IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.Appeal 516 of 2001 Decided on 3.7.2008 State of H P …….Appellant Versus Om Parkash and others ……. Respondents Coram: The Hon’ble Mr. Justice Surinder Singh.J. Whether approved for reporting ?1 . For the appellant : Mr. J. S. Guleria, Law Officer. For the Respondents Mr. Ajay Sharma, Advocate. Surinder Singh, J. (oral) 1. Respondents were convicted by the learned trial court for offences punishable under sections 147, 447, 435, 506 and 149 of the Indian Penal Code but were released on probation, giving them benefit of section 4 of the Probation of Offenders Act to maintain peace and be of good behaviour on their executing bonds to the tune of Rs.5,000/- each. They were also directed to deposit Rs.1,000/- each, as compensation, to be disbursed to the injured. 2. Respondents felt aggrieved by the judgment of conviction and sentence and filed an appeal before the court of Sessions, which was 1 Whether the reporters of Local Papers may be allowed to see the judgment ?.yes. 2 allowed. The conviction and sentence passed by the learned trial court was set aside. 3. The State felt aggrieved by the impugned judgment, passed by the appellate court and filed the instant appeal on the grounds that the learned Appellate Court did not appreciate the evidence of the prosecution in its right perspective. Statement of the complainant Pritoo, Mangla Devi and her husband inspires confidence. Material witnesses have supported the case of the prosecution. The Appellate Court has wrongly disbelieved them. 4. Shri J.S.Guleria, learned Law Officer, appearing for the State, has forcefully argued on the above lines and submitted that the learned Appellate Court has given findings on the whims and fancies. If the evidence on record is reappraised, there are grounds to convert the acquittal and restore the judgment passed by the trial court. 5. Shri Ajay Sharma, learned counsel for the respondents, while supporting the judgment of acquittal, passed by the learned Appellate Court, has argued that the testimonies of the aforesaid witnesses are required to be looked into in the light that both the parties were in litigation with respect to the land over which the shed in question is alleged to have been burnt by the respondents. Against this background, the first Appellate Court has rightly appreciated their evidence. The very presence of the complainant and the alleged eye witnesses on the spot was rightly held to be doubtful. 3 6. I have given my thoughtful consideration to the rival contentions of the learned counsel for the parties and reappraised the evidence on record. 7. The allegations against the respondents, on which they were put on trial, were that on 14.11.1997 at about 10.15 p.m. they formed an unlawful assembly in furtherance of their common intention entered into the land bearing khasra No.291/282 over which the complainant Pritto had raised a temporary shed. She was residing therein and had collected some material for carrying out further construction on the aforesaid land. It was pitch dark. Respondents entered into the land in dispute and set the temporary shed on fire. Pritto Devi and Mangla Devi on seeing the respondents and few other persons fled away from the spot. Respondents had also threatened them with dire consequences. The matter was reported to the police by PW1 Pritto Devi. FIR Ex.PW10/B was registered. Police visited the spot, prepared the site plan Ex.PW10/D, took photographs Ex.PA to Ex.PF, burnt pieces of bamboo vide memo Ex.PW2/A, six sheets of tin and 11 angle irons vide memo Ex.PW1/B, which were given on spurdari to Prito Devi and Prem Nath. The land in question was got demarcated from PW7 Dharam Singh Field Kanungo. He submitted his report Ex.PW7/A along with Aksh Shajra Ex.PW7/D and Jamabandies Ex.PW7/B and Ex.PW7/C. 8. Statement of the witnesses were recorded. After completing the investigation, the case was presented against the respondents in the court for trial. 4 9. Finding a prima-facie case against the respondents under the aforesaid sections, they were charge sheeted to which they pleaded not guilty and claimed trial. 10. Prosecution relied upon the statements of (PW1) Prito Devi, Mangla Devi (PW5) and her husband Prem Nath (PW4) and Field Kanungo Dharam Singh (PW7). 11. It is pertinent to note that the alleged incident had taken place on 14.11.1997 and the Field Kanungo (PW7) Dharam Singh had visited the spot on 23.11.1997 and demarcated the land of the complainant and Prem Nath at the instance of police but he did not mention in his report Ex.PW7/A that on the land in dispute there was a shed which was alleged to be burnt nor the place has been pin pointed in the Aksh Shajra Ex.PW7/D even there is no reference to burnt ash etc. which should have been present on the spot. Report of the Field Kanungo also suffers from many discrepancies. Firstly, that demarcation was got done by the police in the absence of the respondents, it cannot be used against the accused. The presence of the respondents was essential for the another reason also because PW1 Pritto Devi and Prem Nath (PW4) in their cross-examination have stated that there was a dispute going on about the land in question regarding possession; secondly, the report of the Field Kanungo does not reveal anything about fixing of pucca points. Since he did not adhere to the instructions of the Financial Commissioner with respect to the demarcation, the said report looses its significance. 5 12. The case of the prosecution becomes doubtful as at the relevant time it was pitch-dark. According to (PW5) Mangla Devi on seeing respondents and 5-10 other persons she along with Prito had fled away from the spot, which means that they did not see as to who had gutted the shed into fire. Another circumstance, which makes the prosecution story doubtful is that PW1 Pritto Devi as also Mangla Devi have stated that a temporary shed over the land in dispute was constructed by them which was kept for use for their stay but police did not find any beds or utensils on the spot. PW5 Mangla Devi also stated that on the alleged day of occurrence she was present on the spot along with Pritto and two labourers, but in order to substantiate her version, neither those labourers were examined nor their names have been deposed. Hence the presence of PW1 and PW5 on the spot becomes doubtful. PW4 Prem Nath was also not present there. Photographs referred to above reveals that there were pucca residential houses in the vicinity, but it looks very strange that no one had seen the incident and even the Investigating Officer made no efforts to examine any inhabitant of the aforesaid houses in order to lend strength to the prosecution case. After examining the photographs, it is difficult even to infer that the shed had gutted into fire, as alleged. 13. Respondents have examined Smt. Manju Sood and Tarlok Chand, neighbourers, where the land in dispute is situated. Both of them have stated that there was no shed on the spot and nothing was found burnt there. 6 14. The prosecution in its initial story under section 173 Cr.P.C., states that investigation revealed that one Durga Dass was the owner of the land in question which was being cultivated by Sh.Om Parkash (respondent) he was conferred the proprietary rights qua half share. Durga Dass had sold another half share in the year 1987 to the complainant (PW1) Pritto Devi and in the year 1988 dispute arose between Om Parkash and Prito regarding the cultivation of the aforesaid land. The complainant party had taken demarcation before the alleged incident and tried to take possession of the part of the land which gave cause to the civil litigation, which was pending. 15. Against the aforesaid background and on the strength of the standard of evidence put forth it is not a case of conviction of the respondents for the offences charged. The appellate court has rightly appreciated the evidence of the prosecution in the light of the defense raised. The findings arrived at by the appellate Court cannot be termed as perverse as the same are borne out from the record. Accordingly the appeal sans merit and is dismissed. 16. The respondents are discharged of their bail bonds, entered upon by them at any stage of the proceedings of the trial. July 3,2008 (Surinder Singh),J. (D)