Crl. Revision No.774 of 1999 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Revision No.774 of 1999. DECIDED ON : 18.2.2009 Kamal Kumar Petitioner VERSUS Sukhdev Singh and others Respondents. CORAM HON'BLE MR. JUSTICE JORA SINGH Present: Mr. Arun Palli, Sr.Advocate, with Mr.Jai Bhagwan, Advocate, for the petitioner. Mr. Arihant Jain, Advocate, for the respondents. JORA SINGH,J. Kamal Kumar-petitioner has filed this revision against the judgment dated 12.2.1999, rendered by Judicial Magistrate, Ist Class, Patiala in First Inrformation Report No. 27 dated 27.5.1994 under Sections 452,506, 427, 380, 148 and 149 of the Indian Penal Code., Police Station Kotwali,Patiala vide which accused Sukhdev Singh and others were acquitted of the charge levelled against them. Prosecution story, in brief, is that Kamal Kumar complainant is resident of Patiala and is running shop of gold smith in Arna Barna Chowk, Patiala. Shop was owned by Mehar Chand and was on rent with the complainant. Earlier complainant was carrying on the business of Crl. Revision No.774 of 1999 2 Tailoring.From the last one year, complainant started the business of Jewellery and was paying Rs.14/- per month as rent. On 24.5.1994, Raj Kumar son of Mehar Chand came to the shop and requested the complainant to vacate the same, failing which he (Raj Kumar) threatened to eliminate him. On 26.5.1994 at 6 P.M., after closing the shop, complainant had gone to Kaithal. On 27.5.1994, at 8 A.M,. complainant came back from Kaithal, then his brother Chander Shekher told that last night Raj Kumar son of Mehar Chand, his brother in law, Sukhdev Kumar, Saleem and Gurbakshish Singh along with some other persons came at 9.30 P.M. Roof of the shop was demolished. Furniture cabin etc., were damaged. Gold/Silver ornaments from the counter worth Rs.1,11,975/- were stolen. Statement of Kamal Kumar was recorded by Assistant Sub Inspector Rajinder Singh at about 2 P.M. After making endorsement, statement was sent to the Police Station, on the basis of which formal First Information was recorded. After completion of investigation, the accused were challaned. Accused were charged under Sections 452, 506, 427, 380, 148 and 149 of the Indian Penal Code to which they pleaded not guilty and claimed trial. In order to substantiate its case against the accused, the prosecution examined PW-1 Kamal Kumar, PW- 2 Chander Shekher, PW-3 Hari Mohan, PW-4 ASI Rajinder Crl. Revision No.774 of 1999 3 Singh and closed its evidence. After close of the prosecution evidence, the accused were examined under Section 313 Cr.P.C. to explain the allegations levelled against them. Accused denied all the allegations and claimed to be innocent. After hearing learned Public Prosecutor for the State, defence counsel and from the perusal of the evidence, respondents-accused were acquitted of the charge levelled against them. Feeling aggrieved against the judgment dated 19.2.1999, revision was preferred by Kamal Kumar. I have heard learned counsel for the revisionist, learned counsel for the respondents-accused and have gone through the evidence on the file very carefully and thoroughly. Learned counsel for the revisionist argued that Mehar Chand was owner of the shop. Father of revisionist was in possession as a tenant. Revisionist was carrying on a business of Gold smith. On 26.5.1994, revisionist had gone to Kaithal after closing the shop. On the next day i.e. 27.5.1994 when came back, then found roof of the shop demolished. Gold/Silver ornaments from the counter were found stolen. Furniture cabin etc was damaged. Occurrence was witnessed by Chander Shekher and Hari Mohan, but trial Court did not appreciate the evidence on file. Respondents-accused were acquitted of the charges on the allegation that no eye witness was present but approach of the trial Court is not correct Crl. Revision No.774 of 1999 4 one, when Chander Shekher and Hari Mohan categorically stated that respondents-accused had demolished the shop and had stolen valuable articles. Mr. Arihant Jain, Advocate, for the respondents- accused argued that against acquittal of the respondents- accused, no appeal by the State. No eye witness who had seen the respondents-accused while committing the crime. No record regarding Gold/Silver ornaments was kept in the shop. No stolen article was recovered from the respondents- accused. Evidence on the file was rightly appreciated. First submission of the learned counsel for the revisionist is that occurrence was witnessed by Chander Shekher and Hari Mohan and the finding of the trial Court that there was no eye witness is not correct one. Submission of the learned counsel for the revisionist seems to be not correct one. Occurrence was on the intervening night of 26-27.5.1994 at about 9.30 P.M. Revisionist came to know about the occurrence on the next day i.e. 27.5.1994 at about 8 A.M., whereas the report was lodged with the police at about 2 P.M. No explanation why this delay. According to the story, occurrence was witnessed by Chander Shekher and Hari Mohan. Chander Shekher appeared as PW-2 and in examination-in-chief stated that on 26.5.1994 at about 9.30 P.M., while going to his house, one child told that some one has demolished the shop. After that Hari Mohan met him and reported that luggage/ articles from the shop were taken away. Roof of the shop was also demolished. Matter was Crl. Revision No.774 of 1999 5 reported to the police. Police came to the spot. Accused were found busy in demolishing the roof. Some other police officials came to the spot. He had inquired from the accused as to why they have demolished the shop. Accused were taken to the Police Station. When he had gone to the shop, then articles from the shop were found missing. In cross examination, he admitted that he is the real brother of the complainant. Kamal Kumar was informed on telephone at 11 P.M. 20/25 persons were present at the shop at the time of occurrence. Civil litigation was pending between the appellant and the accused party. At about 9.30 P.M, Hari Mohan informed him about the occurrence. He was present in his house at the time of occurrence. That means, Chander Shekher is not the eye witness. In fact, he was informed by Hari Mohan. At the time of occurrence, Chander Shekher was present in the house. Chander Shekher after inspecting the spot had lodged report with the police but First Information Report was registered in view of the statement of Kamal Kumar dated 27.5.1994 at 2 P.M. There was civil litigation amongst the parties but Chander Shekher has supported the complainant, being his real brother. Hari Mohan is the next witness claimed to be the eye witness to the occurrence. Hari Mohan in examination- in-chief stated that on 26.5.1994 at 9.30 P.M., he was present at the roof of his shop. Some children of the locality informed him that his shop was dismantled. From the roof of his house, he had noticed dust omitting from his shop. He Crl. Revision No.774 of 1999 6 had informed Chander Shekher that accused party has demolised their shop. He was not in a position to walk properly. After some time, he had gone to the spot. Four persons were found apprehended by the police. In cross examination, he admitted that he got training from Tulsi Ram father of the complainant. During the life time of Tulshi Ram, he was working with him and after his death, started working with Kamal Kumar. Report was lodged by Chander Shekher. He was accompanying him. He had not gone to the spot but had seen the occurrence from the roof of the shop. Statement of Hari Mohan is also not helpful to the revisionist because he was the resident of Glory Gate, Patiala, whereas the place of occurrence was situated in Arna Barna Chowk, near Mahavir Mandir, Patiala. Hari Mohan, was not present at the spot but he had witnessed the occurrence from the roof of his shop. As per Hari Mohan occurrence had taken place on 9 P.M. Some children had informed Hari Mohan about the occurrence. Lastly, he admitted that he had accompanied the complainant to lodge report. Chander Shekhar was also with them. His statement was recorded on the day of occurrence but the First Information Report was recorded on the next day. So, no question of recording of the statement of Hari Mohan on the same day i.e. 26.5.1994. Hari Mohan is very much interested in the success of this case because earlier he was working with the father of the complainant. Later on he started working with the complainant. Hari Mohan was occupying the house of Om Crl. Revision No.774 of 1999 7 Parkash as tenant. House occupied by Hari Mohan was not near the place of occurrence, so from the roof of tenanted premises, Hari Mohan was not expected to witness the occurrence. As per evidence, Hari Mohan, Chander Shekher and the complainant had lodged report with the police . Police party came to the spot. Respondents-accused were arrested and were taken to the police station, whereas file shows that on the next day i.e. 27.5.1994, when Kamal Kumar came back from Kaithal then lodged a report (Ex.PA). At that time, Hari Mohan and Chander Shekher were not with the complainant. Respondents-accused were arrested while present on the spot but evidence shows that on the day of occurrence, respondents-accused were not arrested. In fact, they were arrested on 28.5.1994. According to the story, Gold/ Silver ornaments worth Rs.1,11,975/- were stolen from the shop after damaging furniture/counter. Roof of the shop was also demolished. But no documentary proof on the file as to how many gold/silver ornaments were lying in the shop. Without account books the complainant was not expected to carry on business of gold smith. Account books could easily be produced to show that such and such articles were stolen. No case of the complainant that account books were also damaged in the incident. No stolen article was recovered from the respondents-accused. In fact, there was a dispute amongst the parties regarding rent/eviction of the shop. Rent was only 14/- per month. When the landlord requested the Crl. Revision No.774 of 1999 8 complainant to vacate the shop, then respondents-accused were implicated in the present case simply to pressurize them not to request to vacate the rented shop. No photograph on the file that roof of the shop was found dismantled. No other contention was put forward. All discussed above shows that there is no infirmity and illegality in the impugned judgment and the same is upheld. Revision without merit is, hereby, dismissed. 18.2.2009 ( JORA SINGH ) Anoop JUDGE