, Deputy

Advocate General, for respondent

No.13.

Whether reporters of local newspapers may be allowed to see the judgment? Yes.

Justice V.K. Ahuja, J.:

This is an appeal filed by the appellant/complainant against the judgment of the court of the learned Judicial Magistrate Ist Class (II), Kangra at Dharamshala, vide which he acquitted the respondents of the charge framed against them under Sections 149, 325 and 506 IPC.

2. Briefly stated, the facts of the case are that on 27.8.1998, complainant Des Raj accompanied by others, came to the police station and lodged a report at 11.15 p.m. It was alleged by the complainant that he was serving in Government Senior Secondary School, Chandi as Lecturer and he was at home due to vacation. At about 7 p.m., when he was present near a well near his house, Sanjay Kumar and his mother Tripta Devi met him and asked him as to what had happened yesterday. He was also enquired as to why he had troubled his brother and there was exchange of words. Thereafter, Bir Singh and his son Ajay Kumar also came there. Bir Singh was having a Kulhari and Sanjay was having a Khukhri. It was alleged that they attacked the complainant Des Raj, who raised an alarm and his brother Madan lal, Kewal and mother Smt. Ginan Devi came there and they rescued him. Thereafter Rakesh, Swaran Singh etc. also came to the place and they also started giving beating to him and his brothers. On hearing the noise, Duni Chand, Ravi etc. came there and they rescued him and his brothers. He suffered injuries on his head and arms, while his mother suffered injuries on nose, arms and head and Kewal suffered injuries on head while Madan Lal suffered injuries on head and arms. It was also alleged that while leaving the place, Bir Singh etc. also gave a threat to take their lives. It was further alleged that he and his family members have suffered injuries and they be medically examined. The rapat was registered, the injured was medically examined and thereafter the FIR was registered. On completion of the investigation, the challan was filed before the learned trial Court. The police filed the challan against six accused persons. The complainant filed a complaint on 7.6.1999 alleging that the police had not filed the challan against accused Nos.7 to 12 in the police challan. Both the complaint and the challan were tried together and were disposed of by the learned trial Court vide its judgment dated 20.6.2002, vide which all the 12 accused persons were acquitted of the charges framed against them.

3. We have heard Mr.Ashwani Sharma, learned counsel for the appellant, Mr.Ajay Chandel, learned counsel for respondents No.1 to 12 and Mr.Rajesh Mandhotra, learned Deputy Advocate General for respondent No.13, and have gone through the record of the case.

4. During the course of hearing, it was brought to the notice of this Court that a cross case was also filed by Bir Singh, accused in the present case, as against the complainant and others, in regard to the occurrence that had taken place on 27.8.1998 at 7.00 p.m. In the said case, there were three accused, namely, Kewal Singh, Madan Lal and Des Raj and the complainant was Bir Singh. In that case, charge under Section 324, 323 read with Section 34 IPC was framed against the three accused persons named above and they were acquitted by the learned Judicial Magistrate Ist Class (I), Dharamshala, vide his judgment, dated 25.9.2001. However, the cross case arising out of the complaint lodged by the complainant Des Raj, as detailed above, was tried by the learned Judicial Magistrate Ist Class (II), Dharamshala and the respondents were acquitted vide judgment dated 20.6.2002, which judgment is under challenge before this Court.

5. From the above discussion, it is clear that two cross cases were registered by the police in regard to the same occurrence and both the parties had lodged complaints against one another. According to law, once two cross cases are made out arising out of the same occurrence, both these cases are required to be tried side by side and are required to be disposed of by the same court and they have to be disposed of by hearing arguments in both the cases and though the judgments will be separate, but they are required to be disposed of together. However, it looks surprising that this fact was never brought to the notice of the court trying the present case i.e. the court of the Judicial Magistrate Ist Class(II), Dharamshala or the other court trying the other case i.e. the court of the Judicial Magistrate Ist Class(I), Dharamshala, which was disposed of on 25.9.2001. Both these cases have been disposed of on different dates. We are not going to blame the Judicial Magistrate concerned for this lapse since it has to be brought to his notice by either of the parties that another cross case is pending and that may be taken up together. Until an unless, this fact is brought to the notice of the court concerned, it cannot be said that the court committed a wrong by disposing of one case and keeping the another case pending, which was disposed of after about 9 months or so. It has been brought to our notice that in the complaint lodged by Bir Singh, one of the accused in the present case, as against three accused persons, resulted in acquittal and an appeal was also preferred by the State of H.P. against the said judgment. One of us (V.K. Ahuja, J.), while sitting in Single Bench, decided the said Criminal Appeal No.103 of 2002 on 1.1.2009 and upheld the findings given by the learned Judicial Magistrate Ist Class, Court No.I, Dharamshala, dated 25.9.2001, acquitting Kewal Singh etc. of the charge framed against them. It has been brought to our notice that in that appeal, it was observed by this Court that a cross case was also registered, but there is nothing on the record to show as to what was the fate of the said case and in that case also a reference was made to the cross complaint lodged by Des Raj, complainant in the present case. We may reproduce the observations made by this Court, while disposing of the said appeal, as follows: “From the above discussions, it is clear that all the respondents and their mother had also suffered injuries at the time of occurrence, which have not been explained at all by the prosecution in any manner. The fact that the respondents also suffered injuries at that time shows that the origin of the occurrence is not there as to how the quarrel started and the possibility of there being a free fight in which both the parties suffered injuries cannot be ruled out in the facts and circumstances of the case. In such circumstances, when the accused party had lodged a prior complaint with the police for which a challan was also filed as against the complainant party and the accused persons had also suffered injuries at that time, it cannot be said that the guilt of the respondents stood established that they have caused injuries on the person of the complainant and other persons. Therefore, the final findings recorded by the learned trial Court that the prosecution has failed to prove their case beyond any reasonable doubt cannot be said to be perverse calling for an interference by this Court.”

6. It is, therefore, clear that this conclusion was drawn by this Court that it was a case of free fight and both the parties had suffered injuries and, therefore, it cannot be said as to who was the aggressor and accordingly it was concluded that the guilt of the respondents Kewal Singh etc. was not established, who are the complainant in the present case. Once, a conclusion has been drawn by the Court that both the parties had suffered injuries and it cannot be said as to who was the aggressor and, therefore, once the complainant party stood acquitted of the charge framed against them on the same evidence, the respondents in the present case cannot be held guilty and accordingly the findings arrived at by the learned Judicial Magistrate Ist Class (II), Dharamshala acquitting the respondents of the charge framed against them are also liable to be affirmed. There is no need to discuss the whole evidence again once the conclusion has been drawn by this Court while deciding the appeal preferred by the other party and, therefore, we are of the opinion that there is no merit in the appeal filed by the appellant, which stands dismissed accordingly.

(Deepak Gupta),

Judge.

December 29, 2011

(V.K. Ahuja), (tilak)

Judge.