State of Himachal Pradesh vs Jaram Singh

Sanjay Karol, J.—Assailing the judgment dated 28.12.2005, passed by Special Judge, Chamba, Chamba Division, Chamba, H.P., in Sessions trial No. 57 of 2003, titled as State of Himachal Pradesh vs. Jaram Singh and others, State has filed the present appeal under the provisions of Section 378 of the Code of Criminal Procedure, 1973.

It is the case of prosecution that Paras Ram (PW-1) was allotted Nautor land, by way of grant, by the State. Accused objected to the same as they were using the land, as a pasture. When Paras Ram raised construction of two rooms, it were dismantled by the accused and remnants of the house, set on fire. This was so done on 18.9.2003. Again, when Paras Ram constructed another room, accused by forming an unlawful assembly, with common intent and object, dismantled the same. Police was informed. Accordingly police official, Sukh Dev Singh (PW-11) reached the spot where he recorded statement (Ex.P-A) of Paras Ram, on the basis of which, F.I.R. No. 70/03 dated 19.10.2003 (Ex.PW10/A), under the provisions of Sections 147, 149, 435, 427 IPC and Section 3 of the Scheduled Castes and Scheduled Tribes (Preventions of Atrocities) Act, 1989, was registered at Police Station, Tissa. Investigation was conducted on the spot. Burnt pieces of wood (Ex.P-1) and ash (Ex.P-2) were recovered and sealed by associating witnesses Gurdev (PW-4) and Kirpa Ram (PW-2). The land in question was got demarcated through government officials, Quim Khan (PW-5), Jagdish Kumar (PW-7) and Dev Parkash (PW-8). For ascertaining as to whether complainant was entitled to protection under the provisions of Scheduled Castes and Scheduled Tribes (Preventions of Atrocities) Act, 1989, hereinafter referred to as "the Act", certificate (Ex.PW6/A) so issued by Shri Dharampal (PW-6) was taken on record by the police. Investigation prima facie revealed complicity of the accused in the alleged crime, hence, Challan was presented in the Court for trial.

All the accused persons were charged for having committed an offence punishable under the provisions of Sections 147, 435, 427 IPC, all read with section 149 of the IPC, as also Sections 3(2)(iii) and 3(2)(iv) of the Scheduled Castes and Scheduled Tribes (Preventions of Atrocities) Act, 1989, to which they did not plead guilty and claimed trial.

In order to establish its case, in all, prosecution examined as many as eleven witnesses. Statements of the accused under Section 313 of the Code of Criminal Procedure were also recorded, in which they took defence of animosity.

Trial Court, after appreciating testimonies of prosecution witnesses acquitted the accused. Hence the present appeal.

Having heard Mr. R.S. Verma, learned Additional Advocate General, on behalf of the State as also Mr. N.K. Thakur, learned Senior Advocate, on behalf of the respondents-accused, as also minutely examined the testimonies of witnesses and other documentary evidence so placed on record by the prosecution, no case for interference is made out at all. Judgment rendered by the trial Court is based on complete, correct and proper appreciation of evidence (documentary and ocular) so placed on record. There is neither any illegality/infirmity nor any perversity with the same, resulting into miscarriage of justice.

It is a settled principle of law that acquittal leads to presumption of innocence in favour of an accused. To dislodge the same, onus heavily lies upon the prosecution.

In Prandas Vs. The State, , Constitution Bench of the apex Court, has held as under:

"(6) It must be observed at the very outset that we cannot support the view which has been expressed in several cases that the High Court has no power under S. 417, Criminal P.C., to reverse a judgment of acquittal, unless the judgment is perverse or the subordinate Court has in some way or other misdirected itself so as to produce a miscarriage of justice. In our opinion, the true position in regard to the jurisdiction of the High Court under S. 417, Criminal P.C. in an appeal from an order of acquittal has been stated in - AIR 1934 227 (Privy Council) at pp.229, 230 (A), in these words:

"Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognized in the administration of justice.""

The moot question which arises for consideration in the present case is as to whether prosecution has been able to prove, beyond reasonable doubt, that the accused persons, after forming an unlawful assembly, with a common intent and object, mischievously set on fire the house and belonging of Paras Ram, as also damaged his property so as to cause him wrongful loss. Also, as to whether prosecution has been able to establish the charge in relation to violation of provisions of the Act.

Significantly, the fact that complainant, Paras Ram as also accused Sham Lal and Hem Raj belong to same caste (Scheduled caste), stands proved through the testimony of Dharampal (PW-6), who proved on record certificates Ex.P-A, P-B and P-C.

Fact that some land stood allotted to the complainant, Paras Ram by way of grant is not in dispute. In any event, such fact stands proved through the testimony of Quim Khan (PW-5).

That Paras Ram constructed two rooms which were dismantled/burnt in fire also cannot be disputed. However, through the testimonies of Jagdish Kumar (PW-7) and Dev Parkash (PW-8), officials of the revenue department, it could not be proved as to whether Paras Ram had constructed these rooms on the land so allotted to him by way of grant or not. Noticeably, Paras Ram himself filed a suit for possession with respect to the land so allotted to him by way of grant. However such fact would have no bearing at all, on the outcome of present appeal, save and except that it would render the prosecution case to be doubtful, to a limited extent, that the house stood constructed by Paras ram over the land so allotted to him by way of a grant.

Significantly, Paras Ram (PW-1) and his grand-son, Kirpa Ram (PW-2) did not witness the occurrence of incident(s). It was Nihalu who informed them that accused had set their house on fire. It be only observed that one Nihal Singh (PW-3) and not Nihalu was examined in Court. Court moves on the assumption that Nihalu and Nihal Singh is one and the same person. However, close scrutiny of testimony of Nihal Singh, would only reveal that versions of PW-1 and PW-2 stand belied, as according to him, "There was noise and some people were dismantling the house of PW.1, but I could not identify them. I told with regard to it to PW.1 at his house." Significantly, this witness was neither declared hostile, nor cross-examined by the Public Prosecutor. Even, in his examination-in-chief, witness states that he could disclose approximate number of persons who were present on the spot at the time of occurrence of the incident. Significantly, Nihal Singh is close relative of Paras Ram (PW-1). It appears that he has only deposed the truth. It be also observed that witnesses, Meena, Veena, Babli, Mukti and Gurdyal were not examined by the prosecution. Since Nihal Singh did not support the prosecution, their examination became absolutely necessary. Also Gurdev (PW-4) does not name anyone of the accused persons to be present on the spot or having set the house on fire or damaged any property belonging to Paras Ram. Testimonies of Paras Ram and Kirpa Ram, not being spot witnesses, are only in the nature of hearsay and cannot be relied upon to convict the accused. Significantly, none of the prosecution witnesses i.e. PW-1, PW-2, PW-3 and PW-4 have even remotely whispered about formation of unlawful assembly by the accused or their common intent of damaging the property in question.

We do not find prosecution to have proved its case, beyond reasonable doubt, by leading clear, cogent, convincing piece of evidence.

The Court below, in our considered view, has correctly and completely appreciated the evidence so placed on record by the prosecution. It cannot be said that the judgment rendered by trial Court is perverse, illegal, and erroneous or based on incorrect and incomplete appreciation of material on record resulting into miscarriage of justice.

The accused persons have had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down by the Apex Court in Md. Ankoos and Others Vs. The Public Prosecutor, High Court of A.P., , since it cannot be said that trial Court has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice, no interference is warranted in the instant case.

For all the aforesaid reasons, present appeal, being devoid of merit, is dismissed, so also pending application(s), if any. Bail bonds furnished by the accused are discharged. Records of the trial Court be immediately sent back.