IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.412 of 2000 Reserved on:04.12.2007. Decided on:January 04, 2008. State of H.P. …Appellant. VERSUS Rama Nand & others. ….Respondents. Coram The Hon’ble Mr.Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellant: Mr P.M.Negi, Deputy A.G. For the respondents: Mr Anand Sharma, Advocate. Kuldip Singh, Judge The State has filed this appeal against the judgment dated 29.2.2000 passed by learned Additional Chief Judicial Magistrate, Ghumarwin in case No.183/1 of 1996 acquitting the respondents under Sections 430, 379, 323, 506 read with Section 34 I.P.C. 2. The prosecution case, in brief, is that on the complaint Ext.PW-1/A of PW-1 Ram Pyari, F.I.R. Ext.PW-3/B was registered at Police Station, Ghumarwin under Sections 430, 379, 323, 506 read with Section 34 I.P.C. against the respondents. The prosecution story is that on 8.2.1996 at about 6 P.M. at village Tiun Khas respondents committed mischief by uprooting pipes which were Whether the reporters of the local papers maybe allowed to see the judgment? Yes …2… meant for irrigation to the land of complainant Ram Pyari. The pipes were removed out of the possession of the complainant without her consent with dishonest intention and also caused simple hurt to the complainant and threatened the complainant so as to cause alarm to her. The matter was reported to the police and on that basis F.I.R. was registered. The police visited the spot, two pipes were taken into possession vide memo Ext.PW-3/E. On completion of investigation, challan was put against the respondents and they were charged under Sections 430, 379, 323, 506 read with Section 34 I.P.C. to which the respondents pleaded not guilty and claimed trial. The prosecution examined five witnesses. The statements of respondents were recorded under Section 313 Cr.P.C., they pleaded their innocence but did not lead any evidence in defence. The learned Additional Chief Judicial Magistrate acquitted the respondents on 29.2.2000. Hence, this appeal by the State. 3. I have heard learned Deputy Advocate General for the State, Mr Anand Sharma, learned counsel for the respondents and gone through the record. The learned Deputy Advocate General has submitted that prosecution has proved the case against the respondents, the learned Additional Chief Judicial Magistrate has erred in acquitting the respondents. The evidence has not been properly appreciated by the Court below. The learned counsel for the respondents has supported the impugned judgment and has submitted that prosecution has miserably failed to prove the case …3… against the respondents and the learned Additional Chief Judicial Magistrate has rightly acquitted the respondents. 4. PW-1 Ram Pyari has stated that on 8.2.1996 at about 6 P.M. they were irrigating their land through the irrigation scheme of Horticulture Department. She found that there was no water in the tap and, therefore, she went at the source, she found respondents at the source and they were removing the pipes. She asked them not to remove the pipes, on this Rama Nand gave a danda blow on her head, his son with the help of stone broke the pipes and sockets. All the respondents threatened that they would kill her and destroy the irrigation scheme. The respondents took away the pipes to their home. The respondent Rama Nand had pointed gun towards her and also threatened her. Prem Singh came there, there was none on the spot except her and the respondents. She has submitted application Ext.PW-1/A at Ghumarwin and F.I.R. was registered. The police came on the spot and recovered the pipes. They could not get the water in their tap for one month due to breaking of the pipeline nor could they irrigate their land. In cross examination, she has stated that pipes were removed in 3-4 minutes. The house of Arjun is near the place of occurrence, volunteered he had gone to Nainadevi and his sons had gone for work. There was none at his house, his daughter-in-law was busy in the household work and she did not come to the spot. The threat with the gun was given down below on the road. They brought the gun from their house. The house of the respondents is at a distance of 150 meters from the place of …4… occurrence. The respondent Rama Nand is her real brother-in-law (devar). 5. PW-2 Rajinder Pal, son of PW-1, has stated that on 8.2.1996 at about 6 P.M. their irrigation scheme pipeline was broken by respondents. The respondents attempted to put their own pipeline, he, his parents reached the spot and they asked them not to break the pipeline. The respondent Sanjay had removed 2/3” pipes and took them to his home. Sanjay Kumar hit his mother with stone. The threat to his life was given. Police came on the spot and took the pipes in possession which were kept by the respondents in the hedge of their house. In cross examination, he has stated that all of them reached the spot together. He has admitted that no pipes were shown to him in the Court on the day of his making statement. Prem Singh came there 10 minutes after they reached there. Prem Singh has earlier appeared as witness against Rama Nand. They have dispute with respondents and cases are pending in the Court. 6. PW-3 Prem Singh has stated that on 8.2.1996 at about 6.30 P.M. he was going from the quarter of Forest Guard to his house. The complainant party asked the respondents why they were destroying the pipes. On this, respondents removed two pipes and took away those pipes to their home. The complainant Ram Pyari received injury but he had not seen who gave the beatings to Ram Pyari. In cross examination, he has stated that he reached the spot first in time. Rajinder etc. came later on. The pipes were already removed when he reached there. The police did not recover any pipe …5… in his presence. He has admitted that earlier also he appeared as a witness on behalf of Kishan Lal. 7. PW-3A Roshan Lal, Investigating Officer, has stated that the complainant was not got medically examined as she refused for medical examination. PW-4 Arjun Singh has stated regarding recovery of two pipes vide memo Ext.PW-3/B. In cross examination, he has stated that pipes were lying along the roadside and he is not aware who kept those pipes there. He does not know who broke those pipes. 8. There are material contradictions in the prosecution story on material points. PW-1 Ram Pyari has stated that on 8.2.1996 at about 6 P.M. she found respondents at the source and they were removing the pipes, Rama Nand gave a danda blow on her head and his son broke the pipes with the help of stone, they threatened her that they would kill her. Rama Nand had pointed gun towards her and also threatened her. There was none on the spot except her and the respondents. Prem Singh came there later on. In her complaint Ext.PW-1/A she has stated that blood oozed out from her forehead. It is natural that some blood must have fallen on her clothes, but no such clothes were produced during trial. It is not the case of the prosecution that the house of the respondents is at the place of occurrence but in Ext.PW-1/A it has been stated that wife and son of Rama Nand brought the gun from inside and asked Rama Nand to kill the complainant and on this Rama Nand pointed the gun towards her and the complainant party left the place and saved their lives. In her …6… statement in the Court she has not stated that gun was brought by wife and son of Rama Nand. She has stated that house of the respondents is at a distance of 150 meters from the place of occurrence. It is not the case of the prosecution that once the respondents left the place they again returned at the place of occurrence nor it is the case of the prosecution that gun was with respondents’ party right from the very beginning. The complainant party has made improvement during trial of the case. 9. PW-2 Rajinder Pal has stated that the respondents have broken the pipeline and they attempted to put their own pipeline, but this is not so stated by PW-1 complainant. In Ext.PW-1/A it has been stated that Rama Nand gave danda blow on the head of the complainant but PW-2 Rajinder Pal has stated that respondent Sanjay Kumar hit his mother with stone but it is not so recorded in Ext.PW-1/A. PW-2 has stated that all of them reached the spot together but PW-1 has stated that there was none on the spot except her and the respondents. PW-2 has stated that Prem Singh came on the spot 10 minutes after they reached there. PW-2 has also stated that Prem Singh has earlier appeared as witness against Rama Nand. In these circumstances, it is not safe to rely on the statement of PW-3 Prem Singh. However, Prem Singh has stated that he reached the spot first in time, Rajinder etc. came later on and pipes were already removed when he reached there. The police did not recover any pipe in his presence. PW-3A Roshan Lal, Investigating Officer, has stated that the complainant refused to get her medically …7… examined. PW-4 Arjun Singh has stated that pipes were lying along the roadside and he is not aware who kept those pipes there. He does not know who broke those pipes. The gun, with which Rama Nand threatened the complainant party, has not been recovered. The learned Additional Chief Judicial Magistrate has appreciated the material on record and has noticed conflicting versions given by the prosecution witnesses. The recovery of pipes, as noticed by the learned Additional Chief Judicial Magistrate, is also doubtful. The prosecution has failed to prove the case against the respondents beyond reasonable doubt. The view taken by the learned Additional Chief Judicial Magistrate is possible and this Court, while sitting in appeal, will not take other view if the view taken by the Court below is possible and emerges from the evidence on record. The prosecution has failed to make out any case for interference. Hence, the appeal fails and is accordingly dismissed. Bail bonds, furnished by the respondents, are discharged. January 04, 2008. ( Kuldip Singh ), J. (soni)