IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No.916 of 2007 with Crl. Appeal No.471 of 2007. Date of decision: 23.5.2008 State of H.P. ……appellant Vs. Vinod Kumar & another …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellant : Mr. A.K. Bansal, Additional Advocate General. For the Respondents : Mr. Pawan Gautam, Advocate. Kuldip Singh, Judge.(Oral) The State has filed this petition for seeking leave to file appeal against the judgment dated 30.7.2007 passed by learned Judicial Magistrate Ist Class, Jogindernagar in Police Challan No.186- II/04, acquitting the respondents for offence punishable under Sections 451, 354, 504 read with Section 34 IPC. 2. The prosecution case in brief is that on 18.6.2004 at about 8.30 P.M. PW-1 Kala Devi complainant along with her two sons was cooking meals, both respondents entered in her house with an intention to assault her. They caught hold the complainant, criminally intimidated her and also threatened her with dire consequences. They used foul language in order to provoke her to cause breach of Whether the reporters of the local papers may be allowed to see the Judgment? Yes …2… public peace. The complainant raised alarm, on this both the respondents fled away from the spot. The complainant next day approached police station, Jogindernagar and lodged FIR Ex.PW-1/A. The investigation was conducted by PW-4 ASI Tara Singh. On completion of investigation, challan was presented against the respondents, they were charged under Sections 451, 354, 504 read with Section 34 IPC. The respondents pleaded not guilty and claimed trial. The prosecution examined four witnesses. The statements of respondents were recorded under Section 313 Cr.P.C. The respondents examined DW-1 Sanicharu in defence. The learned trial Magistrate acquitted the respondents, hence this petition for leave to appeal. 3. Heard and perused the record. PW-1 Kala Devi has stated that in the month of Ashar at about 8.30 P.M. she was cooking meals, both respondents came in her house and abused her. She came out, both the respondents said why she got damaged their maize crop from her cattle. They caught hold her from breasts, then said that respondent Vinod caught hold her from breasts. They threatened to kill her and her children. She raised alarm but no one came there, her house is at an isolated place. She lodged FIR Ex.PW-1/A next day. In her cross-examination she has admitted that about 12-15 cases are pending between parents of the respondents and her family. In her statement she has not named any person who has seen the incident. She has denied that the houses of Ruldu and Pankaju etc. are adjacent to her house but volunteered that those are at the distance of 50 feet. PW-2 Surjit is …3… the son of complainant, he has stated that he and his brother are living with their father at Mukarian but on 18.6.2004 he was present in his house. At about 8.30 P.M. respondents came in their house and said why maize crop of the respondents was got damaged from the cattle, his mother denied the allegations. On this, they caught hold his mother and uttered filthy abuses. They raised alarm and the respondents ran away from the spot, no one came on the spot. In cross-examination he has admitted that there are 25-30 houses in the village. He has stated that houses of Mangtu, Roddu, Khiali and Johru are above their house at a calling distance. PW-3 ASI Rishiraj and PW-4 ASI Tara Singh are not the eye witnesses. 4. The perusal of statements of PW-1 and PW-2 would show that they are not corroborating each other on material particulars. PW-1 has not stated that incident was seen by PW-2, her case is that she came out of the house where the incident took place. PW-2 has no where stated that his mother went out of the house and incident took place there. PW-2 in his examination in chief has not stated that any respondent caught hold her mother from breasts. It has come in the statement of PW-1 that parties are in litigation and many cases are pending. It has come in evidence that there are other houses nearby at a calling distance but, surprisingly the prosecution has not examined any independent witness from the area. There are contradictions in the statements of PW-1 and PW-2. The learned trial Magistrate has taken a possible view from the evidence on record. The prosecution has failed to make out a case …4… for grant of leave to file appeal. Hence, leave refused, petition dismissed. 5. Cr. Appeal No.471 of 2007 In view of refusal to grant leave, appeal is rendered infructuous. ( Kuldip Singh ) Judge. May 23, 2008 (sks)