IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.435 Of 2007 (OLD NO.3694/1994) Shiv Kumar S/o Sri Ilam Singh, R/o Village Kalalhati, P.S. Bhagwanpur, District Haridwar ……… Appellant/complainant Versus Lachchi Ram & Others ……… Respondents June 11, 2009 Mr. Lok Pal Singh, Advocate for the appellant. Mr. Siddhartha Sah, Advocate for the respondents no. 1 to 4. Mr. M.A. Khan, Brief Holder for the State/respondent no. 5. HON’BLE DHARAM VEER, J. This appeal, preferred by the appellant under Section 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as ‘CrPC’), is directed against the judgment and order dated 17.10.1994 passed by Additional Civil Judge, Roorkee, District Haridwar in criminal case no. 73/94, Shiv Kumar v. Lachchi Ram & Ors., whereby the learned Additional Civil Judge has acquitted the respondents no. 1 to 4, viz., Lachchi Ram, Anuj, Vishesh Kumar and Mukesh Kumar for the offence punishable under Section 324/34 and 506 of The Indian Penal Code, 1860 (for short, ‘IPC’). 2. Heard learned Counsel for the parties and perused the materials available on record. 3. In brief, the prosecution case is that the appellant Shiv Kumar had filed a complaint case before the trial court against the respondents no. 1 to 4 with the allegation that they were trying to grab the residential land which had come in the share of the complainant after the partition. On 15.4.1993 at about 4 PM, when the complainant/appellant was trying to reconstruct the old wall of his house after demolishing the same as it was in dilapidated condition, the respondents/accused, armed with lathis and axe, came at the place of occurrence and started hurling abuses at the complainant. When the complainant asked them not do so, then he was beaten up by them with the lathis and axe and thus the complainant received serious injuries. When the complainant cried out for help, then Narendra Kumar, Ashok Kumar, Dharm Singh, Bharat Singh and some other people gathered on the spot. The respondents/accused also threatened to kill the complainant whenever they would get the chance. Complainant got himself medically examined at Government Hospital, Bhagwanpur. Thereafter he went to the police station along with the medical report of the injuries, where he was told that it was his internal matter and was asked to resolve the same between themselves. Thereafter on 17.4.1993, he sent the report to the SSP through the registered post and also filed the complaint in the court of Magistrate on the same day. 4. On the basis of the aforesaid complaint, the statement of the complainant was recorded under Section 200 CrPC. Thereafter statements of the witnesses were recorded under Section 202 CrPC and when prima facie case was found against the respondents no. 1 to 4 for the offence punishable under Section 324 and 506 IPC, the respondents/accused were summoned. Statements of PW1, the complainant Shiv Kumar and PW2 Narendra Kumar were recorded under Section 244 CrPC. Thereafter statements of respondents/accused were recorded, who stated that they were falsely implicated in this case. 5. On 11.1.1994, charges were framed against the respondents/accused under Section 324 read with Section 34 IPC and 506 IPC. Charges were read over and explained to the accused who pleaded not guilty and claimed to be tried. 6. Thereafter under Section 246 CrPC, PW1 Shiv Kumar, the complainant and PW2 Narendra Kumar were cross-examined and PW3 Bharat Singh, PW4 Dharmpal and PW5 N.K. Sharma were examined. 7. Thereafter statements of the respondents/accused were recorded under Section 313 CrPC. The oral and documentary evidence were put to them in question form, who denied the allegations made against them and stated that they were falsely implicated in this case. However, in defence, they did not produce any oral or documentary evidence. 8. After appreciating the evidence and after hearing learned Counsel for the parties, learned trial court has acquitted the respondents no. 1 to 4 vide impugned judgment and order dated 17.10.1994 holding that the evidence adduced by the prosecution are not sufficient and reliable to held the respondents/accused guilty for the charges levelled against them and that both the parties belong to the same family and because of the land dispute between them, the respondents/accused were falsely implicated by the complainant/appellant. Learned trial court has further held that it has come in the evidence that when the incident took place, the complainant/appellant was standing on the wall which was 7 foot in height and, therefore, in these circumstances, it was not possible to hurt the complainant/appellant with the axe from the surface of the earth and inflict injuries upon him. It has also been held that the other witnesses of the complainant/appellant are related to him and, therefore, they are interested witnesses, whose evidence do not inspire confidence. Furthermore, the version of the complainant/appellant does not get corroboration from the medical report of the injuries. 9. On perusal, it reveals that the evidence adduced by the complainant Shiv Kumar (PW1) and statements of other witnesses, viz., PW2 Narendra Kumar, PW3 Bharat Singh, PW4 Dharmpal and PW5 N.K. Sharma are contradictory to each other and the same are not corroborated by the medical report of the injuries sustained by the complainant. 10. Learned Counsel for the respondents/accused argued that where two views are possible and one of the possible views has been taken by the trial court, then the appellate court shall not ordinarily interfere with the judgment of acquittal. Reliance has been placed on paras 7 and 8 of the judgment rendered by the Hon’ble Apex Court in the case of Kalyan Singh v. State of M.P. reported in (2007) 3 SCC (Cri.) 173, which are reproduced as under: - “7. The High Court while dealing with the matter, in our considered opinion, failed to apply the proper tests in deciding a case where a judgment of acquittal has been recorded. The views of the learned trial judge cannot be said to be wholly unsustainable. It is now well known that if two views are possible, the appellate court shall not ordinarily interfere with the judgment of acquittal. We do not, however, mean to lay down the law that the High Court, in a case where a judgment of acquittal is in question, would not go into the evidence brought on record by the prosecution or by the State but we would like to point out that even if the High Court reversed the judgment of acquittal recorded by the trial court, it is incumbent on the High Court to arrive at the conclusion that no two views are possible. 8. We, therefore, having regard to the fact situation of the instance case, are of the opinion that as two views are possible, the High Court should not have interfered with the judgment of acquittal passed by learned Sessions Judge. We, therefore, set aside the impugned judgment and allow this appeal. The appellant is in jail, he is directed to be released forthwith if not required in connection with any other case.” 11. On the basis of the evidence discussed above, I am of the considered view that when one view is also possible which was taken by the trial court, then as per the aforesaid judgment of Kalyan Singh (Supra), the interference with the judgment of the trial court at this stage is not warranted. Therefore, there is no reason to disagree with the view taken by the trial court on the basis of the evidence discussed above and, as such, the prosecution has not able to prove its case against the respondents/accused beyond reasonable doubt. 12. Furthermore, learned Counsel of the appellant has also very fairly submitted that there is no infirmity in the impugned judgment and order dated 17.10,.1994 and the same is correct and justified and he does not want to press the appeal. 13. For the reasons recorded above, it is held that the prosecution has failed to prove the case against the respondents no. 1 to 4 for the offence punishable u/s 324/34 and 506 IPC beyond reasonable doubt. As such, the impugned judgment and order dated 17.10.1994 passed by the Additional Civil Judge, Roorkee, District Haridwar in criminal case no. 73/94 is justified and the and correct and the same is hereby upheld. 14. Resultantly, the appeal is dismissed. Let the lower court record be sent back. (Dharam Veer, J.) 11.6.2009 PRABODH