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2013 DIGILAW 397 (HP)

SUKH DEV v. AMAR NATH

2013-05-07

SANJAY KAROL

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JUDGMENT SANJAY KAROL, J. 1. ASSAILING the judgment dated 17.7.2006, passed by the learned Judicial Magistrate 1st Class, Manali, District Kullu, Himachal Pradesh, in Criminal Case No.270-1/06/49- II/06, titled as State of H.P. versus Amar Nath and others, whereby the accused-respondents have been acquitted, the complainant-petitioner Shri Sukh Dev has filed the present Revision Petition under the provisions of Section 397 read with Section 401 of the Code of Criminal Procedure, 1973. 2. FIR No.245, dated 12.11.2005 (Ex. PW-3/A), under the provisions of Sections 147, 149, 427, 323, 506 of the Indian Penal Code, was registered at Police Station Manali, on the basis of complaint lodged by complainant Shri Sukh Dev. As per the complainant, on 12.11.2005 at about 3 p.m., all the accused persons-respondents formed an unlawful assembly and with a common objection trespassed into the property belonging to the complainant, bearing Khasra No.788, situated in village Haripur. They also committed an offence of rioting and damaged the property of the complainant and caused hurt to him and his family members. Matter was investigated by HC Shri Mohar Singh (PW-8), who visited the spot and prepared spot map. He seized sticks (Ex.P1-P5) with which beatings were given, vide seizure memo (Ex. PW-5/A); got demarcation report prepared; took the photographs of the spot; and with the completion of investigation, presented the challan in the Court for trial, against the respondents. 3. ACCUSED persons were charged for having committed offences under the provisions of Sections 447, 147, 427, 323, 506 all read with Section 149 of the Indian Penal Code to which they did not plead guilty and claimed trial. 4. IN order to establish its case, prosecution examined as many as eight witnesses. Statements of the accused under Section 313 of the Code of Criminal Procedure were also recorded, in which they pleaded false implication. It is a matter of record that complainant Shri Sukh Dev (PW-3), Shri Kewal Krishan (not examined) and Shri Bhupinder Sharma (PW-4) were got medically examined by the police and as per the version of Dr. Balbir Rewal (PW-1), the aforesaid persons did sustain simple injuries. The question is how did they sustain the same and is it that the accused gave beatings with the sticks. 5. KANOONGO Shri Megh Singh (PW-2), who is the prosecution witness, has submitted his report (Ex. PW-2/A) and Aksh Shajra (Ex. PW-2/B). Also, copy of the jamabandi (Ex. Balbir Rewal (PW-1), the aforesaid persons did sustain simple injuries. The question is how did they sustain the same and is it that the accused gave beatings with the sticks. 5. KANOONGO Shri Megh Singh (PW-2), who is the prosecution witness, has submitted his report (Ex. PW-2/A) and Aksh Shajra (Ex. PW-2/B). Also, copy of the jamabandi (Ex. PW-2/C) is on record. Now, this witness has specifically deposed, in his unrebutted testimony, that Shri Sukh Dev was neither in exclusive possession of the property nor reflected as sole owner thereof in the revenue record. Smt. Janki Devi is shown to be in exclusive possession of 10 biswas of land. Even the complainant (PW-3) has admitted in his cross- examination that his mother Smt. Janki Devi was co-owner of part of the land having exclusive possession, which was not handed over to him. This witness admits that his mother has executed a Will, not in his favour but in favour of other persons. 6. THE Court below, in my considered view, has rightly come to the conclusion that Shri Sukh Dev failed to establish his exclusive ownership and possession over Khasra No.788. On the contrary, it also stands established by the prosecution witnesses that accused No.1 Amar Nath was co- owner of the disputed land. A conjoint reading of the testimonies of Shri Sukh Devi (PW-3), Shri Bhupinder Sharma (PW-4) and Shri Ram Krishan (PW-6) does not also establish the fact, beyond reasonable doubt, that the complainant had set up his structure, i.e. cowshed, bathroom and toilet, to the exclusion of others, over the land in question. 7. SIGNIFICANTLY, PW-4 and spot witness PW-6 have not deposed that the accused were beaten up by the complainant party with sticks (Ex. P1-P5) allegedly recovered by the police. Probability of the complainant suffering injuries on account of fall has not been ruled out by the doctor. Also, which of the accused persons gave beatings to which of the injured person has not been stated. No specific role is attributed to each of the accused persons. 8. TRIAL Court has observed that the defence of the accused persons with regard to their false implication cannot be said to be improbable. It has come on record that prior to the occurrence of the incident, some Danga was removed by the complainant party. No specific role is attributed to each of the accused persons. 8. TRIAL Court has observed that the defence of the accused persons with regard to their false implication cannot be said to be improbable. It has come on record that prior to the occurrence of the incident, some Danga was removed by the complainant party. It appears that there was some tussle going on inter se between the parties, with regard to the land in question. It is a settled proposition of law that if the testimony of the complainant inspires confidence, then no corroboration is required. But, in the instant case, testimony of the prosecution witnesses and more so that of the complainant itself is shaky and unbelievable. 9. COMPLAINANT Shri Sukh Dev (PW-3), who claims to be exclusive owner in possession of the land in question, has been held by the Court below not to have established the said fact. Hence, the very foundation of his statement, being shaky, renders his version to be unbelievable and unreliable. It was in this backdrop that his testimony required corroboration, which in the instant case has not been so done by the prosecution by examining independent witnesses from the neighbourhood. 10. ALLEGED offence took place in broad day light and inside the village. Why is it that prosecution did not associate any independent witness, has not been explained. It is not that the witnesses did not come forward to depose. It is also not the case of the prosecution that none else was present on the spot. If prosecution could examine PW-6, who hails from another village, then an endeavour ought to have been made by them to examine at least one witness from the village of the complainant to corroborate his testimony. Thus, it cannot be said that the prosecution has been able to prove its case, beyond reasonable doubt. 11. AS a result of the above discussion, I am of the considered view that there is neither any illegality nor infirmity in the judgment of acquittal passed by the trial Court, warranting interference by this Court. 12. ACCUSED have had the advantage of having been acquitted by the Court below. 11. AS a result of the above discussion, I am of the considered view that there is neither any illegality nor infirmity in the judgment of acquittal passed by the trial Court, warranting interference by this Court. 12. ACCUSED have had the advantage of having been acquitted by the Court below. It is a settled principle of law that unless and until there is an absolute perversity in the proper and complete appreciation of the material so placed on record by the parties, the Courts would not normally interfere with the judgment of acquittal as a valuable right accrues in favour of the accused. The accused have had the advantage of having been acquitted by the trial Court. Keeping in view the ratio of law laid down by the Apex Court in Mohammed Ankoos and others versus Public Prosecutor, High Court of Andhra Pradesh, Hyderabad (2010) 1 SCC 94 , it cannot be said that the trial Court has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice. Hence, for all the aforesaid reasons, the present petition is dismissed, so also the pending application(s), if any.