Vijay Kumar And Another vs Om Parkash And Others
2021 Latest Caselaw 1207 j&K

                                                                            Sr. No. 56



        HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                        AT JAMMU

Case: CRAA No. 40 of 2008


Vijay Kumar and another                                    .....Appellant/Petitioner(s)

                                 Through :- Mr. Vijay Gupta, Advocate.
                           v/s
Om Parkash and others                                               .....Respondent(s)

                                 Through :- Mr. RKS Thakur, Advocate



Coram:       HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE


                                  JUDGMENT

1. At request of learned counsel for the appellant, the present criminal

acquittal appeal is treated as revision petition and with the consent of learned

counsel for the parties, the same is taken up for final disposal.

2. The judgment of acquittal dated 23.01.2008 rendered by the learned

Sessions Judge, Jammu (hereinafter to be referred as 'trial Court') in case titled

State v. Om Parkash and others by virtue of which, the respondents have been

acquitted by the learned trial Court has been impugned in the present petition

primarily on the ground that the learned trial Court has not rightly appreciated

the evidence and has jumped to the wrong conclusion thereby acquitting the

respondents and further that the respondents had not led any evidence in

rebuttal so the prosecution story remains un-rebutted so far as respondents are

concerned. It is further stated that the main ground on the basis of which the

respondents have been acquitted is that the FIR was not registered on the same

day but on the subsequent day.

3. Mr. Vijay Gupta, learned counsel appearing for the petitioners has

vehemently argued that learned trial Court has fallen in a grave error of law by

observing that the FIR was required to be registered on the same day when the

information was received by the concerned Police Station with regard to the

commission of offence and further that the statement of the complainant clearly

proved the offence under section 436 RPC.

4. Per contra, Mr. R.K.S. Thakur, learned counsel appearing for the

respondents submits that evidence cannot be appreciated while deciding the

revision petition.

5. Heard learned counsel for the parties and perused the records.

6. Brief facts necessary for the disposal of the present revision petition are

that on 06.04.2003, Vijay Kumar, PW-1 lodged a written report at Police

Station Nagrota wherein he alleged that at about 9:30 last night, the

respondents set into fire and completely burnt the Kullah owned by PW-2-

Govind Singh in which he and Govind Singh were running a Piggery in

partnership. Pursuant to this information, FIR bearing No. 57/2003 was

registered and during investigation it was established that the respondents were

having enmity with the complainant as they used to question as to why he had

started the business in the village land reserved as pasture. In this regard, they

had also filed a case before the Deputy Commissioner and because of this

grudge nurtured by them, they set the Kullah on fire on 05.04.2003 at 9:30.

After the conclusion of the investigation charge sheet for commission of

offence under Section 436 RPC was filed. The prosecution had cited as many

as seven witnesses out of which the prosecution had examined PW-1 Vijay

Kumar, PW-2 Govind Singh, PW-3 Brij Dev Singh, PW-5 Mohammad Sarwar

(Patwari) and PW-7 Zakir Shaheen (SHO P/S Nagrota). Only these five

witnesses were examined. PW-4 Puran Chand was dropped by the prosecution

and PW-6, Mohammad Hussain Kohli (ASI) was dead during the trial of the

case.

7. The first contention of the learned counsel for the respondents is that the

evidence cannot be appreciated while deciding the revision petition. It requires

to be noted that no doubt the evidence cannot be appreciated like appellate

Court while deciding the revision petition but nonetheless, the Court can look

into the evidence so as to determine as to whether the judgment recorded by

learned trial Court suffers from any illegality or not as also the same is proper

or not.

8. In view of this, this Court deems it fit to have the brief resume of the

evidence led by the prosecution.

9. PW-1 Vijay Kumar has stated that on 05.04.2003 at about 9PM when

he and Gobind Singh were on their way back from the migrant camp, they saw

the accused persons setting their Kullah on fire. They asked the accused not to

do so who in turn started pelting stones on them. He further stated that they

called army personnel on spot, who tried to extinguish the fire but failed. As a

result of fire, the loss to the tune of Rs. 60,000/70,000 was caused. He went to

the Police Station for registration of FIR on the same day at 11/11.30 and the

Police came on spot on 5.4.2003 and he lodged FIR on 06.04.2003. He has

proved the contents of the written report marked as PW-VK as also the FIR

that was marked as Exhibit PW-VK/1. He also proved the seizure of the semi

burnt wood vide seizure memo marked as PW-VK/2. He admitted that he was

an employee of water works department and during those days he was posted

at B.C. Road, Bus Stand. At the time of occurrence, the respondents were

accompanied by 2/3 others whom he could not identify. One Havaldar and one

constable had accompanied them and the Police told them to come to Police

Station on next morning. Report was got drafted from one Shiv Nath

Lambardar and was lodged at 9.00 hrs in the morning on 06.04.2003.

10. PW-2 Gobind Singh has stated that on 05.04.2003 at 9.00 PM he and

Vijay Kumar were returning from Migrant Camp and when they reached near

Kullah, they saw accused Bishan and Madan setting the Kullah on fire from

front side and others from the back side. When he raised alarm the accused ran

away. They chased them and the respondents pelted stones. In the meantime,

the Kullah had burnt to ashes. 10/15 army personnel tried to extinguish the fire

but the same could not be extinguished. They suffered a loss of Rs.

60,000/70,000. They went to the Police Station at 11.30 in the night. Two

police personnel came on spot and asked them to produce an application. They

went to the Police Station in the morning and Vijay Kumar produced the

application. The Police came on spot on the next morning and seized the semi

burnt wood. In cross examination, he stated that the land belongs to Vijay

Kumar but the Kullah has been constructed by him wherein they run the

business of Piggery in partnership. He had seen two persons causing the fire

from the front side run away and in the meanwhile, three persons who caused

fire from the backside also run away. One Karan Dev Singh had come on spot

for extinguishing the fire and his hand was also burnt.

11. PW-3 Brij Dev Singh has stated that he is a Contractor and used to go

to village Narayan Khu for digging a Well for Army. On 05.04.2003, while he

was returning from village Narayan Khu at 9/9.15 in the night he had seen

accused persons setting on fire the Kullah belonging to the informant. As soon

as he reached on spot, Gobind Singh and Vijay Kumar also reached there and

made noise. Accused persons pelted stones on them and ran away. An attempt

was made to extinguish the fire. Two brothers of Gobind Singh had also come

on spot and all of them tried to extinguish the fire. He remained on spot and

two police personnel also came on spot, who directed them to come to Police

Station in the morning. In cross examination, he stated that his labour used to

work till 6/7 in the night. He was going by a motorcycle. He stated that there

are some houses at a distance of half kilometer from the Kullah and the Army

camp is also at the same distance. As soon as he stopped his motorcycle he

heard the noise about the fire. At that time the Kullah was burning from

backside and there was no fire towards his side. None except informant and

Gobind Singh had come on spot. 10/12 Army personnel had also come on spot.

12. PW-5 Mohd. Sarwar-Patwari has proved the khasra Girdawari with

regard to Khasra No. 319 and has also proved the copy of the record of rights.

In cross examination, he admitted that he has not prepared the sketch map of

the spot and that accused Om Parkash is one of the co-owners with regard to

the land measuring 399 kanals and 14 marlas.

13. PW-7 Zakir Shaheen has stated that FIR No. 57 of 2003 was

investigated by his subordinate ASI Mohd. Hussain Kohli (PW-6), who is now

dead and the sketch map of the place of occurrence was prepared by the said

Mohd. Hussain Kohli. Seizure memo exhibit PW-VK/2 was also prepared by

him. He had agreed with investigation and subsequently challan for

commission of offence under Section 436 was filed. In cross examination, he

admitted that investigating officer had prepared the sketch map and seizure

memo and had recorded the statement under Section 161 Cr.P.C. under his

supervision.

14. This is only evidence that has been led by the prosecution and after

recording the statement of the respondents under Section 342 Cr.P.C., the

learned trial Court after hearing both the parties acquitted the respondents by

virtue of the judgment impugned. The learned trial Court, while acquitting the

respondents for commission of above mentioned offence, has observed that

there is no explanation as to why the said FIR was not registered on the same

day. So, this is admitted fact that FIR was not registered on the day of

occurrence when the information with regard to commission of cognizable

offence was supplied to the concerned Police Station and rather a perusal of the

FIR reveals that the same was registered on 06.04.2003 at 1300 hrs, whereas

both the PW Nos. l and 2 state that FIR was lodged in the morning on

06.04.2003. Further, perusal of the exhibit PW-VK/1 reveals that Police Station

was hardly at a distance of one and a half km away from the place of

occurrence. The FIR must be lodged with promptitude and any delay if not

explained would create a doubt with regard to the prosecution story and further

from the evidence on record, it is evident that most important witness was PW

Karan Dev Singh whose hands were burnt while extinguishing the fire as

narrated by PW-2 Govind Singh was never associated with the investigation

and further that another independent witness namely, Puran Chand, though was

cited, but was never produced by the prosecution. PW-Brij Dev Singh

contradicts statement of PW-2, Gobind Singh about presence of Karan Dev

Singh on spot and both PW Nos. 1 and 2 do not disclose the presence of PW-

Brij Dev Singh on spot.

15. In light of these circumstances, the learned trial Court acquitted the

respondents. It requires to be noted that this is the admitted case of the

prosecution that there was enmity between the parties and a litigation was also

going on between them before the Deputy Commissioner, as such, false

implication of the respondents could not have been ruled out as rightly held by

the learned trial Court. In the instant case, the learned trial Court has

appreciated the evidence in its right perspective and has come to the conclusion

that the prosecution has not been able to prove the case beyond reasonable

doubt. This Court while exercising revisional powers cannot re-appreciate the

evidence and come to another conclusion if the same is possible on the same

set of evidence.

16. Viewed thus, there is no illegality or impropriety in the judgment

impugned and as such, the judgment passed by the learned trial court is upheld.

The present revision petition is found to be misconceived and the same is,

accordingly, dismissed.

(RAJNESH OSWAL) JUDGE JAMMU 29.09.2021 Paramjeet

Whether the order is speaking : Yes / No Whether the order is reportable : Yes / No