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Himachal Pradesh High Court · body

2009 DIGILAW 1344 (HP)

STATE OF H. P. v. GURDHIAN

2009-12-24

SURINDER SINGH

body2009
JUDGMENT Surinder Singh, J.(Oral)- Respondents herein were convicted by the learned Chief Judicial Magistrate for the offences under Sections 448 and 427 read with Section 34 of the Indian Penal Code, in Criminal Case No.179-II/97 and each of them were sentenced till the rising of the Court and to pay a fine of Rs.1,000/- under Section 448 of the Indian Penal Code and only to pay a fine of Rs.500/- each for the offence punishable under Section 427 of the Indian Penal Code with default clauses. 2. The conviction and sentence was assailed in appeal by the respondents before the learned Sessions Judge, which was allowed and the conviction and sentence passed against them was set aside. 3. Against their acquittal, the State has filed the instant appeal on the ground that the learned Sessions Judge did not rightly appreciate the evidence on record and has attached too much importance to the minor contradictions occurring in the statements of the witnesses and wrongly observed that there was a delay in lodging the report. 4. Shri Vikas Rathore, learned Deputy Advocate General for the State forcefully argued that the statements of the complainant and his witnesses fully supported the case of the prosecution and there was no ground to upset the judgment of conviction and sentence, by the learned Sessions Judge. 5. I have given my thoughtful consideration to the above contentions and reappraised the evidence on record. In my opinion, the learned Sessions Judge has rightly appreciated the evidence and his findings of acquittal are borne out from the record. 6. Precisely, the case of the prosecution case can be stated thus. Complainant Yash Pal Sood (PW-1) alleged that he was a tenant of respondent Gurdhian in two shops in the double storeyed building at village Sundhala since August, 1977. Earlier there were liquor vends in the said shops. It is alleged that the respondents constructed temporary shed besides the aforesaid shops, therefore, the complainant could not run his business in the rented premises. Thus he converted the shops into stores. On 2nd April, 1997, the respondents started removing slates from the roof of the tenanted shops, but the complainant did not object to it, as he did not think it proper to talk to them, it could ignite the quarrel. Thus, he started searching for the President of Gram Panchayat, but he could only trace him in the evening. On 2nd April, 1997, the respondents started removing slates from the roof of the tenanted shops, but the complainant did not object to it, as he did not think it proper to talk to them, it could ignite the quarrel. Thus, he started searching for the President of Gram Panchayat, but he could only trace him in the evening. He brought the Pradhan to the spot and got the shops inspected. However, on 3rd April, 1997 he discussed the matter with the respondents, but he was not satisfied with their replies. Thereafter on 4th April, 1997, he made the complaint, Ext.PA, to the police in writing, on the basis of which FIR was registered, under Sections 448 and 427 of the Indian Penal Code. 7. The police visited the spot, took the photographs and prepared the site plan and also took into possession the slates removed from the roof vide memo Ext.PB in the presence of PW-4 Jeetu and Hans Raj. 8. On completing the challan, it was presented in the Court for the trial of the respondents. They were accordingly charge-sheeted for the offences aforesaid. 9. To prove its case, the prosecution besides examining complainant Yash Pal Sood, also examined PW-2 Panchhi Ram, PW-3, Narain Singh, PW-5 Saran Dass, the eye witnesses of the occurrence, PW-4 Jeetu, recovery witness and also the Investigating Officer. 10. The defence of the respondents, as is evident from the trend of cross-examination of the prosecution witnesses, is that the premises in question were very old; rafters and slates of the roofs got cracks and were damaged. The owner of the premises, respondent No.1 Gurdhian, was replacing the same and respondent No.2 Varinder Kumar was not on the spot and this case was lodged by the complainant on account of malice, as they had started running their business in the temporary shed opposite to the shops aforesaid. 11. The alleged incident took place on 2nd April, 1997 and the FIR was lodged on 4th April, 1997. Complainant Yash Pal Sood is stated to have informed the Pradhan of the Gram Panchayat and he was also brought to inspect the spot, but the Pradhan was not examined by the prosecution for the reasons best known to it nor his name was included in the list of witnesses. The names of the witnesses of the alleged occurrence also did not find mentioned in the complaint aforesaid. The names of the witnesses of the alleged occurrence also did not find mentioned in the complaint aforesaid. Further, PW-2 Panchhi Ram and PW-3 Narain Singh were declared hostile, as they did not support the prosecution case, as per its story. PW-2 Panchhi Ram and PW-3 Narain Singh have made similar statements. They were labourers and were mainly doing the labour work of the complainant. They have stated that respondent Gurdhian was alone when he was removing the slates from his premises. However, they did not know that because of rains he was replacing the roof of his building which was quite old. Further, Panchhi Ram (PW-2) stated that when respondent Gurdhian was removing the slates, Jeetu (PW-4), Munshi, Saran Dass (PW-5) and Narain Singh (PW-3) were present, but according to PW-3 Narain Singh except him and Panchhi Ram nobody else was there on the spot. PW-4 Jeetu did not say anything about the incident. 12. PW-3 Narain Singh also stated that he did not make any complaint to any one, but he was taken by the complainant, as his witness to the police. 13. PW-1 Yash Pal in his cross-examination denied that the premises in question were quite old and the rafters and slates of the roof had broken and that these were being replaced. He stated that the Pradhan had visited the spot. He did not state about the details of the articles which were found lying in the shops aforesaid. 14. On culling the evidence on record, I find that there are material contradictions in the statements of the eye witnesses, whose names did not find mentioned in the FIR and further they did not support the case of the prosecution. The photographs clearly show that the premises in dispute are single storeyed and not double storeyed, as alleged and that too were old and in bad shape (dilapidated condition). These improvements and contradictions, which have been pointed out above, go to the root of the case. As such, the acquittal recorded by the learned Sessions Judge was based upon material on record, which requires no interference. Accordingly, the appeal is dismissed. 15. The bail bonds entered upon by the respondents at any stage during the proceedings of this case shall stand discharged.