IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.A.No.451 of 2001 Date of decision 5.6.2008 State of H.P. Appellant Versus Roop Singh and anr. Respondents Coram: The Hon’ble Mr. Justice R.B. Misra, Judge. Whether approved for reporting?1 For the appellant: Mr. Rajesh Mandhotra, Deputy Advocate General. For the respondents: Mr.V.D.Khidtta, Advocate. R.B.Misra,J.(Oral) The present petition has been preferred under Section 378 of the Code of Criminal Procedure against the judgment and order dated 20.2.2001 passed by the learned Additional Chief Judicial Magistrate, Rohru District Shimla in Criminal Case No.33-2 of 2000/98 for alleged involvement of accused-respondents under Sections 379, 447, 427 read with Section 34 of the Indian Penal Code, thereby alleged accused- respondents have been acquitted. According to the prosecution on 2.2.1998 a written complaint was received by the Police Station that the alleged accused-respondents had trespassed into the orchard of complainant Sunpur (PW-1) on 23/24.1.1998 and cut 67 plants of apple. Such incident was informed to the complainant by his nephew on telephone who came to the house of complainant on 27.1.1998. Accordingly, the complaint was made on 2.2.1999. The challan was filed and the alleged accused-respondents 1 Whether reporter of local papers is allowed to see the judgment? 2 were charge sheeted for the alleged offences under Sections 427 and 447 of the IPC. In order to prove its case the prosecution has examined as many as nine witnesses, whereas, none was examined on behalf of the defence. The alleged accused respondents were examined under Section 313 of the Code of Criminal Procedure and had dined their involvement in any such offences as indicated by the complainant. I have heard learned counsel for the parties and have also gone through the record of the case. Sunpur (PW-1) is the complainant who was informed by his nephew, namely, Fina Dass (PW-2). According to him he was told about cutting of the apple plants by Amrit Lal, Chowkidar (PW-3). PW-3 has deposed that nothing has happened in his presence. . However, in his cross-examination he stated that the plants had been cut. However, he does not know who had cut the plants. PWs 1, 2 and 3 however have not seen any body cutting the plants. Smt. Rajma Devi (PW-4) a member of the Panchyat had visited the spot where the plants were found cut. However, she was not aware who had cut the said plants. As such no concrete material could have been derived from her deposition. Sarupa Nand (PW-5) Tehsildar, in his deposition has stated that he had made the demarcation report, whereby, the apple orchard raised was not belonging to the complainant. He has further deposed that the complainant was having about 300 to 400 meters away apple orchard on some other land. From his testimony nothing could be derived in support of the prosecution case. Lachhmu (PW-6) in his testimony had deposed that one Gorkha Chowkidar was deployed by the complainant who had heard that apple plants of the complainant’s orchard were cut by the accused persons. The said statement was treated as hearsay. Pauli Devi (PW-7) President of the Panchayat has stated that when she was called by the police the accused persons stated in her presence that plants have been cut by 3 them. However, such confessional statement made in presence of the police was not treated to be supporting the prosecution case. Krishan Chand (PW-8) a witness of recovery of ‘drat’ Ex .P-1, has not been able to support the prosecution case. PW-9 is one Mina resident of Tangnu had deposited that on the said date she had gone to jungle for grazing the cattle from there she had seen the accused persons cutting the apple plants When she asked the accused persons not to cut the plants then she was countered by the accused persons by saying as to what authority she had to stop them. However, no credence was given to her statement by the learned Additional Judicial Magistrate because of the contradictions in the statements of the witnesses. The complainant has stated that Chowkidar was present while the accused persons were cutting the plants, whereas, the Chowkidar himself has stated that he had not seen the occurrence. But as per PW-9 Mina Chowkidar was not at the spot but his wife was there. However, certain glaring contradictions were noticed in the testimony of Mina (PW-9). The learned Magistrate had noticed that PW-9 even could not narrate the location of the complainant’s orchard. In the cross-examination she had stated that she was told by the complainant that apple plants were cut from his orchard. It was derived from the testimony of PW-9 that there was a pre meeting of PW-9 and complainant. However, some contradictions have also been appearing when PW-9 during her cross-examination has stated that she was called by the police where the complainant was present. It was natural that before the police even PW-9 could have been indicated to the complainant that the accused respondents had cut the plants. If PW-9 had apprised the complainant about the cutting of trees by the alleged accused-respondents then the complainant could have narrated the same to the police. On the basis of material on record and appraisal of prosecution evidence, the learned Additional Chief Judicial Magistrate has rightly arrived at the conclusion that the prosecution has not been able to prove 4 its case beyond reasonable. Apparently no witness except PW-1 was found to have seen the occurrence. The statements of PWs 1, 2 and 3 were apparently hear say. The statement of PW-9 is also not inspiring confidence and supporting the prosecution case. Therefore, the judgment passed by the trial court calls for no interference. The appeal is accordingly dismissed. The bail bonds furnished by the accused are discharged. June 5, 2008(g) ( R. B. Misra ), J.