IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 659 of 2002. Date of decision: December 9, 2009. State of Himachal Pradesh ….. Appellant. Vs. Madan Lal & anr. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. R.P.Singh, Assistant Advocate General. For the Respondents : Mr. J.R.Thakur, Advocate. Kuldip Singh, Judge (Oral). This appeal has been directed against the judgement dated 20.6.2002 passed by learned Addl. Chief Judicial Magistrate, Barsar in Criminal Case No. 28-1/1999 acquitting the respondents for offence punishable under Sections 451, 325, 323, 427, 506 (II) read with Section 34 IPC. 2. The prosecution case in brief is that PW 1 Amro Devi had given a telephonic information at Police Station, Barsar that her neighbours have caused substantial damage to her house and they are threatening to kill her, rapat No. 29 Ex. PW 10/C was lodged in the Police Station. PW 12 ASI Satpal Singh alongwith staff went to the spot, statement of Amro Devi, under Section 154 Cr.P.C., Ex.PW 1/A was recorded wherein she alleged that on 13.7.1999 she Whether the reporters of the local papers may be allowed to see the Judgment? …2… had gone to her newly constructed house to take rest. She found that water pipe of her house was being uprooted by Smt. Kamla Devi. The complainant asked Kamla Devi what she was doing, on this Kamla Devi started calling her names. The complainant sent her husband Anant Ram to call the ward panch PW 4 Braham Dass, who came to the spot and inquired from Kamla Devi as to why she was damaging the water pipe. He was also abused by Kamla Devi in presence of other villagers. The ward panch and other residents of the area went to their respective houses and the complainant also returned to her old house. 3. At about 8.00 or 8.30 p.m., the complainant heard the noise that something is being dismantled in her new house. The complainant went towards her new house and saw that Kamla Devi and Madan Lal, Dropti Devi, Goru Ram were dismantling the brick wall and gate of the house of the complainant. They also threatened the complainant that they would finish her. Madan Lal broke the doors of her house by pelting bricks and stones. The complainant came to her verandah. She told Kamla Devi that by dismantling the walls etc. they have not done a right thing. Upon this Madan Lal and Kamla Devi started beating the complainant with fist and kick blows and due to the blow given by Madan Lal on the face of complainant her teeth were dislodged. The incident was witnessed by Dhani Ram, Rikhi Ram etc. PW 2 Sukh Ram came to her house, Madan Lal and Kamla Devi even threw bricks at him, Sukh Ram had also sustained injuries. It was alleged by the complainant that aforesaid four persons have given beatings to her and her brother Sukh Ram without any rhyme or …3… reason, they have caused damage to her property. On this, the case was registered. 4. After completion of investigation, challan was presented and charge under Sections 451, 325, 323, 427, 506 read with Section 34 IPC was framed against both the accused, they pleaded not guilty and claimed trial. The prosecution has examined 13 witnesses and produced some documentary evidence on record. The statements of accused, under Section 313 Cr.P.C., were recorded, they have led no evidence in defence. The learned trial court has acquitted the accused after giving them benefit of doubt. In these circumstances, the State has come in appeal. 5. I have heard Mr. R.P.Singh, learned Assistant Advocate General for the State and Mr. J.R.Thakur, learned counsel for the respondents and have gone through the record. It has been submitted on behalf of the State that learned Addl. Chief Judicial Magistrate has not properly appreciated the evidence on record, the prosecution has proved the case against both the accused beyond reasonable doubt. In the facts and circumstances of the case, the impugned judgement of acquittal may be set aside and the respondents may be convicted in accordance with law. The learned counsel appearing on behalf of the respondents has supported the impugned judgement and has submitted that learned trial court has considered the evidence on record properly, no fault can be found with the judgement of acquittal recorded by the learned trial court. 6. Ex. PW 1/A is the statement of PW 1 Amro Devi complainant recorded under Section 154 Cr.P.C., wherein she has …4… stated that at about 8.00. or 8.30 p.m. Kamla Devi, Madan Lal, Dropti Devi and Goru Ram had removed the gate and brick wall, which the complainant party had put in front of their courtyard. They by pelting bricks and stones had broken the doors of her house. They came to her verandah where Kamla Devi and Madan Lal gave beatings to complainant on her face and body with kick and fist blows. She had dislodged her teeth due to fist blow of Madan Lal. The incident was witnessed by Dhani Ram, Rikhi Ram and Ram etc. Sukh Ram her brother came there later on, who was also given beatings by Madan Lal and Kamla Devi with the pieces of bricks. Sukh Ram had also sustained injuries. The investigating agency did not find any case against Dropti Devi and Suhnu Ram and therefore, they were not charge-sheeted. It means, to begin with the case of the complainant party was not found truthful even by the investigating agency in its entirety. 7. PW 1 Amro Devi, PW 2 Sukh Ram, PW 3 Dhani Ram, PW 4 Braham Dass and PW 6 Lajo Devi are the alleged eye witnesses of the incident. PW 1 Amro Devi in her statement Ex. PW 1/A under Section 154 Cr.P.C. has named four persons, namely, Madan Lal, Kamla Devi, Dropti Devi and Suhnu Ram, who removed the brick wall and gate of her house. PW 1 in her statement in the court has stated that wall was removed by Madan Lal and Kamla Devi. She has thus contradicted herself. PW 1 has admitted that her statement Ex. PW 1/A was recorded by the police, but the prosecution has not given any explanation regarding the improvement …5… made by PW 1 in her statement in the court as against statement made by her before the police vide Ex. PW 1/A. 8. PW 2 Sukh Ram is the brother of complainant PW 1. He has denied that he was called by her sister to give beatings to the accused. He has denied that accused party sustained injuries on that date. He has denied that her sister gave drat blow to accused Madan Lal. PW 3 Dhani Ram has stated that the villagers were witnessing the occurrence from a distance and none was present on the spot. He has also stated that he had not seen Amro Devi giving drat blow on the head of Madan Lal. PW 4 Braham Dass, member Gram Panchayat has stated that Anant Ram came to him with an application and he went to the spot. He found broken pipe on the spot. He inquired from Kamla Devi, who started abusing. Later on, police came quite late in the night. The police called him and he found broken gate etc. He has, however, stated that Anant Ram and accused have longstanding dispute. Anant Ram is the husband of complainant. PW 4 saw injuries on the head of Madan Lal on the next day. PW 4 thus is not an eye witness of the incident when gate and brick wall were allegedly broken by the accused. PW 6 Lajo Devi has stated that she does not know whether Amro Devi gave drat blow to Madan Lal. The learned Assistant Advocate General has fairly submitted that even Madan Lal had reported to the police regarding beatings given to him. Mark-D is the MLC of Madan Lal, who was examined on 14.7.1999 and five injuries were found on his person. 9. PW 12 Satpal, Investigating Officer has stated that Madan Lal was not got medically examined by him after arrest. He …6… did not find any injuries on the person of Madan Lal. The statement of PW 12 Satpal, Investigating Officer that he did not find any injury on the person of Madan Lal is belied by MLC mark-D of Madan Lal. The prosecution has not explained the injuries on the person of Madan Lal. 10. PW 3 Dhani Ram and PW 6 Lajo Devi have stated that they had not seen Amro Devi inflicting drat blow on Madan Lal. As per MLC mark-D, five injuries were found on the person of Madan Lal, therefore, suspicion has been created regarding the very presence of PW 3 Dhani Ram and PW 6 Lajo Devi at the time of occurrence. The defence version is that complainant party gave beatings to the accused party and even removed their wall. PW 4 has stated that there are longstanding disputes between the complainant party and the accused. It is not the case of the prosecution that incident took place at an isolated place. No worth believing independent eye witness has been associated during investigation and examined in the court. The statement of PW 1 complainant is not in consonance with her own statement recorded under Section 154 Cr.P.C. According to PW 1 Amro Devi her husband reached the spot at 3 O’clock, but he has not been examined by the prosecution nor any explanation has been given by the prosecution for not examining Anant Ram the husband of the complainant. The medical evidence led by the prosecution is of no help in absence of worth believing ocular evidence. 11. PW 5 Dr. Santosh Kumar, who examined Sukh Ram, Smt. Amro Devi has stated that injuries can be caused by fall on hard …7… surface. The learned Additional Chief Judicial Magistrate has taken a possible view from the evidence on record. The view taken by Addl. Chief Judicial Magistrate cannot be said to be perverse or not at all possible from the evidence. In appeal, simply because other view is possible is no ground to unsettle the acquittal recorded by the trial court. The prosecution has failed to make out any case for interference. 12. Resultantly, the appeal fails and is accordingly dismissed. The bail bonds of the respondents are discharged. December 9, 2009. ( Kuldip Singh ), (Hem) Judge.