Jammu & Kashmir High Court
State Of J&K Through vs Jaswant Singh on 20 March, 2024
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Crl A(AS) No. 18/2021
Reserved on: 22.02.2024
Pronounced on: 20.03.2024
State of J&K through
SHO Police Station Bhaderwah ..... Appellant(s)
Through: Mr. Adarsh Bhagat, GA
v.
1. Jaswant Singh
2. Ajwant Singh Sons of Kahan Singh
Both residents of Trown Tehsil Doda. .....Respondent(s)
Through: Mr. Rahul Raina, Advocate.
CORAM: HON'BLE MR. JUSTICE RAJESH SEKHRI, JUDGE
JUDGMENT
1. The present appeal has been directed against judgment dated 29.08.2014, delivered by learned Additional Sessions Judge, Doda (Special Judge),[the trial Court, for short] vide which respondents have been acquitted of the charges under Sections 295/447/504/506 RPC.
2. Before a closer look at the grounds urged in the memo of appeal, it shall be apt to have an overview of the background facts.
3. On 18.11.2006, a complaint, EXPW-PS came to be lodged by one Phalail Singh, who claims to be „Mohatmin" of temple Shivaji Maharaj, Trown, Tehsil Doda. The complainant placed reliance upon Khasra Girdawari of Kharief 2006 to contend that land measuring 02 kanals, 11 marlas, comprising Khasra No. 53 min situate at village Trown belongs to 2 Crl A(AS) No. 18/2021 Shivaji Maharaj Temple and he is looking after the Temple and its property. It was inter alia alleged by the complainant that in the afternoon of 16.11.2006, respondents trespassed into the aforesaid land, put some construction material, in furtherance of common criminal intention to damage the temple property and to defile the temple. It was alleged by the complainant, that he dissuaded the respondents/accused from doing so, but he was threatened to be liquidated by accused persons with the help of militants and they also threatened to set his house on fire. On the receipt of this complaint, FIR No. 177 of 2006 for offences under sections 295, 295A, 447, 427, 458, 504, 506 RPC came to be registered and investigation culminated into final report, in terms of Section 173 Cr.P.C for offences under Sections 295, 447, 504, 506, 34 RPC. Offence under Section 295 RPC being exclusively triable by the Special Judge, the final report was laid in the trial court.
4. Respondents were charged for the aforesaid offences, by the trial Court whereby they pleaded innocence and claimed trial, which prompted the trial Court to ask for the prosecution evidence. The prosecution, in order to establish guilt of the respondents, examined as many as nine witnesses, out of which, three witnesses turned hostile. As a matter of fact, the entire prosecution case hinges on the testimonial potency of the complainant, PW- Phalail Singh only.
5. On conclusion of the prosecution evidence, respondents denied the incriminating imputations arrogated to them by the prosecution witnesses in their respective statements, under Section 342 Cr.P.C and did not enter the defence.
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6. Learned trial Court, on critical appreciation of the prosecution evidence, is of the view that prosecution failed to prove guilt of the respondents beyond reasonable shadow of doubt and therefore, vide impugned judgment both the respondents were acquitted of the charges.
7. Appellant has questioned the impugned judgment primarily on the ground that learned trial Court has failed to appreciate the evidence adduced by the prosecution in it‟s right perspective as the oral and documentary evidence adduced by the prosecution in the ordinary course of nature is sufficient to sustain conviction of the respondents.
8. Heard arguments and perused the file.
9. Mr. Adarsh Bhagat, learned Government Advocate, for the appellant-state, has reiterated the grounds urged in the memo of appeal in his arguments. Learned G.A, taking an exception to the findings returned by learned trial court, has argued that learned trial court has fallen in grave error of law to focus on the title or possession of the complainant. According to learned GA, even if, prosecution has failed to prove title or possession of complainant over the subject land or Temple, learned trial court was obliged to record finding keeping in view the predominant allegations against the respondents that they acted in furtherance of common criminal intention to damage the temple property and defile the sanctity of temple, as defined under section 295 RPC.
10. On the other hand, Mr. Rahul Raina, learned defence counsel, has argued that most of the prosecution witnesses turned hostile during the trial 4 Crl A(AS) No. 18/2021 and since testimonies of the remaining witnesses are discrepant on material aspects, therefore, impugned judgment does not call for any interference.
11. Allegation against the respondents is that on 16.11.2006, they trespassed into the subject land, recorded in the name of Idol of Shivaji Maharaj (Temple) situate at village Trown, dumped some construction material in the Temple premises, diverted the flow of water from a nearby pond to the Temple, in furtherance of common criminal intention to damage the temple property and defile sanctity of the temple. It is alleged by the complainant, that respondents by their conduct have hurt the religious sentiments of Hindu Community and made an attempt to grab the temple property.
12. Complainant, PW-Phalail Singh has made an endeavour to give a graphic narration of the allegations levelled in the complaint, EXPW-PS. Complainant claims to be „Mohatmin‟ of the Temple in question, entrusted with the management of the Temple and it‟s property. The complainant, in his statement, has stated that he was appointed as „Mohatmin‟ of the Temple by the officers of Revenue Department, but there is nothing placed on record by the complainant to prove that he was lawfully appointed as „Mohatmin‟ of the Temple by the officers of the Revenue Department.
13. According to the complainant, land in question bearing Khasra No. 53min measuring 2 kanals 11 marlas situate in village Trown is recorded in the name of Temple Shivaji Maharaj. He has also placed reliance upon Khasra Girdawari for the year 2006 to say so. However, a perusal of the copy of Khasra Girdawari, EXPW-MR-1, would reveal that aforesaid land is 5 Crl A(AS) No. 18/2021 a State land, out of which, Temple is situated over 01 marla and 02 kanals, 10 marlas is Banjar Kadeem. In the column of „Kashatkar‟, though possession of Idol of Shivaji Maharaj has been reflected through complainant, Phalail Singh, as one of the co-sharers. It is pertinent to mention that occurrence, in the present case, stated to have been taken place on 16.11.2006. Complainant, but for the aforesaid copy of Khasra Girdawari of Kharief 2006, has not produced any revenue record, to establish his continuous possession over the subject land. There is no revenue extract prior to the year 2006, produced by the complainant, to prove that his possession reflected in Khasra Girdawari for Kharief 2006, existed prior to the year 2006. Complainant-PW Phalail Singh has also admitted, in his chief examination, that aforesaid land was a State land, but reflected in the possession of Idol of Shivaji Maharaj. PW-Mohd. Rafiq, Patwari has clearly admitted in his statement during the trial that aforesaid land has not been transferred in the name of complainant, although he made an attempt for transfer of the said land under the „Roshni Act‟. It is, therefore, evident that though complainant made an attempt to get the land in question transferred in his name, but there is nothing on the record to suggest that same was ever transferred in his name in accordance with law. Therefore, I find myself in agreement, with the observation of learned trial judge, that names of other co-sharers, apart from complainant, Phalail Singh, have designedly not being reflected in the Khasra Girdawari in order to suppress the actual possession, existing on the spot and to lend credence to the case of the complainant regarding his alleged possession over this piece of land.
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14. The complainant claims to be „Mohatmin' of the temple in question. However, complainant, in his cross examination, has admitted, that respondents are his cousins and they are also the followers of Lord Shiva. Complainant has also admitted that the subject land was previously entered in the name of four persons, namely, Rana Udham Singh, Rana Naseeb Singh, Rana Mann Singh and Rana Kahn Singh and said four persons had installed the Idol of Lord Shiva in the Temple and got this land entered in the name of Idol.
15. Be it noted that complainant, Phalail Singh, is son of Rana Naseeb Singh and respondents-accused, who happen to be cousin brothers of complainant, are sons of above named Rana Kahn Singh. There is further admission on the part of the complainant, in his cross examination, that in absence of any Management Committee of the Temple, people belonging to Rana clan are entitled to look after the temple and can make improvements in the temple. Therefore, there is admission on the part of the complainant that respondents who are his cousins, belonging to the Rana clan, are not only entitled to offer prayers in the Temple but also to look after it‟s management and make improvements. In this view of the matter, there cannot be any trespass by a person into his own property or into a property in his possession.
16. It is also alleged by the complainant, in his complaint, EXPW-PS, that accused threatened to eliminate him and his family with the help of militants and set his house on fire, however, this allegation of the complainant is conspicuously absent from his testimony in the Court. 7 Crl A(AS) No. 18/2021
17. Pertinently, PW-Akhil Raj, independent witness cited by the prosecution, turned hostile and on cross-examination by the prosecution, he has stated that it were respondents-accused, who are Pujaris and Chellas of the Temple, in question and not the complainant. He has also belied allegation of the complainant that respondents had put any construction material in the Temple or diverted the flow of water towards the Temple in order to damage the Temple property. He has also stated that Temple in question is an old wooden Temple which was already damaged some 5/6 years back. PW-Mohd. Latief, another independent witness, cited by the prosecution also turned hostile and he also admitted in his cross-examination by the defence that Temple had collapsed some 5/6 years ago for want of repairs. PW-Sunder Dass has also fortified the claim of the defence that respondents are also followers of Lord Shiva like complainant and both of them are Pujaris of the Temple. PW-Faquir Singh, who happens to be a close relative of the parties, introduced altogether a new case by stating that it was on 17.11.2006, that a labourer dropped a cement bag in the land in question, belonging to the temple and he was told by the said labourer that respondent-Ajwant Singh had asked him to drop the said bag in the temple, who wanted to raise a shed in the temple property. He also admitted, in his cross examination, that both complainant and accused offer prayers in the temple and both are followers of Lord Shiva.
18. PW-Mohd. Rafiq Patwari, has proved the revenue extracts, EXTP-MR and EXTP-MR1. As already stated, the revenue official has stated that the subject land has not been transferred in the name of the complainant, though he applied for the same under the Roshni Act and in the 8 Crl A(AS) No. 18/2021 revenue record, Temple is reflected under the possession of Phalail Singh, the Complainant. However, revenue official has failed to depose as to how the possession of the complainant was reflected in the revenue record over a State land.
19. Be that as it may, the Investigating Officer (IO), Ram Raj has clearly stated that both the parties belong to Rajput Community. He has stated that he reflected Shivling in the site plan, as per instructions of the complainant and did not verify the possession from the revenue record. I find myself in agreement with the observation of learned trial Judge that IO did not take pains to conduct fair investigation of the case and carved out a case in favour of the complainant, as per his dictates and instructions without verification from the revenue record.
20. On critical analysis of the prosecution evidence, it is evident that both the complainant and accused, respondents herein, belong to the Rana clan and are entitled to offer prayers and manage the Temple property, therefore, offence of trespass under Section 447 RPC is not made out against the respondents. Complainant alleged that respondents threatened to liquidate him and his family and set his house on fire. However, this allegation of the complainant is conspicuously absent from his testimony made in the Court therefore, offences under sections 504 and 506 RPC are also not made out.
21. Another issue raised by Mr. Adarsh Learned GA, appearing for the appellant-state is that learned trial judge has misdirected himself by treating the prosecution case as a "title suit". Learned GA, is of the view that, even if, 9 Crl A(AS) No. 18/2021 the prosecution has failed to establish title or possession of the complainant over the temple property, since main allegation against the respondents- accused is that they acted in furtherance of criminal intention to defile the temple property, thereby insulting the sentiments of a particular community, therefore, learned trial court was obliged to return a finding in terms of section 295 RPC.
22. On first blush, the argument of learned Government Advocate appears to be attractive, however, a critical analysis of the prosecution evidence would show that there is nothing in the testimonies of the prosecution witnesses to establish that respondents at any point of time acted in furtherance of criminal intention to defy the sanctity of the Temple.
23. Section 295 RPC does not penalize any and every act of destruction, damage or defilement of a place of worship or object held to be sacred by any class of persons or knowledge to insult the religion of any class of persons. The basic ingredient of Section 295 RPC is that accused must insult the religion any class of persons and the conduct of the accused must have malicious intention.
24. It is trite, that section 295 RPC does not apply to destruction, damage or defilement of a place of worship or an object held sacred by any class of persons, that are made inadvertently or carelessly with no malicious intent. Criminality, U/S 295 RPC does not include insult of religion which is made unintentionally or carelessly or without malicious intent to outrage the religious feelings.
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25. Reverting to the present case, most of the prosecution witnesses not only turned hostile but fortified contentions of the defence, that it was not the complainant but the respondents-accused who are Pujaris of the Temple in question and are entitled to the management of the Temple. The only allegation, levelled by the complainant is that respondents dumped some construction material and diverted flow of water from a nearby pond to the Temple with an intention to cause damage to the Temple property. Though, it is alleged by the complainant that such an act on the part of the respondents not only defiled sanctity of the Temple but also hurt religious sanctity of Hindu Community, however, dumping of construction material in the temple premises alone or mere diversion of flow of water from a pond to the Temple, would not trigger liability under section 295 RPC, unless, it is demonstrated that it was done with a deliberate malicious intent to offend religious feelings of a particular community. Therefore, offence under section 295 RPC is also not made out against the respondents.
26. For what has been observed and discussed above, I am not persuaded to take a view different from the one taken by learned trial Court. The impugned judgment is well reasoned and does not call for any interference. Hence the present appeal being devoid of merit is hereby dismissed and impugned judgment is upheld.
(RAJESH SEKHRI) JUDGE JAMMU:
20.03.2024 Paramjeet Whether the Judgment is speaking? Yes Whether the Judgment is reportable? Yes