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2016 DIGILAW 1361 (RAJ)

Devi Singh son of Mola v. State of Rajasthan

2016-09-16

VIJAY KUMAR VYAS

body2016
JUDGMENT : Vijay Kumar Vyas, J. This criminal appeal has arisen out of judgment dated 21.03.1990 passed by learned Additional Sessions Judge, Karauli, Camp at Hindaun, in Sessions Case No. 29/84 (175/1988), whereby while acquitting six accused from all charges, Four appellants; namely, Devi Singh, jagdam, Maharaj Singh and Prahlad were convicted and sentenced vide judgment dated 21.03.1990, as follows : Devi Singh and jagdam – each U/s 435 IPC - Four years' Rigorous Imprisonment with fine of Rs. 2,000/-; in default of payment thereof, to further undergo one year's Simple Imprisonment. U/s 427 IPC - Six months' Simple Imprisonment with fine of Rs. 500/-; in default of payment thereof, to further undergo 1½ months' Simple imprisonment. U/s 447 IPC – Six months' Simple Imprisonment with fine of Rs. 500/-; in default of payment thereof, to further undergo 1½ months' Simple Imprisonment. U/s 342 IPC - Six months' Simple Imprisonment with fine of Rs. 500/-; in default of payment thereof, to further undergo 1½ months' Simple Imprisonment. Devi Singh U/s 323 IPC - Six months' Simple Imprisonment with fine of Rs. 500/-; in default of payment thereof, to further undergo 1½ months' Simple Imprisonment. Maharaj Singh and Prahlad – each U/s 323 IPC - Six months' Simple imprisonment with fine of Rs. 500/-; in default of payment thereof to further undergo 1½ months' Simple Imprisonment. U/s 342 IPC - Six months' Simple Imprisonment with fine of Rs. 500/-; in default of payment thereof, to further undergo 1½ months' Simple Imprisonment. U/s 427 IPC - Six months 'Simple Imprisonment with fine of Rs. 500/-; in default of payment thereof, to further undergo 1½ months' Simple imprisonment. U/s 447 IPC - Six months 'Simple Imprisonment with fine of Rs. 500/-; in default of payment thereof, to further undergo 1½ months' Simple imprisonment. All the sentences were ordered to run concurrently. 2. Appellants – Maharaj Singh and Prahlad are died during pendency of this appeal. Therefore, the appeal filed on their behalf stand abetted. 3. Brief facts, of the case are that on 30.10.1983 at about 5.30 PM, complainant Kalyan (PW-1) submitted a written report Ex. (P-1) before Police Station Salempur (Sawai Madhopur) stating interalia that he along with other 13 persons is recorded tenant of land ad-measuring 40 Bighas in Khasra No. 699/1 in Village Peelwa and cultivated crop of Taara Meera on this land. (P-1) before Police Station Salempur (Sawai Madhopur) stating interalia that he along with other 13 persons is recorded tenant of land ad-measuring 40 Bighas in Khasra No. 699/1 in Village Peelwa and cultivated crop of Taara Meera on this land. The land situated near the bank of a river having danger of flood every year. In accordance with the order of Tehsildar, they wanted to reside in this land and for that, material for erecting huts was collected. Ten Patauls (hut like structure) were erected, wherein complainant Kalyan, Sukh Chand, Rampati, and Tijo were residing. In the same land four stacks of grass were also there. At about 12 in the last night ten persons namely Mola, Veer Singh, Devi Singh, Jagdam, Pooran, Maharaj Singh, Sita, Pehlad, Sher Singh, Lallu by caste Gujar, came there, holding lathies (sticks) and pushed the complainant, Sukh Chand, Rampati and Tijo forcefully with the stick to awaken them. Thereafter, they tied up Sukh Chand by rope and destroyed all the hutment, and torched with matchstick all material collected for erection of hutments and grass. These Gujars are quarreling with the complainant party since a long. On this report, SHO Police Station Salempur District Sawaimadhopur registered an FIR No. 118/1983 (Ex.P-4). After due investigation, charge sheet against all the 10 persons was filed. Learned trial court charged all the 10 persons for offence under Sections 147, 323, 149, 427, 436, 342, 447, 149, IPC. The accused denied the charges and claimed trial. Ten witnesses were examined on behalf of prosecution and 11 documents were exhibited. Accused were examined by learned trial court under Section 313 Cr. P.C., whereupon accused stated that evidence adduced by the prosecution is false, and that the land belongs to them. Possession is also with them since the time of their father. They have falsely implicated in this matter. No oral evidence was produced by defence but four documents were exhibited in defence. Learned trial court after hearing the parties vide judgment dated 21.03.1990 acquitted 6 persons from all the charges and convicted and sentenced the 4 appellants, as stated herein above. 4. Learned counsel for appellants submits that learned trial court has erred in convicting the appellants as the evidence available on record is not enough to convict them. When the yardstick used for acquitting four co-accused is applied in the matter of present appellants, they also deserve acquittal. 5. 4. Learned counsel for appellants submits that learned trial court has erred in convicting the appellants as the evidence available on record is not enough to convict them. When the yardstick used for acquitting four co-accused is applied in the matter of present appellants, they also deserve acquittal. 5. Learned counsel submits that at the time of incident, there was no peaceful possession of the land by complainant. As per prosecution story, in the year 1983 itself, appellants were dispossessed and possession of the disputed land was handed over twice to the complainant by Tehsildar of the area. It shows that the complainant was not in peaceful possession and there was a dispute between two parties. Kalyan (PW-1) has admitted in cross-examination that litigation with regard to this land is going on since a pretty long time. 6. Learned counsel further submits that while improving the version narrated in Ex. P-1 written report and statements recorded under Section 161 Cr.P.C. the witnesses Kalyan (PW-1), Kishori (PW-2) and Sukh Chand (PW-3) have deposed before trial court the story with too much variance. Prior to the deposition before trial court, they did not state during police investigation, any overt act of any of the accused. There is discrepancy inter-se also in the deposition given by the witnesses before the learned trial court. In back drop of earlier litigation and enmity between the parties, contradictory and improved evidence rendered by these witnesses cannot be held to be trustworthy. 7. Learned counsel further submits that in the instant matter FIR has been registered after in-ordinate delay of about 17 hours. There is no explanation for the delay. 8. Per contra, learned Public prosecutor submits that land over which the hutment were erected by complainant and others was never in possession of accused party. Information given to the police need not necessarily to contain all the minor details of the incident. Kalyan (PW- 1) and (PW-3) Sukh Chand have stated that they reached the police station at about 8 A.M. Learned trial court has also held that there is no inordinate delay in lodging FIR. 9. I have given thoughtful consideration to the rival submissions and gone through the material available on record. 10. Kalyan (PW-1) has admitted in cross-examination that the land in question is disputed one. Litigation before competent courts is still pending since year 1983. 9. I have given thoughtful consideration to the rival submissions and gone through the material available on record. 10. Kalyan (PW-1) has admitted in cross-examination that the land in question is disputed one. Litigation before competent courts is still pending since year 1983. Prior to this incident, on two occasions, on request of the complainant party, Tehsildar reached the spot, dispossessed the appellant party from the land in question and handed over the possession thereof to the complainant. This fact is fortified by testimony of Nawal Singh (PW-10), the then Tehsildar, and the memo of dispossession and handing over of possession prepared on the spot dated 29.01.1983 (Ex. P-10) and dated 22.07.1983 (Ex. P-11). In cross-examination, Nawal Singh (PW-10) has admitted that on 29.01.1983, when the appellant party was dispossessed, crop of Arhar and Tara Meera was there in the field. Complainant party stated him that crop does not belong to them. Similarly on 22.07.1983 at the time of dispossession, crop of Millet, Pigeol Pea, Green Gram, Guar, and Moth were there standing in the field, cultivated by appellant party. The witnesses further admits that at the time of dispossession, he did not destroy the standing crop. He also admits that while handing over the possession, he did not get the land ploughed by the complainant party. He further admits that he did not make any proclamation in the village by way of beating the drum or otherwise. He further admits that at the time of the said proceeding, appellant party was not present there. Deposition by this witness reveals that no lawful proceedings of dispossession and handing over possession were held by the Tehsildar. 11. Kalyan (PW-1) has stated in written report (Ex. P-1) that they wanted to erect 22 hut like structures. Material for the same was collected. Ten structures were erected but during deposition before trial court, he states in cross-examination that the land over which the said structures were erected, was always in their possession and it was never in possession of appellant party. On the contrary, Sukh Chand (PW-3) has admitted in cross-examination that Tehsildar suggested them to start reside over the land. This suggestion was given by Tehsildar just one month prior to the instant incident. Thereafter they collected the material and erected some structures. Thus this is an improvement in the statement of kalyan (PW-1) from his written report (Ex. P-1). On the contrary, Sukh Chand (PW-3) has admitted in cross-examination that Tehsildar suggested them to start reside over the land. This suggestion was given by Tehsildar just one month prior to the instant incident. Thereafter they collected the material and erected some structures. Thus this is an improvement in the statement of kalyan (PW-1) from his written report (Ex. P-1). At the same time, there are discrepancies in the statements of Kalyan (Pw-1) and Sukh Chand (PW-3) inter-se also on substantial point of facts. 12. In report (Ex.P-1) no overt-act has been attributed to any specific accused. The informant, Kalyan (PW-1) states in cross-examination that he identified the accused in moon-light. He further states that Devi Singh and jagdam torched the huts with a matchstick. On the other hand, Sukh Chand states that in my view the hut was torched with the matchstick by accused Devi Singh. He admits in cross-examination that he did not say to police about torching by Devi Singh. In cross-examination he was confronted with the statement recorded under Section 161 Cr.P.C. (Ex.D-1). Thus, there is substantial improvement by both the witnesses from their version recorded by police. Evidence of Sukh Chand (PW-3) cannot be used against the appellant Devi Singh because Sukh Chand says that it is only his view that Devi Singh might have torched the huts. 13. After going through Ex. P5 – P7 photographs Ex. P-8 and Ex. P-9 injury reports Ex. P-2 the site inspection memo, it reveals that incident did occur definitely. Rampati (PW-3) and Tijo were injured also. But looking to the incredible evidence available on record, it will not be safe to convict the appellants for the charges. Learned trial court has believed the statements of kalyan (PW-1) and Sukhchand (PW-3) made by them before trial court, but did not appreciate their statements in light of their earlier statements recorded by police. Learned trial court also over looked the discrepancy and contradiction available in the testimony of these witnesses. Therefore the judgment, by which the appellants Devi Singh and Jagdam have been convicted, cannot be sustained. 14. Thus, the appeal is allowed. Judgment dated 21.03.1990 passed by the learned trial court is set aside. 15. Learned trial court also over looked the discrepancy and contradiction available in the testimony of these witnesses. Therefore the judgment, by which the appellants Devi Singh and Jagdam have been convicted, cannot be sustained. 14. Thus, the appeal is allowed. Judgment dated 21.03.1990 passed by the learned trial court is set aside. 15. Keeping in view, however, the provisions of section 437-A of the Code of Criminal Procedure, accused appellants Devi Singh and Jagdam, each of them is directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- and a surety bond in the like amount, before the Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six months to the effect that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the same appellants on receipt of notice thereof, shall appear before the Supreme Court.