IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 179 of 2004. Judgment reserved on 29.9.2010. Decided on: October 8, 2010. ___________________________________________________________ State of H.P. …. Appellant. Versus Devi Singh and others. ….. Respondents. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? For the appellant : Mr. A.K.Bansal, Addl. Advocate General with Mr. J.S. Rana, Asstt. Advocate General. For the respondents : Mr. G.R. Palsara, Advocate. _______________________________________________________ SURINDER SINGH,J : 1. The learned Sessions Judge set-aside the conviction and sentence of the respondents in Cr.A. No.12 of 2002 on 21.1.2004, for the offences punishable under Sections 147, 148, 448, 379, 427and 506 of the Indian Penal Code, passed by the learned trial Court, hence, the State has filed the present appeal, challenging the acquittal. Whether reporters of the Local papers are allowed to see the judgment? - 2 - 2. In short, the prosecution story can be stated thus. A house was constructed in village Talwara by Kaula Ram about 15 years ago from the date of filing of FIR by Smt. Begmu Devi, his wife. They had lived with their family and after about 7 years, they built a new house nearby and shifted from old house to new house leaving some household articles in the old house. On 24th March 1995, Kaula Ram went to Malana to earn his livelihood at about 10 a.m. She was present in her new house from where she noticed that the three stories building of the old house was being dismantled by the respondents by using different instruments. She could only identify three persons namely Devi Singh, Gulab Singh and Narottam and not two other persons. They threatened her to take her life. The said occurrence was alleged to have been witnessed by PW2 Devi Roop and Chet Ram, but the respondents dismantled the said house, took wooden frames, sleepers and rafters to their house. She waited for her husband to complain the matter to the police. On his arrival, a case was registered against the respondents. - 3 - 3. Police took up the investigation, visited the site and prepared site plan of the alleged occurrence, recorded the statements of the witnesses and after completion of the investigation, challan was presented against the respondents for their trial in the court concerned. They were accordingly charge-sheeted. The learned trial Court convicted and sentenced the respondents, for the offences aforesaid and each of them were sentenced to undergo imprisonment for a period of six months each for the offences under Sections 147, 148, 448 and 506 of the Indian Penal Code and to further undergo simple imprisonment for a period of three months under Section 427 IPC and also to undergo simple imprisonment for a period of six months under Section 379 of the Indian Penal Code and to pay fine of `500/- each. In default of payment of fine, simple imprisonment for one months. On the realization of the fine amount, a sum of `2000/- was also ordered to be paid as compensation to the complainant. 4. The respondents felt aggrieved by the impugned judgment of conviction and sentence, - 4 - as such, filed an appeal before the learned Sessions Judge, who reappraised the evidence on record and came to the conclusion that the learned trial Court did not discuss the evidence or the infirmities in the evidence in the statements of the prosecution witnesses in detail, rather, he based his conclusion on the statements of PWs 1 and 2, which was insufficient to act upon. Thus, set-aside the impugned judgment and the respondents were acquitted. 5. Shri J.S. Rana, learned Assistant Advocate General vehemently argued that it stands proved on record that PW4 alongwith his family had been residing in the disputed house for about 15 years till the construction of a new house. The illegal act of the respondents stood proved from the statements of PW2 Deviroop and PW6 Jorawar in addition to what Begmu complainant and her husband had stated, but the learned first Appellate Court conveniently ignored their statements and came to wrong findings. In nutshell, Shri J.S. Rana, learned Assistant Advocate General prayed for the - 5 - restoring of the judgment of conviction and sentenced passed by the learned trial Court. 6. Contra, Shri G.R. Palsra, learned counsel for the respondents supported the impugned judgment of acquittal. 7. I have given my thoughtful consideration to the rival contentions of the parties and carefully gone through the record in order to find out whether the findings of acquittal recorded by the learned Sessions Judge are borne out from the record. 8. PW1 Begmu Devi did not name Devi Singh and Narottam in the FIR and according to her on the day of alleged incident, they hid themselves, but during the trial, she stated that they were the same persons. It is not understood as to when she could identify the two other persons and as to how she came to know that they were Devi Singh and Narottam who had hidden themselves. Had it being so, she could make its reference in the FIR, which was lodged after two days? Further it is also proved on record that Lajja Ram had two wives from one wife, he had Kaula Ram but from the previous wife he - 6 - had daughter Sawari and Gulab Singh and Narottam are her sons. She denied that the disputed old house owned by Lajja Ram, but she admitted that it was on the land in the abadi deh and this portion of the land was left for them by their family members. She further admitted in cross- examination that the house was uprooted by the respondents, when Lajja Ram was alive and he had died after about 2 years of the alleged incident. She further admitted that Lajja Ram executed a Will in favour of his daughter Sawari, but denied that the dispute house was also covered under the Will. 9. On the scrutiny of the aforesaid evidence, it transpires that the old house was in existence when Lajja Ram father of Kaula Ram was alive and during his lifetime, he executed a Will in favour of Sawari, naturally the house in question would be the subject matter of the Will, which was executed in favour of his daughter, which fact is also testified by her husband PW4 Kaual Ram. She though stated that the house in question was constructed by them by employing PW5 Tej Singh and Sunder Singh Mason, but Tej Singh aforesaid stated that one - 7 - storey of the house in question was already constructed by Lajja Ram, whereas, he alongwith Sunder Singh raised 1 ½ storey there upon, which means the house was 2 ½ storied, whereas, PW6 Jorawar stated that it was three storied slate roofed house. He also testified that the old house was about 100 years old. He further stated that he was informed by the police about dismantling of the house by the sons of Smt. Sawari aforesaid. 10. PW9 Chet Singh, Kanungo also testified that the house in question was located in abadi deh area and to that effect he proved tatima Ex.PW9/A without pointing out as where the house in dispute was located. PW10 Manglu Ram is not the witness of occurrence. 11. On the reappraisal of the evidence, I do find that there appears to be a bonafide dispute with respect to the possession of the old house, which was earlier constructed by Lajja Ram and during his lifetime, he had executed a Will in favour of his daughter Sawari Devi and respondents Devi Ram and Narottam are her sons and it appears that they - 8 - were claiming the house in question on the strength of the aforesaid Will. 12. On further scrutiny of the evidence, I find material contradictions in the statements of the witnesses as pointed out above. Therefore, in view of the contradictory evidence, which is otherwise very material goes to the root of the case. 13. Against the aforesaid background, the conviction and sentence recorded by the learned trial Court cannot be restored and on the material contradictions, which were noted by the learned Sessions Judge are borne out from the record, the respondents were rightly acquitted, because these contradictions also make the prosecution case doubtful. Accordingly, the appeal is without any merit, hence dismissed. 14. The respondents are discharged of their bail bonds entered upon by them at any stage, during the proceeding of the case. 15. Send down the records. October 8, 2010. (Surinder Singh), (Pds) Judge.