IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal 732 of 2002 Date of decision: 8 . 7. 2009 State of H.P. …..Appellant Versus Devender ……Respondent Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 . No For the Appellant: Mr. Vikas Rathore, Dy. A.G. For the respondent : Mr. Romesh Verma, Advocate. Surinder Singh , J , (Oral). Heard and gone through the record. The State has assailed the acquittal of the respondents for the offences punishable under Sections 448, 427 read with Section 34 of the Indian Penal Code, passed by the learned trial court in case No. 60-1 of 1993 dated 8.8.1996. Mangal Ram, respondent No. 1 had died during the proceedings of this appeal as such the appeal against him stands abated as per order dated 21.3.2003, passed by this court. 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. - 2 - Respondent Devinder is son of Mangal Ram. According to the prosecution case, complainant Shri Puran Chand was the tenant in the premises of Mangal Ram (deceased) in one room of two storyed building @ 30/- per month at village Laoti which was being used by him by installing “khaddi” for weaving. In the year 1986 the said room and the adjoining shop gutted into the fire which, according to the complainant were got repaired by him by spending about Rs. 5200/-. Thereafter he is alleged to have taken the whole of the building on rent @ 60/- per month. One room in the upper story was kept by him for weaving purpose and he continued doing said work till the day of alleged incident. Since he had to visit his native place and rooms remained closed for about a month prior to 3rd August, 1992. On 28.8.1992, the complainant came to laoti he noticed that an extra lock was put on the door of his tenanted premises. On enquiry PW-5 Jagdish Chand informed him that Mangal Ram deceased respondent had put an extra lock on the door. Thereafter the complainant returned to his native place and re-visited the tenanted premises on 23rd august, 1992. He was surprised to note that that lock of his room was found broken and his - 3 - belongings were thrown out side in the courtyard. He made the inquiry and came to know that respondents were responsible for doing the aforesaid act. Thereafter he went to Shiv Ram a village panch to report the matter but when he returned along with him he did not find the belonging there which, according to him were shifted to the house of Devi Singh. Thus the matter was reported to the police in terms of FIR Ext P-A on 27.8.1992. The police visited the spot and took into possession 45 items as per list Ext. P-D vide memo Ext. P-C from the house of Devi Singh. The respondents were tried and acquitted, which has been challenged in this appeal. On the critical examination of the evidence aforesaid of the prosecution not only the material contradictions are noticed in the statement of the prosecution witnesses but I find that the complainant has materially deviated from the main pivotal of the prosecution case set out in FIR Ext. P-A. In the FIR he did not say anything about visiting the place of occurrence on 20.8.1992. There is only a mention regarding the date of incident i.e. 23.8.1992 when he allegedly noticed the locks of the room which was under - 4 - his tenancy was found broken and the articles were scattered out side. It was thereafter he went to “Panch” Shiv Ram to report the matter. He did not say that the respondents were also present on the spot. But as PW-1 he has improved drastically from the FIR and stated that respondent had thrown out all the articles of his room in his presence. Further, PW-6 Mansa Ram gave another story. He did not mention the date 23rd August, 1992 when the alleged occurrence took place but stated that respondent had broken open the locks of the premises on 22.8.1992, thrown his articles out side and re-locked, the tenanted premises. In cross-examination he further stated that the articles which were thrown out were ‘khaddi’ and ‘pattu’ (shawl) but the list Ext. P-D does not find mention of these articles anywhere. According to the case of the complainant he had been using the tenanted premises for weaving. But it is not understood as to how these 45 articles which are personal items were stored in that room by him which were recovered by the police from the house of Devi Singh neither in the presence of respondent nor at their instance. PW-2 aforesaid further materially contradicted the version of PW-1 while stating that the - 5 - complainant by saying that the complainant was not present at the time when the respondents had broken open the locks and thrown the articles of the complainant out side. Similar is the statement of PW-7 Dev Puri. The complainant stated in the court that he had taken the entire building on rent @ 60/- but PW-8 stated that he was also occupying shop in the said building of the respondents in one of the rooms on the ground floor. Further went on saying that in absence of the complainant on 23.8.1992, he was looking after the hotel run by the complainant in the said premises on the ground floor which fact has not been deposed by the complainant when examined in the court. He also stated that the respondents with the aid of ‘Panch’ Shiv Ram had committed the aforesaid offences. Whereas PW-4 Shiv Ram did not say anything about it. PW-6 Mansa Ram is a chance witness. He is resident of village Juhar and not of loati where the alleged occurrence took place. His testimony does not inspire confidence. He is alleged to have come to visit his relations in village Loati. He did not spell out their names. PW-8 Jagdish Chand who also claims himself to be the eye witness has also materially contradicted the complainant. He also did not say that the respondents had - 6 - broken open the locks of the premises in question nor the Investigating Officer had recovered the broken locks either from the spot or at the instance of the respondents. Thus, the FIR and the version given by the aforesaid witnesses create a dent in the case of the prosecution. The initial version set out in the FIR has not been corroborated by any of the witnesses including the complainant and I find material contradictions as pointed out above in the statements of prosecution witnesses. Thus, case of the prosecution lacks probity. The learned trial court has rightly picked up and weighed the evidence put forth during the trial and came to the apt conclusion that the prosecution could not prove its case beyond reasonable doubt. On reappraisal, my conclusion also remains the same. Thus I do not find anything worth interference; as such the acquittal of the respondents is upheld. The appeal filed by the State is dismissed. July 8, 2009 (Surinder Singh),J (cm)