Jammu & Kashmir High Court
State Of J&K vs Harsh Wardhan on 17 March, 2021
Author: Sindhu Sharma
Bench: Sindhu Sharma
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
SLA No. 105/2013
c/w
CRAA No. 185/2013
Pronounced on: 17th.03.2021
State of J&K .... Petitioner/Appellant(s)
Through:- Mr. Aseem Sawhney, AAG
V/s
Harsh Wardhan .....Respondent(s)
Through:- Mr. Mayank Gupta, Advocate
CORAM : HON'BLE MRS. JUSTICE SINDHU SHARMA, JUDGE
JUDGMENT
1. This application seeking leave to file an appeal is against order dated 29.07.2013 passed by the learned Principal Sessions Judge, Jammu.
2. The charges against the accused are that the accused-Harsh Wardhan alias Bitu was charged under sections 436/447/427 RPC. The Sessions Judge dismissed the challan and acquitted the accused on the ground that complainant was not in possession of land measuring 25 Kanal 7 Marla under Khasra No. 961 at Village Chinore.
3. The allegation against the accused was that he set on fire thatched hut which the complainant alleged to have constructed. The occurrence is alleged to have taken place on 11.08.2003. the trial court relying on the statement of Patwari-Raj Kumar who was summoned by the court under Section 540 and PW's Sawal Singh, Yeshpal Singh and Arjun Singh and report of the Patwari's EXP-YP held that the disputed land was in possession of the accused, acquitted him. It is a case in which 2 SLA No. 105/2013 the Investigating Officer should have examined the revenue record during the investigation. It is unfortunate that this requirement was ignore by the Investigating Officer as well as the Superintendent of Police, who was monitoring the investigation.
4. The Investigating Officer has ignored the report of the Patwari Halqa Chinore which EXPW-RK stating therein that Khasra No. 961 is recorded in possession of Harshwardhan S/o Om Prakash. No efforts was made by the police to examine the report of Patwari. There is another report of Naib Tehsildar dated 01.05.2004 in which it is stated that accordingly to the Patwari, Harshwardhan is in possession of Khasra No.
961. He is also in possession of Khasra No. 964 and 967, which are contiguous to the dispute land. It is also a fact that the Jamabandi for the year 1999 Bikrami of Khasra No. 961 shows that one Nandu s/o Beli Ram was the tenant at as will of this land in which the Kulla was constructed by the complainant. The offence under Section 436, cannot be established, since there is no evidence supporting the possession of the plaintiff and the Investigating Officer has tried to suppress the revenue record by not examining the Patwari of the village. In Gopal Krishnaji Ketkar v/s Mohamed Haji Latif and others, Air 1968 SC 1413, Hon'ble Supreme Court has held that;
"But it is open to a litigant to refrain from producing any documents that he considers irrelevant, if the other litigant is dissatisfied it is for him to apply for an affidavit of documents and he can obtain inspection and production of all that appears to him in such affidavit to be relevant and proper. If he fail, so to do, neither he nor the Court at his 3 SLA No. 105/2013 suggestion is entitled to draw any inference as to the contents of any such documents."
Moreover, unless the charge under section 447 is proved as alleged no case of criminal trespass can be made out and consequently charge under section 436 must fail for want of possession of the complainant.
5. It appears that complainant has tried to create evidence by construction of alleged thatched hut Kulla and the possibility of his influencing the police cannot be ruled out. But how this land came to be owned by him is not borne from the record because there is nothing in the statement of Kuldeep Singh as to how he claims the ownership, moreover it is admitted by him that he is not the sole owner of the land because he says Madan Singh, Rajinder Singh, Balbir Singh, Raghubir Singh, Raj Sing, Jagdev Singh, Sukhdev Singh and Rakesh Singh are also the co- owners.
6. The evidence has been properly appreciated by the trial court, but it appears that the Law Department has mechanically directed filing of the appeal. The offence under section 436 is essentially based on the question of possession unless the complainant proved possession on the land, the same is not made out.
7. The occurrence being of August, 2003, the challan was produced only on 04.02.2004 though proviso to section 173 provides that investigation in such cases has to be completed within two weeks and if not completed the matter had to be reported to Sr. Superintendent of Police who has to issue fresh instructions for completion of investigation. 4 SLA No. 105/2013
8. This Special procedure was prescribed by substituting the proviso to section 173 by the amending Act 1978 with the application of Central Code of Criminal Procedure. Provision has changed because no such procedure has been prescribed in the Central Act.
9. The arguments forwarded by Mr. Aseem Sawhney, learned AAG is that the definition of mischief does not provide the burning valuable security as a condition precedent for convicting the offender is contrary to the explanation because valuable security means something which has value. There is not even a single witness who have stated as to how much cost which is caused to the possession sine qua non for committing offence has not been proved, therefore, it is not a fit case for granting of leave to State under proviso to section 417 for filing appeal against judgment 29.07.2013.
10. This Special Leave to file Appeal is, accordingly dismissed as a consequence CRAA No. 185/2013 shall stand dismissed.
(Sindhu Sharma) Judge JAMMU 17th .03.2021 SUNIL-II Whether the Judgment is speaking : Yes Whether the Judgment is reportable: Yes SUNIL KUMAR 2021.03.19 12:26 I attest to the accuracy and integrity of this document