IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No. 68 of 2002. Judgement reserved on : 3.3.2009 Date of decision: 6.3.2009 State of H.P. …….Appellant Vs. Karam Singh @ Karma & 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 : None. Kuldip Singh, Judge The State has come in appeal against judgment dated 29.9.2001 passed by learned Judicial Magistrate, Court No.III , Mandi in Police Challan No.230-II/99/95, acquitting the respondents for the offence punishable under Sections 452, 354, 506 read with Section 34 IPC. 2. The prosecution case, in brief, is that on 19.2.1995 at about 1 a.m. at place Kundra Naal respondents in furtherance of their common intention came to the house of the complainant PW-1 Chandermani, pushed the door of the house of the complainant and broke the latch of the door. The respondents entered into the house of the complainant where he was sleeping with his wife and children. Whether the reporters of the local papers may be allowed to see the Judgment? Yes 2 The respondent No.2 caught hold the complainant from his neck and respondent No.2 caught hold PW-2 Banti Devi wife of the complainant and torn her clothes, broke the string of her salwar in order to outrage her modesty. They criminally intimidated the complainant and his wife by showing knife to them. Man Dasi and Raju neighbourers of complainant rushed to the spot on hearing alarm raised by Banti Devi. On seeing them, both respondents disappeared from the spot. The matter was reported to the police by complainant vide FIR Ex.PW-1/A. The police visited the spot, prepared spot map, made recoveries. On completion of investigation challan was presented against the respondents who were charged for offence punishable under Sections 452, 354, 506 read with Section 34 IPC, to which both of them did not plead guilty and claimed trial. The prosecution in order to prove the charge, examined 7 witnesses and produced documents. The statements of respondents were recorded under Section 313 Cr.P.C. , they denied the prosecution case. The learned Judicial Magistrate acquitted the respondents on 29.9.2001, hence the present appeal by the State. 3. I have heard Mr. A.K. Bansal, learned Addl. Advocate General for the State and gone through the record, none appeared on behalf of the respondents. The learned Addl. Advocate General has submitted that the learned Judicial Magistrate has misinterpreted and misconstrued the evidence on record. The respondents have been wrongly acquitted. The prosecution has proved the case beyond reasonable doubt against the respondents. He has prayed for setting aside of the impugned judgment and conviction of respondents for the offences for which they were charged. 3 4. PW-1 Chandermani complainant has stated that at about 6 p.m. respondents came to his home, they took their food with him. They came again during night and tore the clothes of Banti Devi at the door and nothing more was done by respondents at that time. He was declared hostile and cross-examined by the prosecution. He was confronted with FIR Ex.PW-1/A. He admitted portion A to A of FIR Ex.PW-1/A to be correct. In the cross-examination conducted on behalf of the respondents he has stated that he did not see the faces of the respondents but heard their voices only, they were in the courtyard and left from that place itself. Thereafter his mother-in-law Man Dassi and Raju came there. He could not tell whether the clothes of his wife were torn due to door or those were torn by the respondents. 5. PW-2 Banti Devi has stated that about 4/5 years ago respondents came to her house holding liquor bottle in their hand. The respondents took their meals and left at about 8/9 p.m. They again came to her house at about 12 O’clock, Karam Singh caught her from breast and Karmu torn her salwar. They broke the string of the salwar. The respondents came out from the house, she raised alarm. She narrated the incident to her husband and reported the matter to the police. The shirt Ex.P-1 and salwar Ex.P-2 were taken into possession by the police. In cross-examination she has stated that she had lighted the lamp and was sitting, her husband was also there and was sitting in the room. She gave burning rubber ( mashal ) to the respondents for returning to their homes. 6. PW-3 Bal Dassi has stated that she had no issue and therefore she has adopted Chandermani . Chandermani lives in her land but separately. About 4/5 years ago she heard the noise of some 4 quarrel, she came out and Banti Devi told her that some boys were teasing her. She came down but none was there. The accused present in the Court were not present on the spot. She was declared hostile and was cross-examined by the prosecution but nothing favourable to the prosecution came in the cross-examination of this witness. 7. PW-4 Nikku Ram did not support the prosecution and he was declared hostile. In the cross-examination conducted on behalf of the accused he has stated that police forcibly put his thumb mark on the recovery memo. PW-5 Nag Ram also did not support the prosecution and he was declared hostile and was cross-examined by the prosecution. PW-6 ASI Mangal Singh is the Investigating Officer and has proved FIR Ex.PW-1/A. PW-7 SI Shivpal Singh is also an investigating officer. He prepared the site plan Ex.PW-7/A and recorded the statements of witnesses. The respondents have denied the prosecution case in their statements under Section 313 Cr.P.C. 8. As per FIR Ex.PW-1/A on 19.2.1995 at about 7 p.m. respondents came to the house of PW-1 Chandermani and they even brought a liquor bottle. They left the house of PW-1 and at about 1 a.m. PW-1 was sleeping with her wife and children by bolting the door. All of a sudden door was pushed and bolt came out. PW-1 lighted the lamp and saw respondents inside the room. The respondent No.2 immobilized PW-1 and respondent No.1 tore the clothes of PW-2 as well as string of her salwar. The respondent No.1 had shown the knife to him and threatened to kill him, PW-2 raised an alarm on which Mal Dassi and Raju came there and on seeing them, respondents fled away. PW-1 in the Court has narrated different story. He has stated 5 that respondents came to his house during night and tore the clothes of Banti and nothing more was done by them at that time. He did not support the prosecution and was declared hostile. PW-2 Banti Devi has given different version of the occurrence, she has stated that respondents came with the bottle of liquor, they took their food at about 8/9 p.m. and left her house. They again came at about 12 O’clock at night. The respondent No.1 caught hold her from breast and tore her salwar as well as broke the string of her salwar. The story narrated by PW-2 was contradicted in her later part of the examination when she has stated that she had narrated the story to her husband. The perusal of FIR Ex.PW-1/A would show that PW-1 Chandermani husband of PW-2 was very much in the room at the time of alleged entry of respondents in the room. Therefore, there is no question of narration of incident by PW-2 to PW-1. In FIR PW-1 has stated that Man Dassi and Raju came on the spot but the prosecution has examined PW-3 Bal Dassi. It is not clear from her statement that Bal Dassi or Man Dassi is the same lady, in any case Bal Dassi has stated that when she came on the spot the respondents were not present on the spot. The prosecution has not examined Raju the other person who allegedly came on the spot on hearing the shrieks of PW-2. PW-1 has stated that when the door was pushed then the bolt came out but no such broken bolt was taken into possession or produced in the Court. The knife shown by accused to complainant and his wife for criminal intimidation has also not been recovered. PW-2 has stated that when respondents entered into the room she was sitting with lighted lamp but PW-1 in the FIR has stated that when the door was pushed inside then PW-1 lighted the lamp. PW-1 in his statement in 6 the Court has stated that the accused were in the courtyard and they returned from that place itself. He has also stated that at that time it was dark and he could not see the faces of the accused but recognized them from their voices. There are material contradictions in the prosecution case which have been highlighted by the learned Judicial Magistrate, who has taken a possible view from the material on record. The prosecution has miserably failed to point out how the view taken by learned Judicial Magistrate is perverse or is not at all possible from the evidence which has come on record. In these circumstances no case is made out for interference, resultantly, appeal deserves to be dismissed and is accordingly dismissed. Bail bonds discharged. ( Kuldip Singh) Judge March 6, 2009 (sks)