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2016 DIGILAW 2230 (HP)

Ram Dev v. Dhameshwar Sharma

2016-10-20

CHANDER BHUSAN BAROWALIA, DHARAM CHAND CHAUDHARY

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JUDGMENT : Chander Bhusan Barowalia, J. The present appeal is preferred by the appellant under Section 372 of the Code of Criminal Procedure assailing the judgment of acquittal dated 29.7.2009, passed by the learned Sessions Judge, Mandi, H.P., in Sessions Trial No.54 of 2008, whereby, the accused persons have been acquitted of the charges framed against them. 2. Briefly stating, as per prosecution story, facts giving rise to the present appeal, are that on 16.7.2007 at about 12.00 noon, Ram Dev, complainant was intimated by his brother Chiranji Lal that his shop, which was existing on the government land, had been set on fire. Chiranji Lal noticed his brother, accused Dhameshwar and his sons, namely Lalit Kumar and Dimple, running from the side of the shop. The said shop along with one room had been constructed by him on government land during the year 1979, when Dhameshwar and his brother Chiranji Lal were joint, the same had fallen to his share and the other shop had fallen to the share of his brother Dhameshwar, after partition in the year 1988. It has been averred that on such information, the complainant and other co-villagers reached at the spot and the Fire Brigade controlled the fire. Damage was caused to the furniture, bedding, utensils and confectionary items, which was stated to the tune of Rs.1,00,000/-. It has further been averred that the accused had set the shop on fire to occupy the land. The incident was reported to the police, on which, FIR Ext.PW1/A was registered. During the course of investigation, the police took into possession ash, burnt wood and coal from the spot, vide memo Ext. PW5/A, which was stated to be signed by Ms. Ram Pyari, PW5 and Ghanshyam. Photographs of the scene of crime were also taken, which are Exts. PW12/A to PW12/F and negatives whereof are Exts. PW12/G to PW12/M. The demarcation of the land was conducted by Hem Singh, Patwari PW9 and Tatima Ext.PW9/A and jamabandi Ext.PW9/B were procured. Exts. PW8/A and PW11/A respectively were the records of the sanction of water and electricity connection. 3. The prosecution in order to prove its case has examined thirteen witnesses. The statement of the accused under Section 313 Cr.P.C. was recorded. No defence witness was examined by the accused. 4. Exts. PW8/A and PW11/A respectively were the records of the sanction of water and electricity connection. 3. The prosecution in order to prove its case has examined thirteen witnesses. The statement of the accused under Section 313 Cr.P.C. was recorded. No defence witness was examined by the accused. 4. After the completion of the trial, the learned trial Court acquitted the accused for the offences punishable under Sections 436 read with Section 34 of Indian Penal Code. 5. Heard. The learned counsel appearing for the appellant/complainant (hereinafter to be called as ‘the complainant’) has argued that the Court below has not appreciated the facts, which have come on record to its true perspective. On the other hand, learned counsel appearing for respondents No.1 to 3 argued that as the prosecution has failed to prove its case beyond reasonable doubt, therefore, the judgment passed by the Court below needs no interference. The learned Additional Advocate General has submitted that the State has not assailed the impugned judgment. 6. To appreciate the arguments of the learned counsel for the complainant and the learned counsel for respondents No.1 to 3, we have gone through the record of the case in detail. 7. PW-1, Ram Dev, complainant has deposed that he and his brother jointly constructed two shops having slate roof on the government land in the year 1979 and in partition, which took place in the year 1988, one shop had fallen to his share and the other to accused Dhameshwar. It has further been stated that the complainant started running a tea stall in the shop in the year 1991. He further deposed that accused Dhameshwar purchased adjacent land from Shri Yadav Verma in the year 2006 and thereafter the dispute started. Accused Dhameshwar had asked him to leave the shop otherwise he will set the same on fire. On 16.7.2007, the complainant was unwell and he alongwith his son, Yadvinder (PW-2) returned home after closing the shop. They reached home at about 10.30 p.m. and at about 12:00 p.m. the brother of the complainant (PW-4) intimated them that accused Dhameshwar and his sons, Lalit and Dimlple, had set the shop on fire. The fire was controlled by the Fire Brigade and loss was estimated to the tune of Rs.1,00,000/-. They reached home at about 10.30 p.m. and at about 12:00 p.m. the brother of the complainant (PW-4) intimated them that accused Dhameshwar and his sons, Lalit and Dimlple, had set the shop on fire. The fire was controlled by the Fire Brigade and loss was estimated to the tune of Rs.1,00,000/-. In cross-examination, he has admitted that the complainant/accused and Chiranji Lal were residing in the same house situated at a distance of about one kilometer from the shop. The house was having telephone facility. He further stated that when he and Chiranji Lal reached on the spot, at about 1.00 a.m., people were present there. He has stated that Chiranji Lal did not tell when the accused set the shop on fire nor he raised any hue and cry or shouts. He also admitted that accused No.1 had filed a civil suit regarding construction allegedly to be raised by him and Chiranji Lal 8. PW-2 Yadvinder, who was son of the complainant, deposed that on 16.7.2007, he was looking after the shop at village Devagan, as his father was ill on that day. He further deposed that he closed the shop on that day at about 10.30 p.m. and thereafter went to attend the marriage at village Khamradha in his relations. He returned from the marriage in a vehicle at about 11.30/11.45 pm, he noticed that the shop was set on fire and the accused Dhameshwar, Lalit and Dimple were running through shortcut. On raising of the alarm, co-villagers reached and tried to extinguish the fire. He further stated that the accused were earlier threatening them to vacate the shop. Subsequently, they did so and extensive damage to the tune of Rs.1,00,000/- was caused. He suspected that the accused had set the shop on fire. In cross-examination, he deposed that on 16.7.2007, accused Lalit Kumar closed the shop at about 8.00 p.m. He further deposed that he reached at Khamarada at 10.40 p.m. and after dinner returned in a private jeep of Himachal number at about 11.45 p.m. The shop was noticed on fire from a distance of 10 feet and when he reached about 100 meters towards his house, through pedestrian short cut, the accused were seen from a distance of 10 meters. He did not remember the colour of the clothes of the accused. He did not remember the colour of the clothes of the accused. He also did not raise any alarm/noise about setting the shop on fire till the lodging of the report. Accused Dhameshwar had filed a civil suit against Ram Dev and Chiranji Lal about the adjacent land to the shop. He had seen Chiranji Lal in a marriage at Khamrada, who returned prior to him. He did not wake up Devender Nath and Chaman Lal, whose houses were situated near to his shop. He further deposed that he told his father at about 2.30 a.m. that he had seen accused near the shop. 9. PW-3 Tek Chand has stated that accused Dhameshwar used to extend threats to Ram Dev to vacate the shop, else he would set the shop on fire. He has further stated that on 16.7.2007 at about 11/12 pm., on way to village Devkhan, he noticed the accused Dhameshwar, Lalit and Dimple had torches in their hands and they set the shop on fire in his presence. He went to Bhatwari and then raised noise about the incident of fire. He has also resiled from his previous statement. This witness, in his cross-examination, has deposed that his house was situated in village Thach at about 200-250 metres downward and the shop was not visible from his house. He crossed pedestrian path and saw the accused from a distance of about 6 feet and then focused the torch. He further deposed that there was a marriage in the village and accused Dhameshwar set the shop on fire from middle and the other accused set the shop on fire from the other side. He raised alarm without shouting that accused had set the shop on fire. He further stated that his son Roshan lal was involved in a N.D.P.S. case and was released on parole when his wife died and he did not return to jail. He also deposed that Roshan Lal was residing with him. 10. PW-4 Chiranji Lal, who was the brother of the complainant, has deposed that out of two shops situated at village Devkhan, one shop was in possession of complainant and the other was with the accused Dhameshwar since the time when they were joint. He also deposed that Roshan Lal was residing with him. 10. PW-4 Chiranji Lal, who was the brother of the complainant, has deposed that out of two shops situated at village Devkhan, one shop was in possession of complainant and the other was with the accused Dhameshwar since the time when they were joint. He further deposed that on 16.7.2007 at about 11/11.30 p.m. on way to home, on return from a marriage at Khamarda at the time of parking his vehicle, he noticed that shop of the complainant had been set on fire and the accused were running from the shop towards their house. He informed the complainant and came with him to the shop. Loss to the tune of Rs.1,00,000/- was caused. In his cross-examination, he deposed that he had seen the burning shop from a distance of 100 meters. He further stated that 5-6 houses with telephone facility were situated near the shop. He further deposed that the accused were about 40-50 meters away from his shop. He did not remember the colour of their clothes. The accused were running with their back towards him on the motorable road and they continued running for about 100 to 200 meters. He kept on watching the shop for 5-10 minutes without raising any alarm and then went to Bhatwari. He woke up the complainant and did not tell anybody else about the fire. The people came to know about the fire about 5-10 minutes later. He did not go to the police station as his vehicle was not having petrol. The accused Dhameshwar had filed a civil suit against him and complaint about the digging of land. 11. PW-5 Ram Pyari, who was Pradhan, Gram Panchayat, Bhatwari proved memo Ext.PW5/A with respect to the taking of ash, pieces of burnt wood and coal in possession by the police. 12. PW-6 HC Dina Nath No. 888, stated that during the year 2007, he was posted as Head Constable in Police Station, Aut. He further stated that during the period 7.7.2007 to 27.7.2007, he was officiating as MHC. He also stated that on 17.7.2007, S.I./Additional SHO deposited with him one sealed parcel sealed with seal impression ‘T’ and that on 27.7.2007, said parcel was sent through Constable Bhup Singh to F.S.L., Junga vide RC No.90/2007 and after depositing the same he delivered receipt to him. He also stated that on 17.7.2007, S.I./Additional SHO deposited with him one sealed parcel sealed with seal impression ‘T’ and that on 27.7.2007, said parcel was sent through Constable Bhup Singh to F.S.L., Junga vide RC No.90/2007 and after depositing the same he delivered receipt to him. In his cross-examination, he denied that neither parcel with seal impression ‘T’ was deposited with him nor was sent to FSL. He further denied that no receipt was handed over to him. 13. PW-7, MHC, Police Station, Aut during the year 2007 deposed that SHO had deposited with him a sealed parcel which was sent by him through Constable Bhup Singh, to the F.S.L., Junga. 14. PW-8 Arvind Verma stated that he remained posted as S.D.O., I&PH, Kandrour, and was posted as SDO, IPH, Panarsa during the period from May, 2006 to April, 2008. He also proved letter Ext.PW8/A about the sanction of public tap near the premises of the complainant, which was converted into a private tap as per the instructions of the government. 15. PW-10 Daya Ram stated that he demarcated the land and verified Tatima Ext.PW9/A, which was prepared by the Patwari. 16. PW-11 Devinder Kumar has deposed with respect to the sanction of electricity connection vide letter Ext. PW11/A. 17. PW-12 Inspector Mangat Ram was the Investigating Officer, who has taken into possession ash, burnt pieces of wood and coal vide memo Ext.PW5/A sealed with seal impression “T” and specimen seal impression was also taken separately vide Ext.PW12/N. He also prepared the spot map Ext.PW12/O and recorded the statement of witnesses. Thereafter, ASI Bansi Lal, who appeared as PW13, has collected the information from the S.D.O., I&PH and S.D.O., H.P.S.E.B and got the land demarcated after obtaining the order from Tehsildar. Close scrutiny of the testimony of Chiranji Lal (PW4) reveals that he did not apprehend the accused after seeing them setting on fire the shop of the complainant. He also did not raise any alarm so as to attract the attention of the persons residing in the vicinity that the shop had been set on fire. PW4 stated that there was telephone facility near the shop and house of the complainant. He also did not raise any alarm so as to attract the attention of the persons residing in the vicinity that the shop had been set on fire. PW4 stated that there was telephone facility near the shop and house of the complainant. When the telephone facility was available in the house situated in the vicinity and when the shop of his brother was set on fire, as a prudent man, he should have gone to extinguish the fire and intimate his brother telephonically. He has not adopted any of these two courses. The act and conduct of this witness reflects that he was complacent, as he kept on proceeding towards his house, when the said shop was set ablaze. He neither made any telephonic call nor tried to extinguish the fire, so his act and conduct is not trustworthy. 18. Sh. Yadvinder (PW-2) son of the complainant, happens to be another witness having seen the accused setting the shop on fire. His conduct is also un-natural and improbable and it is not sufficient to hold that he had seen the accused running from the spot of occurrence after setting the shop on fire. He had left the spot at about 10.30 p.m. to attend the marriage. So, it is evident that it was hard to believe that immediately after taking dinner, he returned back at about 11.30 or 11.45 p.m. He also did not react spontaneously and naturally and did not try to apprise his father, through telephone, about setting of the shop on fire. He continued walking to the village without raising any alarm and the same was raised by him when he had covered half kilometer. He did not find his father and Chiranji Lal at the spot nor at the house. Such un-natural conduct can hardly be believed so as to provide any credence to the case of the prosecution. 19. PW-3 Tek Chand after noticing the fire, continued proceedings towards Bhatwari without reacting to the fire by making any effort to awake the persons residing in the vicinity or making any effort to extinguish the fire. He identified the accused in torch light and this statement also appears to be made with a view to settle score with them. He also tried to save his son from prosecution from the Court in N.D.P.S. case. 20. He identified the accused in torch light and this statement also appears to be made with a view to settle score with them. He also tried to save his son from prosecution from the Court in N.D.P.S. case. 20. So far as the threat is concerned, the motive disclosed for the act by the complainant, PW3 and PW4 is that the accused wanted to get the shop vacated, consequently, the accused set the shop on fire. This sole circumstance is not conclusive to prove that it is the accused, who has set the shop on fire. There may be other reasons or enmity with some other person, which has led to the incidence. The delay in lodging the FIR is also one of the considerations, which show that there was considerable thinking before lodging the FIR coupled with the fact that there is no murmur till 3.00 a.m. that the shop was set on fire by the accused persons. All this goes to show that the prosecution has failed to prove the guilt of the accused conclusively and beyond all reasonable doubt. In these circumstances, we do not find any infirmity with the well reasoned judgment of the learned Court below acquitting the accused persons holding that the prosecution has failed to prove the guilt of the accused conclusively and beyond reasonable doubt. 21. It has been held in K. Prakashan vs. P.K. Surenderan (2008) 1 SCC 258 , that when two views are possible, appellate Court should not reverse the judgment of acquittal merely because the other view was possible. When judgment of trial Court was neither perverse, nor suffered from any legal infirmity or non consideration/mis-appreciation of evidence on record, reversal thereof by High Court was not justified. 22. The Hon’ble Supreme Court in T. Subramanian vs. State of Tamil Nadu (2006) 1 SCC 401 , has held that where two views are reasonably possible from the very same evidence, prosecution cannot be said to have proved its case beyond reasonable doubt. 23. In view of the above circumstances, the prosecution has failed to prove the guilt of the accused persons conclusively and beyond a shadow of doubt. This Court finds that learned Appellate Court has rightly dealt with the evidence and found the same not worthy of credence. 23. In view of the above circumstances, the prosecution has failed to prove the guilt of the accused persons conclusively and beyond a shadow of doubt. This Court finds that learned Appellate Court has rightly dealt with the evidence and found the same not worthy of credence. We, thus, find no merit and substance to interfere with the well reasoned judgment passed by learned Appellate Court and the appeal filed by the appellant is accordingly dismissed.