IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 540/2003 Date of decision: 22.6.2011 State of H.P. …..Appellant Versus Tilak Raj ……Respondent Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 No. For the Appellant: Mr. A.K. Bansal Addl. Advocate General. For the respondent : Mr. Himmat Negi, Advocate. Surinder Singh, J. (Oral) Respondent was acquitted of the offences punishable under Sections 451,323 and 506 Indian Penal Code by the learned trial Court and was accordingly sentenced but on his appeal, the learned Additional Sessions Judge after reappraisal of the evidence, acquitted him vide a detailed judgment dated 30.7.2003, passed in criminal appeal No. 5 of 2001. The State felt aggrieved by the impugned judgment of acquittal, as such preferred the present appeal. 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes - 2 - 2. In short, the facts germane to the present appeal can be stated thus. PW1 Sudesh Kumari complainant was residing in her village along with her children. Her husband was working in the Railways Department out side the State. Respondent is her brother-in-law. They had a landed dispute. On 11.7.1999, complainant was working in her fields which had the maize crop. In the evening, she was rectifying the boundaries of her fields which was allegedly disturbed by the respondent to forcibly occupying shamlat land. On 12.7.1999 at about 6.30 a.m. while complainant was in the kitchen, respondent came to the gate of her house and started hurling abuses. On hearing him, complainant came out of the kitchen but in the mean time, respondent opened the gate and entered her court-yard. He suddenly caught hold of the complainant from her pony tail, abused and slapped her. She relieved herself and rushed towards the room but in that process, she was hit with a small piece of stone on her small finger of left foot. One of the stones which was pelted by the respondent hit her on the leg, whereafter she managed to enter into the room and closed the door. Respondent even thereafter continued - 3 - throwing stones on the door of her room and threatened her with dire consequences. PW2 Renu Bala daughter of the complainant raised alarm thus respondent made his escape from the spot. While leaving the place, he further threatened the complainant to do away with her life. To this effect, report was lodged in the police Station which culminated into the FIR Ext. P9 under the aforesaid Sections. 3. Police arrived at the spot, recorded the statements of the witnesses and also prepared the site plan Ext. P7. They also took into possession the stones Ext. P1 to Ext. P4 from the spot. Complainant was got medically examined from PW4 Dr. Ashish Lakhi. He noticed as many as three injuries on her person as mentioned in the Medico Legal Certificate Ext. P6 having been caused within 24 hours relatable to the time of incident. The injury on the foot was-x- rayed but no fracture was found. All the injuries were opined to be simple in nature. 4. After completing the investigation, challan was presented in the Court for the trial of the respondent. - 4 - 5. Accordingly, respondent was charge sheeted to which he pleaded not guilty and claimed trial. 6. To prove its case, prosecution examined its witnesses and the respondent was also examined under Section 313 of the Code of Criminal Procedure. His case was denial simplicitor. However, he stated that the prosecution witnesses belong to one family and they deposed falsely against him on account of the litigation inter se them. 7. However, no evidence in defence was led by the respondent. 8. At the end of the trial, the learned trial Court convicted and sentenced the accused for the offences aforesaid which was set aside in appeal by the learned Additional Sessions Judge. 9. Shri A.K. Bansal, learned Additional Advocate General vehemently argued that the learned first appellate Court did not appreciate the evidence on record in the right perspective and the cogent evidence led by the prosecution was brushed aside on flimsy grounds. If the evidence is reappraised in the right perspective, there are grounds to convert the acquittal into conviction. - 5 - 10. On the other hand, Shri Himmat Negi learned counsel for the respondent supported the impugned judgment of acquittal and further argued that there has been discrepancies in the statements of PW1 and PW2 with respect to causing of the injuries and the manner in which the incident had taken place which makes the prosecution case doubtful. Further that the demarcation of the land, in order to find out the ownership of the court-yard was not conducted as such the offences in question are not made out. 11. I have given my best consideration to the rival contentions of the parties and have carefully gone through the evidence on record. 12. PW1 categorically stated that she was in her kitchen along with her children PW2 Renu Balla and Sukhjinder when respondent arrived at the gate of her court-yard and started hurling abuses. She came out and when she told him to desist from hurling the abuses, he entered inside the gate and caught hold of her from her hair and started fisticuffing her. After getting herself relieved from the respondent, she rushed towards her house. Respondent started pelting stones with the result little finger of her left foot got injured and another stone - 6 - hit her right leg, which finds mention in her MLC. When Renu Balla and Sukhjinder, her children raised alarm, respondent fled away from the spot. While leaving the place, she threatened her to do away with her life. Although in cross-examination, she admitted pendency of cases with the respondent but this is double edged weapon and must be a contributory factor to get enraged and the respondent must have given beatings to her. In his cross examination accused has made an endeavour to elicit that the place where the alleged incident had taken place is surrounded by thickly populated village and no witness from the village was cited as witness. But there is no suggestion either in her statement or thrown to PW2 aforesaid that any one of the villager was an eye witness to the said incident. Further the statement of the complainant stands fully corroborated by her daughter Renu Balla. Further, Injuries caused to the complainant were corroborated by PW4 Dr. Ashish Lakhi who, on examination found the injuries, as stated by the complainant and proved the MLC Ext. P6. Though in cross examination he admitted that these injuries could be sustained due to fall but no case of fall has been propounded by the accused in - 7 - cross-examination of the statement of the prosecution witnesses or even under Section 313 of the Code of Criminal Procedure. Therefore, the plea taken by the learned counsel for the respondent that the statements of PW1 and PW2 are contradictory, is wrong and that two views are deducible from the evidence on record is absolutely not borne out from the record as such no benefit can be given to the respondent. 13. In so far as the demarcation is concerned, it is not necessary to ascertain the ownership of the court-yard, once it is proved that the court-yard has been in possession of the complainant which had a gate and the respondent entered it, to cause injuries, the offence of house tress-pass under Section 451 Indian Penal Code stands proved. 14. The above discussion of the evidence goes to show that the respondent had given beatings to the complainant PW1 Smt. Sudesh Kumari and had committed house trespass and while leaving the place, he also threatened her with dire consequences. The offences punishable under Section 451 323 and 506 Indian Penal Code are made out. As such his acquittal as recorded by the learned Additional Sessions Judge is perverse and is - 8 - accordingly set aside. The respondent is held guilty for the offences punishable under Sections 451, 323 and 506 Indian Penal Code, for which he is convicted. The appeal filed by the State is allowed. 15. In so far as sentence is concerned, he is neither the previous convict nor any criminal matter is pending against him. The learned trial Court had also called for the report of the Probation Officer. The Probation Officer recommended the release of the respondent on probation which was declined by the learned trial Court without any cogent and convincing reasons. As such, keeping in view the age of the respondent and also the fact that he belonged to the same family that of the victim, a chance to reform is required to be given to him. Further, the offences aforesaid are not punishable more than two years. Therefore, respondent can safely be given the benefit of Section 3 of the Probation of Offenders Act. Thus the respondent is ordered to be admonished. Disposed of. June 22, 2011 (Surinder Singh), (cm) Judge.