In the High Court of Punjab and Haryana at Chandigarh Crl. Revision No. 632 of 2003 Date of decision: March 24, 2009 Ramesh Kumar and others ... Petitioners vs. State of Haryana ... Respondent Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. K.K. Aggarwal, Sr. Advocate with Mr. Kapil Aggarwal, Advocate for the petitioners. Ms. Rajat Goyal, AAG, Haryana for the respondent. A.N. Jindal, J Challenge in this petition is to the judgment dated 20.3.2003 passed by the learned Additional Sessions Judge, Rewari, dismissing the appeal filed by the accused-petitioners (herein referred as 'the petitioners') against the judgment dated 17.11.1999 passed by the Additional Chief Judicial Magistrate, Rewari, convicting and sentencing them to undergo rigorous imprisonment for one year and to pay fine of Rs.1000/- each under Section 427 IPC; rigorous imprisonment for nine months and to pay fine of Rs.500/- each under Section 147 IPC; rigorous imprisonment for nine months under each under Section 506 IPC; rigorous imprisonment for six months and to pay fine of Rs.500/- each under Section 323 IPC; and rigorous imprisonment for six months and to pay fine of Rs.500/- under Section 342 IPC. Crl. Revision No. 632 of 2003 -2- *** The brief resume of facts is that on 30.8.1991, Dayanand complainant (herein referred as 'the complainant') reported that on the previous night, he along with his wife and sons Lakhpal, Banke Bihari, Yad Ram and Rajesh Khanna were sleeping. At about 1.30 a.m., the petitioners Satyanaraian, Rajender, Asha Ram, Surender, Mahender, Satbir, Vinod and Babu Lal all residents of Gangacha Jat came there, gave beatings to him and his family and ousted them from Dharamshala. All the household articles and cattle were thrown in the panchayat land. The petitioners tied his hands as well as of his family. Satyanarain, Jaggu and Hansa caused injuries on his left hand elbow, hands and back, whereas, the remaining petitioners caused injuries to his family members. The petitioners also threatened him to eliminate in case they dare to enter the Dharamshala. The occurrence was witnessed by Ram Kumar and Rohtash. On the basis of the aforesaid statement, case was registered and investigated. Completion of the investigation was followed by a report under Section 173 Cr.P.C. The petitioners were charged for the offences under Sections 147, 323, 342, 427, 506 read with Section 149 IPC, to which they pleaded not guilty and claimed trial. The prosecution led evidence and ultimately the trial ended in conviction. The appeal preferred by them also failed. Arguments heard. Record perused. Learned counsel for the petitioners has submitted that the complainant had committed criminal house trespass in respect of Dharamshala, regarding which case FIR No.89 dated 18.8.1972 was registered against him. He was convicted under Section 448 IPC by the Crl. Revision No. 632 of 2003 -3- *** Judicial Magistrate Ist Class, Rewari, vide its judgment dated 6.9.1973 (Ex.D1) and thereafter civil suit filed by him was also dismissed vide judgment dated 11.9.1998 (Ex.D3). In order to prevent the petitioners from taking possession of Dharamshala, a false case has been got registered against them. Having pondered over the argument, it may be observed that the aforesaid arguments are without any merit and go to establish that the possession of the complainant over Dharamshala. Even if a criminal court convicted a person for committing criminal house trespass, but it could not direct the guilty person to vacate the premises. Perusal of the file shows that there is no evidence on the file to establish that Asha Ram alleged power of attorney holder of the owners of Dharamshala and the care taker, ever took any step to take possession of the said Dharamshala. Further more, once the possession of the complainant and his family members is established from the previous litigation, petitioners had no right to attack the complainant at the wee hours in order to take possession. Rather, it establishes that the petitioners wanted to oust the complainant and his family members from the Dharamshala by using force. Testimonies of Lakhpat (PW2), Yad Ram (PW3), Rajesh (PW4), Sharbati (PW5) and Banke Bihar (PW6) are quite consistent and support the prosecution version on all material points. Their testimonies find corroboration from the testimony of Ram Kumar (PW7), an independent witness, who has also supported the prosecution version. Despite lengthy cross examination, nothing could be elicited which may cause dent in the prosecution version. Crl. Revision No. 632 of 2003 -4- *** It is further urged that since the Investigating Officer has not been examined by the prosecution, rights of the petitioners are prejudiced. In this regard, it may be observed that since the Investigating Officer was neither eye witness of the occurrence nor he effected any recovery, therefore, his non examination neither cause any prejudice to the petitioners nor it is fatal to the prosecution case. Even otherwise, the learned counsel for the petitioners has also failed to point out any prejudice, whatsoever, caused to the defence of the accused by non examination of the Investigating Officer. Having gone through the impugned judgment, the same appears to have been passed on appreciation of evidence in right perspective. No illegality much less irregularity has been pointed out or detected, resulting into miscarriage of justice. Both the courts below have given concurrent findings regarding the guilt of the petitioners. As such, I do not find any material so as to disturb the findings of fact returned by both the courts below. In view of the gravity of the offence that the attack was made on the injured persons during night when they were sleeping, therefore, they did not deserve any leniency in the quantum of sentence. Consequently, the revision petition being devoid of any merit is dismissed. March 24, 2009 (A.N. Jindal) deepak Judge