IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Criminal Appeal No. 77 of 2002. Judgment reserved on : 10.4.2009. Date of decision: 23.4.2009. State of Himachal Pradesh …Appellant. Versus Sanjeev Sharma & Others. ..Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? No For the Appellant : Mr. Anshul Bansal, Additional Advocate General. For the Respondents : Mr. Jagdish Vats, Advocate. __________________________________________________________ Kuldip Singh, Judge The respondents were prosecuted in case No.58/2 of 2000 in the Court of learned Judicial Magistrate 1st Class, Court No.(4), Shimla for offence punishable under Sections 452, 324, 506 read with Section 34 IPC arising out of FIR No.163 dated 1.7.1999, Police Station, Sadar, but were acquitted on 20.8.2001, hence present appeal. 2. The prosecution case, in brief, is that on the statement Ex.PW-1/B of PW-1 Deepak Sharma FIR Ex.PW-8/A was registered. PW-1 Deepak Sharma in his statement has stated that on 30.6.1999 after closing his shop he reached home at 11.30 P.M. He received telephone ______________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes 2 call of Mukesh that his uncle Mahesh had engaged Sanjeev as driver and he was not paying wages to him. The complainant told Mukesh that he had nothing to do with his uncle. On this, Mukesh asked the complainant to call Devinder real brother of Sanjeev. He called Devinder, Mukesh and Devinder had talk on telephone, Devinder left his house. After some time Mukesh again rang up the complainant and abused him on telephone, the complainant put the receiver down and took meals in the room with his family. At about 12.00 mid night when the complainant was sitting with his family members in the room Mukesh, Himanshu,, Devinder, Sanjeev entered in the house of the complainant by opening the door. Devinder caught hold Sanjay younger brother of the complainant from neck and started beating. He also threatened the complainant. On hearing the noise, his another brother Dinesh came there and asked what had happened. Sanjeev immediately took out a knife from his pocket and gave a blow on the head of Dinesh brother of the complainant and he also gave a blow on the waist of Sanjay another brother of the complainant. Devinder, Himanshu and Mukesh gave them beatings with kicks and fist blows. On hearing the noise, Jai Kumar and Sumeet Yadav neighbours came, who rescued them. The incident was witnessed by Kamla Devi, mother and Kalpna sister of the complainant. Devinder, Himanshu, Mukesh and Sanjeev trespassed in the house of the complainant without authority and gave beatings, they also extended threats to kill them. 3. The injured namely Dinesh was got medically examined vide MLC Ex.PW-7/A, Sanjay was also medically examined vide MLC Ex.PW-7/B. The disclosure statement Ex.PW-3/A under Section 27 of the Evidence Act of Sanjeev was recorded and recovery of knife Ex.P-1 was made vide Ex.PW-1/A. Recovery of shirt vide Ex.PW-2/A was also made, site plan Ex.PW-8/B was prepared, statements of witnesses were recorded. On completion of investigation, challan was presented. The accused were 3 charged for offence punishable under Sections 452, 324, 506 read with Section 34 IPC to which they pleaded not guilty and claimed trial. The prosecution has examined eight witnesses and have placed some documents on record. The statements of accused were recorded under Section 313 Cr.P.C., they denied the prosecution case but led no evidence in defence. The learned Judicial Magistrate acquitted the respondents on 20.8.2001, hence State has come in appeal. 4. I have heard Mr. A.K.Bansal, learned Additional Advocate General for the appellant and Mr. Jagdish Vats, Advocate, learned counsel for the respondents and have also gone through the record. Mr. Bansal has submitted that there is overwhelming evidence on record connecting the respondents with the commission of offence. The learned Judicial Magistrate has misconstrued, misinterpreted the evidence on record and has erred in acquitting the respondents. The appellant has proved the case against the respondents beyond reasonable doubt. The learned counsel for the respondents while supporting the impugned judgment has submitted that the learned Court below has appreciated the material on record properly. The view taken by the learned Court below emerges from the evidence on record, there is no error in the impugned judgment in acquitting the respondents. 5. PW-1 Deepak Sharma has supported the prosecution case and has stated that in April, 1999 after 10.00 p.m. he came to his residence, he received a call from Mukesh that the uncle of the complainant had engaged Sanjeev as driver but he was not paying any wages to him. He replied that he had no concern with the engagement of Sanjeev as driver. Thereafter, accused rang up many times and hurled abuses. At about 11.00 p.m. Mukesh, Himanshu, Devinder and Sanjeev pressed the door bell of the house of the complainant, he opened the door and all of them entered in the house. Three of them caught hold the complainant when the brother 4 of the complainant intervened he was also caught, similarly other brother was also caught, Sanjeev gave knife blow to Dinesh and Sanjay was beaten who received knife injury in his abdomen. On hearing the noise Jai Kumar and Sumit Yadav came on the spot, who rescued them. The sister Kalpna and mother of the complainant also intervened and they also saved them. The accused threatened the complainant that they would kill him. He reported the matter to the police. Dinesh was medically examined. In cross-examination, he has stated that he is residing in Amreshia building as tenant, the building is three storeyed and he is tenant in first floor, Mahesh and Jai Kumar are his real uncles. In their floor of the building, there are five sets. Vinod and Sanjeev accused are occupying 5th set in the same floor. The complainant is occupying 2nd set, 1st set is occupied by Rajinder Sood, 3rd set is occupied by Arun and 4th set is occupied by Hari Singh Thakur. The occupiers of 3rd, 4th and 5th sets use common passage in front of complainant’s glazed area. Mukesh and Himanshu are brothers but they are not residing in that building. The accused are known to him. Many people had gathered on the spot after hearing the noise. 6. PW-2 Dinesh has stated that on 30.6.1999 he was sleeping , he heard noise in the house at about 12.00 mid night, he got up and saw Mukesh, Sanjeev, Himanshu and Devinder were inside his house. Himanshu had caught hold his younger brother Sanjay and was beating him. He intervened, Sanjeev attacked him with knife. Thereafter, elder brother Deepak was given blow on the chest with knife and younger brother was also attacked with knife on waist. On hearing noise, Jai Kumar and Sumit Yadav came on the spot, who rescued them. The accused threatened them, they went to hospital. Police took into possession shirt vide memo Ex.PW-2/A. In cross-examination, he has shown his ignorance that Devinder and Sanjeev sustained injuries in the beatings given by them. 5 7. The statement of PW-3 Jai Kumar was recorded on 28.3.2000 and he has stated that last year when he was sleeping, he heard some noise, his nephew Deepak etc. were quarrelling. When he reached the spot, everything was over. He has not supported the prosecution and was cross- examined by the prosecution. In cross-examination conducted by prosecution he has stated that he has not seen Sanjeev attacking Sanjay. He and Sumeet invervened. In cross-examination conducted by the defence, he has stated that about 20 -30 persons from the Mohalla had gathered on the spot. The statement Ex.PW-3/A was not given by Sanjeev in his presence. Knife Ex.P-1 was shown to him before he signed the memo. 8. PW-4 Kalpna has stated that the accused came in their house at about 11.30 or 11.45 p.m. and caught hold Deepak and Sanjeev from their necks, when Dinesh intervened, Sanjay caught hold Devinder and Sanjeev gave knife blow to Dinesh on head. All the accused gave beatings to her three brothers. Sumeet Yadav came on the spot after hearing the noise. In cross-examination, she has stated that accused straightway entered the house and nobody opened the door for them. The fight continued for half an hour. Devinder was bodily lifted by neighbours after the beatings. 9. PW-5 Sumeet Yadav did not support the prosecution and he was declared hostile. He was cross-examined by the prosecution. He denied that Dinesh handed over his shirt to police, but admitted his signatures on Ex.PW-2/A. he denied that Sanjeev made statement Ex.PW-3/A in his presence. He also denied his signatures on Ex.PW-3/A. He volunteered that the signatures were obtained earlier by the police. He admitted his signatures on Ex.PW-1/A. In cross-examination conducted by the defence, he has stated that many persons had gathered on the spot. 6 Devinder and Sanjeev were laid down by Deepak, Sanjay and Dinesh and the persons gathered there separated them. 10. PW-6 S.I. Ram Lal is formal witness, he submitted challan. PW-7 Dr. P.L.Lakhanpal had examined Dinesh on 1.7.99 and has proved his MLC Ex.PW-7/A. He has also proved X-ray film Ex.PW-7/B and Ex.PW-7/C. He had also examined Sanjay vide MLC Ex.PW-7/D. In cross- examination, he has stated that injuries mentioned in MLC Ex.PW-7/A could be caused due to fall on flower pot in scuffle. He has also stated that injuries mentioned in MLC Ex.PW-7/D could be caused due to fall in scuffle. He has stated that MLC Ex.DX of Sanjeev and MLC Ex.DY of Devinder were issued by Dr. Jitender. The injuries mentioned in MLCs Ex.DX and DY are possible in scuffle. PW-8 Sunil Negi, has proved statement Ex.PW- 1/B of Deepak and FIR Ex.PW-8/A. He conducted investigation, prepared site plan Ex.PW-8/B. 11. In the statement recorded under Section 313 Cr.P.C. the accused Sanjeev and Devinder have stated that they were beaten by complainant party in verandah. Thereafter, they had gone but in the morning police came and took them away. Mukesh in his statement under Section 313 Cr.P.C. has stated that he heard the cries and saw that Devinder, Sanjeev were being given beatings. Devinder and Sanjeev were taken to their residence and they had received injuries on their person. Himanshu in his statement under Section 313 Cr.P.C. has stated that on that date, he and his brother Mukesh in the night were returning after leaving Sanjeev and Devinder, they heard the noise in the building and had seen that Dinesh and Sanjay beating Devinder and Sanjeev in verandah. He, Mukesh and other neighbours separated them. 12. The prosecution case is in three parts namely under Section 452 IPC for house trespass, under Section 324 for causing voluntary hurt by dangerous weapon and under Section 506 IPC for criminal intimidation. 7 In so far the commission of offence under Section 452 IPC is concerned, the prosecution case is contradictory. According to prosecution, PW-1 Deepak, PW-2 Dinesh, PW-3 Jai Kumar, PW-4 Kalpna and PW-5 Sumeet Yadav are the eye witnesses of the incident. PW-1 Deepak, PW-2 Dinesh and PW-4 Kalpna are brothers and sister. Their statements are to be scrutinized closely. PW-3 Jai Kumar and PW-5 Sumeet Yadav did not support the prosecution on material particulars and were declared hostile. PW-1 in his statement Ex.PW-1/B before the police has stated that Mukesh, Himanshu, Devinder and Sanjeev entered in the house of the complainant by opening the door. In statement Ex.PW-1/B he has not given any reference of pressing of door bell but as PW-1 in the Court has stated that Mukesh, Himanshu, Devinder and Sanjeev pressed the door bell of the house of the complainant, he opened the door and all of them entered in the house. This statement is in contradiction to the first version of PW-1 which he gave to police by way of Ex.PW-1/B. 13. It is clear from the statement of PW-1 in the Court that PW-1 is having tenanted premises in first floor in Amreshia building which floor has five sets. The occupiers of 3rd, 4th and 5th sets are using common passage in front of the complainant’s glazed area. PW-4 Kalpna contradicted PW-1 when she has stated that accused straightway entered the house and nobody opened the door for them. PW-5 Sumeet Yadav has stated that Deepak, Sanjay and Dinesh had laid down Devinder and Sanjeev and the persons gathered on the spot separated them and took Deepak and Sanjeev to their respective houses. He has specifically stated that the quarrel took place in the verandah. The quarrel, if any, took place in the verandah of the floor which is a common passage to all and, therefore, it cannot be said that respondents have committed an offence punishable under Section 452 IPC. 8 14. It emerges from the cross-examination of the prosecution witnesses that the defence of the respondents in addition to denial is that accused Devinder and Sanjeev were attacked by Deepak, Sanjay and Dinesh. The accused Mukesh and Himanshu came on the spot only to save their friends. The prosecution has not led clear evidence to show that in fact accused were the aggressors. On the contrary, PW-5 Sumeet Yadav has stated that Deepak, Sanjay and Dinesh had laid down Devinder and Sanjeev, the persons present on the spot separated them. PW-4 Kalpna has stated that after the beatings Devinder was carried out by the neighbours to his house. She has also stated that Himanshu and Mukesh had gone to see off Devinder and Sanjeev. This supports the defence version that Himanshu, Mukesh, Devinder and Sanjeev were not together as alleged by the prosecution. 15. The defence has brought on record MLC Ex.DX dated 2.7.1999 of Sanjeev and MLC Ex.DY dated 2.7.1999 of Devinder. Constable Ashok Kumar No. 1343 accompanied Sanjeev at the time of MLC Ex.DX and C.Daljeet Singh No.405 accompanied Devinder at the time of MLC Ex.DY. As per MLC Ex.DX, the injured had received simple injuries on his person and probable duration of injuries was between 24 – 48 hours. Similarly, as per MLC Ex.DY, the injured sustained simple injuries and the probable duration of the injuries was 24 – 48 hours. The prosecution has not explained the injuries on the person of Sanjeev and Devinder accused. This indicates that the prosecution has not come forward with true story in what circumstances accused Sanjeev and Devinder sustained injuries on their person. The knife Ex.P-1 was allegedly recovered vide memo Ex.PW-1/B after disclosure statement Ex.PW-3/A of Sanjeev. The disclosure statement Ex.PW-3/A is allegedly signed by PW-3 Jai Kumar and PW-5 Sumeet Yadav. Similarly, recovery memo Ex.PW-1/A of knife Ex.P-1 is allegedly signed by PW-3 Jai Kumar and 9 PW-5 Sumeet Yadav. PW-3 Jai Kumar has stated that Sanjeev had not given statement Ex.PW-3/A in his presence. The knife was shown by the police to him before he put his signatures. PW-5 Sumeet Yadav has denied that Sanjeev had given statement Ex.PW-3/A in his presence and it bears his signatures. He denied that police recovered knife in his presence. Thus, the recovery of knife Ex.P-1 has not been proved. The prosecution case is that incident occurred inside the house of PW-1 Deepak, whereas PW-3 and PW-5 have stated that occurrence took place in the verandah which is a common passage, the knife Ex.P-1 was not shown to doctor to seek his opinion whether the injuries mentioned in the MLCs could be inflicted by knife Ex.P-1. PW-7 Dr. P.L. Lakhanpal has stated that injuries shown in MLC Ex.PW-7/A and MLC Ex.PW-7/D could be caused by fall. He has also stated that injuries mentioned in MLC Ex.DX and MLC Ex.DY could be caused in scuffle. The prosecution story on material particulars is doubtful, therefore, the learned Judicial Magistrate has rightly given the benefit to the accused. The prosecution has failed to prove commission of offence punishable under Section 324 against the respondents. 16. The respondents were prosecuted for having committed offence punishable under Section 506 IPC also. PW-1 Deepak in his statement Ex.PW-1/B which was given to police has stated that accused after entering into his house gave beatings and threatened to kill them. In the Court, he has stated that accused had threatened him. He has not stated that accused had threatened his other family members. PW-1 has given different version about threats before the police and in the court. PW-2 has stated that accused had threatened and left the place but he has not stated the accused had given what threats and to whom. PW-3 Jai Kumar, PW-4 Kalpna and PW-5 Sumeet Yadav have stated nothing about the threats. In these circumstances, the prosecution has miserably failed to 10 prove the commission of offence punishable under Section 506 IPC by the respondents. 17. It has come on record that many persons had gathered on the spot but except PW-5 Sumeet Yadav, the investigating officer had not joined independent persons in the investigation nor the prosecution has examined independent persons in the Court. No explanation has been given by the prosecution why independent persons were not associated in the investigation and examined in the Court when such persons were available. The prosecution is completely silent about the injuries sustained by Sanjeev and Devinder on their person. It means the prosecution has come forward with half cooked story. The learned Judicial Magistrate has rightly appreciated the material on record and acquitted the respondents. No case for interference is made out, resultantly, the appeal fails and is accordingly dismissed. The bail bonds are discharged. ( Kuldip Singh ), Judge. April 23, 2009. (GR)