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2010 DIGILAW 1086 (PNJ)

Gurdev Singh v. State of Punjab

2010-03-05

GURDEV SINGH

body2010
JUDGMENT Gurdev Singh, J.:- Petitioner, Gurdev Sngh, has preferred this revision petition under Section 401 of the Code of Criminal Procedure(hereinafter referred to as ‘the Code’) against order dated 6.10.2003 (Annexure P-1) vide which the Chief Judicial Magistrate, Ludhiana, acquitted Surjeet Kaur, Kulwant Singh and Gurjap Singh, respondents No. 2 to 4, respectively, of the offences under Sections 427, 456 and 506 of the Indian Penal Code. 2. The petitioner-complainant filed an application under Section 156(3) of the Code before the Judicial Magistrate, which was sent to the officer In charge of the police station for registration of the FIR and investigation. He narrated therein that he was the owner in possession of the property No.1173/1 measuring 355-5/9 square yards situated at village Hassan Road, Krishna Nagar, Ludhina, which was purchased by him from Avtar Singh vide registered sale deed dated 13.10.1970 and was living therein. He had rented out that property, except one room, to Gian Singh and his son Charanjit Singh and they had been residing as tenants therein from the last five years. The respondents-accused are related to each other and had been living in their adjoining house, which was owned by his mother-in-law, Jaswant Kaur. His wife had filed a suit for separate possession of ½ share in the property bearing No. 1173, which was owned by her deceased mother. All the accused had been arrayed as defendants in that suit. They had been threatening him and his wife to withdraw that civil suit and had been harassing them on that ground. In that regard, criminal complaint was filed by him against all the accused on 30.5.1995 under Sections 325, 452, 504 and 506 read with Section 34 IPC. His family members had been residing at Hisar. On 14.2.1998, he had gone to meet his family members and taking advantage of his absence, the accused forcibly entered his house at about 8-00 p.m. and demolished the main gate and took illegal possession of the portions ABCD. They also destroyed the plantation and other material existing in that property and constructed a new wall. The accused also installed the new gate on the eastern side of that property. The occurrence was witnessed by Charanjit Singh and other inhabitants of the locality. They also destroyed the plantation and other material existing in that property and constructed a new wall. The accused also installed the new gate on the eastern side of that property. The occurrence was witnessed by Charanjit Singh and other inhabitants of the locality. When he came to know about the occurrence, he visited this property and requested the accused to hand over the vacant possession to him but they abused and insulted him. They also threatened that in case he made a complaint regarding the occurrence to any higher authority, he would be done to death. He approached the police of Police Station, Division No. 5, Ludhiana, and Police Post, Kumhar Mandi, Ludhiana, for getting the FIR registered but no legal action was taken by the police officials and they kept on postponing the matter on one pretext or the other. On the basis of the application so moved by the complainant under Section 156(3) of the Code, FIR No. 68 dated 7.5.1998 was registered in Police Station Division No. 5, Ludhiana, under Sections 420, 440, 441, 456, 457, 458, 504, 506/34 IPC. After the completion of the investigation, the case was sent to the Additional Chief Judicial Magistrate, Ludhiana, for their trial under Sections 427, 456 and 506 IPC. They were charged for those offences, to which they pleaded not guilty and claimed trial. 3. To prove the guilt of the accused, prosecution examined Dharampal SI, PW-1 and the complainant as PW-2. 4. After the close of the evidence, accused were examined. Their statements were recorded under Section 313 of the Code. All the incriminating circumstances appearing against them in the prosecution evidence were put to them in order to enable them to explain the same. They denied all those circumstances and pleaded their innocence. They were called upon to enter on their defence and they tendered certified copy of the judgment dated 30.11.2000, Ex. DA, in their defence. 5. After hearing Assistant PP for the State and learned defence counsel for the accused and going through the records of the case, Additional Chief Judicial Magistrate acquitted the accused of the aforesaid offences, vide above said judgment and the present revision is directed against that judgment. 6. Notice of the revision was given to the State, which was arrayed as respondent No. 1, and to the accused, who were arrayed as respondents No. 2 to 4. 7. 6. Notice of the revision was given to the State, which was arrayed as respondent No. 1, and to the accused, who were arrayed as respondents No. 2 to 4. 7. I have heard counsel for the parties. 8. It has been submitted by the counsel for the petitioner that the accused were acquitted by the trial court on two grounds:- firstly, that there was delay in lodging the FIR and secondly, that no direct evidence was produced by the prosecution and that the statement of the complainant, PW- 2, cannot be treated as direct evidence as he himself had not witnessed the occurrence. From the evidence produced by the prosecution, the delay stands explained. From the statement of the complainant, it stands proved that he was the owner of the property in dispute, and the accused admitted that they are coming in possession thereof. In that eventuality, the onus shifted upon the accused to prove how they came in possession. From the admission of the accused, learned trial court was to conclude that they criminally tress passed in the property in dispute. There are sufficient grounds for upsetting the finding of acquittal recorded by the trial court. 9. On the other hand, it was submitted by the counsel for the accused that the prosecution miserably failed to explain the delay in lodging the FIR, which itself is fatal to the prosecution. There is no infirmity in the finding of the trial court that in the absence of direct evidence against the accused, they cannot be convicted for the offences with which they had been charged. The accused never admitted during the trial that the complainant was owner of the property in dispute and that they forcibly entered into the possession thereof. There is no ground for converting the acquittal of the accused into the conviction. 10. According to the complainant, PW-2, the accused forcibly entered his house on 14.2.1998, when he had gone to Hisar, to meet his family members. When his statement was recorded in the trial court, he came up with the version that he was told on telephone about this act of the accused. According to him, the occurrence was witnessed by Charanjit Singh, and other inhabitants of the locality, but none of them was examined in the court. The prosecution relied on the solitary statement of the complainant. According to him, the occurrence was witnessed by Charanjit Singh, and other inhabitants of the locality, but none of them was examined in the court. The prosecution relied on the solitary statement of the complainant. It was correctly concluded by the trial court that the statement of the complainant was not direct evidence and the conviction of the accused cannot be based upon the same. It cannot be concluded from the records of the case that the accused admitted that the complainant was the owner of the property in dispute or that they forcibly entered into the possession thereof. Their defence is that they are the owners in possession of the property in dispute, which had come to their share. There is nothing on the record to conclude that the trial court recorded a wrong finding that the prosecution failed to prove that the accused criminally tress passed into the property in dispute. 11. As already state above, the occurrence took place on 14.2.1998 and according to the complainant, he made application before the Magistrate under Section 156(3) of the Code on 2.3.1998. He was to explain this delay of more than 15 days. He has tried to give the explanation that he had been approaching the police, but it failed to take any action against the accused. This is no explanation in the eyes of law. If the police was not taking any action, he could have filed a complaint under Section 200 of the Code or he could have approached the Magistrate under Section 156(3) of the Code immediately. This delay, in itself, may not be fatal to the prosecution, still it is a circumstance which was to be kept in mind by the trial court while scrutinizing evidence produced by the prosecution. The finding of acquittal recorded by the trial court, does not suffer from any illegality or infirmity. Therefore, the same cannot be interfered with while exercising the revisional jurisdiction. Revision petition is dismissed accordingly. ——————