State of Himachal Pradesh vs Paras Ram

Sanjay Karol, J.—State has appealed against the judgment dated 12.7.2006 of the learned Additional Sessions Judge, Fast Track Court, Una, Himachal Pradesh, passed in Sessions Case No. 11/2004, RBT No. 39/05/04, titled as State v. Paras Ram & others, challenging the acquittal of respondents (hereinafter referred to as the accused), who stand charged for having committed an offence punishable under the provisions of Section 147 and 447, 436, 427 & 506 read with Section 147 of the Indian Penal Code.

It is the case of prosecution that on 30.6.2003 at about 5.45 p.m., accused persons formed an unlawful assembly and in furtherance of common object, of causing damage, forcibly entered the fields of complainant Manjit Kaur (PW-1) and Nirmala Devi (PW-2) and damaged their crop. Also, they set on fire the shed belonging to the complainant. Accused also threatened the complainant and her family members of throwing them in the fire. On telephone, police was informed of the incident and fire brigade sent for necessary action. Entry in Daily Diary (Ex. PW-12/C & 12/D) was recorded. Police reached the spot and recorded statement (Ex. PW-1/A) of Manjit Kaur, on the basis of which FIR No. 401 dated 30.6.2003 (Ex. PW-12/A), under the provisions of Sections 436, 447, 147, 506 of the Indian Penal Code, was registered at Police Station, Una. Investigation was conducted by Inspector Surinder Sharma (PW-13), who seized the incriminating material, in the shape of burnt ash (Ex. P-1), burnt wooden pieces (Ex. P-3, P-4 & P-5) vide Memo (Ex. PW-5/B), one match box (Ex. PW-2) and one half burnt wooden Mashal (Ex. PW-6), vide Memo (Ex. PW-5/A). Fields were got demarcated by the police through revenue officials and record (Ex. PW-7/A & 7/B) taken on record. Photographs (Ex. PW-10/1 to 10/7) of the spot were got clicked and taken on record. With the completion of investigation, which revealed complicity of the accused in the alleged crime, challan was presented in the Court for trial.

Accused were charged for having committed an offence punishable under the provisions of Section 147, and 447, 436, 427 & 506 read with Section 147 of the Indian Penal Code, to which they did not plead guilty and claimed trial.

In order to establish its case, prosecution examined as many as 13 witnesses and statements of the accused, under the provisions of Section 313 of the Code of Criminal Procedure, were also recorded, in which they took common defence of false implication, on account of pendency of litigation before the Civil Court, pertaining to inheritance of estate of Smt. Bansi Devi. To establish the same, they examined two witnesses.

Based on the testimonies of witnesses and the material on record, trial Court acquitted the accused of the charged offence. Hence, the present appeal by the State.

We have heard Mr. Ashok Chaudhary, learned Deputy Advocate General, and Mr. Vikram Thakur, Deputy Advocate General, on behalf of the State as also Mr. T.S. Chauhan, Advocate, on behalf of the accused. We have also minutely examined the testimonies of the witnesses and other documentary evidence so placed on record by the prosecution. Having done so, we are of the considered view that no case for interference is made out at all. We find that the 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. Having considered the material on record, we are of the considered view that prosecution has failed to establish essential ingredients so required to constitute the charged offence.

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), 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 fact that the accused and the complainant party come from common lineage is not in dispute. The fact that inter se dispute between the complainant and the accused party is pending before Civil Court, with regard to inheritance of estate of Smt. Bansi Devi, is also not in dispute. In any event, it stands established on record through the testimony of Pawan Kumar (DW-2), who exhibited plaint (Ex. DW-2/A), in Civil Suit No. 93/2002, titled as Gopal Dass v. Satpal and others. This fact is also admitted by complainant Manjit Kaur (PW-1) and Nirmala Devi (PW-2).

Whether the land in question is owned by the complainant or not, cannot be said to have been proved on record by the prosecution. Satpal (PW-8), Field Kanungo, who proved demarcation report (Ex. PW-8/A), admits that no record pertaining to demarcation was maintained in the Office nor was it produced before the Court. Witness does not state that demarcation was carried out after associating the parties. All that he states is that demarcation was carried out in the presence of police officials. Hence, demarcation cannot be said to have been conducted in accordance with settled principles of law or presumed to have been conducted as such. Testimony of SI Sher Singh (PW-11) is also to same effect.

Manjit Singh (PW-9), Fireman, Fire Brigade Centre Rakkar Colony, Una, states that information pertaining to fire was received on 30.6.2003 at 6.25 p.m. and after reaching the spot, within 20-25 minutes, it was put off. He admits that 150/200 persons were present on the spot. Significantly, in his unrebutted testimony, he states that "it is correct that we inquired about the cause of the fire, but none had disclosed the cause of fire".

Investigating Officer, Surinder Singh (PW-13) admits that the house in question belonged to Smt. Bansi Devi and that the parties, i.e. complainant and the accused, were equally related to her. This witness, though admits that fire was seen by number of independent persons, who were present on the spot, but for unexplained reasons did not associate any independent person during investigation. Why so? he does not explain. Having learnt about the hostility inter se the parties, it became necessary for him to have associated such persons. To our mind, falsity of the prosecution case stands proved by this witness itself, as according to him, at the time of alleged crime, one of the accused persons namely Balbir Singh, who was working in Stock Exchange, Ludhiana (Punjab), was on duty there.

Also, we find prosecution version of having put the house on fire by pouring kerosene oil not to have been proved on record by leading evidence of scientific nature.

Coming to the testimony of complainant Manjit Kaur (PW-1) and Nirmala Devi (PW-2), no doubt, in their examination-in-chief, they have deposed that the accused persons uprooted their fields; set the house on fire and also threatened them, but however, we do not find their testimonies to be inspiring in confidence at all. Who reported the matter to the police, is not disclosed by them. Nirmala admits that the Fire Brigade officials, present on the spot, had recorded her statement. Now significantly, cause of fire was not disclosed to such officials, as is evident from the testimony of Manjit Singh (PW-9). Her version that accused Balbir Singh was present on the spot stands falsified not only by the Investigating Officer but also defence witness Harjeet Singh (DW-1), who is the Executive Director of Ludhiana Stock Exchange. He has proved on record attendance register (Ex. DW-1/B) to this effect. The witnesses admit pendency of civil litigation. They also admit that many people had gathered on the spot, including members of Panchayat. They admit not to have made any complaint to the Panchayat in that regard. Nirmala Devi admits that "I cannot say in which manner and on which side each of the accused present in the Court were standing near our house when it was set on fire". Witness Manjit Kaur admits that accused Mela Singh is residing at Una, where he has constructed his house. Also, Mela Singh does not reside in the village. The witnesses admit that the fields of the accused party are adjoining to their fields. Thus, the witnesses cannot be said to be reliable or their testimony inspiring in confidence.

Version of Punam Kumari (PW-3), daughter of Nirmala Devi (PW-2), is more in the nature of hearsay. Yash Pal (PW-4) states that he saw a Mashal in the hands of Baldev. The witness cannot be said to have deposed truthfully, for we find such version not to have been recorded in his previous statement (Mark Y), so recorded under the provisions of Section 161 of the Code of Criminal Procedure, with which he was confronted. Significantly, witness knew some of the accused persons not by name but only by face. In the instant case, no Test Identification Parade was conducted. So, how could he disclose their identity to the police.

Hence, it cannot be said that prosecution has been able to prove its case, by leading clear, cogent, convincing and reliable piece of evidence so as to prove that the accused persons, formed an unlawful assembly and in furtherance of their common object of causing damage, trespassed into the premises/land of the complainant, set the house on fire, caused damage and also criminally intimidated the complainant party.

For all the aforesaid reasons, we find no reason to interfere with the well reasoned judgment passed by the trial Court. The Court has fully appreciated the evidence so placed on record by the parties.

The accused 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., , it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged.

Appeal stands disposed of, so also pending application(s), if any.