IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Criminal Appeal No.142 of 2002. Judgment reserved on :19.5.2009. Date of decision: May 27, 2009. State of Himachal Pradesh …Appellant. Versus Madan Lal ..Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? No For the Appellant : Mr. Anshul Bansal, Additional Advocate General. For the Respondent : Mr. Rakesh Jaswal, Advocate. __________________________________________________________ Kuldip Singh, Judge The State has come in appeal against judgment dated 6.10.2001 passed by the learned Judicial Magistrate 1st Class, Court No.II, Amb, Distt. Una in case No. 106-1/98/87-II/98 acquitting the respondent for offence punishable under Sections 457, 511 IPC. 2. The prosecution case, in brief, is that PW-3 Bakshish Singh on 20.8.1998 at 1.15 P.M. reported at Police Station, Gagret that he was resident of Nagnoli and was running a flour mill at Kuthera Jaswalan of Vice President Iqbal Singh. On 19.8.1998 ______________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes. 2 at about 9.15 p.m. he was returning to his home by last bus. The driver did not stop the bus at Nagnoli and the bus was stopped at Panjawar only. He alighted from the bus and was going on foot to his village Nagnoli. He crossed the Panjawar khad and near the school he heard the noise as if some was striking some object. He noticed that one person was breaking the locks with the help of iron rod. He was alone, therefore, out of fear he did not do anything and he proceeded further towards his home. He met five – seven boys of his village near his home. He narrated the incident to the boys who accompanied him towards school. They encircled the school. He switched on the torch and saw that a person was breaking open the door. On seeing the torch light that person entered in another room of which he had already broken the lock and shut the door. He was called to come outside but he did not come out. Thereafter, the complainant and others entered the room and they noticed that the man was sitting inside the room behind the black- board. They removed the black-board, on this that man attacked them with iron rod, but somehow they escaped the blow. They caught hold of him and brought him outside the room. One man was sent to call Vice-Preident, who came on the spot. The Vice- President enquired that man who disclosed his name as Madan Lal. The said man had told that he came there with the intention to commit theft. The Vice President took that man to his house during the night and in the morning due to rain report could not be made to police earlier. On this, FIR Ex.PW-3/A was registered. The respondent was got medically examined vide MLCs Ex.PW-2/A and 3 Ex.PW-2/B, site plan Ex.PW-7/A was prepared, recoveries were made. The statements of witnesses were recorded and on completion of investigation, challan was presented against the respondent under Sections 457, 511 IPC, he was charged for offence punishable under Sections 457, 511 IPC, to which the respondent pleaded not guilty. The prosecution has examined seven witnesses to bring home the charge and placed on record some documents. The statement of respondent under Section 313 Cr.P.C. was recorded. The respondent has led no evidence in defence. The learned Judicial Magistrate acquitted the respondent, as noticed above, hence the appeal by the State. 3. Heard and perused the record. PW-1 Ved Parkash, Head Teacher, Govt. Primary School, Nagnoli Lower has stated that on 20.8.1998 he was told by another teacher Shakuntraj on telephone that some theft had taken place in their school. The police took into possession three locks etc. vide memo Ex.PW-1/A. He did not support the prosecution and he was declared hostile and was cross-examined by the prosecution. In cross-examination, he admitted his signatures on recovery memo Ex.PW-1/B. PW-2 N.K.Bhardwaj, examined respondent on 20.8.1998 at 9.30 p.m. and on 22.8.1998 at 1.05 p.m. and issued MLCs Ex.PW-2/A and Ex.PW-2/B. He found injuries simple in nature and weapon was blunt. PW-3 Bakshish Singh complainant has stated that he heard the sound of breaking of doors of the school. It was dark night and he remained standing there for quite long. Thereafter, he told the boys of his village regarding breaking of the doors of the school. 4 They, Madan Lal had broken two – three locks of the school. He was not having any torch. The President was called and the accused was handed over to him. He lodged FIR Ex.PW-3/A. He has again stated that neither he nor anyone was having any torch. There is no street light in the area nor there is any provision of light. 4. PW-4 Mulakh Raj has stated that on 19.8.1998 at about 10.30 p.m. one or two boys came to his residence and told that one person while committing theft at Primary School, Nagnoli Lower was caught. He went to the spot. The thief was caught by the boys, he brought the thief at his residence along with boys. In the morning on 20.8.1998 Police Station, Gagret was informed on telephone. The police came to the spot at about 1.00. Locks etc. were taken into possession vide Ex.PW-1/A. he has stated that nothing was recovered in his presence by the police. He was declared hostile and was cross-examined by the prosecution. He admitted his signatures on Ex.PW-1/B. 5. PW-5 Dharam Pal has stated that on 19.8.1998 at about 10.00 p.m. Bakshish told that somebody was committing theft in the school. He was encircled and the accused had hidden himself behind the black-board. He did not come out. They caught hold him and took him to Mulakh Raj. PW-6 Bhima has stated that Bakshish told him that he had heard the sound of breaking of school doors. They went there, they found two locks were broken and one was open. They went inside and with the help of match stick, they saw a person behind the black-board. They even took the help of torch. The accused disclosed his name 5 Madan Lal. PW-7 Surinder Kumar, S.I. has stated that in the year 1998 he was posted at Police Station, Gagret as Investigating Officer. He conducted the investigation of the case. 6. Ex.PW-3/A is the FIR lodged by PW-3 Bakshish Singh. PW-5 Dharam Pal has stated that complainant is his cousin. PW-6 Bhima has stated that Bakshish is his uncle. PW-5 and PW-6 claimed that they were present on the spot. PW-3 Bakshish Singh complainant in his statement in the Court has not stated that PW-5 Dharam Pal and PW-6 Bhima were present on the spot. PW-3 has stated that he told the boys of his village about the breaking open of the doors of the school. They, Madan Lal had broken two – three locks. Nobody was having torch, PW-5 Dharam Pal has stated that there was no light in the area. PW-6 Bhima has stated that there was no light in the area nor in the school. PW-3 Bakshish Singh has stated that the help of match stick was taken when the respondent was caught. PW-6 has stated match stick and torch was used. PW-3 has stated no one had torch. The locks etc. Ex.M-1 to Ex.M-5 and iron rod Ex.M-6 were not put to accused in his statement under Section 313 Cr.P.C. which has caused prejudice to the respondent. The trend of cross-examination to various prosecution witnesses indicates that the defence of the respondent is that complainant has implicated him in the case because he had some dispute with the respondent. There was no lighting arrangement in the school, it was dark and raining and therefore, how the respondent was operating at that point of time that has not been explained by the prosecution. The match stick 6 coupled with the match box which was used for lighting purpose was not recovered. 7. The prosecution has come forward with the case that respondent wanted to commit theft in the school but nothing has been explained by the prosecution what was there in the Primary School which could be stolen by the respondent. It is not the prosecution case that something actually was stolen from the school and was recovered from the respondent. The prosecution case is highly suspicious. It has come on record that some wrestling competition was there nearby and PW-3 had disclosed the factum of hearing of breaking of doors by him to the boys, who had come to see the wrestling competition. In other words, there were many persons but surprisingly the prosecution has examined PW-5 and PW-6 relatives of PW-3. There is no explanation from the prosecution why independent witnesses were not joined in the case. PW-5 and PW-6 are the relatives of PW-3 complainant with whom the respondent has not good relations. It has come on record that respondent has received injuries on his person as per his MLCs Ex.PW-2/A and Ex.PW-2/B. The prosecution has not explained under what circumstances the respondent had received injuries on his person. This creates suspicion in the prosecution case. 8. The learned Judicial Magistrate has rightly appreciated the material on record and has noticed various discrepancies in the prosecution case. The view taken by the learned Judicial Magistrate in acquitting the respondent is not 7 perverse, it emerges from the evidence on record. In appeal, no case is made out for interference. Resultantly, the appeal fails and is accordingly dismissed. The bail bonds are discharged. May 27, 2009. ( Kuldip Singh ), (GR) Judge.