IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 364 of 2002. Date of decision: 19.3.2009. State of H.P. ….. Appellant. Vs. Laxman Singh …. Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. A.K. Bansal, Addl. Advocate General. For the Respondent : None. Kuldip Singh, Judge (Oral). The State has come in appeal against the judgement of acquittal, dated 7.12.2001, passed by learned Chief Judicial Magistrate, District Kinnaur at Reckongpeo in Criminal Case No. 163/2 of 1997, acquitting the respondent under Section 430 IPC. 2. The prosecution case in brief is that PW 2 Bagyur complainant submitted a written complaint dated 8.6.1997 Ex. PW 2/A to Police Station, Nichar that he has raised an apple orchard at village Chulah having about 150 apple trees. He had also sown “zeera” on about two bighas land. There is a water Kuhal, which irrigates the land of the complainant. On 8.6.1997 in the morning, five Gorkhas labour were working for proper flow of water in the Kuhal. In the meantime, Laxman Singh uprooted the wooden pipe and threatened Whether the reporters of the local papers may be allowed to see the Judgment? …2… that he would not spare the complainant in case the water is taken through the Kuhal. On this information, the case was registered. On completion of investigation, challan was presented against the respondent and he was charged for offence punishable under Section 430 IPC to which he pleaded not guilty and claimed trial. The prosecution has examined seven witnesses and placed on record some documents. The respondent was examined under Section 313 Cr.P.C., he denied the prosecution case. The learned Chief Judicial Magistrate acquitted the respondent on 7.12.2001, hence this appeal. 3. I have heard Mr. A.K. Bansal, learned Additional Advocate General on behalf of the State and have gone through the record, none appeared on behalf of the respondent. The learned Additional Advocate General has submitted that the learned Chief Judicial Magistrate has misconstrued and misinterpreted the evidence on record. The acquittal of respondent is not inconsonance with the proved material on record. The prosecution by leading oral and documentary evidence has proved the charge against the respondent. 4. PW 1 Basanti Devi wife of the complainant has stated that on 8th June the respondent had uprooted 10-12 feet wooden pipe which was kept on the retaining wall for channelising the water, as a result of which flow of water was stopped. The wooden pipe was restored with the help of labour but respondent again removed the water pipe and threatened that he would not allow flow of water. In absence of water, her apple crop was damaged. She reported the matter by lodging the report to the police. In cross-examination, she …3… has stated that there were 14 persons with the respondent and all of them had uprooted Kuhal. PW 2 Bagyur complainant has stated that on 8th June the respondent uprooted the wooden pipe which was meant for channelising the water of the Kuhal. There were 10-12 persons with the respondent. The water pipe was again placed at its place with the help of labour but respondent again uprooted the wooden pipe and he reported the matter to the police vide Ex. PW 2/A. In absence of water, his trees dried up. In cross examination, he has stated that he has not seen actually breaking of the Kuhal. 5. PW 3 Sobha Ram Constable is not an eye witness. PW 4 Om Chand has stated that on completion of investigation, he prepared the challan. PW 5 Dalhousie Singh Negi has stated that he visited the spot alongwith the police. The water was not flowing in the channel. In cross-examination, he has stated that he had not seen the respondent breaking the Kuhal. PW 6 Roshan Lal has stated that he has not seen the respondent throwing the wooden pipe. PW 7 Parma Nand HC has proved the report Ex. PW 2/A. He prepared the site plan Ex. PW 7/B and investigated the case. 6. PW 1 Basanti Devi has stated that there were about 14 persons with the respondent and all of them had uprooted the Kuhal, but why the others were not prosecuted that has not been explained by the prosecution. PW 1 and PW 2 Bagyur have stated that wooden pipe was uprooted twice by the respondent and there were 10 to 14 persons with respondent, but in written complaint Ex. PW 2/A, it has not been stated that wooden pipe was uprooted by the respondent twice and other persons were also with him at that time. …4… In this way the complaint and her wife PW 1 have made material variations in the prosecution case. There is evidence on record that complainant had deployed some labourer on the spot but no-one from the labourer was examined by the prosecution. PW 2 complainant in his cross-examination, has stated that he has not seen actual breaking of the Kuhal. PW 5 has also stated that he has not seen the respondent breaking the Kuhal. PW 6 has also stated that he has not seen the respondent throwing the wooden pipe. There are material contradictions in the prosecution story disclosed in the court and revealed to the police at the initial stage. The learned Chief Judicial Magistrate has after due appreciation of material on record has rightly acquitted the respondent. The prosecution has failed to make out any case for interference. 7. Resultantly, the appeal fails and is accordingly dismissed. The bail bonds of the respondent are discharged. March 19, 2009. ( Kuldip Singh ) (Hem) Judge.