1. This order seeks to decide the revision application filed under Section 397/401 of Cr.P.C. which has been preferred against the order of 2nd
Additional Sessions Judge, Sendhwa District Barwani passed in Criminal Appeal No.151/2015 vide judgement dated 15.09.2017 whereby the judgment
of Judicial Magistrate First Class, Khetiya District Barwani passed in Criminal Case No.687/2012 passed on 30.07.2015, acquitting the non-applicant
Arvind from the charges under Sections 447, 427, 506-II of IPC, has been affirmed.
2. The prosecution story in short is that the applicant Chandrapal is the owner of agricultural land bearing Survey No.296/3/2 having area of 2.0 acre
situated in Patwari Halka No.3 in Village Khetiya. This land earlier was owned by Jankibai, the sister of the applicant Chandrapal and he used to
manage this land. The land was later on bought by the applicant in the year, 2013. The non-applicant Arvind had been pressurizing the applicant to sell
the land and compelled the applicant to lodge a police report against him. Subsequently, in the year 2012, the non-applicant Arvind surreptitiously dug
up the field of the applicant and laid a pipe line and when protested, the non-applicant Arvind threatened the applicant. The non-applicant, Arvind
thereafter, brought down number of trees which stood on the land of the applicant and carried them away and caused substantial loss to the applicant.
The applicant could lodge the report only when he approached the Superintendent of Police. Investigation was thereafter carried out and charge-sheet
was filed against the non-applicant Arvind.
3. Charges were framed by the JMFC, Khetiya under Sections 447, 427, 506-II of IPC. Evidence was led in its judgement passed on 30.07.2015 and
the accused Arvind was acquitted. A criminal appeal was filed against this order of acquittal and as already described earlier, the judgment of the trial
Court was affirmed by the appellate Court.
4. The applicant has preferred the criminal revision before this Court seeking recourse to the provisions of Section 397/401 of Cr.P.C. for challenging
the order of acquittal passed by the Appellate Court. In the revision application, it has been stated that both the Courts below have given much
importance to insignificant contradictions and omissions and without appreciating the evidence in right perspective, judgment of acquittal has been
pronounced. It is not necessary that the criminal case be proved only through eye- witnesses account. The applicant has cited number of judgements
of the Apex court in the revision application seeking to set aside judgement of acquittal and praying for convicting the non-applicant Arvind.
5. The question before this Court is whether in view of the grounds contained in the revision application, the judgment of acquittal pronounced by the
Appellate Court can be considered to be perverse and whether the judgment of the Appellate court deserves to be set aside and the non-applicant
Arvind be convicted?
6. It must be stated at the altar that the scope of Revisonal Court is very limited and the Revisional court, not being a Court of facts, would not disturb
the findings arrived at by both the Courts below until and unless such findings are per se perverse and the conclusion arrived at by the Courts below
prima facie appears to be erroneous conclusion.
7. The submissions of both the learned counsels were heard and record of the case was perused.
8. The prosecution has examined six witnesses in all. Apart from the complainant Chandrapal (PW-4) and Patwari Ankesh (PW-3), who had carried
the survey of the disputed land, Tehsildar Jayantilal Purohit (PW-6) to whom the Patwari has submitted his report, two eye-witnesses namely,
Subhash (PW-1) and Gaffar (PW-2) and investigating officer ASI M.S. Sheikh (PW-5) have been examined.
9. The question involved is whether the non-applicant Arvind had trespassed the field of the applicant, laid down pipeline, dug up the field and brought
down the trees and carried away the same and whether he has threatened the applicant with life when protested?
10. The applicant Chandrapal (PW-4) has stated that the land in question earlier was owned by his sister Jankibai and non-applicant Arvind used to
pressurize him to part with the land by selling the same to Arvind. He further states that Arvind had taken possession of the land at that point of time,
but when report was lodged against him, Arvind had relinquished the possession and had not only apologized to him, but had also given him a sum of
Rs.30,000/- by way of damages. However, the witness has not filed copy of the earlier report lodged by him and no document pertaining to giving
damages of Rs.30,000/- has also been exhibited by him. The witness further states that about 33-34 months earlier from the date of deposition, the
non-applicant Arvind attempted to lay the pipeline after digging the field belonging to the applicant and when the applicant protested, the non-applicant
Arvind threatened him with life and told him that the applicant would be buried in the ditch excavated for laying pipeline. Thereafter, the non-applicant
Arvind brought down the trees and took the same away. The applicant submits that agricultural land has been rendered infertile due the laying of
pipeline beneath the land by the non-applicant Arvind.
11. There is a contradiction in the examination-in-chief of this witness. He states that non-applicant Arvind had attempted to dig up the field for laying
pipeline and thereafter states that this land has been rendered infertile due to pipeline which has been laid down by the non-applicant Arvind. In para-5
of the cross-examination, this witness admits that he did not see any person laying pipeline. He also admits that even his sister Jankibai did not see any
person laying out any pipeline. This is again a contradictory evidence since in examination-in-chief, he had stated that he saw the applicant attempting
to lay down pipeline but in cross-examination, he submits that he did not see anyone laying down pipeline. In para-10, the witness states that he cannot
state as to the length of the pipeline which runs under his field and the number of pipes which have been laid down. He also does not know as to how
deep pipelines have been laid beneath the upper crust of his field. It would be pertinent to note that Jankibai, who was the owner of the field at the
relevant point of time has not been examined.
12. It appears from the complaint of the applicant that allegation against the non-applicant Arvind was that he had laid down pipeline beneath the field
of the applicant in order to irrigate his own field. However, the applicant/complainant, in para-11 admits that he does not know as to whether the non-
applicant Arvind had laid the pipeline for his own use. Thus, there are contradictions in the depositions of the applicant. Chandrapal (PW-4), who
admits that he did not see as to who had laid down the pipeline and also having no knowledge as to whether the pipeline so laid down was carried
forward by the non-applicant Arvind. In para-4 of his cross-examination, this witness admits that there is no field belonging to the non-applicant Arvind
in the vicinity of the field of the applicant.
13. The applicant states that at the relevant point of time, he used to plough the field of his sister but he has not produced any witness including his
sister or any document regarding such arrangement. As already seen, on one hand, he says that non-applicant Arvind had attempted to dig up his field
to which he had protested but goes on to state in cross-examination that the pipeline had infact been laid down by Arvind.
14. Supporting the evidence of applicant Chandrapal (PW-4), Patwari Ankesh (PW-3) states that he had carried out survey of the questioned field on
the orders of Tehsildar and had indeed found that non-applicant Arvind had laid down pipeline in the field of the applicant without seeking any prior
permission and was irrigating his own field. He states the he had carried out the panchnama after inspection and submitted the same to Tehsildar. He
submits that he has only produced photocopies of such panchnama. The prosecution has not produced the original panchnama which could have been
produced as evidence and no application for leading secondary evidence has been filed in order to adduce the photocopies of panchnama as secondary
evidence. This witness although states that he had found that non-applicant Arvind was irrigating his own field through pipeline laid down beneath the
field of the applicant, however, in cross-examination, he does not appear to have knowledge regarding particulars of the land belonging to non-
applicant Arvind. He also admits having no knowledge as to the location of the land of the non-applicant Arvind. In para-6, he states that he does not
know as to since when the pipeline has been laid down beneath the field of the applicant. He admits that he had not attempted to dig up the field in
order to see as to how may feet underneath the upper crust of the field, pipeline had been laid. He categorically denies knowledge as to how many
pipes were laid down and who had done so. In para-7, he further admits that he does not know the particulars of the field in which the pipeline was
laid down and where the pipeline was leading to. Thus, the evidence of this witness also does not evoke any confidence in the prosecution story. In
examination-in-chief, he admits to have carried out inspection and seen the pipeline laid down by the non-applicant Arvind for irrigating his field, but in
cross-examination, he states that he did not dig up the field to see the pipeline and he does not know about the location, position and survey number of
the field of the non-applicant Arvind. Further, he cannot even tell as to the particulars of the field to which the pipeline was being carried. It is already
seen that the panchnama prepared by him has also not been exhibited.
15. Two other witnesses Subhash (PW-1) and Gaffar (PW-2), have turned hostile. These are the witnesses who as per the prosecution story had
accompanied Patwari for carrying out inspection in the field of the applicant.
16. Subhash (PW-1) has denied suggestion that non-applicant Arvind had dug up field of the applicant and had laid down pipeline. Gaffar (PW-2) has
also not supported Patwari Ankesh (PW-3). The evidence of Tehsildar Jayantilal Purohit (PW-6) is based on the report of Patwari and therefore is
insignificant. Thus, prosecution has not been able to prove that it was the non-applicant Arvind who had dug up the agricultural field of the applicant
and had laid down pipeline.
17. Chandrapal (PW-4) further submits that non-applicant Arvind had brought down trees which stood erected on his field and thus caused severe
damage to the property of the applicant. In para-6 of his cross-examination, applicant states that the trees which were cut down were Mango trees,
Guava trees and Hina shrubs. However, he admits that he has not given particulars of the trees in his report (Exhibit-P/3). He admits that he has no
document to show that trees were growing on his field. In para-7 of his deposition, he is not in a position to state as to the date on which trees were so
cut. He states that wood was carried by the non-applicant Arvind in a tractor but he is not in a position to give particulars of the tractor including
registration number. He admits that in Exhibit-P/6 and P/7 which are the khasra documents, there is no mention of any trees growing on the land. In
para-9, he has been confronted with the spot map (Exhibit-P/4) in which the spots from where the trees were cut down have not been depicted. The
witness is not in a position to state as to why such spots have not been depicted in the spot map. He admits in para-12 that he did not state in the
report Exhibit-P/3 that the wood was loaded in a tractor and carried away.
18. Patwari Ankesh (PW-3), although has stated that the non-applicant Arvind had laid down pipeline in the field, categorically denies that trees were
brought down in the field of the complainant.
19. M. S. Sheikh (PW-5), who is the Investigating Officer in para- 10 admits that he did not find any tree stumps in the field of the complainant. Thus,
there is no evidence to the effect that trees had stood earlier on the field of the applicant which had been cut and taken away by the non-applicant
Arvind. He, in para-6 admits that he did not make any attempt to locate the pipeline by excavating the field. Regarding threat meted out to the
applicant Chandrapal (PW-4) by the non-applicant Arvind, the witness in para-12 admits that allegation regarding such threat does not find place in his
report (Exhibit-P/3). The Investigating Officer admits that the accused had not mentioned regarding any threat given to him by the non-applicant
Arvind and hence, such allegations are not contained in Exhibit-P/3. Thus, allegation regarding applicant threatened by the non-applicant Arvind also
could not be proved. It is thus quite clear that no error was committed by the Courts below in pronouncing judgement of acquittal. This criminal
revision also consequently fails and stands dismissed in above terms.
20. A copy of this order along with the original record of the case be sent to the concerned Court for due compliance.
