Judgment:
ORDER
Sunil Kumar Garg, J.
1. This revision petition has been filed by the accused petitioner against the judgment dated 1-5-1995 passed by the learned Special Judge, NDPS Cases, Jodhpur by which the learned Special Judge accepted the appeal of two accused persons, namely Ramswaroop and Smt. Jasoda and they were acquitted of the charges for offence under Sections 147, 341 and 454, I.P.C. but appeal of the accused petitioner Kana Ram was partly allowed in the manner that his conviction for offence under Sections 147, 341 and 454, I.P.C. was maintained but instead of sentencing him, he was ordered to be released on probation and the judgment and order dated 10-11-1994 passed by the learned Addl. Judicial Magistrate No. 3 by which he convicted and sentenced the accused petitioner and Smt. Jasoda and Ramswaroop for offence under Sections 147, 341 and 454, , I.P.C. was modified to the above extent. The learned Special Judge also set aside the order of the learned Judicial Magistrate by which he directed that the possession of shop in question be handed over to Jafrool Hasan and PW 2 Abdul Wahab. The Judicial Magistrate sentenced the accused petitioner, Ramswaroop and Smt. Jasoda as under :
-------------------------------------------------Offence Sentence awardedunderSection-------------------------------------------------147, I.P.C. 6 months' R.I. and a fine of Rs.300/- each in default to furtherundergo 1 month's S.I.341, I.P.C. 15 days' S.I. and a fine of Rs.200/- each in default to furtherundergo 5 days' S.I.454, I.P.C. I year's R.I. and a fine of Rs.500/- each in default to furtherundergo 3 month's S.I.All the sentences were ordered to runConcurrently-------------------------------------------------
2. It arises in the following circumstances :
i) On 22-8-1987, Jafrool Hasan lodged a written report Ex. P/5 with the Police Station Udaimandir, Jodhpur stating that he used to carry on the business of repairing scooter and his partner was PW 2 Abdul Wahab and for that, they had taken a room from the accused appellant Kana Ram on rent and they were doing that business of repairing the scooter for last one and half years. But on 22-8-1987 in the evening, the accused appellant Kana Ram, his son Ram Swaroop and wife Smt. Jasoda and two to three more persons came there and he was not allowed to enter the room and they put their own lock and by breaking the wall from back side, the scooters were thrown out from the shop.
3. On this report police chalked out regular FIR Ex. P/16 and started investigation.
4. After investigation, the police filed challan against the accused petitioner and two more persons, namely, Ramswaroop and Jasoda.
5. On 6-2-1990, the learned Judicial Magistrate framed charges for offences under Sections 147, 341 and 454, , I.P.C. against the accused petitioner, Ram Swaroop and Smt. Jasoda, who pleaded not guilty and claimed trial.
6. After conclusion of the learned trial Magistrate through his judgment and order dated 10-11-1994 convicted the accused petitioner and Smt. Jasoda and Ramswaroop for offence under Sections 147, 341 and 454, , I.P.C. and sentenced them as stated above. Further more the learned Judicial Magistrate passed an order under Section 456, 7:08 PM 1/28/2006. that since the room in question was in the tenancy of Jafrool Hasan and PW 2 Abdul Wahab, therefore, the accused persons were ordered to hand over possession of the room within two months.
7. Against the judgment and order dated 10-11-1994 passed by the learned Magistrate, the accused petitioner, Ram Swaroop and Smt. Jasoda preferred an appeal before the learned Sessions Judge, Jodhpur which was transferred to the Court of Special Judge, NDPS cases Jodhpur and the learned Special Judge while acquitting the accused Ramswaroop and Smt. Jasoda, maintained the conviction of the accused petitioner and instead of sentencing him, he was released on probation. The learned Special Judge also set aside the order of the learned Judicial Magistrate by which he directed the accused persons to hand over the possession of the shop in question to Jafrool Hasan and PW 2 Abdul Wahab.
8. Aggrieved from the judgment dated 1-5-1995, the present revision petition has been filed.
9. In this revision petition following submissions have been made by the learned counsel for the accused petitioner :
(i) That the findings of conviction for offence under Section 147, 341 and 454, , I.P.C. are erroneous one as Jafrool Hasan was not produced in this case and in absence of his statement, the case of the prosecution should not have been believed and accepted.
(ii) That all the eye witnesses PW 4 Prakash Singh, PW 6 Ajij Khan, PW 7 Mohd. Rafiq, PW 8 Om Prakash and PW 9 Virendra Pratap have been declared hostile.
(iii) That when on the same evidence, two persons, namely, Ramswroop and Smt. Jasoda have been acquitted, therefore, the accused petitioner also deserves to be acquitted.
(iv) That when the learned appellate Court set aside the order by which the learned Judicial Magistrate ordered that the room be handed over to Jafrool Hasan and PW 2 Abdul Wahab, meaning thereby that the whole case of the prosecution came to an end, in such circumstances, conviction of the accused appellant for the said offences is without any evidence and should be set aside.
(v) That relationship between landlord and tenant has not been established and from this point of view also, findings of conviction are erroneous one.
10. On the other hand, the learned P.P. submits that the judgment of the learned Special Judge does not suffer from any basic infirmity and illegality and hence the same deserves to be confirmed one.
11. I have heard both and gone through the record of the case.
12. It may be stated here that in this case, the case of the prosecution as is found in the report Ex.P/5 lodged by Jafrool Hasan is that he and his brother were tenant in the shop of accused petitioner Kana Ram and possession was taken over forcibly by him. There is no dispute in this case that Jafrool Hasan has not been produced by the prosecution and in absence of that, the case of the prosecution becomes weak and comes in doubt on the point whether the allegations made in the report Ex. P/5 were true or not.
13. PW 2 Abdul Wahab is the brother of lodger of first information report who states that the shop in question was broken by 8 to 9 persons and this shop was on rent of Rs. 210 per month. In cross-examination this witness has admitted that PW 3 Abdul Rafiq Khan, PW 8 Om Prakash, Lakhan Singh and Jafrool Hasan came on the spot and he also received injuries but that was superficial in nature.
14. PW 3 Abdul Rafiq Khan is another witenss who states that the shop in question was on rent with PW 2 Abdul Wahab and Jafrool Hasan. In cross-examination, he admits that he is brother of PW 2 Abdul Wahab. The rest witnesses PW 4 Prakash Singh, PW 7 Mohd. Rafiq, PW 8 Om Prakash and PW 9 Virendra Pratap have been declared hostile and do not support the case of the prosecution.
15. It has also been brought on record that PW 2 Abdul Wahab and his brother Jafrool Hasan took the shop with the help of PW 6 Ajij Khan, PW 6 Ajij Khan has been examained and he does not say that the shop in question was taken by PW 2 Abdul Wahab and Jafrool Hasan on rent and he has been declared hostile. But he only states that there taking shop on rent took place. Thus, from his statement, the fact that the shop in question was taken on rent by PW 2 Abdul Wahab and his brother Jafrool Hasan is not established and this statement does not help the prosecution and the Judicial Magistrate has wrongly placed reliance on it.
15A. PW 5 Laxman Singh is the IO of the case and he has also stated that during investigation he asked from the complainant about the rent note and receipt etc. but none of them has been produced in this case.
16. The question which arises in the facts and circusmtances of this case is whether the findings of conviction against the accused petitioner can be sustained or not.
17. The judgment of the learned Special Judge suffers from basic infirmity in so many aspects. He has acquitted two accused persons, but the learned Special Judge has not mentioned the reasons for which he found the case proved against the accused petitioner and further more when he has set aside the order of handing over possession of the shop to the complainant, meaning therey the possession remained with the accused petitioner Kana Ram, how the findings of conviction can be sustained. Apart from this, in absence of statement of Jafrool Hasan who lodged the report Ex. P/5, the case of the prosecution cannot be said to have been proved by the prosecution beyond reasonable doubt.
18. The Court is aware that revisional jurisdcition of this Court should be exercised in exceptional cases only when there is some glaring defect in the procedure or a manifest error on the point of law resulting in miscarriage of justice. But it is not possible to lay down the criteria for determining such exercise. The High Court does not ordinarily review the evidence in criminal revision against conviction by both the courts below unless there is some glaring irregularity or serious illegality committed by both the Courts below in reading the evidence.
19. As stated that above, in the present case both the Courts below committed irregularity and illegality in reaching to the conclusion that the accused petitioner committed the offence charged against him as there is no evidence to prove the fact that the complainant who has not come forward in witness-box was the tenant of the accused petitioner and further more all the independent witnesses have not support the case of the prosecution and further more, PW 6 Ajij khan has nowhere stated that he was instrument in renting out the shop to the complainant and further in absence of rent note and rent receipts, the case of the prosecution that the complainant was tenant cannot be said to be proved. Further when the possession of the room in question remained with the accused petitioner, the whole case of the prosecution comes to an end. In these circumstances, the findings of conviction against the accused petitioner suffers from basic irregularity and illegality and thus this Court in the above circusmtances is interferring in the findings recorded by the Courts below against the accused petitioner.
20. In criminal revision, the High Court can interfere erroneous finding recorded by the courts below when they have convicted the accused petitioner on no evidence or misread the evidence. The present case is a case of no evidence and misreading of evidence.
21. For the reasons mentioned above, this revision petition is liable to be allowed and the judgments of Courts below by which they convicted the accused petitioner Kana Ram for the aforesaid offences are liable to be set aside and the accused petitioner is entitled to acquittal.
Accordingly this revision petition filed by the accused petitioner Kana Ram is allowed and the Judgment and order dated 10-11-1994 passed by the learned Addl. Judicial Magistrate No. 3, Jodhpur and judgment and order dated 1-5-1995 passed by the learned Special Judge, NDPS Cases, Jodhpur are set aside, the accused petitioner is acquitted for offence under Sections 147, 341 and 454, , I.P.C.
Since the accused petitioner Kana Ram is on bail, he need not surreunder. His bail bonds are hereby cancelled.