IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 372 of 2004. Decided on: June 1, 2011. ___________________________________________________________ State of H.P. ……..Appellant. Versus Ram Dass and another. …… Respondents. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Mr. J.S. Rana, Asstt. Advocate General. For the respondents : Mr. Romesh Verma, Advocate. ____________________________________________________________ SURINDER SINGH, J (oral): The respondents were charge-sheeted, tried and acquitted for the offences punishable under Sections 452, 323 and 506 read with Section 34 of the Indian Penal Code. State felt aggrieved, as such filed the present appeal. 2. Briefly stated the prosecution case is that PW2 Malook was the guest of the complainant Gulam Hussain and stayed for the night in his house in one of the rooms. The wife of the complainant had gone to some other village to attend ‘Jagaran’. Whether reporters of the Local papers are allowed to see the judgment? - 2 - Complainant and his son slept in another adjacent room. The door was open, it being a summer time, but its “Jali door” was closed having bolt or lash. 3. During the intervening night of 9th /10th May, 2003, around 12.30 a.m. when complainant Gulam Hussain was sleeping alongwith his son, he heard the sound of walking of someone in the verandah. On this, he got up and asked as to who was there. Immediately thereafter the respondents entered in his room holding a Danda but caught hold of him from his neck and fisticuffed him. He raised hue and cry with the result his son and PW2 Malook sleeping in their respective rooms got up. Ali Hussain his neighbour also got attracted by his cries and reached the spot and relieved the complainant from the clutches of the respondents. The respondents made an escape from the spot and while leaving the place, they threatened him with dire consequences. 4. The matter was reported to the police in terms of FIR Ext.PW1/A. Police visited the spot, prepared site plan Ext.PW4/A with respect to the incident in question. Since there was no visible injury on the - 3 - person of complainant, therefore, his medical examination was not conducted. Police recorded the statements of the witnesses and after completing the challan, it was presented in the court for the trial of the respondents. 5. Learned trial Court after complete trial, acquitted the respondents, on the grounds that PW2 Malook was an interested witness and other witnesses i.e. Ali Hussain, Jai Pal and Ramesh Chand were given up by the prosecution, however the learned trial Court did not give any reason for disbelieving the statement of the complainant. 6. Shri J.S. Rana, learned Assistant Advocate General forcefully argued that the impugned judgment is perverse. The reasoning given by the learned trial Court is not convincing at all. It is also argued that the statements of PW1 as well as that of PW2 Malook could not be shattered in their cross- examination by the accused persons. According to him, if the evidence on record is appreciated properly, there are chances to convert the acquittal into conviction. - 4 - 7. On the other hand, Shri Romesh Verma, learned counsel for the respondents supported the impugned judgment of acquittal and submitted that there are material contradictions in the statements of the complainant PW1 and PW2 Malook. He also went through the statement of PW4 HC Mohar Dass to point out that there was dispute between the parties over a house and this was the reason that the respondents were falsely implicated in this case. It is also ventilated that PW1 in his statement stated that at the relevant time, there was light in his room, whereas the Investigating Officer stated that there was no light in his room. Therefore, this contradiction goes to the root of the case, with respect to identification of the respondents. 8. I have given my thoughtful consideration to the respective contentions raised by the learned counsel for parties and have closely and cautiously scanned the evidence of the prosecution. 9. PW1 Gulam Hussain has corroborated his version to the extent that the respondents entered his room and fisticuffed him by which PW2 Malook and his neighbour Ali Hussain got attracted and they - 5 - relieved him from the clutches of the respondents and while leaving the place, they proclaimed that on account of presence of PW2 Malook and Ali Hussain, they have left him, but they will not spare him in future and this statement of the complainant has also been corroborated by PW2 Malook. 10. In cross-examination, PW1 specifically admitted that the light of his room was on. He also stated that at the time of alleged incident Ramesh Chand and Jai Pal also reached there, whereas PW2 stated that he alongwith Ali Hussain rescued the complainant. 11. Since PW4 HC Mohar Dass stated that there was old dispute going on inter-se the parties, the possibility of nourishing the grudge by the respondents against the complainant cannot be ruled out. It is also not a case of mistaken identity, but in fact the respondents were already known to the complainant and had threatened the complainant at the time of alleged incident, the light of the room was also on, therefore, it cannot be said that the respondents could not be identified by the complainant or PW2 aforesaid. The incident stands proved. Thus non -examination of Jai Pal, Ali - 6 - Hussain and Ramesh Chand in the instant case is of no consequences. Otherwise also all and every witnesses of the occurrence are not required to be examined. It is for the Public Prosecutor to examine any of the witnesses of the incident whom he thinks necessary to unfold prosecution story and the Court is required to properly scan the evidence regarding truthfulness of the depositions so made whether it inspire confidence and can be acted upon in the light of other circumstances. 12. In the instant case, I am fully convinced that the respondents have committed the tress-pass of the house but not after having made preparation, therefore, it is a case which falls under Section 451 and not under Section 452 of the Indian Penal Code. The recovery of the Danda stands not proved by leading a cogent evidence and it was also not used by the respondents. But however the beating and threatening to the complainant as stated above, by the respondents stand proved beyond doubt, therefore, the impugned judgment of acquittal passed by the learned trial Court without proper appreciation of evidence, thus perverse, therefore, - 7 - set-aside. The respondents are held guilty and convicted for the offence punishable under Sections 451, 323 and 506 Part-I of the Indian Penal Code. 13. I have heard the learned counsel for the convicts on the quantum of sentence. According to him, the alleged incident had taken place in the year 2003. The respondents have also faced torture of trial and uncertainty in appeal. It is further submitted that the respondents are not the previous convicts and in case, they are sentenced to imprisonment, they will suffer the untold miseries and hardship and the association with the hardened criminals would mar their career. 14. I have considered above submissions. The record reveals that none of the respondents are previous convicts and there is no evidence that they ever indulged in a criminal activity after the alleged incident. 15. Keeping in view the extenuating and mitigating circumstances of this case and also considering the punishment for the offences for which they have been convicted which are not punishable more - 8 - than two years, the respondents are required to be dealt with leniently. From the above observations, I find, it a fit case where the benefit of the Probation of Offenders Act can be extended to the respondents. Accordingly, the respondents are admonished by giving them the benefit of Section 3 of the Probation of Offenders Act. 16. Appeal stands allowed and is accordingly disposed of in the above terms. 17. Send down the records. (Surinder Singh), Judge. June 1, 2011. (Pds)