Himachal Pradesh High Court
Mahant Parmod Giri & Others vs State Of Himachal Pradesh on 5 August, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
Cr. Revision No: 117 of 2008
.
Date of Decision: 5th August, 2016.
Mahant Parmod Giri & Others ......Petitioners.
Versus
State of Himachal Pradesh ...... Respondent.
Coram:
of
The Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?1
For the Petitioner
rt : Mr. N.S.Chandel, Advocate.
For the Respondent : Mr. Rupinder Singh Thakur,
Additional Advocate General
Sandeep Sharma, Judge (Oral)
Instant Criminal Revision Petition filed under Sections 397 & 401 of the Code of Criminal Procedure is directed against the judgment dated 20.6.2008, passed by learned Sessions Judge(Forest) Shimla in criminal case No.51-S/10 of 2008/04, affirming judgment dated 24.4.2004, passed by learned Judicial Magistrate, Ist Class, Court No.2, Shimla, District Shimla, H.P., whereby present petitioners-accused have been convicted and sentenced for simple imprisonment for one month each under Section 447 IPC and to also suffer simple imprisonment for three Whether reporters of the local papers may be allowed to see the judgment?
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months under Section 506-B IPC each and to pay fine of Rs.
500/- each under the same section and in default of .
payment of fine, to undergo simple imprisonment for one month. All the sentences shall run concurrently.
2. Briefly stated facts, as emerge from the record are that on 23.4.2001, a complaint was lodged by of complainant Yoginder Singh Kanwar at Police Post, Sanjauli, stating therein that his father has let out two rt room accommodation to one Sh. Lal Chand in Mehata Building, Engine Ghar, Sanjauli, Shimla-6. Complainant further stated that accused namely Parmod Giri and his son indulged in unlawful activities by installing a Trishool and 'Pindi' in khasra No.1363. Complainant further stated that said accommodation, which was let out to the father of the petitioners/accused is on khasra No.1363, over which the petitioners-accused have constructed 2-3 sheds and have made further encroachment by installing one idol/Trishool. Complainant further stated that on 23.4.2001, at about 3:00 PM, when he was going to press room, he saw the petitioner Parmodh Giri installing Trishool on his land comprising khasra No.1363, when he objected not to do so, he was threatened with dire ::: Downloaded on - 15/04/2017 20:58:53 :::HCHP ...3...
consequences even to do away with his life. On the basis of aforesaid complaint Ex.PW1/A, police of police Station, .
Dhali Shimla registered FIR Ex.PW8/B against the accused persons. During the course of investigation, investigating Officer prepared spot map EX.PW8/C and took into possession tatima and jamabandi vide memo Ex.PW1/B. of During investigation, police also took into possession one Trishool and Pindi and a piece of sand and cement in the got rt presence of the witnesses vide memo Ex.PW1/C. Police also demarcation report Ex.PW4/A with jamabandies Ex.PZA, tatima Ex.PZB, Ex. PZC and Ex.PZE and one more jamabandi for the year, 1996-97 Ex.PZD. Police after recording the statements of the witnesses under Section 161 Cr.P.C. as per their version concluded the investigation and presented the challan in the competent Court of law.
3. Learned trial Court after satisfying itself that a prima-facie case exist against the accused persons, framed charge under Sections 447 and 506-B read with Section 34 of IPC, to which accused persons pleaded not guilty and claimed trial. Learned trial Court on the basis of evidence adduced on record held accused guilty of having committed offence persons under Sections 447 and 506-B read with ::: Downloaded on - 15/04/2017 20:58:53 :::HCHP ...4...
Section 34 of IPC and sentenced them, as per the description given hereinabove.
.
4. Feeling aggrieved and dissatisfied with the judgment dated 24.4.2004, passed by learned trial Court, present petitioners-accused filed appeal under Section 374 Cr.P.C in the Court of learned Sessions Judge(Forest) of Shimla, which was dismissed vide judgment dated 20.6.2008 and the judgment passed by the learned trial rt Court was upheld. Hence, the present criminal revision petition.
5. In the present case, prosecution with a view to prove its case examined as many as eight witness, whereas statements of accused persons under sections 313 Cr.P.C were recorded in which stated that they have been falsely implicated in the present case but fact remains that no evidence was led by the accused persons in their defence.
6. Mr. N.S.Chandel, learned counsel representing the petitioners vehemently argued that the judgments passed by both the Courts below are not sustainable as the same are not based upon the correct appreciation of evidence available on record and as such, same deserve to be quashed and set-aside. Mr. Chandel, further contended ::: Downloaded on - 15/04/2017 20:58:53 :::HCHP ...5...
that both the Courts below have erred in law as well as facts in not considering the facts of the case in its right .
perspective. He forcibly contended that learned Court below have completely overlooked the fact that there are material contradictions in the version of the witnesses examined by the prosecution, and it was not safe for both the Courts of below to have recorded the conviction of the petitioners on the basis of statements of prosecution witnesses. Mr. rt Chandel, further contended that both the Courts below have erred in law while convicting the accused without there being any positive evidence on record. He further contended that while recording the conviction, learned Courts below have failed to appreciate that PW-2, Sh. Amrinder Nagrik alleged eye witness is an Advocate by profession and is practicing with the brother of the complainant. Apart from this, he is not the resident of the area where the said occurrence has alleged to have taken place and the learned Courts below have overlooked this vital aspect of the matter.
7. Mr. Chandel, while concluding his arguments, strenuously argued that bare perusal of the judgments passed by both the Courts below, clearly suggest that learned Courts below have erred in law and facts while not ::: Downloaded on - 15/04/2017 20:58:53 :::HCHP ...6...
acknowledging the dispute between the complainant and petitioners qua the tenanted property already pending .
before the different Courts. As per Mr.Chandel, it was admitted case of the complainant that the present dispute pertains to corridor, which adjoins to the tenanted premises under the occupation of the petitioners, meaning thereby, of both the Courts below failed to appreciate that the possession of corridor was with the petitioners. Mr. rt Chandel, also stated that learned Courts below completely overlooked the fact that the structure in question was already constructed by the predecessor of the petitioners and on the day of alleged dispute some repair was going on and as such, he prayed for quashing and setting-aside the judgments, passed by both the Courts below .
8. Mr. Rupinder Singh Thakur, learned Additional Advocate General, appearing on behalf of the respondent-
State, supported the judgments passed by both the Courts below and stated that no interference, whatsoever, of this Court is warranted in the present facts and circumstances of the case because perusal of the judgments passed by the learned Courts below clearly suggest that same are based on correct appreciation of the evidence available on record.
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Mr. Thakur, also argued that this Court has very limited jurisdiction while exercising the power under Section 397 of .
the Code of Criminal Procedure to appreciate the evidence available on record.
9. I have heard learned counsel for the parties and have carefully gone through the record made available.
of
10. True, it is that while exercising the power under Section 397 of Criminal Procedure Code, this Court has very rt limited power to re-appreciate the evidence available on record. But in the present case, where accused have been convicted and sentenced for three months imprisonment for having committed the offence punishable under Sections 446 and 506-B of I.P.C, this Court solely with a view to ascertain that the judgments passed by both the Courts below are not perverse and same are based upon correct appreciation of evidence available on record undertook an exercise to critically examine the evidence available on record to reach fair and just decision of the case.
11. Perusal of the pleadings, as discussed hereinabove, clearly suggest that complainant Yoginder Singh Kanwar is the owner of Mehta building, Engine Ghar, Sanjauli, Shimla, in which accused Mahant Promod Giri ::: Downloaded on - 15/04/2017 20:58:53 :::HCHP ...8...
and Vinod Giri are the tenants of the accommodation constructed on khasra No.1362. As per complainant, .
accused Promod Giri with an intention to take possession of the land comprised khasra No.1363 installed Trishool and 'Pindi' and when he objected about the installation of the Trishool in his land, accused threatened him with dire of consequences and threatened him to do away with his life.
12. PW-1, Yoginder Singh, stated that his property is rt situated in Engine Ghar, Sanjauli and they have rented out the house to Lal Chand and thereafter his son, accused Parmod and his brother are in possession. He also stated that his house is situated in khasra No.1362 and his land is adjoining to the house, which is vacant i.e. khasra No.1362. On 23.4.2001, when he was coming from his home then he saw accused persons raising a structure over the disputed land and when he objected, accused persons called bad names and threatened to do away with his life.
Thereafter, he filed complaint Ex.PW1/A to the police. He also stated that on 24.4.2001, Amrinder Nagriak and Jai Singh Thakur were with him when the accused persons ran after him with Trishool. In his cross-examination, he admitted that they have rented out ground floor to the ::: Downloaded on - 15/04/2017 20:58:53 :::HCHP ...9...
accused. He also admitted that witness Amrinder Nagriak is also associated with his brother Bhupinder Singh. He also .
admitted that khasra Nos.1362 and 1363 are adjoining to each other. He also admitted that doors of rented house of the accused persons open towards khasra No. 1363, self stated it is temporary structure and the doors opens to all of sides. He also admitted in his cross-examination that at the time of incident, there were noise and he cannot say how rt many peoples were there. He also denied that the Pindi is on the land for the last 25 years.
13. PW-2, Amrinder Nagriak stated that on 23-04- 2001, at about 3-4 PM, he alongwith Shiv Singh and Yoginder Kanwar were coming from Shangati to Sanjauli and when they reached near the house of Yoginder Kanwar at place Engine Ghar, accused persons were raising structure and installing Shivling/Trishool under the tree of apple in the open land. The complaint tried to stop them but accused persons threatened the complainant to do away with his life. He also stated that vide memo Ex.PW1/C Pindi, Trishool and piece of sand/cement were taken into possession. He also stated that on the same date accused persons also ran after Yoginder Kanwar carrying Trishool in ::: Downloaded on - 15/04/2017 20:58:53 :::HCHP ...10...
his hand and he threatened him to do away with his life. In the cross examination, he denied that the Shivling and .
Pindi exists on the spot for the last 25 years since time of father of the accused. He also admitted that when complainant asked accused to raise structure, there was noise but none came forward as there is only the house of of the accused.
14. Careful perusal of the statements of PW-1 and rt PW-2, who are only eye witnesses to the alleged incident suggest that on 23-04-2001 Yoginder Singh, who is owner of the property rented to the accused persons, stopped accused persons from raising structure by installing one Shivling and Trishool and on being objected, accused persons threatened him to do away with his life and as such, complainant was compelled to file complaint Ex.
PW1/A to the police. But minute scrutiny of the depositions made by these witnesses certainly points towards the dispute qua the rented property. The main bone of contention between the parties to the lis appears to be of the tenanted properties, which have been rented out to the accused persons by the father of the complainant.
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15. Bare perusal of the cross examination conducted on these witness, clearly suggest that father of the accused .
has been residing in this rented premises for the last 30 -40 years. PW-1, also admitted that adjacent to the house of the accused, five tenants resides in another buildings. In his cross examination, he feigned ignorance whether his father of has filed cases for eviction against the father of the accused. It has also come in his cross examination that rt door of the house of the accused open towards khasra No. 1363. However, PW-1 denied that the same is used as Courtyard by the accused persons. He also denied that accused and their father used to do gardening on khasra No. 1363. He also admitted that while lodging complaint Ex.PW1/A, he had not mentioned anything with regard to Amrinder Nagriak and Shiv Singh Thakur, who were with him at the time of incident. He also admitted that at the time of incident there was noise but he cannot tell how many people were there at that time. He also admitted that he has filed rent cases against the accused though he feigned ignorance whether his father has filed eviction petition against the accused.
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16. Similarly, PW-2, in his statement stated that when they reached at the spot of incident, accused persons .
were raising platform on which Pindi and Trishool was installed under the tree of apple in the open land. In his cross examination, this witness stated that after the incident he went to Police Chowki. He also stated that at of the time of incident, there was noise but nobody came forward from neighbourhood since there is only house of rt accused persons. He also admitted that he works with his brother since they have common chamber.
17. Conjoint reading of statements of aforesaid witnesses points towards the real dispute, if any, between the parties with regard to tenanted premises qua which complainant being landlord had already initiated proceedings under the Rent Control Act. Since, this Court had an occasion to peruse the statements given by the aforesaid witnesses during the hearing of the case, it can be safely stated that there are major contradictions and inconsistencies in the statements of these prosecution witnesses, rather careful perusal of statement of PW-2 suggest that he has gone above the board to prove the case of the complainant. Complainant in his statement only ::: Downloaded on - 15/04/2017 20:58:53 :::HCHP ...13...
stated that when he reached the spot he saw accused persons were raising structure and when he objected them .
then accused threatened him to do away with his life, whereas PW-2 stated that when he alongwith Shiv Singh coming from Shangti to Sanjauli they saw accused persons were raising platform, wherein he had put Pindi and of Shivling. PW-1, has nowhere stated that when he reached the spot accused had installed Trishool and Pindi on the rt structure. It is also not understood at this stage, when accused persons were raising structure at the relevant time, how they could install Shivling and Trishool on the structure, which was yet to be raised as per the statements of PW-1 and PW-2 because both the witnesses unequivocally stated that they found the accused persons raising structure on the land with the help of sand and cement. Similarly, PW-2 while proving the case of the complainant stated that the accused persons installed Pindi and Trishool under the trees of apple. PW-2, categorically stated that the accused persons with an intention to grab and encroach the property of PW-1 grown/planted apple trees on the land, whereas PW-1 has not stated anything with regard to apple trees. Perusal of the statement of PW-2 ::: Downloaded on - 15/04/2017 20:58:53 :::HCHP ...14...
clearly suggests that he has gone above the board to prove the case of PW-1. PW-1, categorically admitted that accused .
reside in tenanted premises and doors of which open towards khasra No.1362 but he disputed that open land is being used as Courtyard by the tenant but it clearly emerge from his statement that doors of tenanted premises open of towards all sides of the house, hence it can be safely inferred that same is used as courtyard by accused as same
18. rt is lying vacant.
It has specifically come in the statement of PW-1 that the accused persons were installing structure at the site and on being objected, accused persons hurled abuses and threatened him to do away with his life and thereafter he reported the matter to the police vide complaint Ex.PW1/A. He also stated that police on that date took into possession Trishool and Pindi like stone vide Ex.PW1/C. He also stated that on 24.2.2001, he alongwith Amrinder Nagriak and Shiv Singh Thakur were also there when accused ran after PW-1 with Trishool in his land.
19. Perusal of the statement given by PW-1, nowhere suggests that after the alleged occurrence Amrinder Nagriak and Shiv Singh Thakur also accompanied him to Police ::: Downloaded on - 15/04/2017 20:58:53 :::HCHP ...15...
Station because he categorically stated that immediately after the incident he lodged the complainant Ex.PW1/A at .
Police Post, Sanjauli. Perusal of statement of PW-2, nowhere suggest that they also accompanied Yoginder at the time of lodging complaint to police. PW-2, stated that at the same time accused persons ran after Yoginder with of Trishool in his hand and threatened him to do away with his life. Whereas, PW-1 in his statement stated that rt accused ran after us i.e. complainant, PW-2 and Shiv Singh. Similarly, in cross-examination, PW-2 stated that he alongwith complainant went to the police station, whereas as per statement of PW-1 he went to police station alone.
20. Close and minute scrutiny of the statements of these two aforesaid witnesses, clearly suggest that both the witnesses have contradicted with each other with regard to alleged incident and after perusing their statements, it can be safely concluded that they have been not very specific, candid and straight forward while narrating/stating of alleged incident. There are major contradictions with regard to installation of Shivling and Trishool on the site because PW-1 himself in his statement stated that when they reached the spot they saw accused were raising ::: Downloaded on - 15/04/2017 20:58:54 :::HCHP ...16...
construction of platform, whereas PW-2 stated that when they reached the spot, accused have already constructed .
the platform with cement and they had fixed Pindi and Trishool. PW-2 also stated that accused had put red colour duptta on the Trishool with an intention to grab the land.
Similarly, on this juncture, it is also not understood that of when Jai Singh was also with the complainant at the time of occurrence why he did not accompany the complainant rt to the police station or moreover for the reasons best known to the prosecution, he was not cited as witness. Though, omission of Jai Singh Thakur from the list of the witnesses may not be termed as serious irregularity which may be fatal to the case of the prosecution but his statement, if any, would have strengthened the case of prosecution. In the present case, where it has specifically come on record that PW-2 Amrinder Nargiak works with the brother of the complainant.. Statement of Shiv Singh was essential in the facts and circumstances of the case. PW-2,himself admitted that he works in the chamber of the elder brother of complainant. If, statement of PW-2 is read in its entirety, it can be safely concluded, as has been observed above also, this witness has taken extra interest to prove the case of ::: Downloaded on - 15/04/2017 20:58:54 :::HCHP ...17...
the complainant. Careful perusal of the statement made by this witness PW-2 discloses these facts related to incident .
which have not been stated at all by the complainant himself while deposing as PW-1. Hence, in view of the above, this Court is of the view that omission of Jai Singh Thakur, who was also with the complainant at the time of of the incident, indicates that the story put forth on behalf of the prosecution is not correct and genuine and same could rt not be accepted on its face value in the absence of any independent witness.
21. True, it is that witnesses given by relative or interested witnesses cannot be brushed aside solely on the ground of relations but admittedly statements made by interested persons needs to be dealt with due care and caution. But in the present case, both the Courts below without critically analyzing the evidence given by PW-2 placed reliance on the same and recorded conviction against the accused persons. It also emerge from the statement of prosecution witnesses that both the parties were already litigating in the Court of law for eviction of tenanted premises as well as payment of rent. Both the prosecution witnesses PW-1 and PW-2 categorically ::: Downloaded on - 15/04/2017 20:58:54 :::HCHP ...18...
admitted in their cross examination that adjacent to the house of the accused there are four houses of the tenants .
but nobody was there at the time of occurrence, this aforesaid version given by the prosecution witnesses could not be accepted on its face value because both the witnesses themselves stated that at the time of alleged of occurrence there were lot of noise, meaning thereby, at the time of incident lot of people were gathered there.
rt Otherwise, also it cannot be believed that nobody came out of their house at the time of alleged incident, when it has come in the evidence that there are four -five houses of tenants. Both the prosecution witnesses otherwise have not explained that on what account there was noise, rather they simply stated that since there was noise, they cannot tell that at the time of incident how many people were there. After careful perusal of aforesaid statements, it can be safely concluded that people from nearby gathered there but prosecution purposely did not cite them as a witness, whereas admittedly PW-2 was cited as prosecution witness, who works in the office of the complainant.
22. PW-4, Krishan Lal stated that on 4.5.2001, he demarcated the land comprising khasra No.1361 to 1363 at ::: Downloaded on - 15/04/2017 20:58:54 :::HCHP ...19...
mauja Chak Sanjauli Chowk at the request of the police and on the spot the land was found of the complainant. He .
also stated that there are many tenants in khasra No.1362 and as such, version put forth on behalf of PW-1 that nobody resides near tenanted house of the accused persons appears to be false. However, he also stated that no notice of was issued to the accused persons nor he has consulted the old record of the settlement at the time of demarcation.
23. rtPW-8, HC Vidya Sagar, Investigating Officer stated that on 24.4.2001 he had prepared the spot map Ex.PW8/C as per the demarcation of the complainant. One Trishool, Pindi, piece of cement and sand were also taken into possession vide memo Ex.PW1/C in the presence of the witnesses Amrinder Nagriak and Jai Singh Thakur. In his cross-examination, he admitted that complaint was filed on dated 23.4.2001 at about 8.45 PM. He also admitted that the door of the house of accused persons open towards the Pindi. He also stated that Pindi is at a distance of 50 feet from the door but he has not associated the witnesses from the spot. He also denied that the accused persons used the land of Pindi as Courtyard. Careful perusal of the statement of PW-8 also does not appear to be trustworthy because he ::: Downloaded on - 15/04/2017 20:58:54 :::HCHP ...20...
states that on 24.4.2001 he prepared the spot map as per the demarcation of the complainant. It is not understood .
that when he had prepared spot map EX.PW8/C as per the demarcation of the complainant then what was the occasion to the police to get the demarcation of land comprising of khasra No.1361 and 1362 done by PW-4, of who categorically stated that no notice was issued to the accused persons nor he consulted the old record from the rt settlement. Similarly, PW-8 stated that complaint was lodged at about 8:45 PM on 23.4.2001, whereas PW-2 stated that alleged incident occurred on 24.4.2001 between 3 to 4 PM. It is not understood why the complaint, if any, was lodged after 5 to 6 hours of the incident by the complainant.
24. Hence, conjoint reading of these prosecution witnesses, clearly suggest that none of the prosecution witnesses has come forward with true facts, rather they have been very inconsistent in narrating the exact version of the incident, if actually occurred. Perusal of statement of PW-8 clearly creates doubt with regard to preparation of spot map Ex.PW8/C on 24.4.2001 because he himself stated that the complaint was filed on 23.4.2001 ::: Downloaded on - 15/04/2017 20:58:54 :::HCHP ...21...
at about 8:45 PM, whereas PW-1 stated that the incident occurred when he was coming from his house on 23.4.2001 .
at 4-5 PM and seeing the accused persons raising structure on the site, he reported the matter to the police vide complaint Ex.PW1/A. He also stated that police came on the spot on 24.4.2001, meaning thereby, statement given of by PW-8 is totally incorrect because PW-8 admitted in his cross-examination that complaint was filed to him on rt 23.4.2001 at about 8:45 PM. He also stated that on 24.4.2001, he prepared spot map Ex.PW8/C. It clearly emerges from the statements of PW-1 and PW-2 that they have not disclosed true facts to the Courts while making their depositions. PW-1 and PW-2 and PW-8, who are material witnesses, have contradicted each other in their statements with regard to timing, spot, date and presence of people at the time of alleged occurrence. Hence, this Court has no hesitation to conclude that both the Courts below have fallen in grave error while recording the conviction against the accused persons on the basis of the statements given by the aforesaid prosecution witnesses.
25. Moreover, this Court after seeing the facts of the present case is fully convinced that the nature of the ::: Downloaded on - 15/04/2017 20:58:54 :::HCHP ...22...
dispute involved in the matter was of civil nature but complainant solely with a view to create pressure upon the .
accused persons, who admittedly are tenants of the complainant, lodged the report in the police. Aforesaid observations has been made by the Court on the basis of fact that it is admitted by PW-1 himself that litigation with of regard to eviction and rent were going on in the Court of law at the time of alleged incident.
26. rt Perusal of statement of PW-8 clearly suggest that FIR was Lodged by PW-1 on 23.4.2001 at 8.45 PM, whereas incident took place on 23.4.2001 at 3-4 PM and as such, it remained unexplained that why the complainant lodged the report after five hours of the incident.
27. Consequently, in view of the detailed discussion made hereinabove, this Court is of the view that the impugned judgments passed by both the Courts below are not based upon correct appreciation of the evidence available on record and as such, same deserve to be quashed and set-aside. Accordingly, the present petition is allowed and judgments passed by both the Courts below are quashed and set aside. Accused persons are acquitted of the charges. Their bail bonds are ordered to be ::: Downloaded on - 15/04/2017 20:58:54 :::HCHP ...23...
discharged. The fine amount, if any, deposited by the petitioner-accused be refunded to them.
.
The present criminal revision stands disposed of, so also pending application(s), if any.
(Sandeep Sharma )
August 5, 2016 Judge.
(shankar)
of
rt
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