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2012 DIGILAW 562 (RAJ)

Arjun v. State of Raj.

2012-03-01

R.S.CHAUHAN

body2012
Hon'ble CHAUHAN, J.—The appellant complainant is aggrieved by the judgment dated 2.4.2009 passed by Judicial Magistrate, First Class, Jaisalmer, whereby the learned Magistrate has acquitted the accused respondents No.2 to 5 for offence under Sections 447, 427 IPC. 2. Briefly, the facts of the case are that the appellant, Arjun Lal had submitted a criminal complaint before the Judicial Magistrate, wherein he claimed that on 27.5.2005, the accused respondents No. 2 to 5, Mag Singh, Jagmal Singh, Babu Singh & Tulachh Singh had come to his shop which was under construction. They were carrying phavda, gaiti and hammer, once they reached his shop; they started damaging the shop. Immediately, his labourers, Pola Ram and Kamal Singh rushed to his place and informed him that these people had come to the shop at 5:30 A.M. and were damaging his shop. Upon this information, he along with Khetmal Khatri, Kanahya Lal Khatri, Vasu Khatri and Mohan Khatri went to his shop where they found the accused respondents breaking his shop with the aforementioned articles in their hands. When he tried to reason with them, they rushed towards him carrying these tools. However, he was saved by other persons, who were present along with him. He further claimed that the accused respondents placed an iron gate at the shop. The statement of the complainant was recorded under Section 200 Cr.P.C. Vide order dated 12.6.2008, the learned Magistrate took cognizance, and issued process against the accused respondents. 3. In order to substantiate his case, the appellant examined himself as the sole witness, and submitted a single document. The defence neither examined any witness, nor submitted any document. After going through the oral and documentary evidence, vide judgment dated 2.4.2009, the learned Magistrate acquitted the accused respondents No. 2 to 5. Hence, this criminal leave to appeal before this Court. 4. Mr. L.D.Khatri, the learned counsel for the appellant, has vehemently contended that the learned Magistrate has failed to appreciate the evidence in proper perspective. According to the appellant, the accused respondents No. 2 to 5 had come to the shop, and damaged his shop. Therefore, the offences under Sections 447 & 427 IPC were clearly made out. Hence, the learned Magistrate has erred in acquitting the accused respondents. 5. Heard the learned counsel for the appellant, and perused the impugned judgment. 6. According to the appellant, the accused respondents No. 2 to 5 had come to the shop, and damaged his shop. Therefore, the offences under Sections 447 & 427 IPC were clearly made out. Hence, the learned Magistrate has erred in acquitting the accused respondents. 5. Heard the learned counsel for the appellant, and perused the impugned judgment. 6. It is, indeed, trite to state that prosecution has to prove the case beyond a reasonable doubt. The distance between “may be true” and “must be true” is a long distance, which the prosecution has to cover. A bare perusal of the impugned judgment clearly reveals that the learned Magistrate has noticed the fact that the complainant has examined himself as a witness. But the complainant had not examined Pola Ram and Kamal Singh, the labourers who were present, when allegedly the accused respondents No. 2 to 5 had come to damage the shop. Moreover, he has not examined Khetmal Khatri, Kanahiyalal Khatri, Vasu Khatri, and Mohan Khatri, all of whom had accompanied him when allegedly he was informed by the labourer that the accused respondents are damaging his shop. Therefore, complainant has failed to examine independent witnesses. Hence, the learned Magistrate had drawn an adverse inference against the prosecution. Since, the prosecution has failed to examine the material witnesses, the learned Magistrate was certainly justified in drawing the adverse inference. 7. The learned Magistrate has also noticed that there are certain contradictions between the testimony of the complainant, and the complaint submitted by him. In the complaint, he claimed that incident had occurred at 5:30 in the morning, yet in his testimony he claimed that incident had occurred at 8:30 in the morning. Moreover, in his complaint, he claimed that when he tried to reason with Dhar Singh, the accused respondents rushed towards him carrying their tools. He further claimed that they had placed an iron gate on the shop. Yet these facts were not mentioned in his testimony before the court. Needless to say, a conviction can be based on the testimony of a sole witness, provided the sole eyewitness is a witness of sterling worth. However, the complainant has changed his stand between his complaint, and his testimony before the court. Thus, he is not a witness of sterling worth. Needless to say, a conviction can be based on the testimony of a sole witness, provided the sole eyewitness is a witness of sterling worth. However, the complainant has changed his stand between his complaint, and his testimony before the court. Thus, he is not a witness of sterling worth. Therefore, the learned Magistrate was justified in disbelieving the testimony, and in acquitting the accused respondents No. 2 to 5. 8. Since, the learned judge has given cogent and legal reasons for acquitting the accused respondents, this Court does not find any illegality or perversity in the impugned judgment dated 2.4.2009. The criminal leave to appeal is devoid of any merit; it is, hereby, dismissed.