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2021 DIGILAW 517 (JK)

Vijay Kumar v. Om Parkash

2021-09-29

RAJNESH OSWAL

body2021
JUDGMENT : 1. At request of learned counsel for the appellant, the present criminal acquittal appeal is treated as revision petition and with the consent of learned counsel for the parties, the same is taken up for final disposal. 2. The judgment of acquittal dated 23.01.2008 rendered by the learned Sessions Judge, Jammu (hereinafter to be referred as 'trial Court') in case titled State v. Om Parkash and others by virtue of which, the respondents have been acquitted by the learned trial Court has been impugned in the present petition primarily on the ground that the learned trial Court has not rightly appreciated the evidence and has jumped to the wrong conclusion thereby acquitting the respondents and further that the respondents had not led any evidence in rebuttal so the prosecution story remains un-rebutted so far as respondents are concerned. It is further stated that the main ground on the basis of which the respondents have been acquitted is that the FIR was not registered on the same day but on the subsequent day. 3. Mr. Vijay Gupta, learned counsel appearing for the petitioners has vehemently argued that learned trial Court has fallen in a grave error of law by observing that the FIR was required to be registered on the same day when the information was received by the concerned Police Station with regard to the commission of offence and further that the statement of the complainant clearly proved the offence under section 436 RPC. 4. Per contra, Mr. R.K.S. Thakur, learned counsel appearing for the respondents submits that evidence cannot be appreciated while deciding the revision petition. 5. Heard learned counsel for the parties and perused the records. 6. Brief facts necessary for the disposal of the present revision petition are that on 06.04.2003, Vijay Kumar, PW-1 lodged a written report at Police Station Nagrota wherein he alleged that at about 9:30 last night, the respondents set into fire and completely burnt the Kullah owned by PW-2-Govind Singh in which he and Govind Singh were running a Piggery in partnership. Pursuant to this information, FIR bearing No. 57/2003 was registered and during investigation it was established that the respondents were having enmity with the complainant as they used to question as to why he had started the business in the village land reserved as pasture. Pursuant to this information, FIR bearing No. 57/2003 was registered and during investigation it was established that the respondents were having enmity with the complainant as they used to question as to why he had started the business in the village land reserved as pasture. In this regard, they had also filed a case before the Deputy Commissioner and because of this grudge nurtured by them, they set the Kullah on fire on 05.04.2003 at 9:30. After the conclusion of the investigation charge sheet for commission of offence under Section 436 RPC was filed. The prosecution had cited as many as seven witnesses out of which the prosecution had examined PW-1 Vijay Kumar, PW-2 Govind Singh, PW-3 Brij Dev Singh, PW-5 Mohammad Sarwar (Patwari) and PW-7 Zakir Shaheen (SHO P/S Nagrota). Only these five witnesses were examined. PW-4 Puran Chand was dropped by the prosecution and PW-6, Mohammad Hussain Kohli (ASI) was dead during the trial of the case. 7. The first contention of the learned counsel for the respondents is that the evidence cannot be appreciated while deciding the revision petition. It requires to be noted that no doubt the evidence cannot be appreciated like appellate Court while deciding the revision petition but nonetheless, the Court can look into the evidence so as to determine as to whether the judgment recorded by learned trial Court suffers from any illegality or not as also the same is proper or not. 8. In view of this, this Court deems it fit to have the brief resume of the evidence led by the prosecution. 9. PW-1 Vijay Kumar has stated that on 05.04.2003 at about 9PM when he and Gobind Singh were on their way back from the migrant camp, they saw the accused persons setting their Kullah on fire. They asked the accused not to do so who in turn started pelting stones on them. He further stated that they called army personnel on spot, who tried to extinguish the fire but failed. As a result of fire, the loss to the tune of Rs. 60,000/70,000 was caused. He went to the Police Station for registration of FIR on the same day at 11/11.30 and the Police came on spot on 5.4.2003 and he lodged FIR on 06.04.2003. He has proved the contents of the written report marked as PW-VK as also the FIR that was marked as Exhibit PW-VK/1. 60,000/70,000 was caused. He went to the Police Station for registration of FIR on the same day at 11/11.30 and the Police came on spot on 5.4.2003 and he lodged FIR on 06.04.2003. He has proved the contents of the written report marked as PW-VK as also the FIR that was marked as Exhibit PW-VK/1. He also proved the seizure of the semi burnt wood vide seizure memo marked as PW-VK/2. He admitted that he was an employee of water works department and during those days he was posted at B.C. Road, Bus Stand. At the time of occurrence, the respondents were accompanied by 2/3 others whom he could not identify. One Havaldar and one constable had accompanied them and the Police told them to come to Police Station on next morning. Report was got drafted from one Shiv Nath Lambardar and was lodged at 9.00 hrs in the morning on 06.04.2003. 10. PW-2 Gobind Singh has stated that on 05.04.2003 at 9.00 PM he and Vijay Kumar were returning from Migrant Camp and when they reached near Kullah, they saw accused Bishan and Madan setting the Kullah on fire from front side and others from the back side. When he raised alarm the accused ran away. They chased them and the respondents pelted stones. In the meantime, the Kullah had burnt to ashes. 10/15 army personnel tried to extinguish the fire but the same could not be extinguished. They suffered a loss of Rs. 60,000/70,000. They went to the Police Station at 11.30 in the night. Two police personnel came on spot and asked them to produce an application. They went to the Police Station in the morning and Vijay Kumar produced the application. The Police came on spot on the next morning and seized the semi burnt wood. In cross examination, he stated that the land belongs to Vijay Kumar but the Kullah has been constructed by him wherein they run the business of Piggery in partnership. He had seen two persons causing the fire from the front side run away and in the meanwhile, three persons who caused fire from the backside also run away. One Karan Dev Singh had come on spot for extinguishing the fire and his hand was also burnt. 11. He had seen two persons causing the fire from the front side run away and in the meanwhile, three persons who caused fire from the backside also run away. One Karan Dev Singh had come on spot for extinguishing the fire and his hand was also burnt. 11. PW-3 Brij Dev Singh has stated that he is a Contractor and used to go to village Narayan Khu for digging a Well for Army. On 05.04.2003, while he was returning from village Narayan Khu at 9/9.15 in the night he had seen accused persons setting on fire the Kullah belonging to the informant. As soon as he reached on spot, Gobind Singh and Vijay Kumar also reached there and made noise. Accused persons pelted stones on them and ran away. An attempt was made to extinguish the fire. Two brothers of Gobind Singh had also come on spot and all of them tried to extinguish the fire. He remained on spot and two police personnel also came on spot, who directed them to come to Police Station in the morning. In cross examination, he stated that his labour used to work till 6/7 in the night. He was going by a motorcycle. He stated that there are some houses at a distance of half kilometer from the Kullah and the Army camp is also at the same distance. As soon as he stopped his motorcycle he heard the noise about the fire. At that time the Kullah was burning from backside and there was no fire towards his side. None except informant and Gobind Singh had come on spot. 10/12 Army personnel had also come on spot. 12. PW-5 Mohd. Sarwar-Patwari has proved the khasra Girdawari with regard to Khasra No. 319 and has also proved the copy of the record of rights. In cross examination, he admitted that he has not prepared the sketch map of the spot and that accused Om Parkash is one of the co-owners with regard to the land measuring 399 kanals and 14 marlas. 13. PW-7 Zakir Shaheen has stated that FIR No. 57 of 2003 was investigated by his subordinate ASI Mohd. Hussain Kohli (PW-6), who is now dead and the sketch map of the place of occurrence was prepared by the said Mohd. Hussain Kohli. Seizure memo exhibit PW-VK/2 was also prepared by him. 13. PW-7 Zakir Shaheen has stated that FIR No. 57 of 2003 was investigated by his subordinate ASI Mohd. Hussain Kohli (PW-6), who is now dead and the sketch map of the place of occurrence was prepared by the said Mohd. Hussain Kohli. Seizure memo exhibit PW-VK/2 was also prepared by him. He had agreed with investigation and subsequently challan for commission of offence under Section 436 was filed. In cross examination, he admitted that investigating officer had prepared the sketch map and seizure memo and had recorded the statement under Section 161 Cr.P.C. under his supervision. 14. This is only evidence that has been led by the prosecution and after recording the statement of the respondents under Section 342 Cr.P.C., the learned trial Court after hearing both the parties acquitted the respondents by virtue of the judgment impugned. The learned trial Court, while acquitting the respondents for commission of above mentioned offence, has observed that there is no explanation as to why the said FIR was not registered on the same day. So, this is admitted fact that FIR was not registered on the day of occurrence when the information with regard to commission of cognizable offence was supplied to the concerned Police Station and rather a perusal of the FIR reveals that the same was registered on 06.04.2003 at 1300 hrs, whereas both the PW Nos. 1 and 2 state that FIR was lodged in the morning on 06.04.2003. Further, perusal of the exhibit PW-VK/1 reveals that Police Station was hardly at a distance of one and a half km away from the place of occurrence. The FIR must be lodged with promptitude and any delay if not explained would create a doubt with regard to the prosecution story and further from the evidence on record, it is evident that most important witness was PW Karan Dev Singh whose hands were burnt while extinguishing the fire as narrated by PW-2 Govind Singh was never associated with the investigation and further that another independent witness namely, Puran Chand, though was cited, but was never produced by the prosecution. PW-Brij Dev Singh contradicts statement of PW-2, Gobind Singh about presence of Karan Dev Singh on spot and both PW Nos. 1 and 2 do not disclose the presence of PW-Brij Dev Singh on spot. 15. In light of these circumstances, the learned trial Court acquitted the respondents. PW-Brij Dev Singh contradicts statement of PW-2, Gobind Singh about presence of Karan Dev Singh on spot and both PW Nos. 1 and 2 do not disclose the presence of PW-Brij Dev Singh on spot. 15. In light of these circumstances, the learned trial Court acquitted the respondents. It requires to be noted that this is the admitted case of the prosecution that there was enmity between the parties and a litigation was also going on between them before the Deputy Commissioner, as such, false implication of the respondents could not have been ruled out as rightly held by the learned trial Court. In the instant case, the learned trial Court has appreciated the evidence in its right perspective and has come to the conclusion that the prosecution has not been able to prove the case beyond reasonable doubt. This Court while exercising revisional powers cannot re-appreciate the evidence and come to another conclusion if the same is possible on the same set of evidence. 16. Viewed thus, there is no illegality or impropriety in the judgment impugned and as such, the judgment passed by the learned trial court is upheld. The present revision petition is found to be misconceived and the same is, accordingly, dismissed.