STATE OF HIMACHAL PRADESH Vs. JEWAN PARKASH ALIAS PARKASH KALIA

JUDGEMENT

(1.) IN this appeal, the appellant-State has assailed the judgment of the Additional Sessions Judge (I), Kangra at Dharamshala, passed in Criminal Appeal No.29/93(37/94), decided on 10th December, 1999, whereby he has set-aside the conviction and sentence passed by the Sub Divisional Judicial Magistrate, Amb, in Criminal Case No.39-I-1989 and acquitted the respondents, under Sections 420 and457 read with Section 34 of the Indian Penal Code.

(2.) THE factual matrix giving rise to the present case are that the father of the complainant-deceased Ram Dhan was a tenant of a shop at Chintpurni. The father of respondents Lal Chand was the landlord. After the death of Lal Chand (owner) aforesaid, the respondents had shown their intention to repair the shop under the tenancy of Sh. Ram Dhan. Thus, Lal Chand had offered another shop temporarily to Shri Ram Dhan and his son Ram Pal, who was looking after the business with him. To workout this arrangement, an agreement Ext.PW2/A dated 4.1.1989 was reduced into writing between the respondents and said Ram Dhan. The agreement was allegedly acted upon, consequently Ram Dhan vacated the tenanted premises for repairs and occupied the another shop of the respondents., in which respondent Rajesh Kumar was also doing his business. It is alleged that after about 5-6 days, the respondents threatened to dispossess Ram Pal and his father from the shop, but to avoid that eventuality, on this Ram Dhan tenant had instituted a civil suit against the respondents and obtained a stay order, but they allegedly refused to take notice of the same. On 29.1.1989, the respondents broke open the lock of the shop of tenant Ram Dhan and picked up the articles from the shop and started their own business in that shop. On 30.1.1989, Ram Dhan came in the morning his shop, he found the respondents sitting in the said shop. He reported the matter to the police, on the basis of which FIR Ext.PW3/B was registered. Consequent there upon, the investigation was conducted. Police prepared Site plan Ext.PW14/A and the lock was taken into possession vide seizure memo Ext.PW14/B. The articles of the complainant were removed from the shop, took into possession vide memo Ext.PW3/C, and after completing the investigation, the challan was presented in the court under sections 420 and 457 read with Section 34 of the Indian Penal Code. Finding a prima-facie case against the respondents, they were charge-sheeted. The respondents pleaded not guilty and claimed trial. In order to prove its case, prosecution examined 15 witnesses. The respondents were also examined under Section 313 of the Code of Criminal Procedure. They denied the case and maintain their innocence.

(3.) THE aforesaid order of conviction was carried in appeal by the respondents. Shri Ram Dhan had also filed a civil suit No.27/1989 on 27th January, 1989 against the respondents and their mother Maya Devi, seeking the relief of permanent injunction, on the basis of the Agreement Ext.PW2/A. During the pendency of the suit, Ram Dhan tenant died. His legal representatives were brought on record. A Contempt application under Order 39 Rule 2-A of the Code of Civil Procedure was also filed. The suit and the application aforesaid both were dismissed on 29.2.1996. By way of the additional evidence, the judgment and decree passed by the Sub Judge (Ext.PX) and the order on the application under Order 39 Rule 2-A of C.P.C. ( Ext.PY) were allowed to be taken on record as additional evidence by the first appellate Court.