Criminal Appeal No. 919-SB of 1997 1 In the High Court of Punjab and Haryana, at Chandigarh. Criminal Appeal No. 919-SB of 1997 Date of Decision: 21.4.2008 Sucha Singh and Others …Appellants Versus State of Haryana …Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Kuldip Sanwal, Advocate for the appellants. Mr. Ashok Kumar Jindal, Assistant Advocate General, Haryana, for the State. Mr. S.R.Hooda, Advocate for the complainant. Kanwaljit Singh Ahluwalia, J. Criminal Appeal No. 919-SB of 1997 has been preferred by Sucha Singh son of Ishar Singh, Jasbir Singh son of Sucha Singh and Kulbir Singh son of Dalip Singh, all residents of Village Azimgarh, Police Station Cheeka, Tehsil and District Kaithal. Case FIR No.7 dated 3.1.1991 was registered at Police Station Cheeka against them for an offence under Section 436 read with Section 34 IPC. They were tried by the Court of learned Additional Sessions Judge, Kaithal, who found them guilty for the offence under Section 436 read with Section 34 IPC and sentenced them to undergo Criminal Appeal No. 919-SB of 1997 2 three years rigorous imprisonment and a fine of Rs.3,000/- each, and in default of payment of fine to further undergo one year rigorous imprisonment. Appellant Jasbir Singh and Kulbir Singh are son and nephew, respectively, of Sucha Singh, appellant. Case FIR No. 7 dated 3.1.1991 was recorded at the instance of one Joginder Singh that on 3.1.1991 at about 6.15 P.M. Joginder Singh made a statement Ex.PA before Pala Ram, Assistant Sub Inspector, Incharge of Police Station, Mehmoodpur. Joginder Singh stated that he is Sarpanch of village Azimgarh. One Rajeshwar Kapoor was having a land of about 23 kanals 4 marlas at Patiala Road, Samana. The said Rajeshwar Kapoor was residing at Delhi and had given power of attorney to him. On 7.9.1990 the power of attorney was registered at the office of Sub Registrar, Delhi. Joginder Singh learnt that regarding the girdawari of land wrong entries have been entered in the name of Prithi Singh son of Amar Nath, resident of village Siwan. The complainant had preferred an appeal for correction of khasra girdawari in the Court of learned Sub Divisional Magistrate, Guhla, which was decided in his favour on 5.11.1990 and the girdawari entered in the name of Prithi Singh were cancelled. It is further stated that he had constructed a house on the land and had covered the roof with the guarders. Since he was residing in Dera with family, he had occupied one kotha, where one bed, two kassis, three empty drums and two wooden planks measuring about seven feet were lying in the construction made at the land in dispute. He has stated that he used to come, where the construction has been made, and above said goods were lying and goods were under lock and key. It is further stated that Criminal Appeal No. 919-SB of 1997 3 he had asked Angrej Singh, Lamberdar, and Sukhchain Singh, his nephew to do the supervision of the land as he suspected that Prithi Singh may not take illegal possession of the same. It has been stated that yesterday morning i.e. on 2.1.1991 at 6.00 A.M. the accused with the consultation of M.L.A. Buta Singh had broken the door and removed the guarders of the roof and had set on fire wooden planks and wooden cot. It is stated that since he was not present this occurrence was witnessed by Angrej Singh and Sukhchain Singh. After investigation of the FIR, report under Section 173 Cr.P.C. was submitted. Appellants were charged by the Court of learned Additional Sessions Judge, Kaithal, that on 2.1.1991 at about 6.00 A.M. in the area village Azimgarh under the jurisdiction of Police Station Guhla, in furtherance of their common intention to commit mischief by setting on fire a cot, a bed, and two wooden planks besides the kotha of Joginder Singh, they committed an offence under Section 436 IPC. The appellants pleaded not guilty and claimed trial. PW.1 Hari Kailash, Sub Inspector, was posted as Station House Officer, Guhla stated that he had presented the report under Section 173 Cr.P.C. PW.2 Devi Chand, Sub Inspector, has stated that he had received statement Ex.PA from Pala Ram, Assistant Sub Inspector and on the basis of which formal FIR Ex.PA/1 was recorded. PW.3 Baldev Krishan was Patwari of village Azimgarh. He had prepared the scaled site plan. He stated that at the point ‘C’ there is no house in the scaled site plan Ex.PB. Point ‘C’ is the place from where Angrej Singh and Sukhchain Singh are said to have witnessed Criminal Appeal No. 919-SB of 1997 4 the occurrence. Pala Ram, Assistant Sub Inspector was not examined as he had died. PW.4 Mange Ram, Assistant Sub Inspector, who was posted at Police Station Mehmoodpur identified the signatures of Pala Ram, Assistant Sub Inspector on the statement Ex.PA, rough site plan Ex.PC, memos Ex.PD and Ex.PE. Joginder Singh appeared as PW.5. He reiterated the allegations leveled by him in the statement before the police Ex.PA. He stated that he had gone outside his village on 1.1.1991 and when he returned on 3.1.1991 he was informed by Angrej Singh and Sukhchain Singh about the occurrence. He admitted in cross-examination that out of 23 kanals and four marlas of land, seven kanals and eight marlas of land was purchased by his son and other persons. Though initially he denied that Bachan Singh and Angrej Singh were marginal witness of sale deed, later when he was made to identify his signatures on sale deed Ex.DA, he admitted that Angrej Singh had signed as marginal witness. It was further admitted by PW.5 Joginder Singh that Prithi Singh son of Amar Nath had filed civil suit for permanent injunction and had obtained stay against him on 25.8.1990. He further admitted that on 29.8.1990 when the Local Commissioner had visited the spot there was no kotha at the spot. He further admitted that on 1.12.1990 his counsel and counsel for Prithi Singh made a statement to maintain status quo. He further admitted that later a compromise was arrived in the Panchayat and Prithi Singh agreed to withdraw the suit. PW.5 Joginder Singh further admitted that he and his son Yadvinder Singh were Criminal Appeal No. 919-SB of 1997 5 arrested in December 1990 in a case of terrorist activities. He denied the suggestion that there was no kotha on the disputed land. Sukhchain Singh appeared as PW.6. He admitted that PW.5 Joginder Singh is his maternal uncle and till about two and a half years he used to stay with his maternal uncle. He further stated that his maternal uncle had obtained a room of Nasib Singh on rent for the purpose of his residence, which was in front of the disputed land. PW.7 Angrej Singh was Lamberdar of the village. He stated that on 1.1.1991 he had gone to meet Sukhchain Singh and stayed there for night. He admitted that his house is at a distance of one and a half kilometers away from where allegedly Sukhchain Singh was staying. PW.8 Ashok Kumar is the Photographer. The accused denied the allegations and pleaded that they have been falsely implicated. I have heard Mr. Kuldip Sanwal, Advocate, counsel for the appellants, Mr. Ashok Kumar Jindal, learned Assistant Advocate General, Haryana, for the State and Mr. S.R.Hooda, Advocate, counsel for the complainant. The very allegation in itself that appellants had put on fire a cot, a bed and two wooden planks suggests that a false case has been lodged against the appellants to settle the civil dispute. It has come in evidence that owner of the disputed land Rajeshwar Kapoor was an absentee landlord residing at Delhi. He had executed power of attorney in favour of PW.5 Joginder Singh and the land was in possession of one Prithi Singh son of Amar Nath. It has also come in evidence that seven kanals and eight marlas of land was purchased by the son of PW.5 Criminal Appeal No. 919-SB of 1997 6 Joginder Singh. PW.7 Angrej Singh is the marginal witness of the same. PW.6 Sukhchain Singh is the nephew of PW.5 Joginder Singh. It has also come in evidence that Prithi Singh had filed a suit for permanent injunction and had obtained stay from the Civil Court on 25.8.1990. It has also come in evidence that the spot was visited by the Local Commissioner and at that time there was no construction, therefore, nothing could be stored which is alleged to have been burnt by the appellants. It has been also admitted that on 1.12.1990 learned counsel for the parties agreed to maintain status quo. No reliance can be placed upon the testimony of PW.6 Sukhchain Singh and PW.7 Angrej Singh. They are interested witnesses. It has come in evidence that PW.5 Joginder Singh had criminal antecedents. Therefore, it could not be ruled out that land was purchased by PW.5 Joginder Singh to oust the persons who were having possession from an absentee landlord who was residing at Delhi. It has also come in evidence that an appeal had been field for correction of khasra girdawari. Prosecution has miserably failed to prove as on what date possession from Prithi Singh was delivered to PW.5 Joginder Singh. Therefore, all allegations have been cooked up and the appellants have been falsely implicated to put pressure by way of criminal litigation to get possession over the land. This Court is also conscious of the fact that alleged occurrence had taken place on 2.1.1991 at 6.00 A.M. Statement was made to the police on the next date i.e. 3.1.1991 at 3.30 P.M.. Subsequently, case was registered. There is a delay in lodging of the report. Criminal Appeal No. 919-SB of 1997 7 Taking into consideration civil litigation, failure of prosecution to prove delivery of possession to PW.5 Joginder Singh, fact that PW.6 Sukhchain Singh and PW.7 Angrej Singh are interested witnesses and there was pendency of civil litigation, and there was delay in lodging of report, false implication of the present appellants cannot be ruled out. Therefore, they are entitled to benefit of doubt. Resultantly, the present appeal is accepted. Conviction and sentence imposed upon the appellants is set aside and they are acquitted of the charges. (Kanwaljit Singh Ahluwalia) Judge April 21, 2008 “DK”