State Of J&K vs Harsh Wardhan
2021 Latest Caselaw 319 j&K

     HIGH COURT OF JAMMU AND KASHMIR AT JAMMU


                                          SLA No. 105/2013
                                          c/w
                                          CRAA No. 185/2013


                                          Pronounced on: 17th.03.2021


State of J&K                                   .... Petitioner/Appellant(s)

                               Through:- Mr. Aseem Sawhney, AAG

                         V/s

Harsh Wardhan                                          .....Respondent(s)

                               Through:- Mr. Mayank Gupta, Advocate

CORAM : HON'BLE MRS. JUSTICE SINDHU SHARMA, JUDGE
                               JUDGMENT

1. This application seeking leave to file an appeal is against order

dated 29.07.2013 passed by the learned Principal Sessions Judge, Jammu.

2. The charges against the accused are that the accused-Harsh

Wardhan alias Bitu was charged under sections 436/447/427 RPC. The

Sessions Judge dismissed the challan and acquitted the accused on the

ground that complainant was not in possession of land measuring 25

Kanal 7 Marla under Khasra No. 961 at Village Chinore.

3. The allegation against the accused was that he set on fire thatched

hut which the complainant alleged to have constructed. The occurrence is

alleged to have taken place on 11.08.2003. the trial court relying on the

statement of Patwari-Raj Kumar who was summoned by the court under

Section 540 and PW's Sawal Singh, Yeshpal Singh and Arjun Singh and

report of the Patwari's EXP-YP held that the disputed land was in

possession of the accused, acquitted him. It is a case in which

the Investigating Officer should have examined the revenue record during

the investigation. It is unfortunate that this requirement was ignore by the

Investigating Officer as well as the Superintendent of Police, who was

monitoring the investigation.

4. The Investigating Officer has ignored the report of the Patwari

Halqa Chinore which EXPW-RK stating therein that Khasra No. 961 is

recorded in possession of Harshwardhan S/o Om Prakash. No efforts was

made by the police to examine the report of Patwari. There is another

report of Naib Tehsildar dated 01.05.2004 in which it is stated that

accordingly to the Patwari, Harshwardhan is in possession of Khasra No.

961. He is also in possession of Khasra No. 964 and 967, which are

contiguous to the dispute land. It is also a fact that the Jamabandi for the

year 1999 Bikrami of Khasra No. 961 shows that one Nandu s/o Beli

Ram was the tenant at as will of this land in which the Kulla was

constructed by the complainant. The offence under Section 436, cannot be

established, since there is no evidence supporting the possession of the

plaintiff and the Investigating Officer has tried to suppress the revenue

record by not examining the Patwari of the village. In Gopal Krishnaji

Ketkar v/s Mohamed Haji Latif and others, Air 1968 SC 1413,

Hon'ble Supreme Court has held that;

"But it is open to a litigant to refrain from producing any documents that he considers irrelevant, if the other litigant is dissatisfied it is for him to apply for an affidavit of documents and he can obtain inspection and production of all that appears to him in such affidavit to be relevant and proper. If he fail, so to do, neither he nor the Court at his

suggestion is entitled to draw any inference as to the contents of any such documents."

Moreover, unless the charge under section 447 is proved as

alleged no case of criminal trespass can be made out and consequently

charge under section 436 must fail for want of possession of the

complainant.

5. It appears that complainant has tried to create evidence by

construction of alleged thatched hut Kulla and the possibility of his

influencing the police cannot be ruled out. But how this land came to be

owned by him is not borne from the record because there is nothing in the

statement of Kuldeep Singh as to how he claims the ownership, moreover

it is admitted by him that he is not the sole owner of the land because he

says Madan Singh, Rajinder Singh, Balbir Singh, Raghubir Singh, Raj

Sing, Jagdev Singh, Sukhdev Singh and Rakesh Singh are also the co-

owners.

6. The evidence has been properly appreciated by the trial court, but

it appears that the Law Department has mechanically directed filing of the

appeal. The offence under section 436 is essentially based on the question

of possession unless the complainant proved possession on the land, the

same is not made out.

7. The occurrence being of August, 2003, the challan was produced

only on 04.02.2004 though proviso to section 173 provides that

investigation in such cases has to be completed within two weeks and if

not completed the matter had to be reported to Sr. Superintendent of

Police who has to issue fresh instructions for completion of investigation.

8. This Special procedure was prescribed by substituting the proviso

to section 173 by the amending Act 1978 with the application of Central

Code of Criminal Procedure. Provision has changed because no such

procedure has been prescribed in the Central Act.

9. The arguments forwarded by Mr. Aseem Sawhney, learned AAG

is that the definition of mischief does not provide the burning valuable

security as a condition precedent for convicting the offender is contrary to

the explanation because valuable security means something which has

value. There is not even a single witness who have stated as to how much

cost which is caused to the possession sine qua non for committing

offence has not been proved, therefore, it is not a fit case for granting of

leave to State under proviso to section 417 for filing appeal against

judgment 29.07.2013.

10. This Special Leave to file Appeal is, accordingly dismissed as a

consequence CRAA No. 185/2013 shall stand dismissed.

(Sindhu Sharma) Judge JAMMU 17th .03.2021 SUNIL-II

Whether the Judgment is speaking : Yes Whether the Judgment is reportable: Yes

SUNIL KUMAR 2021.03.19 12:26 I attest to the accuracy and integrity of this document