IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.A. No.250/2001. Decided on: 6.8.2008. _________________________________________________ State of Himachal Pradesh. …Appellant.. Versus Tulsi Ram and another. … Respondents. ___________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No For the Appellant: Mr. Rajinder Dogra, Additional Advocate General. For the Respondents: Mr. Ramesh Verma, Advocate. _________________________________________________________ Rajiv Sharma, Judge. The respondents were prosecuted in case No.171-2/1994 in the court of Addl. Chief Judicial Magistrate, Theog under sections 506 and 452 of the Indian Penal Code. The trial court vide judgment dated 20.5.1999 convicted and sentenced the accused to simple imprisonment for 6 months under section 452 and simple imprisonment for 2 months under section 506 (i) of the Indian Penal Code. A fine of Rs. 1,000/- was also imposed on both the accused persons under section 452 of the Indian Penal Code and in case of default of payment of fine, the 1 Whether reporters of the local papers may be allowed to see the judgment? No 2 accused persons were directed to undergo simple imprisonment for 15 days. The sentences awarded under sections 452 and 506 (i) were to run concurrently. The accused persons feeling aggrieved by the judgment of the trial court dated 20.5.1999 preferred an appeal before the learned Sessions Judge, Shimla. The learned Sessions Judge accepted the appeal on 12.1.2001. The learned Sessions Judge set aside the judgment of the trial court and the accused persons were acquitted of the offences punishable under sections 452 and 506 (i) of the Indian Penal Code. The brief facts as gathered from the judgments of both the courts below are that a complaint was lodged by Smt. Sita Devi with the Sub Divisional Judicial Magistrate, Theog on 25.6.1994 stating therein that on the previous night when she was present in her house in the company of two ladies, namely, Nago and Kaushalya and her husband was away, the accused persons armed with a double barrel gun and a sword came there and broke open the door and caught her by her shirt. She further alleged that had her husband Jeet Ram been in the house, he would have been killed by the accused persons. She also alleged she raised cries upon which she was rescued from the clutches of the accused by two ladies, namely, Nago and Kaushalya. The learned Judicial Magistrate forwarded the complaint to the Station House Officer, Police Station Theog and consequently an FIR No. 156 of 1994 was registered at Police Station, Theog. The investigation was initially entrusted to Head Constable, who visited the spot and prepared the site plan. He recorded the statements of the witnesses under section 161 of the Code of Criminal Procedure on 13.7.1994. The Station House Officer himself visited the spot and prepared the site plan on 13.7.1994. 3 He took into possession a broken bolt and a socket which allegedly got separated from the door when the accused pushed it. The investigation was carried out and the challan was put up in the court. After the closure of the prosecution evidence, the accused persons were examined under section 313 of the Code of Criminal Procedure. The accused persons were convicted and sentenced as noticed above by the trial court. The accused persons preferred an appeal, which was allowed by the learned Sessions Judge on 12.1.2001. Mr. Rajinder Dogra, Additional Advocate General strenuously argued that the prosecution has proved its case and the judgment passed by the learned Sessions Judge dated 12.1.2001 is not sustainable in the eyes of law. Mr. Ramesh Verma, Advocate has supported the judgment dated 12.1.2001. I have heard the learned counsel for the parties and have also perused the record carefully. It is evident from the record that two sites plans were prepared by two different police officials. The spot was initially visited by Head Constable Partap Singh (PW-9). He has prepared site plan Ex.PW-9/H. It is clear from Ex.PW-9/H that two accused stood at point ‘B’ in the verandah when they advanced threats to Sita Devi. There is no mention in the site plan that two accused entered the room. The Station House Officer, PW-8 Ram Saran has prepared the site plan Ex.PW-7/A on 13.7.1994. The two contradictory site plans Ex.PW-7/A and PW-9/H have not been explained by the prosecution. The incident is dated 24.6.1994 and the second site plan is dated 13.7.1994. There are material contradictions in the statements of PW-1, Sita Devi, PW-2 Nago 4 Devi and PW-3 Kaushalya. Nago is the sister of the father-in-law of the complainant and Kaushalya is the sister of the husband of the complainant. These facts were admitted by these two witnesses. PW-1 Sita Devi in her statement has deposed that on the night when the accident has taken place there was electricity failure and she lighted a match stick and saw the accused in that light. However, PW-2 Nago has stated that she lighted the match stick and not PW-1 Sita Devi. These three ladies have stated that Sita Devi had become unconscious when one of the two accused caught her by the neck. But in the complaint Ex.PW-1/A there is no mention of Sita Devi loosing her consciousness. In their deposition, three ladies have deposed that Sita Devi was caught by the neck but in the complaint, she has stated that she was caught by the shirt which she was wearing. PW-1, PW-2 and PW-3 have stated that two accused threatened that had Jeet Ram been in the house, he would have been killed by them, but in the complaint there is no mention of such threat. There are numerous cases pending between the parties. PW-1 has filed an FIR against the accused under section 354 of the Indian Penal Code. This fact was admitted by PW-4 Jeet Ram and PW-9 Pratap Singh Investigating Officer. They have stated that Sita Devi had lodged FIR under section 354 of the Indian Penal Code against the two accused. It has come in the complaint Ex.PW-1/A that case under section 107 and 151 of the Code of Criminal Procedure was filed by the husband of the complainant against the two accused and the same was pending. The learned Sessions Judge on proper appreciation of the evidence acquitted the accused. The prosecution has failed to prove its case against the accused persons. 5 In view of the aforesaid reasons, there is no merit in this appeal and the same is dismissed. The bail/surety bonds are discharged. (Rajiv Sharma), J. August 6, 2008. *awasthi*