Jammu & Kashmir High Court
Som Dutt And Another vs State Of J&K on 25 August, 2020
Author: Rajnesh Oswal
Bench: Rajnesh Oswal
Sr. No. 501
HIGH COURT OF JAMMU AND KASHMIR
ATJAMMU
(Through Video Conference)
Reserved on: 13.08.2020
Pronounced on: 25.08.2020
CRA No. 9900002/2012
Som Dutt and another .....Appellant(s)
Through :- Mr. G. S. Thakur, Advocate
(on video conference from residence)
V/s
State of J&K .....Respondent(s)
Through :- Mr. A. M. Malik, Dy. AG
(on video conference from residence)
Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
(through Video Conference from High Court, Jammu) Judgment
1. In this appeal, the appellants have questioned the judgment dated 04.02.2012 passed by the learned Sessions Judge, Rajouri, whereby the appellants have been convicted under section 435 RPC and sentenced for a simple imprisonment of six months and also a fine of Rs. 1000/- has been imposed on each of the appellant.
2. The brief facts necessary for disposal of the appeal are that on 29.05.2006 at 16:00 hours, a written complaint was lodged by the complainant, namely, Parshotam Lal S/o. Sh. Sita Ram R/o Lower Danga (Sair), Tehsil, Kalakote. The said complaint reproduced as under:
2 CRA No. 9900002/2012
"To The S.H.O. Police Station Kalakote.
Subject:- Request for lodging FIR against Sh Som Dutt S/o Late Shri Ram Saran, Smt. Darshana Devi W/O Sh. Som Dutt, Mr. Lucky and Shekinder S/O Sh Som Dutt for construction of a Hut on Kh. No. 625 during stay period, Cutting of Wheat crops of Kh. No. 625 & 567 and got fired the wheat crops of Kh. No. 567.
Sir, Respectfully, I Parshotam Lal S/O Sh Sita Ram R/O Lower Danga (Sair) beg to submit the following few lines regarding the subject cited above for your kind consideration and justice please:-
1. That I am ploughing the land of Kh. No. 625 and 567 since last 13 years. Following documents are enclosed herewith.
2. That On 13-02-2006, the aforesaid person has damage my wheat crops (Copy of my application attached).
3. That on 22-05-06 the aforesaid person have cut down my wheat crops of Kh. No. 625 and 567.
4. That on 25-05-06 at about 1700 hours the aforesaid persons set on fire my wheat crops of Kh. No. 567.
Keeping in View the above facts, it is requested to your highness to look into the matter and lodge necessary FIR against the aforesaid persons under law.
Yours faithfully Dated: 29/05/2006 Parshotam Lal S/O Sh. Sita Ram R/O Lower Danga (Sair) Tehsil Kalakote"
3. Pursuant to the said complaint, FIR bearing No. 27/2006 for commission of offence 435 RPC was registered by Police Station, Kalakote against the four accused including the appellants. After the investigation of the case, the challan for commission of offences under sections 435 and 427 RPC was produced against the appellants only and the involvement of others accused was not found in the commission of aforesaid offences. During the investigation it was found that the Survey No. 567, belongs to appellant No. 1 and one Karnail Singh, whereas the land comprising Survey No. 625 is owned by the State but has been recorded in possession of the complainant for the last 3 CRA No. 9900002/2012 many others. It was further stated that the appellants cut the wheat crop from the Survey No. 567 on 22.05.2006 and on 25.05.2006 at about 5.00 PM they put it on fire causing a wrongful loss of Rs. 1500/- to the complainant. The charge for commission of offences under sections 435 and 427 RPC was framed by the trial court on 03.11.2006 and the prosecution was directed to lead evidence. The prosecution has produced witnesses, namely, 1. PW Parshotam Lal, 2. PW Krishan Lal, 3. PW Jeet Singh, 4.PW Jet Raj, 5.PW Amar Singh, 6. PW Maqbool Hussain, 7. PW Rattan Lal Patwari and 8. Shabir Ahmed Kohli, Investigating Officer. Besides examination of the witnesses, the prosecution has also proved and relied upon the following documentary evidence:
a. Complaint dated 24.05.2006 (Ex-PW-PL) filed by the complainant marked by the court of CJM Rajouri directing SHO concerned to take necessary action under law on 25.05.2006.
b. Complaint dated 29.05.2006 (Ex-PW-PL/1)filed by the complainant, Parshotam Lal before the SHO Police Station, Kalakote, pursuant to which FIR was registered.
c. Seizure memo, marked as ExPW-MH, d. Copy of the Khasra Girdawari i.e. marked as ExPW-RL, e. Site plan of occurrence i.e. marked as ExPW-BA.
4. The prosecution evidence was closed and the statements of the appellants under section 342 of Cr. P.C. were recorded in which the appellants denied that they have committed any offence. The learned trial court after hearing the prosecution well as the learned counsel for the defence convicted the appellants for commission offence u/s 435 RPC and acquitted them for commission of offence u/s 425 RPC vide judgment 04.02.2012. 4 CRA No. 9900002/2012
5. Assailing the judgment of the trial Court, Learned counsel for the appellants has vehemently argued that there was a land dispute between the complainant and the appellants and FIR was lodged after four days of the alleged occurrence which further establishes that the appellants have not committed any offence and the FIR was nothing but a ploy only to harass the appellants so that appellants did not asserts their rights on their land. It is further argued that the complainant has been changing his stands time and again which further falsifies the story of the prosecution. Learned counsel for the appellants has pointed out various contradictions between the statements of the complainant as also the other prosecution witnesses. He further submits that the whole case has been manufactured with ulterior motives and appellants have never been involved in any offence. He submits further that the prosecution could not prove that the complainant was ever in possession of the land in question and no documentary evidence has been brought on record to substantiate the contention of the prosecution that the complainant was in possession of the land in question. It is also stated that the appellant No. 1 is the owner in possession of land comprising khasra No. 567. Learned counsel has assailed the impugned judgment on the ground that the learned trial court has not properly appreciated the evidence.
6. Per contra, Mr. A. M. Malik, learned Dy. A. G. appearing for the respondent, submits that the learned trial court has correctly appreciated the evidence and by virtue of its evidence, prosecution has successfully proved its case and, as such, the appellants have been rightly convicted by the learned trial court.5 CRA No. 9900002/2012
7. Heard and considered the arguments of learned counsel for the parties and also scanned the evidence and perused the judgment of the trial court.
8. Before the arguments of the respective counsel are appreciated, it would be imperative to have the brief resume of the depositions made by the witnesses in the court:
9. PW-1 Parshotam Lal states that in the summers of 2006, he had sown wheat crop in land comprising Survey No. 625. Accused forcibly cut the wheat crop and burnt the same. He got the complaint marked from Chief Judicial Magistrate (CJM), Rajouri in the name of SHO of Police Station.
Contents of the complaint are true and the same is marked as ExPW-PL. The accused also burnt his crop of wheat on land comprising Survey No. 567 and the land was state land. He again made complaint against the accused. Police did not take any action for three days. The contents of application are true and the same is marked as ExPW-PL/1.
10. In cross-examination stated that on the day of occurrence only, the application was got marked from CJM and he went to Police Station also but police did not register the case. He had made complaint to police also. It is wrongly mentioned in his statement under section 161 Cr.P.C that land comprising Survey Nos. 567, 625 is owned by Som Dutt. This is correct that the land is bone of contention between accused and complainant. The land of accused is adjacent to the land of complainant and his wheat crop was also burnt in fire. Survey No. 567 is state land and Survey No. 625 is owned by him.
11. PW-2 Krishan Lal stated that on 25.05.2006 at 5, he was going to take water. Land comprising Survey No. 567 and 625 has been in possession of 6 CRA No. 9900002/2012 Parshotam Lal for the last 15 years. Accused had cut the wheat crop from the land. Accused on day of occurrence burnt the crop.
12. In cross-examination stated that Parshotam Lal and SomDutt had no dispute prior to day of occurrence. Wheat crop that was burnt was sown by Parshotam Lal. He cannot say whether accused is owner or tiller of the land. He along with his two brothers is in possession of land comprising Survey No. 625. Crop was cut two days prior to occurrence. Four accused had burnt the crop. This is wrongly mentioned in his statement under section 161 Cr.P.C. that the dispute was going on between the parties since long. He had seen four persons who were burning the crop. Two were throwing the crop and two were burning it. But this is not mentioned in his statement under section 161 Cr. P. C.
13. PW-3 Jeet Singh stated one year ago, he saw the smoke coming out of land of complainant at 5pm and he was at home. But he can't say who burnt the wheat crop. Witness was declared hostile and was cross-examined by PP.
14. In cross-examination by P.P he admits that accused had cut the crop and has burnt the same.
15. In cross-examination by defence counsel stated that he had seen smoke some 200 meters away but he had not seen any one over there. This is correct that accused had also made complaint that complainant had burnt this crop.
16. PW-4 Jeet Raj was declared hostile and he stated that he knows nothing about the occurrence.
17. PW-5 Amar Singh stated that Parshotam Lal-complainant resides near his house. Accused and the complainant has land dispute. Accused had cut 7 CRA No. 9900002/2012 the wheat crop and burnt the same. Occurrence took place on 25.05.2006. Land has been in possession of Parshotam for the last fourteen years.
18. In cross-examination stated that he does not know who is the owner of land and also does not know about the Survey number of the land. He had not told the Survey number to the police. Police has wrongly mentioned Survey No. in his statement under section 161 Cr.P.C. Only three persons were collecting the wheat. They were wife and children of the accused. Occurrence is of 4 or 5. Police had come after 3-4 days of occurrence. He was not called on spot by police. Police recorded his statement on spot. His land is quite far away from the place of occurrence. From his home place of occurrence is not visible. He was standing 500 meters away from the place of occurrence.
19. PW-6 Rattan Lal stated that he had gone on spot and after spot visit he had issued Khasra Girdwari. The same is true as per record and is marked as ExPW-RL.
20. In cross-examination he states that Survey No. 567 of Village Sair is owned by accused and Survey No. 625 belong to State. In possession column, name of Sita Ram is mentioned. Som Dutt also is also recorded in possession of land measuring 9 kanal and 5 marlas in this Survey number (Survey No. 625). Further Som Dutt is also recorded in possession of 16 Kanals of land in this Survey No (Survey No. 625). He cannot say as to which part of Survey No. 625 is in possession of Sita Ram and Som Dutt because this Survey Number contains a big chunk of land and map is also not prepared.
21. PW- 7 Maqbool Hussain stated that I.O. had seized ashes of wheat from spot and seizure memo was prepared on spot. The seizure Memo is marked as ExPW-M H. 8 CRA No. 9900002/2012
22. In cross-examination stated that he does not know as to who owned the land from where the ashes were seized.
23. PW-8 Shabir Ahmed Kohli (IO) stated that he conducted the investigation and proved offence against the accused under section 435/427 RPC.
24. In cross-examination stated that FIR was registered against the four persons. However, two accused were not found to be involved. The litigation is going on between the accused and the complainant.
25. This is all the evidence led by the prosecution and now it is to be seen as to whether the Trial Court has rightly appreciated the evidence and has rightly concluded about the complicity of the appellants in the commission of offence leading to their conviction.
26. The occurrence is stated to have taken place on 25-05-2006 but the FIR was lodged four days after the occurrence. The perusal of Ex PW-PL dated 24.05.2006 would reveal that same was got marked from CJM, Rajouri on 25- 05-2006 by the PW-1 in which he has complained that accused persons who were four in number cut his crops existing on Survey No. 625 on 22-05-2006. The said complaint i.e. Ex PW-PL was never submitted with the police till 29.05.2006 and even with regard to the alleged occurrence stated to have taken place on 25.05.2006, the PW-1 submitted a written complaint i.e., Ex PW-PL/1 only on 29.05.2006 along with Ex PW-PL with the P/S Kalakot i.e. four days after the occurrence. Now it is to be seen whether the delay is satisfactorily explained or not. The PW-1 has tried to explain the delay by asserting that the police for three days did not take any action but this explanation is belied by the Ex PW-PL/1 that itself is dated 29.05.2006. Thus the explanation given by the PW-1 is contrary to record and as such the delay of four days in lodging FIR 9 CRA No. 9900002/2012 remains unexplained. Law is well settled that FIR must be lodged with promptitude and delay if properly explained is not fatal to the prosecution case but when the delay remains unexplained then there may be chances of an exaggerated account of the incident or a concocted story as a result of deliberations and consultations. Reliance is placed upon the judgment of Apex Court in case titled "State of A.P. v. M. Madhusudhan Rao", reported in (2008) 15 SCC 582 and relevant para is reproduced as under:
"30. Time and again, the object and importance of prompt lodging of the first information report has been highlighted. Delay in lodging the first information report, more often than not, results in embellishment and exaggeration, which is a creature of an afterthought. A delayed report not only gets bereft of the advantage of spontaneity, the danger of the introduction of a coloured version, an exaggerated account of the incident or a concocted story as a result of deliberations and consultations, also creeps in, casting a serious doubt on its veracity. Therefore, it is essential that the delay in lodging the report should be satisfactorily explained."
27. Law is well settled that even when there is delay in lodging FIR still the other evidence is also required to be looked into as the delay in lodging FIR may be one of the factor in favour of the accused. From the perusal of the evidence of complainant, it is apparent that the statement of PW-1, complainant, is vague, devoid of necessary details and he goes on changing his stand continuously. There is marked difference between Ex-PW-PL and Ex- PW-PL/1. In the very initial version as depicted in Ex-PW-PL dated 24.05.2006 and was marked by learned CJM, Rajouri on 25.05.2006, there is no mention that the persons named in Ex-PW-PL/1 dated 29.05.2006, have cut down the wheat crop of the complainant in Survey No. 567 and rather there is reference to only Survey No. 625 in Ex-PW-PL. The PW-1 while lodging FIR through his complaint marked as Ex-PW-PL/1 for the first time mentions about the 10 CRA No. 9900002/2012 cutting of wheat crop from Survey No. 567. Yet when he makes a statement in a court, he states that the appellant had cut down his crop standing on Survey No. 625 and burnt the same, which is neither mentioned in Ex-PW-PL nor in Ex-PW-PL/1 and this is not even in consonance with the prosecution case that the crop on Survey No. 625 was also burnt. A vague statement has been made that in summer days his crop was burnt and he is absolutely silent as to whether wheat crop in Survey No. 567 was set on fire on same day when the crop in Survey No. 625 was set on fire or on some other day. The PW-1 has not even stated the day, month and time when his crop was set on fire in his deposition before the trial court. Further the complaint was filed against the four persons but the challan was filed only against appellants, who are two in number. There seems to be a deliberate attempt on the part of the complainant to rope in as many as family members of the appellants in a criminal case and it assumes significance when this is the admitted case that there was a land dispute between the complainant and the appellant No. 1 and litigation was also going on between them. The learned trial court has not considered these vital aspects of the conduct of the complainant in changing his stand at different stages. The law is well settled that when a witness changes his stand at different stages, no reliance can be placed upon his testimony as the same becomes doubtful. Reference is made to the judgment of the Apex Court in case titled "Gajula Surya Prakasarao v. State of A.P", reported in (2010) 1 SCC 88 and the relevant para isreproduced as under:
"22. In the present case there was no critical evaluation of the evidence of PWs 3 and 4, and there was no consideration of material contradictions having crucial bearing on the veracity of the version given by PWs 3 and 4. They went on making improvements from stage to stage which makes their evidence doubtful. It is under those circumstances, we 11 CRA No. 9900002/2012 are compelled to interfere with the concurrent findings of the courts below in order to prevent the miscarriage of justice."
28. Now coming to the other evidence in the form of the statement of the other witnesses, it is found that PW-2 Krishan Lal is the related witness as he is the brother of the complainant. He goes a step further to support his brother by stating that there was no dispute between the complainant and appellant prior to day of occurrence contrary to the statement of PW-1. He further stated that two accused were throwing the crop and other two were setting the same on fire. The witness has denied the knowledge that his statement under section 161 Cr.P.C mentions only about two accused setting the crop on fire and there is no mention of other two accused in his statement. So this witness is not reliable. So far as PW-5 Amar Singh is concerned, he has expressed ignorance about the Survey No. as well as the ownership of the land and he also states that the appellants cut the wheat crop and burnt. It happened on 25.05.2006 where as the prosecution case is that the wheat crop was cut on 22.05.2006 and burnt on 25.05.2006. At one time he states that he was not called on spot and simultaneously states that his statement was recorded on spot. He appears to be chance witness having watched the alleged occurrence 500 meters away from the spot, as his land is quite far away from the place of occurrence and also from his house place of occurrence is not visible. His statement that wheat was cut and burnt on 25.05.2006 is contrary to prosecution story because as per prosecution story the wheat was cut earlier on 22.05.2006 and was burnt on 25.05.2006. If the statements of PW-2 and PW-5 are read together it is found that the PW-2 mentions the presence of 4 persons, two were throwing the crops and two burning where as the PW-5 states that there were three persons who were collecting the Wheat crop and they were the wife and 12 CRA No. 9900002/2012 children of the accused. The trial Court has not considered these vital infirmities, contradictions and inconsistencies in their statements and have relied upon their statements for convicting the appellants. PW-4 Jeet Singh turned hostile but in cross-examination supported the prosecution and yet again in cross-examination by the Defence Counsel admitted that he had only seen the smoke and had not seen anyone on the spot. He admits that appellants had also filed complaint against the complainant that the complainant had set their wheat crop on fire. The trial court has wrongly relied upon the statement of this statement particularly when he had made categorical statement that he had seen none on spot. PW-7 Rattan Lal (Patwari) has proved Giradawari i.e., Ex PW- RL and the perusal of it reveals that land under Survey No. 567 is in possession of appellant no. 1 and one other person. He admits that appellant no. 1is in possession of 9 Kanal 5 Marlas and 15 Kanals of land in Survey No. 625. This witness is of no help to the prosecution but supports the appellants. PW-8 Maqbool Hussain has proved the seizure memo of ashes but he has expressed his ignorance about the Survey No. from where ashes were recovered. The I.O. has not got any report from Patwari as to from which Survey No. and from whose land, the ashes were recovered particularly in view of admission of the complainant that crop of the appellant was also burnt. So the seizure of the ashes is also of no help to the prosecution.
29. In a case titled "Shanthamalleshappa v. State of Karnataka", reported in (2019) 2 SCC 679 the Apex Court acquitted the accused for committing the offence u/s 436 IPC as there were civil disputes pending between the parties who were brothers and the false implication could not be ruled out.
13 CRA No. 9900002/2012
30. In totality of the facts and the circumstances of the case and particularly in view of the fact that the PW-1 and the appellant No. 1 were having dispute with regard to the land comprising Survey No. 625 and 567 situated at village Sair Kalakote, the false implication of the appellants cannot be ruled out. The trial court has neither considered the fact of delay in lodging FIR and has also not considered the infirmities and inconsistencies as noted above, therefore, this Court has come to the conclusion that the trial court has not rightly appreciated the evidence brought on record by the prosecution as the prosecution has failed to prove beyond doubt by any cogent and reliable evidence that the appellants initially cut the wheat crop on 22nd May, 2006 from the land comprising survey No. 625 and 567 at village Sair and subsequently on 25.05.2006 burnt the wheat crop in the land comprising survey No. 567 at village Sair.
31. In view of the above, the appeal filed by the appellants is allowed and the judgment dated 04.02.2012 passed by the learned Sessions Judge, Rajouri in File No. 10/Sessions titled, "State vs. Som Dutt and another" arising out of FIR bearing No. 27/2006 of Police Station, Kalakote is set aside and the appellants are acquitted of the charge and their bail bonds stand discharged.
32. Disposed of accordingly.
(RAJNESH OSWAL) JUDGE Jammu:
25.08.2020 Rakesh Whether the order is speaking: Yes Whether the order is reportable: Yes RAKESH KUMAR 2020.08.25 14:21 I attest to the accuracy and integrity of this document