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2018 DIGILAW 690 (HP)

State Of Himachal Pradesh v. Nanku Ram

2018-04-18

VIVEK SINGH THAKUR

body2018
JUDGMENT Vivek Singh Thakur J. (Oral) - Present appeal has been filed against the judgment dated 4.12.2007 passed by learned Additional Sessions Judge, Fast Track Court, Dharamshala in Criminal Appeal RBT No. 53-B/X/2005/03, whereby judgment dated 7.7.2003 and order dated 25.9.2003 passed by learned Judicial Magistrate 1st Class, Baijnath in Criminal case No. 80- II/2001 in case FIR No. 63/2001 dated 23.6.2001, convicting and sentencing the respondents under Sections 427, 448 and 506 read with Section 34 IPC and releasing them after extending benefits of section 4 of Probation of Offenders Act, has been reversed. 2. Brief facts of the case are that in the month of June, 2001, PW-1 Laiq Ram was away from his house in connection with his duty as Chowkidar. On 4.6.2001 when he was at Paprola, his son came there and informed him that respondents had demolished his store/shed constructed by him adjacent to his house and the material of the said Whether the reporters of the local papers may be allowed to see the Judgment? Yes shed has also been taken by the respondents, whereupon he approached Panchayat Pradhan, who visited the spot and thereafter he approached the police. Police tried to reconcile the matter, but the respondents did not attend the Police Station, whereupon PW-1 approached the Court and on direction of the Court under Section 156(3) Cr.P.C., 1973 FIR Ex. PW-7/E was registered against the respondents. Thereafter statements of witnesses were recorded. Site plan Ex. PW- 7/B was prepared. Materials of shed, i.e. wooden planks, lying on the spot, were handed over to PW-1. 3. After completion of investigation, prima facie finding complicity of respondents in commission of offence, challan under Sections 448, 427, 379, 506 read with Section 34 of I.P.C. was presented in the Court. On conclusion of trial, respondents were acquitted under Section 379 IPC, but were convicted under Sections 427, 448, 506 read with Section 34 IPC. However, trial Court had released the respondents after extending benefit of section 4 of Probation of Offenders Act on furnishing bail bonds by them, as directed by the Court. 4. The release of respondents on probation was never assailed either by the State or by the complainant. However, respondents had filed an appeal against the conviction before learned Sessions Judge, which was decided by learned Additional Sessions Judge, acquitting them. Hence present appeal. 5. 4. The release of respondents on probation was never assailed either by the State or by the complainant. However, respondents had filed an appeal against the conviction before learned Sessions Judge, which was decided by learned Additional Sessions Judge, acquitting them. Hence present appeal. 5. I have heard learned counsel for the parties and also gone through the records. 6. So far as acquittal of respondents under Section 379 IPC is concerned, i.e. is not in issue in present appeal. Even otherwise, it is the case of the prosecution that material of shed, including the wooden planks, was found lying on the spot and it was never recovered from or produced by respondents. Therefore, the respondents had rightly been acquitted under Section 379 IPC by the trial Court. 7. So far as other offences are concerned, learned Additional Sessions Judge has acquitted the accused on the ground that there was no proof of existence of shed on the spot and the witness PW-3 Chamaru Ram had failed to disclose the manner in which the shed was being demolished and that PW-4 and PW-5 have not supported the prosecution case by stating that house of complainant is existing on the spot, as it was prior to the alleged incident. 8. From perusal of record, I find that the findings returned by learned Additional Sessions Judge are perverse and contrary to the record. 9. PW-3 is independent witness and there is nothing on record not only to establish but even to create a doubt about his inclination towards complainant or any other relation with the complainant or enmity against the respondents, so as to depose falsely against the respondents. He in clear terms in his examination-in-chief has stated that on 1.6.2001 at about 4.04 P.M., while serving as a Chowkidar of the area, he visited the spot on information given by PW-2 Krishan Kumar son of PW-1 and at that time respondents were demolishing the shed of PW-1, whereafter he and Nima Devi Ward Panch and Pradhan had also visited the spot. On that date, respondents were uprooting the shed, which was in possession of PW-1. In cross-examination, a positive suggestion has been given that shed was not existing with the house of PW-1 at the time of his deposition in the Court, which was explained by him by stating that same had been uprooted. On that date, respondents were uprooting the shed, which was in possession of PW-1. In cross-examination, a positive suggestion has been given that shed was not existing with the house of PW-1 at the time of his deposition in the Court, which was explained by him by stating that same had been uprooted. He denied that it was not existed prior to 1.6.2001 and the respondents did not uproot the said shed. There is nothing in his cross-examination to impeach his veracity. This witness is an independent witness, but learned Additional Sessions Judge has discarded his statement on the ground that he was not aware about the breadth and length of the house of PW-1 and also about mode and manner of demolition. In cross-examination, there is no question put to this witness about the mode and manner of demolition being adopted by respondents. Failure to explain breadth and length of house of PW-1 cannot be sole basis for rejection of his testimony. 10. So far as statements of PW-4 and PW-5 are concerned, they deposed that house was existing on the spot prior to incident and after the incident the same was there and learned Additional Sessions Judge has wrongly relied upon the said version of witnesses to discard the case of prosecution, as it was not the case of the prosecution that house of PW-1 has been demolished, but the case was and is that shed adjacent to the house was demolished by respondents. Moreover, PW- 4 and PW-5 have no where deposed that at the time of incident, they were on the spot. 11. No doubt, there is admission on the part of prosecution witnesses that there was a civil dispute pending between the parties and couple of cases were pending with respect to the same property in various courts. Be that it may be. Pendency of various cases on account of civil dispute cannot be sole basis for ousting the case of prosecution, when it has already been established on record by leading cogent, reliable and convincing evidence on record. In case, there is suspicion or doubt with regard to allegations of prosecution, in such eventuality the pendency of cases on account of civil dispute may be additional ground in favour of accused. In case, there is suspicion or doubt with regard to allegations of prosecution, in such eventuality the pendency of cases on account of civil dispute may be additional ground in favour of accused. But at the same time when prosecution case is supported by cogent and convincing evidence, civil dispute may be additional factor to establish the prosecution case. But in present case as held by the trial Court after considering the entire evidence on record, prosecution has proved beyond reasonable doubt that respondents had committed an offence under Sections 427 and 448 read with Section 34 IPC. 12. So far as conviction of respondents under Section 506 IPC is concerned, it was alleged in the FIR that respondents had extended threats to kill PW-1 and his son, but in their deposition in the Court neither PW-1 nor PW-2 or any other witness has stated anything in this regard and they are completely silent on this issue. Therefore, commission of offence by respondents under Section 506 IPC is not proved. 13. Accordingly, judgment of learned trial Court is partially upheld with regard to offences under Sections 427 and 448 read with Section 34 IPC and respondents are acquitted under Section 506 IPC also. 14. However, respondents had already been released on probation and in compliance of the said order passed by trial Court they have already furnished the bail bonds and the said order has never been assailed by any party including the complainant. Further the incident is of 2001, therefore, also I feel that after 17 years, that too when the respondents have already faced the trauma of convicts since 2003 till decision of appeal by learned Additional Sessions Judge, it would not be appropriate to impose substantive sentence on the respondent and their release on probation is also maintained. 15. The appeal is allowed in the aforesaid terms.