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2021 DIGILAW 196 (HP)

Medh Ram v. Madan Lal

2021-03-31

AJAY MOHAN GOEL

body2021
JUDGMENT : AJAY MOHAN GOEL, J. 1. By way of this revision petition, filed under Sections 397 and 401 of the Code of Criminal Procedure, the petitioner/complainant has assailed the judgment passed by the Court of learned Judicial Magistrate, 1st Class, Court No.2, Nalagarh, District Solan, H.P., in Criminal Case No.1/2 of 09/2005, dated 26.02.2010, titled as State of H.P. Versus Madan Lal & others, vide which judgment, learned Court below acquitted the accused therein of the offences punishable under Sections 380 and 427 of the Indian Penal Code and further ordered the case property to be returned to the accused, as well as the judgment passed by the Court of learned Additional Sessions Judge, Solan, District Solan, H.P., in Criminal Appeal No. 3-NL/10 of 2010, titled as Medh Ram Versus State of Himachal Pradesh & others, decided on 31.12.2011, vide which learned Appellate Court while dismissing the appeal filed by present petitioner, upheld the judgment passed by learned Trial Court. 2. Brief facts necessary for the adjudication of the present petition are as under:- Respondents No.1 to 3 herein were charged and tried for the commission of offences punishable under Sections 380 and 427 read with Section 34 of the Indian Penal Code, on the basis of F.I.R. No.66 of 2004, dated 14.05.2004, registered against them at the behest of present petitioner, at Police Station, Barotiwala, District Solan, H.P. 3. The case of the complainant was that he was owner of a house at village Patta, which was in his possession and the same stood locked by him as he was residing at village Bishian for the last ten years. On 10.05.2004, the complainant went to village Patta and found that one wall and roof of his house was damaged and certain domestic articles were also missing. It was the case of the complainant that the accused, in furtherance of their common intention, had committed theft of the household articles by damaging the wall and roof of the house of the complainant. After lodging of the F.I.R., the investigation was carried out and challan was filed in the Court. On finding a prima facie case against the accused, charges were framed against them, under Sections 380 and 427 read with Section 34 of the Indian Penal Code. 4. To prove its case, the prosecution examined ten witnesses. After lodging of the F.I.R., the investigation was carried out and challan was filed in the Court. On finding a prima facie case against the accused, charges were framed against them, under Sections 380 and 427 read with Section 34 of the Indian Penal Code. 4. To prove its case, the prosecution examined ten witnesses. Accused persons denied the prosecution story and claimed themselves to be innocent and according to them, it were the accused who were in possession of the house in issue. 5. On the basis of evidence which was led before learned Trial Court, vide judgment dated 26.02.2010, learned Trial Court acquitted the accused and ordered return of the case property to the accused. While acquitting the accused, learned Trial Court held that Ext.D1, which was copy of judgment of Civil Court, clearly demonstrated that it was not the complainant who was in possession of the suit property. It held that statement of PW-2 especially cross-examination of said witness demonstrated that this witness had admitted that Medh Ram (present petitioner) was residing in village Bishian and Banti Devi was residing at village Patta for last more than twenty five years. Banti Devi is the mother of accused Asha Ram and Asha Ram is father of other two accused. Learned Court below also held that the evidence led by the prosecution revealed that Banti Devi was residing in the disputed house and complainant and his father never remained in possession of the same. It held that it was for the prosecution to prove that the complainant was in possession of the disputed house and that the accused had committed theft, which the prosecution had failed to demonstrate. Learned Court also held that the prosecution had failed to prove that the articles stolen by the accused belonged to the complainant. It also held that statement of PW-5 demonstrated that Banti Devi had lodged a complainant against the complainant in the Panchayat. On these basis, learned Trial Court acquitted the accused. 6. In appeal, the findings of learned Trial Court were upheld by learned Appellate Court. It also held that statement of PW-5 demonstrated that Banti Devi had lodged a complainant against the complainant in the Panchayat. On these basis, learned Trial Court acquitted the accused. 6. In appeal, the findings of learned Trial Court were upheld by learned Appellate Court. It was held by learned Appellate Court that the copy of judgment of Civil Court, dated 19.03.2009, Ext.D1, clearly demonstrated that complainant Medh Ram had filed a civil suit against the accused persons on the ground that he was owner in possession of the disputed house, which stood decided by the Court of learned Civil Judge (Senior Division), Nalagarh, District Solan, H.P., vide common judgment dated 19.03.2009, dismissing the same. Learned Appellate Court also held that Asha Ram (accused) had also filed a civil suit qua the same property, which was decreed by the Court of learned Civil Judge (Senior Division), Nalagarh, District Solan, H.P., same common judgment dated 19.03.2009. It held that therefore, it could not be said that the complainant was in possession of the house and the articles lying therein were also in his possession. Learned Appellate Court further held that the evidence adduced by the prosecution was not sufficient to prove the possession of the complainant over disputed house as well as the articles lying therein. On these basis, it upheld the judgment passed by learned Trial Court while dismissing the appeal. Present revision petition as mentioned above is directed against the said judgments. 7. I have heard learned counsel for the parties and have also gone through the judgments passed by learned Court below as well as the record of the case. 8. During the course of arguments, the factum of a civil suit filed by the complainant, qua the suit property, claiming ownership over the same having been dismissed, could not be proved to the contrary by learned counsel for the petitioner. In fact, a perusal of Ext.D1 demonstrates that both the learned Courts below have correctly held that the Civil Court had decided the factum of the suit property being in possession of accused Asha Ram while dismissing the claim of the complainant over the same, as this was in consonance with findings returned in Ext.D1. 9. In fact, a perusal of Ext.D1 demonstrates that both the learned Courts below have correctly held that the Civil Court had decided the factum of the suit property being in possession of accused Asha Ram while dismissing the claim of the complainant over the same, as this was in consonance with findings returned in Ext.D1. 9. In this view of the matter, when there is a judicial verdict in favour of the accused, that they were in possession of the disputed house, no fault can be attributed to the findings returned by the learned Courts below, whereby they have held that the prosecution was not able to prove that the house was in possession of the complainant. That being the case, when the house itself was in possession of the accused, then by no stretch of imagination, the articles lying therein could be said to be in possession of the complainant. In this background, learned Trial Court has rightly acquitted the accused of the commission of offences punishable under Sections 380 and 427 of the Indian Penal Code, and learned Appellate Court has rightly dismissed the appeal filed by the complainant against the judgment passed by learned Trial Court. 10. During the course of arguments, learned counsel for the petitioner otherwise could not point out any perversity with the findings returned by both the learned Courts below by referring to the evidence on record. 11. Accordingly in view of the discussion held hereinabove, as this Court does not finds any merit in this petition, the same is dismissed, so also pending miscellaneous applications, if any.