Punjab-Haryana High Court
Shiv Parshad And Others vs State Of Haryana on 7 January, 2010
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
Criminal Appeal No. 558-SB of 1997 1
In the High Court of Punjab and Haryana, at Chandigarh.
Criminal Appeal No. 558-SB of 1997
Date of Decision: 7.1.2010
Shiv Parshad and Others
...Appellants
Versus
State of Haryana
...Respondent
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA.
Present: Mr. Bipan Ghai, Senior Advocate
with Mr. Sandeep Gehlawat, Advocate
for the appellants.
Ms. Shalini Atri, Deputy Advocate
General, Haryana, for the respondent.
Kanwaljit Singh Ahluwalia, J. (Oral)
The present appeal has been filed by Shiv Parshad, Daya Parshad, Hari Parshad, Karan Singh and three ladies, namely Savita, Parbhati and Anita. Shiv Parshad, Daya Parshad and Hari Parshad are sons of Hukam Chand, whereas Parbhati is wife of Hukam Chand. Karan Singh and Savita are husband and wife. They were nominated as accused in case FIR No. 258 dated 24.9.1996 registered at Police Station Dharuhera, under Sections 148, 149, 436 and 450 IPC. They were tried in the above said FIR and were convicted by the Court of Additional Sessions Judge, Rewari, for the offence under Sections 436 and 450 read with Sections 149 IPC and 148 IPC.
Shiv Parshad, Hari Parshad, Daya Parshad and Karan Singh Criminal Appeal No. 558-SB of 1997 2 were sentenced to undergo rigorous imprisonment for a period of three years and six months each and to pay a fine of Rs.200/- each for offence under Section 436 read with Section 149 IPC. They were also sentenced to undergo rigorous imprisonment for three years and six months each and to pay a fine of Rs.200/- each for the offence under Section 450 read with Section 149 IPC. In default of payment of fine, they were sentenced to undergo rigorous imprisonment for two months each on both the counts. They were also sentenced to undergo rigorous imprisonment for one year each for offence under Section 148 IPC. All the sentences were ordered to run concurrently.
However, Parbhati who was aged 70 years and two other ladies Savita and Anita who were aged 30 years and 20 years, respectively, were sentenced to undergo rigorous imprisonment for two years and six months each and to pay a fine of Rs.200/- each for offence under Section 436 read with Section 149 IPC. In default of payment of fine, to further undergo simple imprisonment for two months each. They were also sentenced to undergo rigorous imprisonment for two years and six months each and to pay a fine of Rs.200/- each for offence under Section 450 read with Section 149 IPC. In default of payment of fine, to further undergo simple imprisonment for two months each. They were also sentenced to undergo rigorous imprisonment for one year each for offence under Section 148 IPC. All the sentences were ordered to run concurrently.
FIR in the present case was recorded on basis of the written complaint submitted by Shakuntla wife of Mangal Singh Ahir. Her statement was recorded by Dharam Singh, Assistant Sub Inspector, to Criminal Appeal No. 558-SB of 1997 3 whom she met him on the T-Point of Sohna Area, Dharuheri, on 24.9.1996. In her statement, she stated that about 50 years ago, her father-in-law Rampat had constructed a kacha chappar for tethering buffaloes. According to witness, her father-in-law had obtained the plot after he had exchanged the same in new abadi with a plot of Gajraj, father of Het Ram, in lieu of plot in old abadi. About five/six months ago, it was learnt by her that Gajraj Singh had sold this plot to Savita wife of Karan Singh. Thereafter, Savita had sold this plot to Daya Parshad son of Hukam Chand. One month ago, Karan Singh and Daya Parshad hurled out a threat that plot should be vacated by the complainant, otherwise they would forcibly take possession of the same. It was stated that regarding this a complaint was submitted to the Deputy Commissioner and Superintendent of Police. On the intervention of Panchayat and respectables, a compromise was arrived and Karan Singh and Daya Parshad gave in writing that they would not take forcible possession of the plot. It was also agreed that the accused would file a suit in the Court of competent jurisdiction. It was further averred in the FIR that on 24.9.1996 at about 2.00 P.M., when she was giving fodder to her buffaloes in her house, all the accused came together. Shiv Parshad and Daya Parshad were armed with jellys, whereas other accused were armed with kulhari and lathies. Parbhati raised a lalkara and asked her son Shiv Parshad to set the chappar on fire. Shiv Parshad had put the chappar on fire by lighting a match stick and others started demolishing the chappar. At that time, other villagers came at the spot and extinguished the fire. According to the complainant, occurrence was witnesses by Sarpanch of the village and Criminal Appeal No. 558-SB of 1997 4 also by Shri Ram son of Shiv Lal Ahir. There was no loss of life but chappar and household goods were burnt.
The Investigating Agency concluded the investigation and submitted report under Section 173 Cr.P.C.
On 9.1.1997, Additional Sessions Judge, Rewari, framed charges against the appellants and it was stated that on 24.9.1996 in the area of village Masani, all the accused constituted unlawful assembly and thereby committed an offence punishable under Section 148 IPC and in furtherance of common object of the unlawful assembly, they committed mischief by causing fire to the chappar, belonging to complainant Shakuntla and thereby committed an offence punishable under Section 436 read with Section 149 IPC. The third charge stated that the accused also committed offence of house trespass and were liable to be charged for offence under Section 450 read with Section 149 IPC.
The accused pleaded not guilty and claimed trial. Prosecution examined PW.1 Naresh Kumar, Draftsman. He stated that he was a trained draftsman and prepared the site plan of the spot on the request of Investigating Officer on 12.10.1996. In cross- examination, this witness stated that he has not seen the documents regarding ownership of the properties abutting the scene of occurrence from all sides. He further stated in the cross-examination that the chappar in question was quite old and was burnt in the middle part of it.
PW.2 Ramesh Chand, Head Constable, was posted at that time as Moharrir Head Constable at Police Station Dharuhera. He has stated that on receipt of application Ex.PB he had registered formal FIR Criminal Appeal No. 558-SB of 1997 5 Ex. PB/1.
PW.3 Dharam Singh, Assistant Sub Inspector, stated that on 24.9.1996 at about 6.00 P.M. Shakuntla complainant approached him with a written complaint Ex.PB. After registration of case, he visited at the spot, prepared a rough site plan Ex.PC and got the place of occurrence photographed and took into custody some ash lying there, vide memo Ex.PD. In cross-examination, he admitted that the site where the occurrence took place was at a distance of one furlong from the Police Station. He further stated that since the chappar was situated in Lal Dora of village, therefore, he felt no necessity to consult the record regarding ownership of the plot. He pleaded ignorance whether the plot formed part of khasra No. 94. He further stated that it was not known to him whether the accused were owners of the land comprised in khasra No. 94. In cross-examination, he further stated that only part of the chappar was affected by the fire and some straw and clothes were burnt.
PW.4 Satyawati, Inspector, stated that she was posted as Station House Officer, Police Station Dharuhera and she had submitted a final report prepared under Section 173 Cr.P.C.
Complainant Shakuntla appeared as PW.5. She has stated that before her marriage, her father-in-law had exchanged the plot in question with the father of Gajraj Singh. About six months prior to the incident, Gajraj Singh had sold the plot to Savita who further sold the same to Daya Parshad. In examination-in-chief, she almost reiterated the version given by her in the written complaint on the basis of which FIR was registered. She has stated that her father-in-law is very old and Criminal Appeal No. 558-SB of 1997 6 is not in a position to carry agricultural pursuits. She further stated that on the western side of chappar, there is a plot belonging to his father-in- law and his brothers. She further stated that the plot was used for collecting cow dung and preparing cakes from the same. She further stated that Yad Ram, Sarpanch and Shri Ram were the first who were attracted to the spot and had extinguished the fire. They had arrived within five minutes of the fire incident. This witness has admitted that ceiling of the chappar was completely worn out and old.
Yad Ram Sarpanch of the village appeared as PW.6. He stated that he rushed at the spot and found accused damaging the chappar and part of the chappar was on fire. He admitted that he had not witnessed the factum of putting the chappar on fire. A specific suggestion was given to this witness that he is siding with Shakuntla as she was his supporter and accused had opposed him in the elections.
PW.7 Hari Ram, Photographer, proved photographs Ex.P2 to Ex.P7 and their negatives Ex.P8 to Ex.P13. In cross-examination, he admitted that the chappar was very old and straw ceiling was totally worn out and it was not found good enough for stopping rain water from leaking. He further admitted that chappar was not fit for human habitation and no person could live therein.
Statements of accused were recorded under Section 313 Cr.P.C.
Accused Shiv Parshad specifically stated that Shakuntla wanted to usurp his plot and she had herself put the chappar on fire.
DW.1 Sher Singh stated that on the day of occurrence Shiv Parshad and Daya Parshad were sleeping in the area of plot and they Criminal Appeal No. 558-SB of 1997 7 had shouted that Shakuntla had herself put the plot on fire.
Vidya Devi DW.2 has also stated on the same lines.
DW.3 Ram Singh, Ahlmad, from the Court of Additional Senior Sub Judge, Rewari, brought a file of civil suit titled as "Daya Parshad v. Smt. Shakuntla".
DW.4 Rajpal Yadav, Draftsman, Civil Courts, Rewari, was examined to prove site plan Ex.DA prepared by him for presentation in the civil suit.
DW.5 L.S. Lamba, Advocate, was examined to prove the written statement filed by Shakuntla in the civil suit. He identified the signatures of Shakuntla on the written statement as Ex.DB.
DW.6 Sumer Singh, Clerk to O.P. Yadav, Advocate, has appeared to prove the signatures of O.P. Yadav on the plaint.
A perusal of Ex.DA, prepared by DW.4 Rajpal Yadav, reveal that khasra No. 94 is shown to be in possession of Daya Parshad and it also depict a ruined kacha chappar. This site plan was prepared by DW.4 Rajpal Yadav on 23.10.1996. A civil suit was instituted by the appellant Daya Parshad on 30.10.1996. In the present case, incident had taken place on 24.9.1996 and written statement was filed by Shakuntla Ex.DB on 24.4.1997. In the written statement she stated that kacha chappar was not ruined rather her chulha was existing there in the chappar.
Mr. Ghai has placed on record certified copy of the judgment dated 17.9.2002 passed by the Court of Additional District Judge, Rewari, whereby the appeal filed by Shakuntla, complainant, was dismissed. A perusal of the judgment show that a specific issue was Criminal Appeal No. 558-SB of 1997 8 framed whether the plaintiff was entitled to get the possession of the suit property and the trial Court had given a finding on this issue in favour of plaintiff Daya Parshad (appellant herein). The Appellate Court held that even though Shakuntla was proved to be in possession of the plot but she has failed to establish her ownership.
I have also examined the photographs. The chappar is made of straw. In the present case, case of the prosecution is that Gajraj Singh had sold the property to Savita and Savita had sold the same to Daya Parshad. Thus, two families i.e. one family consisting of Savita and Karan Singh and another family of Daya Parshad, consisting of four persons, allegedly had joined hands together, as per prosecution, who came at the spot and constituted unlawful assembly. As per the prosecution case, accused were raising their claim over the chappar on the ground that the same belong to them and formed part of khasra No. 94 under their ownership and possession. There is no dispute that Civil Court had held that the possession of chappar belong to Shakuntla but ownership of the same vested in Gajraj Singh who had sold the same to Savita and Savita, in turn, had sold the same to Daya Parshad. Prosecution story that seven accused armed with lethal weapons had gone at the spot and had caused no injury to anybody is to be accepted with a pinch of salt. Shakuntla was present at the spot. Even no scratch was caused to her. The chappar was lying ruined and was not fit for human habitation. A suggestion has been given to Yad Ram PW.6 that Shakuntla belong to his faction and accused are his opponents in the elections. Therefore, the version given by the defence that Shakuntla herself had put the chappar on fire to pressurize the accused to Criminal Appeal No. 558-SB of 1997 9 surrender their rights cannot be outrightly rejected. In this situation, Court has to weigh the oral evidence of PW.5 Shakuntla and PW.6 Yad Ram and the oral evidence led by the defence. In defence, two witnesses DW.1 Sher Singh and DW.2 Vidya Devi have stated that accused Shiv Parshad and Daya Parshad had seen that Shakuntla had herself put the chappar on fire. It seems that both sides have exaggerated their version and sanctity of truth cannot be attached to two mutually exclusive versions projected by prosecution and defence. Thus, the Court has to put itself on guard and sift the grain from the chaff. Therefore, possibility of implication of three ladies, namely Parbhati, Savita and Anita, cannot be ruled out. Hence, they are granted benefit of doubt as matter of abundant caution and they are acquitted of the charges.
It has come in the testimony of witnesses that the chappar was lying deserted. It was old and was not fit for human habitation. Therefore, offence under Section 436 IPC is not attracted, rather the offence made out will fall under Section 435 IPC. It has been stated by no witness that any of the accused had entered into the chappar. Possession and ownership of khasra No. 94 vested in the accused, even though possession of chappar was of Shakuntla. Therefore, offence of house trespass is also not made out and the conviction of remaining appellants cannot be sustained under Section 450 IPC.
In the present case, the allegation is that Shiv Parshad had put the chappar on fire. Therefore, Shiv Parshad, Daya Parshad and Hari Parshad are held guilty for offence under Section 435 read with Section 34 IPC. Savita had already sold the house to Daya Parshad. Criminal Appeal No. 558-SB of 1997 10 She has been also given benefit of doubt. Therefore, there was no occasion for Karan Singh to join Savita. Taking overall perspective, Karan Singh is also given benefit of doubt and he is acquitted of the charges.
Having held, Shiv Parshad, Daya Parshad and Hari Parshad guilty of offence under Section 435 read with Section 34 IPC, this Court is of the view that no useful purpose will be served by sending the appellants behind the bars after 13 years of occurrence especially when they had succeeded in the Civil Court. It is stated that Shiv Parshad, Daya Parshad and Hari Parshad had already undergone about three months of their actual sentence. During last 13 years, they have committed no offence.
Ms. Shalini Atri, Deputy Advocate General, Haryana, appearing for the State, submitted that endeavour of the State is also to reform the criminals and in the present case three present appellants are not hardened criminals, therefore, they can be released on probation if some compensation is paid to complainant Shakuntla.
Taking totality of circumstances in view, Shiv Parshad, Hari Parshad and Daya Parshad, after converting the offence from Section 436 IPC to 435 IPC, are ordered to be released on probation under Probation of Offenders Act, 1959, for a period of one year. They will execute bonds to the satisfaction of learned Chief Judicial Magistrate, Rewari, with an undertaking to keep peace and be of good behaviour during the period of probation.
However, these three appellants are fastened with the cost of Rs.10,000/- each. The amount of Rs.30,000/- shall be paid as Criminal Appeal No. 558-SB of 1997 11 compensation to Shakuntla complainant.
Needless to say, as per the mandate of Section 12A of Probation of Offenders Act, 1959, the conviction shall not entail the appellants with any disqualification.
With the observations made above, present appeal is disposed of.
(Kanwaljit Singh Ahluwalia) Judge January 7, 2010 "DK"