Himachal Pradesh High Court
Subhash Sharma vs Tula Ram And Ors on 6 September, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Revision No. 32 of 2011
Date of Decision: 6.9.2016
_______________________________________________________
.
[
Subhash Sharma ......Petitioner.
Versus
Tula Ram and Ors. ...Respondents.
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
of
Whether approved for reporting1?
For the petitioner: Mr. Bimal Gupta, Senior Advocate with Ms.
Kusum Chaudhary, Advocate.
For the respondents:
rt Mr. B.R. Sharma, Advocate, for respondents
No. 1 to 3.
Mr. Rupinder Singh Thakur, Additional
Advocate General, for the State.
_________________________________________________________
Sandeep Sharma, J. (Oral)
Present criminal revision petition filed under Section 397 read with Section 401 of the Code of Criminal Procedure is directed against the judgment of acquittal dated 30.9.2010, rendered by the learned Judicial Magistrate, Ist Class, Rajgarh, District Sirmour, HP, in Criminal Case No. 67/2 of 2008.
2. Briefly stated facts as emerged from the record are that the petitioner-complainant Subhash Sharma filed a complaint Ext.PW1/D in the Court of learned Judicial Magistrate, Ist Class, Rajgarh, District Sirmour, H.P. He stated in the complaint that he owns a residential Whether reporters of the Local papers are allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 21:10:21 :::HCHP -2-house over khasra No.413 and land in khasra No. 414 (courtyard) and earlier the accused Tula Ram had a share in the said house but later on .
entire share of Tula Ram was purchased by the complainant vide sale deed No. 178 dated 1.5.2007 and possession whereof was also handed over to him. The complainant also claimed that pursuant to aforesaid sale deed, mutation No. 154 dated 21.7.2007 was also attested in his of favour. The complainant further stated that to prevent entry of stray animals and unsocial elements, he fenced khasra No. 414 with the help of barbed wires but on 16.12.2007, at about 7:50 AM, when he was in rt bed room, he heard some noise of persons talking outside the door.
Immediately thereafter, he opened the door and found that accused Tula Ram along with co-accused-Suresh were standing outside the house of the complainant in the courtyard. Tula Ram was holding a gun in his hand and Suresh Dutt had a sickle in his hand, while other co-
accused namely Viney and Arun were cutting the barbed wires with the help of pliers. The complainant objected the aforesaid illegal action of the accused but accused Tula Ram and Suresh rushed towards him and pointed gun towards the complainant and threatened him to do away with his life. The complainant returned to the house and informed the police. Thereafter, the complainant along with his son Abhishek Sharma came to the spot but the accused was not present on the spot, while other accused were present. The ::: Downloaded on - 15/04/2017 21:10:21 :::HCHP -3- complainant and his son requested the accused persons not to cut and damage the barbed wire but in vain. Accused threatened them to do .
away with their life. As per the complainant, thereafter on hearing noise, Pankaj Sood, Munish and Sunny also came to the spot. By that time, accused Tula Ram had also returned to the spot. The complainant further alleged that accused cut the barbed wire, as a result of which, he suffered loss to the tune of ` 2,000/.
of Thereafter, police came on the spot and asked the accused to restore the wire but no action, whatsoever, was taken by the accused to restore the wire.
rt Since no action was taken by the police persons to his complaint, he was compelled to file private complaint under Section 156 (3) of Cr.PC.
before the learned Judicial Magistrate. Record reveals that learned trial Court taking cognizance of the complaint Ext.PW1/D, directed the police to lodge FIR. After lodging of FIR, police investigated the matter and during investigation, revenue record pertaining to land Ext.PW1/G was obtained by the I.O. & Aks Shajara Ext.PW1/H along with copy of sale deed Ext.PW1/A were also procured. Record further reveals that during investigation, I.O. visited the spot and prepared the site plan.
During investigation, accused presented a sickle Ext.PA, pliers Ext.PB, hexablade Ext.PC to the police, which were seized vide memo Ext.PW1/E in the presence of witnesses. Police also got the demarcation of the disputed land conducted and demarcation report ::: Downloaded on - 15/04/2017 21:10:21 :::HCHP -4- along with statement of parties Ext.PW3/A and Ext.PW3/B were also obtained. Police after recording the statements of witnesses under .
Section 161 Cr.PC, prepared and submitted the challan before the learned trial Court.
3. Learned trial Court having been satisfied that prima facie case exists against the accused, framed charges under Sections of 147,148,427,447,506 of IPC read with Section 149 IPC against the accused persons, to which they pleaded not guilty and claimed trial.
Learned trial Court on the basis of material made available on record rt by the prosecution and statement of the accused recorded under Section 313 Cr.PC, came to conclusion that prosecution has not been able to prove its case beyond all reasonable doubt and accordingly, acquitted the accused persons of the charges (supra).
4. Feeling aggrieved and dis-satisfied with the judgment passed by the learned trial Court, present petitioner-complainant has approached this Court by way of instant criminal revision petition.
5. Mr. Bimal Gupta, Senior Advocate, duly assisted by Ms. Kusum Chaudhary, Advocate, representing the petitioner-complainant vehemently argued that the impugned judgment passed by the learned court below is not sustainable in the eye of law as the same is not based upon the correct appreciation of record. Mr. Gupta, contended that bare perusal of the impugned judgment suggests that ::: Downloaded on - 15/04/2017 21:10:21 :::HCHP -5- court below while passing the judgment has mis-construed and mis-
interpreted the material placed on record, be it ocular or documentary .
and as such, same deserves to be quashed and set-aside. With a view to substantiate his argument that court below has not dealt with statements made by the prosecution witnesses in its right perspective, he invited attention of this Court to the statement of PW2 i.e. Pankaj of Sood to demonstrate that learned trial Court failed to take note of his candid statement, wherein he stated that respondents No. 2 and 5 illegally caused damage of more than ` 2,000/- by cutting the barbed rt wires of the complainant. Similarly, he invited attention of this Court to the statement of PW3 i.e. Field Kanungo to demonstrate that impugned judgment is contrary to the facts, wherein it has been concluded that land was jointly owned by the complainant as well as the accused. Mr. Gupta, strenuously argued that bare perusal of the statement made by PW3 nowhere suggests that respondent-accused was co-owner in khasra No. 414 along with present petitioner-complainant. He contended that PW3 categorically proved on record that accused Tula Ram had sold his entire share in khasra No. 414 and as such, court below has fallen in grave error while concluding that he had sold only part of his share and he has still has share in khasra No. 414. Mr. Gupta while concluding his arguments, also forcefully contended that learned trial Court miserably failed to exercise jurisdiction vested in it while ::: Downloaded on - 15/04/2017 21:10:21 :::HCHP -6- illegally closing the evidence of the prosecution on 20th September, 2010 by stating that case is a targeted one. He also stated that the .
court below failed to take note of the fact that summon issued to the witnesses were not received back in the Court and as such, there was no occasion for the Court to close the prosecution evidence on 20.9.2010. Similarly, Mr. Gupta, stated that court below dismissed the of application moved under Section 311 Cr.PC by the complainant for summoning the two witnesses on 30.9.2010 in hot and haste manner, just to achieve the target and as such, great prejudice has been rt caused to the petitioner-complainant. Mr. Gupta, further contended that the learned court below wrongly came to conclusion that no witness from the locality was examined, whereas PW2 an eye witnesses was present in SDM office just at a distance of 50 meters. As per the statement of PW2, he had come to spot immediately after hearing the noise and as such, aforesaid finding given by the court below that no independent witness was associated, deserves to be quashed and set-
aside being contrary to the facts and record. Counsel representing the petitioner also argued that learned court below while acquitting the respondent-accused wrongly came to conclusion that the prosecution failed to prove its case beyond reasonable doubt since I.O. was not examined because mere absence of I.O. as prosecution witness, could not be made ground by the court below, while rejecting the complaint ::: Downloaded on - 15/04/2017 21:10:21 :::HCHP -7- filed on behalf of the complainant, especially, when other witnesses specifically and candidly stated that accused entered into the .
premises of the complainant-petitioner and without rhyme and reasons, cut the barbed wires and extended threats to the complainant. Mr. Gupta prayed that present petition may kindly be accepted and respondent-accused may be punished/convicted for having of committed offences as have already been mentioned above. Mr. Gupta, also stated that since respondent-State failed to file an appeal, if any, against the impugned judgment of acquittal, the petitioner, who rt was threatened by the accused was compelled to move present criminal revision petition before this Court.
6. Per contra, Mr. R.S. Gautam, Advocate appearing on behalf of respondents No. 1 to 3, supported the impugned judgment passed by the courts below. Mr. Gautam vehemently argued that bare perusal of the impugned judgment suggests that same is based upon the correct appreciation of the evidence available on record and prosecution has been not able to prove its case beyond reasonable doubt. Mr. Gautam contended that in the given facts and circumstances of the case, no interference, whatsoever, of this Court, is warranted. Mr. Gautam, also stated that this Court has very limited powers while exercising its revisionary powers under Section 397 of the Cr.PC to re-appreciate the evidence especially, when it stands duly ::: Downloaded on - 15/04/2017 21:10:21 :::HCHP -8- proved on record that the court below has dealt with each and every aspect of the matter very meticulously. In this regard, reliance is placed .
upon the judgment passed by Hon'ble Apex Court in case State of Kerala Vs. Puttumana Illath Jathavedan Namboodiri (1999)2 Supreme Court Cases 452, wherein it has been held as under:-
"In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an rt appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice."
7. I have heard the learned counsel for the respective parties and gone carefully through the record.
8. True, it is that while exercising the power under Section 397 of Criminal Procedure Code, this Court has very limited power to re-
appreciate the evidence available on record. But in the present case, where accused has been acquitted of charges leveled against him under Sections 147, 148, 427, 506 of IPC read with Section 149 of the Indian Penal Code, this Court solely with a view to ascertain that the judgment passed by both the Court below is not perverse and same is ::: Downloaded on - 15/04/2017 21:10:21 :::HCHP -9- 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 in the case.
9. As far as scope of power of this Court while exercising revisionary jurisdiction under Section 397 is concerned, the Hon' ble Apex Court in Krishnan and another Vs. Krishnaveni and another, of (1997) 4 Supreme Court Case 241; has held that in case Court notices that there is a failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is salutary duty of the rt High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior criminal court in its judicial process or illegality or sentence or order. The relevant para of the judgment is reproduced herein below:-
"8.The object of Section 483 and the purpose behind conferring the revisional power under Section 397 read with Section 401, upon the High Court is to invest continuous supervisory jurisdiction so as to prevent miscarriage of justice or to correct irregularity of the procedure or to mete out justice. In addition, the inherent power of the High Court is preserved by Section 482. The power of the High Court, therefore, is very wide. However, the High Court must exercise such power sparingly and cautiously when the Sessions Judge has simultaneously exercised revisional power under Section 397(1). However, when the High Court notices that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/ incorrectness committed by inferior criminal court in its judicial process or illegality of sentence or order."::: Downloaded on - 15/04/2017 21:10:21 :::HCHP
- 10 -
10. Close scrutiny of the pleadings as well as evidence adduced on record by the respective parties suggests that present .
petitioner-complainant approached the learned trial Court by way of private complaint under Section 156 (3) Cr.PC seeking direction to the police to investigate the matter and lodge report against the respondents-accused. Pursuant to the directions passed by the learned of trial Court, police registered FIR against the accused under Sections 147,148,427,447,506 of IPC read with Section 149 IPC.
11. Prosecution with a view to prove its case examined as rt many as five prosecution witnesses. PW1 Subhash Sharma, the complainant stated that his residential house exists over khasra No. 413 and the accused Tula Ram was co-sharer in the aforesaid land but his share was purchased by him vide sale deed Ext.PW1/A and as such, accused Tula Ram was stranger to the said house/land. PW1 further stated that he had put barbed wires/fence between the courtyard and khasra No.525 to secure the courtyard from public path but on 16.12.2007 at about 7:15 AM, he heard noises from the courtyard and later on found accused Tula Ram standing in the courtyard carrying gun along with son namely Suresh, who was also holding a sickle. He also stated that the accused namely Arun and Viney were cutting the barbed wires. It also came in his statement that Viney and Arun were holding a plier/plash for cutting the wires while Ashok was the hexa ::: Downloaded on - 15/04/2017 21:10:21 :::HCHP
- 11 -
blade for the same. Complainant further stated in his statement that when he asked them to desist from cutting the wire, the accused .
pointed a gun at him and another co-accused namely Suresh Kumar threatened him with sickle. He further stated that thereafter, he went inside the house and informed the police and called his son Abhishek.
Thereafter, he and his son came out of the house and by that time, the of accused Tula Ram had left the place. PW1 further stated that Ashok and Viney were cutting wires and while doing so, they threatened the complainant and his family.
rt He further stated that at the time of occurrence, Manish, Pankaj and Sunny came to the spot and tried to pacify the co-accused persons and in the meantime, accused also came to the spot. He also stated that thereafter two police men also reached the spot and directed the accused to repair the wires but all in vain. He further stated that since, police failed to take any action, he made complaint to the S.P. and thereafter filed complaint Ext.PW1/D before the learned trial Court. PW1 further stated that he suffered loss of Rs. 2,000/- on account of cutting of wires by the accused. PW1 further deposed that sickle Ext.PA, Plier/Plash Ext.PB and hexablade Ext.PC were seized by the police vide memo Ext.PW1/G. In his cross examination, he denied the suggestion that the accused have been falsely implicated. However, he admitted having litigation with the accused regarding the land. He also admitted in his cross examination ::: Downloaded on - 15/04/2017 21:10:21 :::HCHP
- 12 -
that fresh barbed wires have been enacted by him but it is not on the same place where the earlier fence existed.
.
12. PW2 Pankaj Sood also stated that he was on election duty and had been called for videography on 16.12.2007. He further stated that on that day, at about 7:15 AM, he met Advocate Munish and both of them were coming to SDM Court and during that period, he heard of noises from the house of the complainant and accordingly, came to his house and found that three persons namely Viney, Arun and Ashok were cutting the wires. He also stated that Suresh was carrying a sickle rt and was quarreling with the complainant and his son. He also stated that one of the accused was carrying hexablade while two others were carrying plier/plash and were using filthy language. He further stated that Subhash was asking the accused not to cut the wires. He also stated that the police came to the spot and asked the accused not to quarrel.. He also stated that some wires have already been cut when he reached the spot. PW5 Abhishek Sharma, son of the complainant also stated that on 16.12.2007 at about 7:15 AM, when he was sleeping in his room, his father called and told him that Tula Ram carrying gun and Suresh carrying sickle are standing in the courtyard while Ashok and Viney were cutting and removing barbed wires. He further stated that when they asked the accused persons not to cut the wire, they did not listen and cut the wires and also used filthy language and ::: Downloaded on - 15/04/2017 21:10:21 :::HCHP
- 13 -
threatened to cause their death. He also stated that at the time of occurrence, Pankaj Sood and Munish and Sunny came to the spot from .
SDM Court and accused Tula Ram also reached. PW5 further stated that thereafter he took the photographs with his own camera.
However, in his cross-examination, he admitted that four families of the employees of the SDM Court reside between SDM Court and house of of the complainant. In his cross-examination, he also admitted that one length of wire is intact in the photograph and three other lengths had been cut. He also admitted of having partition dispute with the rt accused. PW5 also stated that Tula Ram had sold his share in the house to the complainant. However, he denied the suggestion that the accused have been falsely implicated. However, it also came in his cross examination that pieces of cut wires are still lying at the spot and had not been seized by the police.
13. PW3, Field Kanungo, stated that he carried demarcation of khasra number 413 and 414 on 12.11.2008 in terms of orders issued by the Tehsildar and submitted his report Ext.PW3/A. PW3 stated that he had recorded statement Ext.PW3/B, on which parties had appended their signatures. He stated that during demarcation, barbed wires were found on boundary of khasra Nos. 414 and 425. In his cross examination, PW3 specifically stated that when he went for demarcation of land, fencing was from point A to A. He stated that ::: Downloaded on - 15/04/2017 21:10:21 :::HCHP
- 14 -
there were no pieces of wires and fence was old. He also stated in his cross examination that as per revenue record, the accused Tula Ram .
had sold 1/26th share out of his land measuring 94.57 sq.meters to Subhash (the complainant).
14. PW4 HC Surender Singh stated that Sickle was produced by the accused Suresh (present in court) vide seizure memo Ext.PW1/E. But of at this stage, it may be noticed that Suresh had expired on 15.3.2009 and proceedings against him were dropped vide order dated 7.5.2009 passed by the court below.
rt
15. Conjoint reading of the aforesaid prosecution witnesses clearly suggests that prosecution was unable to prove its case against the accused beyond reasonable doubt. Because careful perusal of the so called witnesses i.e. PWs 1, 2 and 5 nowhere suggests that at the time of alleged incident, accused extended threats if any, to the complainant. Though PW1 in his statement stated that after hearing noises when he went to the courtyard, he found accused along with his son standing in courtyard carrying gun and sickle respectively but he (PW1), PW2 and PW5 nowhere stated that at any point of time, accused Tula Ram and Suresh ever tried to threaten the complainant by showing weapon, which they were allegedly carrying at the time of incident. Similarly, none of these witnesses stated that at any point of time, accused made an attempt to assault the complainant as well as ::: Downloaded on - 15/04/2017 21:10:21 :::HCHP
- 15 -
his son. Rather, close scrutiny of statements of PW1 and PW5 clearly suggests that parties are litigating in the Court of law over some land .
dispute, meaning thereby, statements made by these witnesses could not be accepted on its face value, especially, in the absence of some independent witness from the locality. Though, prosecution by way of associating PW2 Pankaj Sood made an attempt to demonstrate that at of the time of incident, PW2 Pankaj Sood being an independent witness was present at the scene of occurrence but careful perusal of the deposition made by PW2 nowhere corroborates the statements made rt by PWs 1 and 5. PW2 in his statement stated that he was on election duty and was called for videography on 16.11.2009 and he at about 7:15 AM met Advocate Munish and thereafter, they both went to SDM Court. He further stated that he heard noises from the house of Subhash Advocate (the complainant) and came to his house and found that three persons were cutting the wires namely Viney, Arun and Ashok. He also stated that Suresh was carrying sickle and was quarreling with the complainant (Subhash) and his son. At this stage, it is not understood that how PW2 Pankaj Sood disclosed the names of the accused because he nowhere stated that he knew accused persons or their names were disclosed to him by the complainant and his son. Otherwise also, he nowhere supported the versions of PWs 2 and 5 that at the time of occurrence, the accused (Tula Ram) and his ::: Downloaded on - 15/04/2017 21:10:21 :::HCHP
- 16 -
son Suresh Kumar were carrying gun and sickle. PW2 simply stated that Suresh was carrying sickle and he was quarreling with Subhash and his .
son. He also stated that one accused was carrying hexablade while two others were carrying plash and were using filthy language. In his cross-examination, PW2 admitted that he was tenant of Tula Ram, meaning thereby, PW2/he was known to the parties prior to alleged of incident.
16. At this stage, it also remained un-explained that why Manish Advocate, who as per the statement of PW2 was with him (PW2 rt Pankaj Sood) was not associated and cited as prosecution witness.
PW2 also stated that when he reached the spot, wires had already been cut. He nowhere stated that in his presence, wires were being cut by the accused, rather, stated that Subhash was asking the accused not to cut the wires. But interestingly, in the present case, H.C. Sohan was not examined by the prosecution. Similarly, PW4 H.H.C. Surinder while deposing before the trial Court on 21.7.2010 stated that sickle was produced by the accused, who is present in Court, whereas admittedly Suresh had expired on 15.3.2009 and proceedings against him were dropped by the learned trial Court. Similarly, PW3 Sohan Lal, who demarcated the land categorically, stated that barbed wires were erected on the boundary of khasra numbers 414 and 425. Perusal of Ext.PW1/A copy of sale deed clearly suggests that accused being co-
::: Downloaded on - 15/04/2017 21:10:21 :::HCHP- 17 -
owner of the suit land had only sold 1/26th share in the suit land i.e. 94.57 sq.meters along with his entire share in the residential house .
comprised in khata khatauni No. 89/192 khasra Nos. 413 and part of khasra No.414, to the vendee. Recital made in the aforesaid sale deed clearly suggests that the accused sold 1/26th share of the land out of khasra No. 413 and 414 at the time of partition of the land, meaning of thereby, at the time of alleged occurrence, complainant was not exclusive owner of land in dispute comprising of 413 and 414, rather, accused was also co-owner of the land in question. Similarly, perusal of rt Ext.PW1/G i.e. Jamabandi clearly suggests that land in dispute i.e. khasra No. 413 and 414 was not in exclusive possession of the complainant, rather, accused was co-owner of the same.
17. Similarly, perusal of demarcation report duly proved on record by PW3 Sohan Lal clearly suggests that barbed wires were erected on the khasra Numbers 414 and 425. Perusal of aforesaid documentary evidence, as discussed above, clearly suggests that accused was one of the co-owners of the land comprising khasra numbers 413 and 414 and as such, by no stretch of imagination, he could be termed as trespasser over the land. Hence, this Court sees no illegality and infirmity in the impugned judgments of acquittal passed by the court below, wherein it has been held that proseuciton was unable to prove that accused person committed trespass over the land of the ::: Downloaded on - 15/04/2017 21:10:21 :::HCHP
- 18 -
complainant. Since it stands proved on record that accused persons were co-sharers in the land, it cannot be said that they had committed .
criminal trespass over the land of the complainant. PW3 specifically stated in his cross examination that when he conducted demarcation, he found old fencing on the spot and at that time, no piece of wire was lying there. PW5 Abhishek, son of the complainant himself stated that of pieces of cut wires are still lying at the spot and had not been seized by the police. If the statement of PW5 is read in conjunction with the statement of PW3, who stated that at the time of demarcation, no rt piece of wire was lying, version put forth on behalf of PWs No. 1 , 2 and 5 cannot be accepted, where they stated that accused after entering into their premises, cut the barbed wire. Moreover, no pieces of wires, which were allegedly lying at the spot as reflected in photographs Ext.PW5/B, admittedly clicked by PW5, were never seized by the police during investigation. Similarly, it has come in the statement of prosecution witnesses that there were 4-5 houses of the employees of SDM Court i.e. near the disputed site but it remained un-explained that why independent persons were not associated by the prosecution to prove its case. It is not understood when a person from SDM office, which was admittedly 50 meters' away from the site of occurrence could reach the spot after hearing the noise, why any person from the locality did not hear the noise. Moreover, there is nothing on record ::: Downloaded on - 15/04/2017 21:10:21 :::HCHP
- 19 -
suggestive of the fact that at the time of spot inspection, police ever made any attempt to associate independent persons from the locality .
to ascertain the genuineness and correctness of the complaint made by the complainant. Had the investigating agency associated persons from the locality of the house of the complainant, truth would have come to the fore. It is also not understood that why HC Sohan, who of investigated the case, was not examined. Similarly, another eye witness Munish Kumar was not examined and as such, this Court sees no illegality and infirmity in the impugned judgment, which certainly rt appears to be based upon the correct appreciation of evidence available on record.
18. Consequently, in view of the aforesaid discussion, the instant criminal revision petition is dismissed being devoid of any merit.
6th September, 2016 (Sandeep Sharma),
manjit Judge.
::: Downloaded on - 15/04/2017 21:10:21 :::HCHP