IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.M.P.(M) No.278 of 2008 Decided on: May 01, 2008. State of Himachal Pradesh …Petitioner. VERSUS Krishna Kanwar ….Respondent. Coram The Hon’ble Mr.Justice Kuldip Singh, Judge. Whether approved for reporting?1No For the Petitioner : Mr A.K.Bansal, Addl.A.G. For the respondent : Kuldip Singh, Judge (Oral) The State has filed this petition seeking leave to file appeal against the judgment dated 31.12.2007 passed by learned Judicial Magistrate 1st Class (4), Shimla in Cr. Case No.RBT 177/2 of 2005 acquitting the respondent under Sections 336, 427 I.P.C. in F.I.R. Ext.PW-8A. 2. The facts in brief are that statement of PW-1 Sanjeev Sharma, complainant, under Section 154 Cr.P.C. Ext.PW-1/A was recorded by PW-9 S.I. Pal Chand. The complainant had alleged that his father had constructed a two storeyed house at Sangti in the year 1983 and adjacent to their house there is four storeyed house of PW- 4 Champa Devi. He has alleged that Krishna Kanwar respondent / accused had started construction of her house below their houses Whether the reporters of the local papers may be allowed to see the judgment? Yes …2… and as a result of digging on 2.8.2004 retaining wall, septic tanks of the houses of complainant and PW-4 Champa Devi had collapsed and cracks had developed in the houses. The complainant had alleged that damage had occurred due to negligent digging carried out by Krishna Kanwar in rainy season near the retaining wall. He alleged that Champa Devi had suffered loss of Rs.4 lacs. He and Champa Devi had been asking Krishna Kanwar for compensation but she refused. On the basis of statement Ext.PW-1/A, F.I.R. Ext.PW- 8/A was registered. During investigation, spot map Ext.PW-9/A was prepared. On completion of the investigation, challan was presented in the Court and notice of accusation under Sections 336, 427 IPC was put to respondent to which she pleaded not guilty and claimed trial. The prosecution examined 9 witnesses, the statement of respondent was recorded under Section 313 Cr.P.C. in which she pleaded her innocence. The learned trial Magistrate acquitted the respondent. Hence, the State has filed the petition seeking leave to file appeal. 3. Heard and perused the record. PW-1 Sanjeev Sharma has stated that on 2.8.2004 in the evening accused had done digging work adjacent to retaining wall which was put in front of his as well as Champa Devi’s houses. He then stated that the digging was done 15 days earlier as a result of which retaining wall came down. The houses of the witness and Champa Devi developed cracks. They suffered damage of about Rs.4 lacs. The incident had occurred due to the negligence of the accused. In cross examination, he has admitted that on one side of the retaining wall is his septic tank and …3… on the other end of the retaining wall is the septic tank of Champa Devi. He has also stated that there were six tenants in his building and about 15 / 20 tenants in the building of Champa Devi at the relevant time. He has denied that he and Champa Devi had not kept proper drainage of septic tanks and their bath rooms. He has stated that at the time of incident no digging work was going on in the plot of the accused. The retaining wall had fallen due to settlement of land. He had shown his ignorance that his retaining wall had fallen in the year 1999. He came to Shimla on 2.8.2004. He ultimately has stated that he does not know how the retaining wall had fallen. Arun Bhanwra had visited the spot on 18.8.2004. He has further stated that the accused had obtained stay by filing a suit not to raise construction on the retaining wall. 4. PW-2 Balbir Chauhan, in his examination, has stated that he cannot say at whose fault the incident had taken place. In cross examination, he has stated that complainant and Champa Devi had not put pipes to drain out water of their houses, nor he could say that the over flow of the septic tank used to come out or not. He has also stated that complainant and Champa Devi had not put pipes to drain out over flow water of their septic tanks. He has also stated that the accused while constructing her retaining wall had left space from the retaining wall of complainant. PW-4 Champa Devi has stated that on 2.8.2004 the accused started construction of retaining wall as a result of which the retaining wall of her house as well as house of Sanjeev Sharma and their septic tanks came down. They suffered loss of about Rs.4 lacs. She has generally supported the prosecution …4… case. PW-6 Arun Kumar, Architect has proved his report Ext.PW-6/A which he prepared on the basis of inspection of the spot carried out by him on 18.8.2004. In his cross examination, he has stated that there is a gap of 10 – 11 feet in between the houses of the accused and Champa Devi. There is vacant land in between the houses of the complainant and the accused. He has stated that there was no proper drainage of the houses of complainant and Champa Devi and the water used to flow in the open. He has also stated that as a result of flow of water in open there were chances of settlement of the land. He has also stated that no digging was done at a distance of 10-12 feet from the retaining wall. In the cross examination, he has ultimately stated that where the retaining wall had settled the accused had done no digging near that place. The statement of PW-6 has completely demolished the case of the prosecution. PW-6 is an expert. He has stated that in between the houses of the complainant and the accused there is 10-12 feet vacant land. He has also stated that near the retaining wall no digging was done by the accused. It has also come in evidence that waste water of the houses of the complainant, Champa Devi used to flow openly which apparently could cause the damage. The learned Judicial Magistrate has drawn proper inference and has rightly appreciated the material on record. No case has been made out for grant of leave to file appeal against the impugned judgment. Hence, leave to appeal refused and the petition is dismissed. May 01, 2008 ( Kuldip Singh ), J. (soni)