IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No. 209 of 2003 Decided on: 24.4.2010 State of H.P. ..…Appellant Versus Ramesh Chand & Ors. ..…Respondents Coram The Hon’ble Mr. Justice V.K. Sharma, J. Whether approved for reporting?1Yes. For the appellant : Mr. Rajinder Dogra, Addl. A.G. For the respondents : Mr. Parveen Chandel, Advocate for respondents No. 1,2,3 and 5. Mr. Ban Bhadur, Advocate, vice counsel for respondent No. 4. V.K. Sharma, J. (Oral) In this appeal, under Section 378 (3) of the Code of Criminal Procedure, 1973 (the Code), challenge has been directed at the instance of the appellant-State against the impugned judgment dated 5.9.2002 of the learned Judicial Magistrate Ist Class (I), Dharamshala, whereby the respondents, who were tried for commission of offences, under Sections 147, 148, 149, 323 and 427 IPC, were acquitted. 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. 2 2. Briefly stated the prosecution case was that the complainant PW1 Shri Bishan Dass was raising construction of his house over a parcel of land jointly owned and possessed by him along with numerous other persons namely Makholi Ram, Kishanu Ram, Dalipa Ram, Chuhru Ram, Mohru Ram, Gulabu Ram, Dhani Ram, Dharam Chand, Ramesh Chand, Rakesh Kumar and Raj Kumar, out of whom the last mentioned three (Ramesh Chand, Rakesh Kumar and Raj Kumar) are amongst the respondents herein. However, since it was joint land, the accused party had obtained an injunction order against the complainant from the Civil Court and on its service upon him, he had allegedly stopped the construction work which at that time was stated to be complete upto lintel level. 3. It was against the above backdrop that on 5.10.2000 at about 1.20 P.M. at village Rait when the complainant was working in his fields, he heard noise emanating from the side of his house and he immediately rushed there. On reaching there he found that the accused who had formed unlawful assembly in prosecution of their common object, were damaging the walls of his aforesaid house, which was under construction, with the help of a hammer. When his daughters-in-law both of the name of Veena Devi interrupted the accused party, they indulged in rioting by giving fist and kick blows to the complainant and his aforesaid daughters-in- law, due to which they suffered injuries. It was also alleged that by their acts the accused also committed mischief by causing damage to the property belonging to the complainant comprising of the aforesaid house under construction. 3 4. The matter was reported to the police by way of a telephonic message by Pradeep Kumar, son of the complainant, on the basis of which Daily Diary Report (DDR) Ext.PW11/D was recorded. Thereafter, ASI Negi Ram proceeded to the spot where he recorded statement of the complainant Shri Bishan Dass Ext.PW1/A, under Section 154 Cr.P.C. on the basis of which formal FIR Ext.PW11/B was registered. The I.O. prepared the site plan Ext.PW11/A and also took hammer Ext.P1 into possession vide memo Ext.PW3/A. The injured were got medically examined at CHC, Shahpur. 5. I have heard the learned Additional Advocate General and learned counsel for the respondents. It is not disputed that the land over which the house of the complainant was said to be under construction is a joint land belonging to both the parties, i.e., the complainant and the accused apart from some other persons. The parties are also not in dispute that qua this construction the accused party had obtained an injunction order from the Civil Court. However, as per the complainant the construction was stopped immediately on receipt of the injunction order but by that time the same was already complete up to the lintel level. 6. From combined and harmonious reading of the evidence on the record and on an overall view of the matter the possibility of a false case having been planted on the respondents at the behest of the complainant cannot altogether be ruled out. This inference is further deducible by taking into consideration the material contradictions, improvements and improbabilities appearing in the prosecution evidence led during 4 the trial. The reasons to arrive at this conclusion are set out hereinafter. 7. PW4 Smt. Veena Devi, wife of Shri Pradeep Kumar has admitted during cross-examination that the Local Commissioner had visited the spot on 30th September, 2000. The stay order was issued by the learned Civil Court on 14.9.2000. In such situation the visit of the Local Commissioner to the spot could not have been for any other reason except to ascertain the stage of the construction being raised by the complainant in the aforesaid joint land. It is also in evidence that the accused party had submitted a complaint to the Superintendent of Police with a request to take steps to stop the construction work being undertaken by the complainant even despite restraint order passed by the Court. This fact has been admitted by PW2 Pradeep Kumar who is the son of the complainant. 8. It is not understandable that when the accused party had obtained the stay order from the Court what actuated them to cause damage to the house belonging to the complainant. This aspect of the matter becomes further manifest from the deposition of PW4 Smt. Veena Devi who has stated that she had sustained injuries with a knife used by the accused during the alleged occurrence. However, neither it was the case of the prosecution that any knife was used by the accused persons during the occurrence nor medical witness PW7 Dr. Mohan Chaudhary, who had examined the injured members belonging to the complainant party, had observed any such injury having been caused by a sharp-edged weapon on 5 their persons. The following simple injuries caused with blunt weapon were observed by him in relation to PW5 Smt. Veena Devi, Ritu and Roshani Devi (not examined) vide Medico Legal Certificates Exts.PW7/A, B and C, respectively:- Veena Devi (i) Scratch Mark at the right wrist joint lateral side .3 X .3 CM in size blackish red scab formed. Ritu (i) Scratch Mark 7 X .2 CM in size at the ante rior aspect of right forearm blackish and unagonised scab was formed. Roshani (i) Contusion 7 X 5 CM of size right lateral side of thigh slight bluish in colour. 9. Further contradictions and infirmities in the prosecution case that have been noticed by the learned trial Court are that in statement Ext.PW1/A which was the earliest version about the occurrence the complainant PW1 Shri Bishan Dass had stated that he along with his daughters-in-law named above had sustained injuries. However, while appearing as PW1 he has categorically stated that he had not suffered any injury during the occurrence and only his daughters-in-law had suffered injuries along with their mother-in-law. The alleged damage caused to the house does not co-relate with photographs Ext.P1 to Ext.P6. Maya Devi and Kaushalya Devi, who were also stated to have witnessed the occurrence were not examined. Since PW3 Sanjeev Kumar has admitted that son of the complainant by name Manjeet had been working with him at his shop and that PW6 Suresh Kumar, who is president of the 6 local Gram Panchayat has admitted that whereas the complainant party belongs to his village and they are his voters, the members of the accused party are out-siders, in a way they are to some extent interested witnesses. So far as PW3 Sanjeev Kumar is concerned, his name was not disclosed by the complainant PW1 Shri Bishan Dass while lodging report with the police. 10. In view of the above, the prosecution case cannot be said to have been proved against the respondents beyond reasonable doubt. It being so, I do not see any reason for any interference with the impugned judgment 5.9.2002. Resultantly, the appeal fails and is accordingly dismissed. (V.K. Sharma), Judge. April 24, 2010 (vs)