1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 383 of 2004. Judgment reserved on: 16.11.2011. Decided on: November 28, 2011. ________________________________________________________________ State of H.P. ……..Appellant. Versus Suresh Kumar and another. ……..Respondents. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? For the appellant : Mr. A.K.Bansal, Addl. Advocate General with Mr. P.M. Negi, Dy. Advocate General. For the respondents : Mr. N.S. Chandel, Advocate. ____________________________________________________________ SURINDER SINGH,J : The State has challenged the acquittal of the respondents, for the offences punishable under Sections 323 and 325 read with Section 34 of the Indian Penal Code, recorded by the learned Sessions Judge, reversing the judgment of conviction and sentence passed by the learned trial Court. 2. The factual matrix of the case giving rise to the appeal as emerges from the evidence on record can be stated thus. PW1 Hoshiar Singh has a building in Panchrukhi consisting of eight rooms. In the year 1996, he had rented out three rooms to Whether reporters of the Local papers are allowed to see the judgment? 2 respondent Suresh Kumar for running a private School @ ` 400/- per month upto March, 1998, but he did not vacate the said premises as per assurance given by him, rather make a request to extend the period and requested to vacate it before starting of the summer vacations. In the month of July,1998, the said premises were vacated by him and handed over its vacant possession to the complainant and the premises were locked by PW1 Hoshiar Singh. (ii) Thereafter the respondent Suresh Kumar alongwith one Om Parkash, Principal approached the complainant again on 26th August, 1998 at his residence at Dhalli (Shimla) requesting him for re-letting out the house for the said purpose, but the complainant did not agree. (iii) It is alleged that on 31st August, 1998, complainant visited his demised premises and found that his locks were replaced by other locks and some School articles were lying inside. The complainant also put his own locks on the locks already found there 3 and called PW8 Anita Sharma, Pradhan and PW6 Hari Ram Up-Pradhan and showed them the condition of the premises. (iv) Further, on Ist September, 1998, when the complainant re-visited his house at Panchrukhi, again he found his locks missing from all the rooms. He again approached Pradhan aforesaid. They alongwith Captain Nathu Ram and Captain Jagdish Katoch (PW7) visited the spot. Accused Suresh Kumar was asked by the complainant in their presence about the factual position and the accused is stated to have admitted having broken the locks put by the complainant and again requested him for renting out the said premises to him. He also undertook to pay the price of the locks broken by him, but the complainant did not agree. However, PW4 Om Parkash, the Principal of the School told him that it was a question of the future of the students of the School, thus 4 requested him to let out the premises till 31.3.1999. The complainant agreed to this proposal and a fresh agreement mark-D and Mark-E were executed. (v) On 31.3.1999, the complainant visited his premises at Panchrukhi again and asked PW4 Om Parkash, Principal of the School to hand over the premises to him. Shri Om Parkash aforesaid vacated the rooms and returned security amount of `1500/-, but accused Suresh Kumar forcibly put his locks, over which the complainant also put his locks. It is alleged that accused Suresh Kumar cut the locks of the complainant with the Hexa-blade. When the complainant came to know, he objected the accused Suresh Kumar alongwith his co-accused Tarlok Chand (deceased) and Joginder Singh @ Rajinder Singh manhandled and fisticuffed him. He sustained injuries on the various parts of his body and alleged fracture of his right hand finger. 5 (vi) The complainant reported the matter to the police which culminated into FIR Ext.PW9/B. Police during investigation took into possession the rent note/ agreement vide memo Ext.PW1/A and other articles like Camera of the complainant used by him to take photographs, which was produced by accused Suresh Kumar. Complainant was examined by Dr. PW5 Anupama Singh, who issued Medico Legal Certificate Ext.PW5/A. (vii) PW2 Manbhinder Singh was cited as an eye witness. His statement was recorded by the police under Section 161 of the Code of Criminal Procedure. 3. Finding substance in the allegations of the complainant, the accused-respondents were put on trial before the learned Judicial Magistrate. They were accordingly charge-sheeted for the offences punishable under Sections 323, 325 and 341 read with Section 34 of the Indian Penal Code, to which they pleaded not guilty and claimed trial. At the end of trial, though they were 6 acquitted for the offence punishable under Section 341 read with Section 34 I.P.C., but convicted and sentenced for the offences under Sections 323 and 325 read with Section 34 of the Indian Penal Code and were imposed fine, which was assailed in appeal and the learned Sessions Judge acquitted them, on the grounds that there have been material contradictions with respect to the incident and also that the evidence adduced by the prosecution is not convincing and satisfactory and further that the case seems to have been made out against the accused only for getting the rooms vacated. 4. Shri A.K.Bansal, learned Additional Advocate General duly assisted by Shri P.M.Negi, learned Deputy Advocate General for the State vehemently argued that the learned lower appellate Court discarded the testimonies of the prosecution witnesses on untenable grounds in the absence of any proved enmity. No reasons whatsoever have been assigned for discarding the evidence of the prosecution. Further that the learned first appellate Court also wrongly referred 7 that PW2 was a close relative of the complainant and was under his influence, thus compelled to support him. 5. On the other hand, Shri N.S. Chandel, learned counsel for the respondents supported the impugned judgment of acquittal. 6. I have thoughtfully considered the rival contentions of the parties and have cautiously scrutinized the evidence on record. 7. Admittedly, Suresh Kumar accused was the Manager of the School and PW4 Om Prakash its Principal. He had taken three rooms on rent of the building of the complainant in the year 1998 at Panchrukhi to run the School, but thereafter the complainant insisted upon for its vacation in the month of November, 1998, but sought permission to continue till March, 1999 and an agreement Mark-D was executed. Later the premises were vacated after receiving the security amount. Complainant also stated that at the time of agreement, Pradhan, Up-Pradhan and Jagdish etc. were present. PW4 Om Prakash admitted in his cross-examination that the complainant 8 forcibly had been impressing upon Suresh Kumar during mid-session to get it vacated. He was also insisting upon him to pay the amount of `800/- against the agreed amount of `400/- per month. He further stated that no quarrel had taken place in his presence nor the locks were ever cut or broken by accused Suresh Kumar. 8. PW8 Anita Sharma was the Pradhan. She stated that when in the year 1998, respondent Suresh Kumar did not vacate the premises, she alongwith Up-Pradhan Hari Ram and few others went to the spot to prevail upon him for its vacation, but he told that he would vacate it in the month of March and would pay the rent till then. Initially, she denied that the agreement Mark-D was executed in her presence but in her cross-examination after declaring her hostile admitted the execution of the agreement Mark-D in her presence as having been signed by her, Up- Pradhan and also by other witnesses, but stated that she did not go through its contents. In cross- examination on behalf of the accused, she admitted that there was a dispute between the 9 complainant and Suresh Kumar with respect to the rent. The complainant insisted upon to increase the rent, which was later increased, keeping in view the future of the students. 9. PW6 Hari Ram Up-Pradhan admitted his signatures on the agreement Mark-D and also admitted that the complainant had demanded double of the rent, which was initially settled and thereafter raised demand of `1600/- per month. He categorically stated that neither any quarrel took place in his presence nor any locks were cut or broken by the accused. 10. PW2 Manbhinder Singh is an alleged eye witness with respect to the cutting of the locks by accused Suresh Kumar and alleged beatings. He stated that the complainant took the photographs from his Camera, the accused became angry and started beating him with the result, he sustained injuries. He also snatched his Camera. In cross-examination, he stated that the complainant was his Taya (uncle) and he obediently followed him because of their relation. 10 11. The complainant in his statement before the Court stated that even PW2 was also beaten up by the respondents, but PW2 did not say so, nor this fact finds mentioned in the FIR. Even there is no reference of the alleged eye witness therein. According to PW5 Dr. Anupama Singh, all the injuries on the person of the complainant except injury No.3 could be caused due to fall and there is no evidence of fracture. 12. On scrutiny of the prosecution evidence, it transpires that the complainant stated that rooms were to be vacated on 30.5.1998 as per Mark-C, whereas PW1 stated that the rooms were rented out to accused Suresh Kumar on 31st March, 1998. In the FIR Ext.PW9/B it is recorded that the accused had vacated the rooms on 18.7.1998 and the complainant put his locks. Admittedly, the accused was running the School, there was no question of vacating it in the mid-session and the version of the complainant gets further falsified with the assertion that the said accused alongwith Om Parkash had approached him at Dhalli (Shimla) on 26.8.1998 requesting him to rent out 11 the premises again and he came to Panchrukhi on 31.8.1998 and found his locks broken, which resulted into fresh agreement Mark-D with Om Parkash, Principal of the School not Suresh Kumar original lessee extending the lease upto 31.3.1999. 13. Against the aforesaid background, it is absolutely clear that the complainant was compelling the respondent Suresh Kumar to vacate the premises in mid-session or to increase the rent and this fact is also clearly made out from the statement of PW4 Om Parkash when the complainant executed an agreement Mark-D with him, in violation of the agreement with Suresh Kumar, may be with a view to break the tenancy of Suresh Kumar without resorting to the legal proceedings. The evidence on record shows that right from the very beginning the premises remained in the possession of Suresh Kumar as a Manager of the School wherein PW4 Om Parkash was a Principal. There is no cogent evidence with respect to vacation of the rooms in the mid- session, as alleged. The overall scrutiny of the evidence gives an impression that the 12 complainant wanted to get rid of tenancy of Suresh Kumar and switch over to the fresh tenancy with Om Parkash on a higher rent, which is also evident from the statement of Up-Pradhan. Further the alleged eye witness PW2 Manbhinder Singh has tried to support the complainant being his close relative and made the statement to help him for obvious reasons. 14. Therefore, on account of the above discussion, I do not find that the prosecution was able to bring home the guilt of the respondents beyond reasonable doubt. The findings of acquittal recorded by the learned Sessions Judge are definitely borne out from the record and require no interference. The appeal is therefore dismissed. 15. The respondents are discharged of their bail bonds entered upon by them at any time during the proceedings of the case. 16. Send down the records. (Surinder Singh), Judge. November 28, 2011. (Pds)