IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Criminal Appeal No. 245 of 2002. Judgment reserved on: 6.1.2009 Date of Decision: 8.1.2009 State of H.P. … Appellant. Versus. Bishan Dass & Ors. … Respondents. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for Reporting? yes For the Appellant(s): Mr Rajesh Mandhotra, Deputy Advocate General. For the Respondent(s): Mr. I.D.Bali, Sr. Advocate with Mr. A.S.Mehta, Advocate. Deepak Gupta, J This appeal is directed against the judgment dated 26.11.2001 passed by the Sub Divisional Judicial Magistrate, Rampur Bushehr, whereby he acquitted all the accused of having committed offences punishable under Sections 379, 430 IPC read with Section 34 IPC and under Section 3 of the - 2 - Prevention of Damage to Property Act, 1984 (hereinafter referred to as the Act). On 3.3.1999, PW3 Sanjiv Kumar, Assistant Engineer, Irrigation & Public Health (IPH) Department Sub Division, Kumarsain, filed a written complaint Ex.PW3/A with the Police Station, Kumarsain. In this complaint, it was mentioned that a water supply scheme had been newly constructed by IPH Department for covering the left out villages/hamlets of Gram Panchayat, Baragoan. This scheme was sanctioned after obtaining NOC from the Gram Panchayat and contract for its construction was awarded to Mr. Anurag. The construction was completed on 10.2.1999 and thereafter supply of water was made to the villages including village Darvi. According to this complaint, the complainant had received an intimation from the Junior Engineer, IPH Section of Baragoan dated 1.3.1999 that on 28.2.1999 PW1 Magni Ram had informed the JE that the newly - 3 - constructed source tank constructed by the IPH Department was damaged/dismantled by the residents of village Teshan on 28.2.1999 at 3.30 p.m. After receipt of the complaint, the complainant had himself visited the spot along with his field staff and found that the intake chamber of phase-dal, side-wall and tap of the tank have been broken and GI pipes have also been damaged. According to this complaint, some steel, manhole cover, pipes etc. had also been stolen. It was alleged that the accused had broken the tank and stolen the material. The value of the damage caused to the tank was assessed at Rs. 11,500/-. On the basis of this complaint, FIR was lodged and investigation was carried out. After investigation, challan was filed in Court and the accused persons were tried for having committed offences mentioned hereinabove. After trial, all the accused persons have been acquitted. Hence the present appeal. - 4 - At the out set, it would be pertinent to mention that the main points which weighed with the trial Court in acquitting the accused were that the recovery of the stolen items had not been proved; that there were 27 persons who had broken the water tank but only four were made accused; that no witness had deposed against the accused that they had broken the water tank and had stolen the manhole cover, GI pipes etc; that two eye witnesses, namely, PW1 Magni Ram and PW2 Tej Raj were interested witnesses; and that the prosecution had failed to prove on record as to what was the amount of expenditure incurred for construction of the water tank. PW1 Magni Ram is a resident of village Darvi which was to be a beneficiary under the said scheme. He states that there is a source of water near his land. The source is in the Government land. According to him, the tank was constructed in his land. The tank was to be the source for supply of water to people of - 5 - village Darvi. This tank was connected with water pipes to their village. He states that on10.2.1999, the construction was completed and taps were fitted in their village and water supply started. According to him, on 28.2.1999, at about 3.30 pm the tank was uprooted by the four accused persons who are all resident of village Teshan. According to him, a number of other persons accompanied the accused but only the four accused had uprooted and damaged the tank. As a result, the supply of water to their village was stopped. He states that the villagers of Darvi have a right to get water from the source and they have been doing so since time immemorial. He states that on 28.2.1999 itself, he had informed about the occurrence to the Up-Pradhan of the Gram Panchayat and the Junior Engineer. In cross-examination, he states that he is residing in this village for the last 50 years and has been taking water from this source only. He states that earlier they used to fill water in buckets. - 6 - He admits that water from this source is taken to irrigate fields of Teshan village. He denied the suggestion that no tank was ever constructed or damaged. A suggestion was put to him that the co- villagers are now taking water from this source by buckets. He admitted this suggestion and stated that this is because the tank has been broken by the accused. PW2 Tej Ram is also a resident of Darvi. His statement is virtually identical to the statement of PW1 and he has also clearly named the four accused as the persons who broke the tank. He states that the supply of water was made only through ½” GI pipe to the village and this did not in any manner adversely affect the irrigation supply to the village of the accused. He further states that they have been using the water from this source from the time of their ancestors. There are only six families in their village and three taps were fitted. In cross-examination, he admits that water to - 7 - irrigate the fields of Teshan village is taken from the same source. Previously also there were disputes with regard to the supply of water from this source. He further admits that a comprise was arrived at between the parties whereby they had agreed that the villagers of village Darvi would only use the water for drinking purposes. A suggestion has been put to him that a Kuhal (water channel) emanates from this source which is also maintained by the IPH department. He has admitted this suggestion. He states that the tank was built over a period of two months. He denied the suggestion that no tank was erected. PW3 is the complainant Sanjiv Kumar who at the relevant time was posted as Assistant Engineer, IPH, Sub Division, Kumarsain. He states that in the month of November, gravity supply scheme of Gram Panchayat Baragoan was constructed. The Panchayat had issued the N.O.C. According to him, this work was done through the contractor Mr.Anurag and on - 8 - completion of the work, the villagers were given water. On 1.3.1999, he was informed by the Junior Engineer about the incident. On 3.3.1999, he has made a written complaint to the police. He went to the spot along with the police also. In cross-examination, he clearly states that the construction of the scheme was started in November, 1998 and the plan was prepared in August itself. An amount of Rs.1, 88,000/- was sanctioned for the purpose of construction. A sum of Rs. 56,000/- was given to the contractor in cash and material of the value of the remaining amount was supplied to the contractor. He states that the record in this behalf is available with the department. He has denied the suggestion that no scheme was constructed at the spot. PW4 is the Junior Engineer. He has stated that on 28.2.1999 he was informed by PW1 Magni Ram that the accused persons and other villagers of village Teshan had damaged the tank and had stolen the pipes - 9 - etc. He has assessed the damage at Rs. 11,000/-. He states that this scheme was started after obtained NOC from the Pradhan, Gram Panchayat. He was not an eye witness to the incident. He states that he did not go to the spot on 28.2.1999 itself because he was informed about the incident after 5 pm. He, however, informed his senior officials about the said incident on the next day. It is pertinent to mention that no suggestion has been put to this wintess that the tank was not constructed by the IPH department. PW5 Lal Chand is the witness to the recovery of the pipes, manhole cover etc. He turned hostile and recovery has not been proved. PW6 is only a formal witness. The evidence of the prosecution was closed and the investigating officer has not been examined. As far as the offence under Section 379 IPC is concerned, I am of the considered opinion that the learned trial Court has rightly held that the same has not been proved. Recovery has not been proved and - 10 - even the two main eye witnesses have also not made any statement with regard to the theft of any items. Even the offence under Section 430 IPC in my opinion has not been proved. The prosecution was bound to lead evidence to show that the villagers of village Darvi had a right to use the water from the said water source. The prosecution must prove that there has been unlawful and intentional interference on the part of the accused with the admitted or proved rights of the complainant. (See: Banwari Karmakar versus Gosto Behary Karmaker, AIR 1920 Cal.835). Where there is nothing to show that the complainant had any legal right to the water, the offence is not established. As far as the offence under Section 3 of the Prevention of Damage to Public Property Act, 1984 is concerned, the learned trial Court has totally misdirected itself. Section 3 of the Act reads as follows:- - 11 - “3. Mischief causing damage to public property. (1) Whoever commits mischief by doing any act in respect of any public property, other than public property of the nature referred to in subsection (2), shall be punished with imprisonment for a tern) which may extend to five years and with fine. (2) Whoever commits mischief by doing any act in respect of any public property being- Any building, installation or other property used in connection with the production, distribution or supply of water, light, power or energy; (b) Any oil installations; (c) Any sewage works; (d) Any mine or factory; (e) Any means of public transportation or of telecommunications, or any building, installation or other property used in connection therewith, Shall be punished with rigorous imprisonment for a term which shall not be less than six months, but which may extend to five years, and with fine: Provided that the Court may, for reasons to be recorded in its judgment-award a sentence of imprisonment for a term of less than six months.” A bare perusal of this Section shows that whoever committs mischief by destroying or damaging public property, is liable for punishment. In case the property is used in connection with production and distribution or supply of water then the minimum punishment prescribed is six months which may extend upto 5 years with fine. The court for reasons to be recorded may award sentence for a period of less than six months. In the present case, both PW1 and PW2 have clearly stated that the four accused damaged the water tank. There is - 12 - ample evidence on record that this water tank had been constructed to supply water to the hamlets/villages to which there was no water supply. The learned trial Court has not believed the prosecution case on the grounds enumerated hereinabove. As far as non-examination of the investigating officer and non-recovery of the manhole cover, GI pipes etc is concerned, the same may be a ground to acquit the accused for the offence punishable under Section 379 IPC. However, the learned trial court has totally misread the evidence on two aspects. According to the trial Court, the prosecution witnesses admitted that there were 27 persons who had broken the water tank. This is factually incorrect. The prosecution witnesses state that a number of persons were present but it is only PW4 who stated that there were 27 persons. He was not an eye-witness. The other witnesses have categorically stated that it is the accused alone who damaged and broke the water tank though other persons were present. The learned trial court further held that no witness has deposed against the accused persons that they broke the water tank. This is also factually incorrect. Both PW1 and - 13 - PW2 have clearly stated that it was the accused persons alone who had broken the water tank. The learned trial Court also erred in discarding the statements of PW1 and PW2 only on the ground that they were interested witnesses. In a dispute of this nature between the two villages, every witness could be termed to be an interested witness. There can never be any so-called independent witnesses in such a case. Other than the fact that PW1 and PW2 belong to village Darvi, they have no enmity with the accused. If they had to make a false statement, they could have easily roped in all the residents of the village Teshan. The statement of these two witnesses inspires confidence. They have spoken the truth. Their statements could not have been discarded. Lastly, the learned trial Court rejected the case of the prosecution on the ground that the amount of expenditure incurred on the tank has not been proved and the contractor was not examined. Four witnesses of the prosecution clearly stated that the water tank had been constructed. It was also stated by all of them that the scheme had started functioning from 10.2.1999. PW3 had also given details of the - 14 - expenditure incurred on the scheme. PW4 also gave details of the same. No doubt, a suggestion has been put to PW1, PW2 and PW3 that no water tank was constructed but it is important to note that no such suggestion was given to PW4. In my opinion, it stands proved on record that the water tank had been constructed and the same was damaged by the four accused persons. Therefore, they are clearly guilty of damaging public property and have committed an offence within the meaning of Section 3(2)(a) of the Prevention of Damages to Public Property Act, 1984. This section provides that the imprisonment may be upto 5 years and there may also be a fine but the minimum sentence prescribed is 6 months unless the court gives reasons for awarding a lesser sentence. In the present case, I find that the incident had occurred in the year 1999. Almost 10 years have elapsed. The trial as well as the present appeal went on for ten long years. Therefore, the accused in my opinion have suffered a lot and should not be sentenced to undergo any period of incarceration. However, they cannot be let off lightly. The Act provides that fine can also be imposed. In my opinion, interest of justice will be met if each of the accused is held - 15 - liable to pay a fine of Rs. 7500/- each. In default of payment of fine, the defaulter shall be liable to undergo simple imprisonment for a period of six months. In view of the aforesaid discussion, the appeal is partly allowed and the judgment of the learned trial Court is set aside in so far as the offence under Section 3 of the Act is concerned. The accused are sentenced as aforesaid. The accused are directed to deposit the fine with the learned trial Court within a period of 90 days from today failing which, the learned trial Court shall ensure that they shall undergo imprisonment imposed upon them. January 8, 2009 (Deepak Gupta ), J. s.