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Himachal Pradesh High Court · body

2018 DIGILAW 2022 (HP)

Tulsi Ram v. Dhanu Ram

2018-11-20

SURESHWAR THAKUR

body2018
JUDGMENT : SURESHWAR THAKUR, J. 1. The complainant/appellant herein, is aggrieved, by the judgment of acquittal pronounced by the learned Judicial Magistrate 1st Class, Court No. 4, Mandi, District Mandi, H.P, upon, Complaint No. 8-II/2007, on 12.07.2010, hence has instituted there from the instant appeal before this Court. 2. The facts relevant to decide the instant case, are, that the complainant is owner in possession of land comprised in Khasra No.817, situated in village Bataur, I-llaqua Tungal, Sub-Tehsil Kotli, District Mandi, H.P. On 29.3.2007, at about 6.30 p.m., all accused formed an unlawful assembly and in prosecution of object of said assembly, accused first trespassed into the land of the complainant, and, thereafter cut and removed the wheat crop from the said land. When the complainant along with her daughter and son-in-law, attempted to resist them, accused started abusing the complainant and her family members by using filthy language, i.e. “Teri Maan Ka Khasam, Joo Hum Ko Rokne Wala Kaun Hota Hai, Yahan Se Chali jaao, Nahin to Tujhe Aur Tare Saare Khandan Ko Jaan Se Khatam Kar Dunga”. When complainant cried for help, accused ran away from the spot with the wheat bundle. Accused persons had cut and removed the wheat crop from three fields costing Rs.1500/-. Thus, accused persons have committed offences punishable under Section 379, 427, 447, 504, 506 and read with Section 149 of the IPC. It is alleged in the complaint that the accused are habitual offenders. They have already committed same offences about 7-8 months back for which another complaint is pending before the Judicial Magistrate 1st Class, Court No. III, Mandi. Complainant is old man of 70 years but accused are having vicious nature and as such, there is every apprehension of committing any heinous offences, if they are not dealt with in accordance with law. Hence the complaint. 3. After presentation of the complaint, the complainant's preliminary evidence was recorded, and, upon, a prima facie case hence being found, against, the accused, they were hence summoned. On their appearance before the learned trial Court, they were charged for theirs committing offences punishable under Sections 379, 427, 447, 504, 506 read with Section 149 of the IPC. In proof of his case, the complainant examined three witnesses. On their appearance before the learned trial Court, they were charged for theirs committing offences punishable under Sections 379, 427, 447, 504, 506 read with Section 149 of the IPC. In proof of his case, the complainant examined three witnesses. On conclusion of recording, of, the complainant's evidence, the statement of the accused under Section 313 of the Code of Criminal Procedure was recorded by the learned trial Court, wherein, the accused claimed innocence, and, pleaded false implication. 4. On an appraisal of the evidence on record, the learned trial Court, returned findings of acquittal in favour of the accused/respondent herein. 5. The complainant is aggrieved by the judgment of acquittal recorded in favour of the accused/respondent, by the learned trial Court. The learned counsel appearing for the complainant/appellant herein, has, concertedly and vigorously contended qua the findings of acquittal recorded by the learned trial Court, standing, not based on a proper appreciation, by it, of the evidence on record, rather, theirs standing sequelled by gross mis-appreciation by it, of the material on record. Hence, he contends qua the findings of acquittal warranting reversal by this Court in the exercise of its appellate jurisdiction, and, theirs standing replaced by findings of conviction. 6. On the other hand, the learned counsel appearing for the accused/respondent herein, has with considerable force and vigour, contended qua the findings of acquittal recorded by the learned trial Court, rather standing based on a mature and balanced appreciation by him, of the evidence on record, and, theirs not necessitating any interference, rather theirs meriting vindication. 7. This Court with the able assistance of the learned counsel on either side, has, with studied care and incision, evaluated the entire evidence on record. 8. The entire crux of the reasoning assigned, by the learned trial court for rendering an order of acquittal, upon, the accused/respondent, is grooved, upon, (a) there existing a civil dispute inter se the complainant, and, the respondents/accused, vis-a-vis, the contentious parcel of land, whereon. the offences, borne in the complaint, were alleged to be committed, by the respondents/accused; (b) the verdict of acquittal also, is, anchored, upon, the factum of the complainant failing to adduce evidence, vis-a-vis, his holding settled ownership and possession, vis-a-vis, the contentious parcel of land. 9. the offences, borne in the complaint, were alleged to be committed, by the respondents/accused; (b) the verdict of acquittal also, is, anchored, upon, the factum of the complainant failing to adduce evidence, vis-a-vis, his holding settled ownership and possession, vis-a-vis, the contentious parcel of land. 9. However, for the reasons, to be ascribed hereinafter, the verdict of acquittal, rather suffers from, an, inherent fallacy; (i) given the complainant in his deposition comprised in his examination-in-chief, rendering a clear echoing qua, despite, his protesting against the misdemeanors of the respondents/accused, the latter meteing threatenings to him; (b) the respondent/accused wielding sickles in their hands, and, attempting to assault him. The afore rendered echoings occurring in the examination-in-chief, of the complainant, stood not concerted to be repulsed, by the defence counsel, (i)by the latter putting appropriate suggestions to him, during, the course of his holding him to cross-examination, (ii) rather affirmative, in tandem therewith hence suggestions rather stood thereat put to him, suggestion whereof stood acquiesced by the defence, (iii) reiteratedly acquiescence whereof is evident, from, the learned defence counsel, while subjecting CW-1 Tulsi Ram, to cross-examination, his meteing a suggestion to him qua the accused wielding sickles, in their hands. The factum of an echoing occurring in the examination-in-chief, of, the complainant (v) qua ensual, of, loss to the complainant qua wheat crops sown, on, the contentious parcel of the land, sparked, by forcible harvesting thereof, by the respondent/accused, also, likewise stood not concerted to be repulsed by the defence, by meteings, of, appropriate suggestion to the afore complainant, during, the course of his being subjected to cross-examination, (v) rather a suggestion stood thereat, put to him qua, from, amongst the contentious fields, the, accused hence harvesting the wheat crop, from, two fields, (vi) wherefrom, also, an inference stands sparked qua the defence acquiescing qua the accused/respondents, hence forcibly harvesting the crop of wheat, as, existing on the contentious parcel of land. Furthermore, with the complainant, during, the course of his examination-in-chief, placing, on record the jamabandi apposite to the suit land, jamabandi whereof is borne in Ex. Furthermore, with the complainant, during, the course of his examination-in-chief, placing, on record the jamabandi apposite to the suit land, jamabandi whereof is borne in Ex. CA, where under revelations exist, of his owning the contentious parcel of land, (i) and, with the respondents/accused not establishing qua theirs being owners of land, adjoining thereto, (ii) whereas, upon, theirs holding a valid demarcation, of the contentious parcel of land, purportedly adjoining their land contiguous thereto, and, the contentious parcel, of, land being therein, hence found, to, rather fall within their ownership, and, possession, may render them, to accomplish rather success, in, establishing qua theirs holding a right to harvest, the, wheat crop as sown, on, the contentious parcel of the land, or theirs being hence enabled to both exercise and espouse a valid defence, qua their acts being clothed with an exculpatory right of private defence, of, property, (iii) whereas, apparently, the afore best evidence, rather remained un-adduced, thereupon, it is wholly in sagacious for the learned trial Court, to conclude, that for want of evidence adduced by the complainant qua his settled ownership, and, possession of the contentious parcel of land, and, with civil litigation existing inter se the respondents/accused, and, the complainant, (iv) thereupon, the charges framed against the accused, for theirs, committing offences punishable under Sections 427, 447, 379, 504, 506, and, read with Section 149 of the IPC, rather standing not efficaciously proven. 10. Be that as it may, apt corroboration to the testi-fication of CW-1 is also lent by the testi-fication rendered by CW-2, (i) the latter in her examination-in-chief, rendered an echoing qua the ill-fated occurrence, where within echoings hence in tandem therewith also occur. The learned defence counsel while putting suggestions to CW-2, while, holding her to cross-examination, meted a suggestion to her, qua, at the time of hers arriving, at the site of occurrence, the accused proceeding to harvest, the last field, existing on the contentious parcel of land, (ii) wherefrom, an inference is derivable qua the defence acquiescing, vis-a-vis, the respondents/ accused trespassing, upon, the contentious parcel of land. Furthermore, with the learned defence counsel also meteing a suggestion to CW-2 while holding her to cross-examination, vis-a-vis, the accused/respondents wielding sickles, hence, also sparks an inference, vis-a-vis, acquiescence, of, the defence, vis-a-vis, the incriminatory role, of, the accused. 11. Furthermore, with the learned defence counsel also meteing a suggestion to CW-2 while holding her to cross-examination, vis-a-vis, the accused/respondents wielding sickles, hence, also sparks an inference, vis-a-vis, acquiescence, of, the defence, vis-a-vis, the incriminatory role, of, the accused. 11. With inter se corroborations, hence standing echoed respectively, in the un-eroded testifications of CW-1, and, of CW-2, and, when for the afore stated reasons, the respondents/accused, are, unable to establish qua theirs holding any settled possession, and, ownership, vis-a-vis, the contentious parcel of land, (I) rather when hence for the afore stated reasons, contrarily, the complainant has established qua his holding evident settled ownership, and, possession of the contentious parcel of land, (ii) thereupon, the charge framed against the accused, for theirs committing the offences punishable under Sections 427, 447, 379, 504, 506, and, read with Section 149 of the IPC, hence stands cogently proven. 12. For the reasons which have been recorded hereinabove, this Court holds that the learned trial Court has not appraised the entire evidence on record in a wholesome and harmonious manner apart there from the analysis of the material on record by the learned trial Court, suffers from, a gross perversity or absurdity of mis-appreciation and non appreciation of evidence on record. 13. Consequently, the instant appeal is allowed and the impugned judgment is set aside. In sequel, the accused/respondents here are convicted for theirs committing offences punishable under Sections 427, 447, 379, 504, 506 and read with Section 149 of the IPC. They be produced before this Court on 21st December, 2018 for hearing on quantum of sentence.