RSA No.4092 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4092 of 2007 Date of decision 4.7.2011. Prem Dass ...... Appellant. versus Krishna ...... Respondent. Present : Mr. H.R.Bhardwaj, Advocate for the appellant. Mr. Vijay Sharma, Advocatge for the respondent. K.C.PURI . J. This is second appeal directed by Prem Dass -defendant. Suit filed by plaintiff-appellant stands decreed vide judgment and decree dated 4.12.2003 of learned Civil Judge (Junior Division), Patiala. First appeal preferred by defendant stands dismissed vide judgment and decree dated 29.5.2007 by learned Additional District Judge, (Adhoc) Patiala. Feeling aggrieved, defendant has preferred the instant second appeal. Factual matrix comprising the plaint shorn of unnecessary details is that on 17.9.1994 at about 8.30a.m., there arose a dispute between brother of the plaintiff and defendant with regard to diversion of flow of RSA No.4092 of 2007 2 water of khal being used for irrigation of the crops of the brother of the plaintiff and in order to avoid the dispute the plaintiff came back and narrated the entire story to the father of the plaintiff. It is alleged that at about 9.30a.m., the defendant armed with his licences .315 bore gun started abusing to plaintiff and her family and raised lalkara and fired at her brother Mohan Dass. In order to save him, the plaintiff came in front of her brother and a bullet from the gun of defendant hit to upper portion of her right leg and the defendant run away from the place of occurrence with his gun. She was taken to Rajindra Hospital where her leg was operated but there was no recovery and relief to the right leg of the plaintiff and she was taken to Aggarwal Orthopedic Clinic, Patiala again she was treated there. On account of injury and medical and agony physical as well as mental suffered by the plaintiff. She had suffered a loss of Rs.2, lacs. On notice, the defendant filed written statement and took up preliminary objections that the suit is false and frivolous, the suit is not maintainable and that the plaintiff has got no cause of action. On merits, the occurrence as well as all allegations were denied and alleged that the defendant-appellant has been falsely implicated in criminal case under Section 307 IPC. Denying other averments, defendant-appellant prayed for dismissal of the suit. Plaintiff controverted all the allegations of the written statement by way of replication and reiterated those taken in the plaint. From the pleadings of the parties, following issues were framed :- RSA No.4092 of 2007 3 1. Whether plaintiff is entitled to recovery of suit amount by way of damages as alleged ?OPP 2. Whether the suit of the plaintiff is not maintainable ?OPD 3. Whether plaintiff has no cause of action to file the suit ? OPD 4. Relief. The parties led their respective evidence before the trial Court. The trial Court after examining the same and hearing the learned counsel for the parties granted Rs.2lacs with interest to the plaintiff and decided issue No.1 in favour of the plaintiff. Feeling dissatisfied with the said judgment and decree dated 4.12.2003, the appellant preferred first appeal. The first appeal was dismissed by the learned Additional District Judge, (Adhoc), Patiala vide judgment dated 29.5.2007. Still feeling dissatisfied with the aforesaid two judgments of both the Courts below, the present appeal has been filed by the appellant- defendant. I have heard learned counsel for the parties and perused the case file. The appellant in paragraph No.7 of grounds of appeal has stated that following substantial questions of law and facts have arisen in the appeal :- 1. Whether judgments based misreading evidence and ignoring material facts can be sustainable in law ? 2. Whether judgment is not perverse since a reasonable man could not come to the conclusion arrived at by the Courts below ? RSA No.4092 of 2007 4 3. Whether baseless and wrong conclusions drawn from perverse facts would not vitiate the judgments ? 4. Whether judgments do not reveal in-application of mind basing conclusions on sentiments only ? Learned counsel for the appellant has submitted that appellant has been acquitted in a criminal case. The reasoning given for acquittal of the appellant is that prosecution has failed to prove the fact that gun of the appellant has been used in the occurrence. That is a valid reasoning and the trial Court should have been given due importance to that finding. The plaintiff herself has admitted that there are three houses in a row. The defendant-appellant has put a suggestion to the plaintiff-respondent that wall of her house was more than 8-9 feet but she has denied that suggestion and has stated that wall is 1-1½ feet in height. As per the case of the plaintiff, appellant fired from his gun from his house which hit the plaintiff on her thigh. It is not possible that shot fired from the house of the appellant can hit the plaintiff as the height of the wall is 8 -9 feet. So, it is submitted that case of the plaintiff is not proved at all and both the Courts below have committed illegality in decreeing the suit of the plaintiff. Learned counsel for the respondent has supported the judgment of the trial Court. I have given my thoughtful consideration to the rival submissions made by both the sides and have gone through the records of the case. The main ground taken by the learned counsel for the appellant is that shot fired from the house of the appellant cannot hit the plaintiff- RSA No.4092 of 2007 5 respondent. However, there is a finding of fact recorded by both the Courts below that plaintiff received injuries due to shot fired by the appellant. That being a finding of fact cannot be challenged in the regular second appeal. It is not disputed during the course of argument that gun of the appellant was taken into possession and was sent for analysis and the report of the Forensic Science Laboratory proves the use of gun. A suggestion has been put up to the plaintiff's witness that in fact plaintiff received injuries due to firing by brother of plaintiff. However, both the Courts below have rightly observed that statement cannot be accepted being beyond pleadings. The fact that there was enmity between the parties admitted even during the course of arguments. The acquittal of appellant in a criminal case does not affect the right of the plaintiff in a civil suit. It is settled law that the standard of proof in a civil case and criminal case is altogether different. The civil case is decided on preponderance of evidence whereas in a criminal case the prosecution has to prove its case beyond reasonable doubt. The judgment of the Criminal Court is not binding on the Civil Court as held by Hon'ble Supreme Court in Syed Askari Hadi Ali Augustine Imam & Anr. versus State (Delhi Admn.) & Anr. 2009(2) RCR (Criminal) 520. Learned counsel for the appellant could not point out how the trial Court has misread and misinterpreted the evidence on the file. It cannot be said that from the evidence on the file, the conclusion drawn by both the Courts below is not possible. There is nothing on the file that there is non- application of mind by both the Courts below. So, I have no hesitation in holding that no substantial question of law has arisen in the present appeal. RSA No.4092 of 2007 6 In view of the concurrent finding of fact that appellant has caused injuries by his gun/rifle which resulted in permanent disability to the extent of 50% to the plaintiff, no case for interference is made out in the present appeal. No other argument has been advanced on the quantum of damages awarded by the trial Court. Otherwise also, the amount of Rs.2,00,000/- in respect of 50% permanent disability cannot be said to be excessive. In view of the above discussion, the appeal is without any merit and the same stands dismissed with costs. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE July 04 , 2011 sv