State Of H.P vs Ayub Khan And Ors
2025 Latest Caselaw 6634 HP

Himachal Pradesh High Court

State Of H.P vs Ayub Khan And Ors on 23 June, 2025

Neutral Citation No. ( 2025:HHC:19374 )

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 244 of 2010 Reserved on: 14.05.2025 Date of Decision: 23.06.2025.

    State of H.P.                                                                ...Appellant
                                           Versus

    Ayub Khan and ors.                                                       ...Respondents


    Coram

Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No

For the Appellant : Mr. Ajit Sharma, Deputy Advocate General.

For the Respondents : Mr. Atharv Sharma, Advocate.

Rakesh Kainthla, Judge

The present appeal is directed against the judgment

dated 11.12.2009, passed by learned Sessions Judge, Hamirpur,

H.P. (learned Trial Court) vide which, the appeal filed by the

respondents (accused before learned Trial Court) was allowed

and the judgment of conviction dated 30.06.2009 and order of

sentence dated 01.07.2009 passed by learned Judicial Magistrate

First Class Court No. II, Hamirpur, (learned Trial Court) were set

Whether reporters of Local Papers may be allowed to see the judgment? Yes.

Neutral Citation No. ( 2025:HHC:19374 )

aside. (Parties shall hereinafter be referred to in the same manner as

they were arrayed before the learned Trial Court for convenience.)

2. Briefly stated, the facts giving rise to the present

appeal are that the informant, Savitri Devi (PW7), is residing at

the village Sulgwan with her family members. Sarif Mohammad

is her neighbour. There is an alley between two houses. Accused

Sarif Mohammad and his family members discharged dirty water

into the alley and threw garbage into the alley. This led to a stink.

HPPWD constructed a drainage for discharging the dirty water,

but the accused blocked the drainage by filling it with mud. On

16.03.2006 at about 7:00 pm, the accused Gafura Begam swept

her courtyard and threw the garbage into the alley. The

informant asked Gafura Begam about throwing the garbage into

the alley. She became infuriated and started abusing the

informant. Ayub Khan, Sher Ali, and Gulzar Biwi started throwing

pieces of bricks, wood, and tin sheets towards the informant's

house. The informant shouted for help. Nand Lal (PW5) and Anita

Sharma (PW1) reached the spot. The accused threw pieces of

brick, stones, and tin sheets at them. The informant, her

husband, and her daughter-in-law sustained injuries in the

incident. Ami Chand (PW2) and Vijay Kumar reached the spot

Neutral Citation No. ( 2025:HHC:19374 )

after hearing noise. The accused also abused and threatened the

informant and her family members. The police recorded an entry

(Ext. PW3/A) in the daily diary. An application (Ex. PW10/H) was

filed for conducting the medical examination of the injured

persons. Dr. P.C. Saini (PW6) conducted the medical examination

of Savitri and found that she had sustained simple injuries which

could have been caused within 6 hours of examination. He issued

MLC (Ext. PW6/A). He also examined Nand Lal and found that he

had sustained simple injuries which could have been caused

within 6 hours of examination. He issued the MLC (Ext. PW6/B).

He examined Anita Devi and found that she had sustained simple

injuries. He issued MLC (Ext. PW6/C). FIR (Ext. PW4/A) was

registered at the police station. HC Raj Kumar (PW10) conducted

the investigation. He visited the spot and prepared the site plan

(Ext. PW10/A). He took the photographs (Ext. PW10/B to Ext.

PW10/D), whose negatives are Ext. PW10E to PW10/G. He seized

the pieces of bricks (Ext. P1 to P5) vide memo (Ext. PW2/A). He

recorded the statements of witnesses and handed over the case

file to SI Amar Singh (PW8), who prepared the challan and

presented it before the Court.

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3. Learned Trial Court charged the accused with the

commission of offences punishable under Sections 336, 323, 504,

and 506 read with Section 34 of IPC, to which the accused pleaded

not guilty and claimed to be tried.

4. The prosecution examined 10 witnesses to prove its

case. Anita Sharma (PW1), Ami Chand (PW2), Nand Lal (PW5),

and Lalit Kumar (PW9) are the eyewitnesses. Pawan Kumar

(PW3) proved the entry in the daily diary. Rattan Chand (PW4)

registered the FIR. Dr. P.C. Saini (PW6) conducted the medical

examination of the injured. Savitri Devi (PW7) is the informant.

Amar Singh (PW8) prepared the challan. HC-Raj Kumar (PW10)

conducted the investigation.

5. The accused, in their statements recorded under

Section 313 of Cr.P.C., denied the prosecution's case in its

entirety. They claimed that they were innocent and were falsely

implicated. No defence was sought to be adduced by them.

6. Learned Trial Court held that the testimonies of eye-

witnesses corroborated each other. Their testimonies could not

be rejected because they happened to be related to each other.

The contradictions in their statements were minor and

Neutral Citation No. ( 2025:HHC:19374 )

insufficient to discard the prosecution's case. The non-

examination of Vijay Kumar and Simro Devi was not material.

The testimonies of the eyewitnesses were corroborated by the

medical evidence and the recovery of the pieces of brick. Hence,

the accused were convicted and sentenced as under:-

Sections Sentence Under Section 336 read To undergo simple imprisonment for with Section 34 of the IPC one month and to pay a fine of ₹ 200/-

each, and in default of payment of the fine, to further undergo simple imprisonment for 10 days.

Under Section 323 read To undergo simple imprisonment for with Section 34 of the IPC one month and to pay a fine of ₹ 500/-

each, and in default of payment of the fine, to further undergo simple imprisonment for 10 days.

Under Section 504 read To undergo simple imprisonment for with Section 34 of IPC one month and to pay a fine of ₹ 500/-

each, and in default of payment of fine, to further undergo simple imprisonment for 10 days.

Under Section 506 read To undergo simple imprisonment for with Section 34 of the IPC one month and to pay a fine of ₹ 1000/-

each, and in default of payment of the fine, to further undergo simple imprisonment for 10 days.

7. All the substantive sentences of imprisonment were

ordered to run concurrently.

8. Being aggrieved from the judgment passed by the

learned Trial Court, the accused preferred an appeal, which was

decided by the learned Sessions Judge (learned Appellate Court).

Neutral Citation No. ( 2025:HHC:19374 )

Learned Appellate Court held that the accused had obtained an

injunction order against the informant and her family members

regarding the street in question. The informant interfered with

the possession of the accused on the date of the incident, which

led to a quarrel. The accused were within their right to protect

their property. The parties had a long-standing civil dispute

regarding the street. The accused did not exercise the right of

their private defence and learned Trial Court erred in convicting

and sentencing the accused; hence, the appeal filed by the

accused was allowed and the accused were acquitted of the

charged offences.

9. Being aggrieved by the judgment passed by the

learned Appellate Court, the State has filed the present appeal

asserting that the learned Appellate Court failed to appreciate the

prosecution evidence in its proper perspective. It set unrealistic

standards to evaluate the direct and cogent prosecution evidence.

The testimonies of the prosecution witnesses were discarded

without any reason. Mere pendency of the civil litigation between

the parties is not sufficient to acquit the accused. The injunction

order was regarding the street between the houses of the accused

and the complainant. No injunction operated qua the informant's

Neutral Citation No. ( 2025:HHC:19374 )

courtyard. The accused had no right to commit any offence in the

informant's courtyard. Learned Appellate Court erred in relying

upon the pendency of the civil dispute between the parties. The

informant stated that the accused threw garbage in the

informant's courtyard, and when she made the inquiry, the

accused hurled abuses at her, pelted pieces of brick, wood, and

tin sheets upon her and her family members. This was in

response to an inquiry about throwing the garbage in the

courtyard. An inquiry does not give a right of private defence and

learned Appellate Court erred in holding that the right of private

defence was available to the accused, therefore, it was prayed

that the present appeal be allowed and the judgment passed by

learned Appellate Court be set aside while the judgment passed

by learned Trial Court be restored.

10. I have heard Mr. Ajit Sharma, learned Deputy

Advocate General, for the appellant/State and Mr. Atharv

Sharma, learned counsel for the respondent/accused.

11. Mr. Ajit Sharma, learned Deputy Advocate General, for

the appellant/State, submitted that the learned Appellate Court

erred in acquitting the accused. There was no document to show

Neutral Citation No. ( 2025:HHC:19374 )

that any injunction order was issued by the Court. The learned

Trial Court erred in relying upon the cross-examination of the

prosecution witnesses to conclude the pendency of the civil

dispute. The accused had no right of private defence because the

informant had only made an inquiry from them. Mere inquiry

does not give rise to any right of private defence. The well-

reasoned judgment of the learned Trial Court was set aside

without any justifiable cause; therefore, he prayed that the

present appeal be allowed and the judgment passed by the

learned Appellate Court be set aside.

12. Mr. Atharv Sharma, learned counsel for the

respondent/State, supported the judgment passed by the learned

Appellate Court and submitted that the learned Appellate Court

has taken a reasonable view, and this Court should not interfere

with the reasonable view of the learned Appellate Court while

deciding an appeal against acquittal; therefore, he prayed that

the present appeal be dismissed.

13. I have given considerable thought to the submissions

made at the bar and have gone through the records carefully.

Neutral Citation No. ( 2025:HHC:19374 )

14. The present appeal has been filed against a judgment

of acquittal. It was laid down by the Hon'ble Supreme Court in

Surendra Singh v. State of Uttarakhand, 2025 SCC OnLine SC 176:

(2025) 5 SCC 433 that the Court can interfere with a judgment of

acquittal if it is patently perverse, is based on misreading of

evidence, omission to consider the material evidence and no

reasonable person could have recorded the acquittal based on the

evidence led before the learned Trial Court. It was observed:

"11. Recently, in the case of Babu Sahebagouda Rudragoudar v. State of Karnataka 2024 SCC OnLine SC 4035, a Bench of this Court to which one of us was a Member (B.R. Gavai, J.) had an occasion to consider the legal position with regard to the scope of interference in an appeal against acquittal. It was observed thus: "38. First of all, we would like to reiterate the principles laid down by this Court governing the scope of interference by the High Court in an appeal filed by the State for challenging the acquittal of the accused recorded by the trial court.

39. This Court in Rajesh Prasad v. State of Bihar [Rajesh Prasad v. State of Bihar, (2022) 3 SCC 471: (2022) 2 SCC (Cri) 31] encapsulated the legal position covering the field after considering various earlier judgments and held as below : (SCC pp. 482-83, para 29) "29. After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal in the following words: (Chandrappa

Neutral Citation No. ( 2025:HHC:19374 )

case [Chandrappa v. State of Karnataka, (2007) 4 SCC 415: (2007) 2 SCC (Cri) 325], SCC p. 432, para 42) '42. From the above decisions, in our considered view, the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal emerge:

(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Criminal Procedure Code, 1973 puts no limitation, restriction or condition on the exercise of such power and an appellate court, on the evidence before it, may reach its own conclusion, both on questions of fact and law. (3) Various expressions, such as "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc., are not intended to curtail the extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with an acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that in case of acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused, having secured his

Neutral Citation No. ( 2025:HHC:19374 )

acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

40. Further, in H.D. Sundara v. State of Karnataka [H.D. Sundara v. State of Karnataka, (2023) 9 SCC 581: (2023) 3 SCC (Cri) 748] this Court summarised the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378CrPC as follows: (SCC p. 584, para 8) "8. ... 8.1. The acquittal of the accused further strengthens the presumption of innocence. 8.2. The appellate court, while hearing an appeal against acquittal, is entitled to reappreciate the oral and documentary evidence;

8.3. The appellate court, while deciding an appeal against acquittal, after reappreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record; 8.4. If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and 8.5. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible."

41. Thus, it is beyond the pale of doubt that the scope of interference by an appellate court for reversing the judgment of acquittal recorded by the trial court in

Neutral Citation No. ( 2025:HHC:19374 )

favour of the accused has to be exercised within the four corners of the following principles:

41.1. That the judgment of acquittal suffers from patent perversity;

41.2. That the same is based on a misreading/omission to consider material evidence on record; and 41.3. That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record."

12. It could thus be seen that it is a settled legal position that the interference with the finding of acquittal recorded by the learned trial judge would be warranted by the High Court only if the judgment of acquittal suffers from patent perversity; that the same is based on a misreading/omission to consider material evidence on record; and that no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record."

15. A similar view was taken in Bhupatbhai Bachubhai

Chavda v. State of Gujarat, 2024 SCC OnLine SC 523, wherein it was

observed:-

"6. It is true that while deciding an appeal against acquittal, the Appellate Court has to reappreciate the evidence. After re-appreciating the evidence, the first question that needs to be answered by the Appellate Court is whether the view taken by the Trial Court was a plausible view that could have been taken based on the evidence on record. Perusal of the impugned judgment of the High Court shows that this question has not been adverted to. The Appellate Court can interfere with the order of acquittal only if it is satisfied after reappreciating the evidence that the only possible conclusion was that the guilt of the accused had been established beyond a reasonable doubt. The Appellate Court cannot overturn the

Neutral Citation No. ( 2025:HHC:19374 )

order of acquittal only on the ground that another view is possible. In other words, the judgment of acquittal must be found to be perverse. Unless the Appellate Court records such a finding, no interference can be made with the order of acquittal. The High Court has ignored the well-settled principle that an order of acquittal further strengthens the presumption of innocence of the accused. After having perused the judgment, we find that the High Court has not addressed itself to the main question."

16. The present appeal has to be decided as per the

parameters laid down by the Hon'ble Supreme Court.

17. Lalit Kumar (PW9) is an independent witness. He

stated that he went to his shop on 16.03.2006 at about 7:00 am.

He found the pieces of brick, tin sheets and wood. The parties

were abusing each other. Ayub was abusing Kamlesh. He had not

seen anything else.

18. The testimony of this witness does not support the

prosecution's case that the accused were aggressors or that they

had thrown pieces of bricks, wood and the tin sheets upon the

informant.

19. Ami Chand (PW2) stated that he was present on the

roof of his house on 16.03.2006 at about 7-7:15. He heard a noise

and went towards the house of Nand Lal. He saw that the

informant, Savitri Devi, was picking up the garbage from her

Neutral Citation No. ( 2025:HHC:19374 )

alley. Gafura Begum, Abub Khan, Sher Ali and Gulzar Begum were

abusing Savitri Devi. They threw pieces of brick, tin sheets and

bamboo towards her. Savitri Devi, Nand Lal and Anita Devi

sustained injuries. He tried to pacify the accused, and the accused

stopped throwing the pieces of brick, tin sheets and wood

towards the informant.

20. As per the prosecution's case, the incident started

when Gafura Begum threw the garbage into the alley located

between two houses. HC Raj Kumar (PW10) visited the spot on

the date of the incident and took the photographs (Ext. PW10/B to

Ext. PW10/D). No garbage is visible in the alley. He admitted in

his cross-examination that no photograph of the garbage was

taken by him. Thus, the absence of the garbage/waste makes the

genesis of the prosecution case highly doubtful.

21. The informant asserted that she had enquired from

the accused, Gafura Begum, as to why the garbage was thrown in

the alley. The accused started abusing her. They threw the pieces

of brick, wood and tin sheets towards her. She and her family

members sustained injuries in the incident. The site plan

(Ext. PW10/A) and the photographs show the location of the

Neutral Citation No. ( 2025:HHC:19374 )

pieces of bricks in front of the shops constructed in the building

owned by Kamlesh Kumar. The houses of the parties are

separated by an alley. No pieces of bricks, wood or tin sheets were

found in the alley or lintel or the roof of the informant's house. It

is not explained as to how the pieces of brick would have fallen in

front of the house and not in the alley lying between two houses

or the lintel where the informant and other persons were

standing.

22. HC Raj Kumar (PW10) did not pick up the pieces of

bricks from the spot; rather, they were handed over to him by the

informant-Savitri Devi.

23. All these circumstances make the prosecution's

version that the accused pelted pieces of bricks, wood and tin

sheets towards the informant highly suspect.

24. Anita Sharma (PW1) admitted in her cross-

examination that civil suits are pending between the parties. She

admitted that the accused had obtained an injunction order

regarding the alley located between two houses. Nand Lal (PW5)

also admitted that the cases are pending between the parties

regarding the alley, and the accused had obtained the injunction

Neutral Citation No. ( 2025:HHC:19374 )

order. Savitri Devi (PW7) also admitted that the civil suit is

pending between the parties, and the accused has obtained an

injunction order against the informant party. Therefore, it was

admitted by all the prosecution witnesses that civil suits are

pending between the parties, and an injunction order was

operating in favour of the accused; hence, the findings recorded

by the learned Appellate Court that the accused had obtained an

injunction order in their favour was based upon the evidence.

Since admitted facts need not be proved, therefore, the failure to

produce the record of the civil suit is not material in the present

case.

25. Ami Chand (PW2) stated that he saw Savitri Devi

picking up garbage from her alley, which shows that the

informant, Savitri Devi, had entered the alley and she was not

present on the lintel of her house as claimed by her. Since, it is

not disputed that an injunction order was operating against the

informant party regarding the alley, therefore, the entry of the

informant in the alley amounted to the violation of the injunction

order and learned Appellate Court was justified in holding that

the accused had exercised a right of private defence to protect

trespass into their land.

Neutral Citation No. ( 2025:HHC:19374 )

26. This was a reasonable view which could have been

taken based upon the evidence on record, and no interference is

required with the same while deciding an appeal against

acquittal.

27. No other point was urged.

28. Therefore, the judgment passed by the learned

Appellate Court is fully sustainable and no interference is

required with the same; hence, the present appeal fails and the

same is dismissed.

29. In view of the provisions of Section 437-A of the Code

of Criminal Procedure (Section 481 of Bhartiya Nagarik Suraksha

Sanhita, 2023) the respondents/accused are directed to furnish

bail bond in the sum of ₹25,000/- each with one surety each in

the like amount to the satisfaction of the learned Trial Court

within four weeks, which shall be effective for six months with

stipulation that in the event of Special Leave Petition being filed

against this judgment, or on grant of the leave, the

respondents/accused on receipt of notice thereof, shall appear

before the Hon'ble Supreme Court.

Neutral Citation No. ( 2025:HHC:19374 )

30. A copy of the judgment and the record of the learned

Trial Court be sent back forthwith.

(Rakesh Kainthla) Judge 23rd June, 2025 (saurav pathania)