CR.A/126/2002 of STATE Vs DINA NATH on 26 December 2008

Criminal Appeal No. 126 of 2002.

Date of decision:26.12.2008.

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State of H.P. .. ..Appellant Versus Dina Nath .. ..Respondent

Coram:

The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting ? No For the Appellant: Mr.Rajesh Mandhotra, Dy.A.G.

For the respondent: Mr.R.K. Gautam, Senior Advocate with Mr.Mehar Chand, counsel for the respondent.

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Deepak Gupta, J.(oral)

This appeal is directed against the judgment dated 3.7.2001 passed by the learned Additional Chief Judicial Magistrate, Ghumarwin, District Hamirpur, H.P. in Criminal Case No.335/1 of 99/94 whereby he acquitted the accused of having committed offences punishable under Sections 447 and 506 IPC.

The undisputed facts are that the complainant Yash Pal and his mother and the accused are owners of the land adjoining each other. It is also not disputed that there is long standing civil litigation between the parties. In fact the accused had been restrained by an order of the Civil Court from interfering in the land of the complainants. According to the complainant he and his mother are the owners in possession of the land in question. According to him the accused and his family members in order to encroach upon and grab the land of the complainant started digging the land of the complainant and they tied a buffallo on the said Lang and also dumped some debris on the said land. The complainant made a complaint to the police. Police registered the FIR and got the matter investigated. During the investigation PW-4 Rattan Chand, Kanungo demarcated the land and submitted his demarcation report Ext.PW-4/A.

The learned trial Court came to the conclusion that no reliance could be placed on the aforesaid demarcation report and since the entire case of the prosecution hinges on the same he acquitted the accused for the offence under Section 447 IPC. As far as the office under Section 506 IPC is concerned he held that the same had also not been proved.

A perusal of the so called demarcation report Ext.PW-4/A clearly shows that this is not a demarcation report in the eyes of law. When a Revenue Officer demarcates any land he has to follow the instructions issued by the Financial Commissioner to the State of Himachal Pradesh. These instructions are contained in Chapter 1-M of Volume-I of the High Court Rules and Orders. According to these instructions the Revenue Officer is to fix three pucca points and demarcate the land with the help of a ‘jarib’. The demarcation report in this case is totally silent as to whether any pucca points were fixed or not. Without establishment of pucca points there can be no proper demarcation.

While appearing in Court, no-doubt PW-4 has stated that he had fixed the pucca points but his oral testimony cannot be relied on when there is no mention of fixing of such pucca points in the demarcation report. It would also be pertinent to mention that PW-4 who is the Kanungo has admitted that he is the client of PW-1 who is a lawyer. In a criminal case involving his own lawyer it would have been batter for the Kanungo to have asked his superior office to depute some other official to demarcate the land. His demarcation in favour of his own lawyer cannot be relied or trusted.

As regard the offence under Section 506 the complainant who is an Advocate had filed a complaint in writing and in the complaint he had given the names of the accused and other persons and had submitted that ‘they had threatened him’. The threats were not attributed to the accused himself. There is no cogent or reliable evidence with regard to the threats.

The learned trial Court rightly acquitted the accused. I find no merit in the appeal which is accordingly rejected. Bail bonds furnished by the accused are ordered to be discharged.

December 26, 2008. ( Deepak Gupta ), PV Judge