IN THE HIGH COURT OF UTTARAKHAND, AT NAINITAL Leave to Appeal Application No. Nil of 2002 In Criminal Appeal No. 100 of 2002 Padam Singh …….Appellant Versus Kulanand and others …… Respondents Mr. Dinesh Chauhan, Advocate on behalf of Mr. N.S. Negi, Advocate for the appellant. Mr. Sandeep Kothari, Adocate on behalf of Mr. Rajdendra Kotiyal, Advocate for the respondents. JUDGMENT Hon’ble J.C.S. Rawat, J. 1. This Leave to Appeal Application has been filed against the judgment and order dated 18/02/2002 passed by the learned Judicial Magistrate 1st Class Tehri Garhwal in Criminal Case No. 78 of 2000 whereby the learned Magistrate has acquitted the accused/respondents for the charges u/s 147, 323, 324, 504 and 506 I.P.C. 2. Brief facts of the case are that when the complainant Padam Singh was coming to his house from the forest after grazing his animals on 13/11/1995 at about 5:00 p.m., the accused/respondents having lathis and other weapons in their hand started quarrelling with the complainant. When the complainant protested, the accused/respondents took him towards a nala and assaulted him there. Consequent upon said assaults, the complainant fell down and became unconscious. In the meantime, Km. Sunita & Km. Manju who were coming from the jungle after taking grass and one Sabbal Singh also reached at the spot. Seeing these witnesses at the spot, the accused/respondents fled away from the spot. While leaving the place of occurrence, the accused/respondents took Rs.2,870/- from the pocket of the shirt of the complainant. The report was lodged with the police but the report did not record the complaint as stated them and a case u/s 107/116 I.P.C. was lodged against the accused/respondents. Thereafter, the present complaint was filed before the Court. 3. The accused/respondents were charged u/s 323, 324, 504, 506 and 147 I.P.C. The accused/respondents denied the charges and claim trial. 4. The prosecution in support of its case examined complainant Padam Singh PW1, Sabbal Singh PW2 and Umrao Singh PW3 as prosecution witnesses. 5. The accused/respondents were examined u/s 313 Cr.P.C. and they have denied the charges and evidence produced by the prosecution. They have stated that they have been falsely implicated in this case. They have also filed copies of the judgments in different cases enumerated in the judgments of the trial court. 6. The learned Judicial Magistrate, after appreciation of the evidence and hearing the parties acquitted the accused/respondents from the charges leveled against them. 7. Heard Mr. Dinesh Chauhan, Advoate on behalf of Mr. N.S. Negi, Advocate for the appellant; Mr. Sandeep Kothari, Advocate on behalf of Mr. Rajdendra Kotiyal, Advocate for the respondents and perused the record. 8. Learned counsel for the appellant contended that the trial court has acquitted the accused/respondents on a flimsy ground and the acquittal is not sustainable in the eyes of law. It was further contended that the learned trial court has acquitted the accused/respondents on the ground that there were minor contradictions in the testimony of the witnesses. It was contended by the respondents that both the witnesses namely Umrao Singh PW3 and Sabbal Singh PW2 are brothers and they had an enmity with the accused/respondents. The trial court has found that the medical certificate has not been proved by the doctor. Perusal of the record reveals that doctor has not been examined by the prosecution. The trial court has further found major discrepancies in the evidence of Sabbal Singh PW2. During the cross examination he has stated that the incident took place on 13/01/1995 instead of 13/11/1995. Apart from that, other discrepancies were also pointed out in the judgment. The learned trial court has acquitted the accused/respondents on the ground that the witnesses were not found credible and cogent as adduced by the prosecution. 9. It is a settled position that in the case of acquittal, if two views are possible, the appellate court would appreciate the view taken by the trial court to substantiate the acquittal because the trial court has an occasion to see the demeanour of the witnesses and the accused in the court. 10. I have gone through the entire judgment and the record available to me. It is apparent that there is contradiction about the date of the incident in the evidence of Sabbal Singh PW2. The complaint has been lodged by inordinate delay. It is admitted case of the complainant that the real report has not been lodged by the police. There is nothing on record that the complainant made such complaint to the higher authorities. Thus, the version reported in the first information report and in the complaint is totally inconsistent. It is further clear from the perusal of the evidence that ten persons came to assault the complainant who is a retired military personnel. These persons have taken the complainant to the nala in order to kill him but he could not get any grievous injury which have been caused by the accused/respondents. It is apparent that according to the prosecution case, these ten persons had only come to cause assaults on the person of the complainant but they left him by causing simple injuries. These injuries have not been proved by the doctor before the trial court. 11. In view of the above, I do not find any fault in the approach of the learned trial court in acquitting the accused/respondents. The learned trial court has rightly acquitted the accused/respondents. I am of the view that it is not a fit case where the leave to appeal should be granted. Therefore, the leave to appeal application is dismissed. The appeal also stands dismissed accordingly. 12. Let the lower court record be sent back to the court concerned for compliance. (J.C.S. Rawat, J.) Dated 12th June, 2008 Shiv