Jitender Vs. State of Haryana - Court Judgment

Excerpt:
- hindu law -- custom: [vijender jain, c.j., m.m. kumar, jasbir singh, rajive bhalla & rajesh bindal, jj] alienation of ancestral property - punjab and haryana - held, in respect of state of punjab by virtue of punjab amendment act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. in punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by hindu law except to the extent it is regulated by sections 6 and 30 of the hindu succession act. in haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. parties can fall back upon hindu law in case they fail to establish that rule of decision is custom. therefore, in haryana both under hindu law and the customary law, the alienation would be open to challenge. custom was given precedent over uncodified hindu law presumably for reason that custom has been consistently replacing the hindu law. however, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst jats of punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. it was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. accordingly, the punjab custom (power to contest) act, 1920 (act no.2 of 1920) was enacted. the hindu succession act was extended to the state of punjab. act 2 of punjab act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. a further provision was made by section 3 that hindu succession act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. whereas section 4 declared that hindu succession act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the succession act was to come into force. in other words, act, no.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. it also preserved the rights of any alienation or appointment of an heir made by a family. after section 7 was inserted in act of 1920 by the punjab amendment act of 1973 right of contest being contrary to custom had been totally effaced and taken away. therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after january 23, 1973. in haryana, the situation as enunciated by act no.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to punjab as brought by amendment act of 1973, had been enacted although right to pre-emption has been substantially abolished in haryana also. no steps even have been taken in that regard. therefore, situation in haryana have to be regarded as it existed under act no. 2 of 1920. hindu succession act,1956[c.a.no.30/1956] -- sections 6 & 30: [vijender jain, c.j., m.m.kumar, jasbir singh, rajive bhalla & rajesh bindal, jj] alienation of coparcenary property - law laid down by full bench in joginder singh kundha singh v kehar singh dasaundha singh [air 1965 punjab 407] and pritam singh v assistant controller of estate duty, patiala [1976 punj lr 342] -whether there is any conflict? - held, the basic controversy in the full bench decision of joginder singhs case was regarding constitutional validity of section 14 of hindu succession act and as to whether it infringes article 14 of constitution. it was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. the full bench held that section 14 of hindu succession act postulates that estate held by a hindu female before enforcement of succession act either by inheritance or otherwise, was enlarged and on date of enforcement of succession act, she became a full owner. likewise, if she has inherited any estate after the commencement of the act, she was to be regarded as absolute owner rather than a limited owner. consequently, the limitations on power of alienation automatically vanished. this was the necessary result of the provisions made in section 14 of the act. the full bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. however, it noticed section 30 and observed that it only deals with power of his share in coparcenary property by will, which prior to enforcement of the act, he had no right to do. the only provision made in respect of male proprietor regarding alienation of property was his power of alienation by will. in so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the act. likewise, other restriction on alienation other than disposal by will also continued. the full bench, thus, recognized the superior right of hindu females by virtue of section 14 and upheld the provision as intra vires. the argument that reversioners have ceased to exist after enactment of provisions of section 14 of succession act, was rejected as there was no provision pointed out to that effect. the proposition laid down by the full bench in pritam singhs case was that the hindu succession act has not abolished joint hindu family with respect to rights of those who were members of mitakshara coparcenary, except in the manner and to the extent mentioned in sections 6 and 30 of the act, this statement should also imply, though it does not say so expressly, the succession act to this extent does not affect the rights of the members governed by dayabhaga coparcenary. the full bench in pritam singh;s case expressly noticed the judgment of earlier full bench in joginder singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by customary law and constitutional validity of section 14 of hindu succession act. thus there is no real conflict between the two full bench judgments. both the full bench judgments have been delivered on the assumption that joginder singhs case dealt with question of alienation whereas pritam singhs case had decided the question concerning succession. even on fact in joginder singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in pritam singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. in pritam singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. therefore, there was no question of alienation in pritam singhs case. - 9. still dis-satisfied, the instant revision petition was filed by the revision-petitioner. he further submitted that the courts below were wrong, in recording conviction and awarding sentence on the sole testimony of krishan kumar, an eye witness, which was not reliable. 12. on the other hand, the counsel for the respondent, submitted that the courts below were right in placing reliance, on the cogent, convincing, reliable and trustworthy evidence of krishan kumar, an eye witness, (pw-3), to come to the conclusion, that, on account of the rash or negligent driving of the truck, by the revision-petitioner, the accident took place, leading to the death of kuldeep. 13. after giving my thoughtful consideration, to the rival contentions raised by the counsel for the parties, in my opinion, the contentions advanced by the counsel for the revision-petitioner, being without merit, must fail, and the same stand rejected. the courts below, recorded concurrent findings, on due appreciation of the cogent, convincing, reliable and trustworthy evidence of krishan kumar, an eye-witness (pw-3) that the accused was rash or negligent, in driving the truck, which struck against kuldeep, resulting into injuries, and leading to his death, at the spot. the evidence of krishan kumar, an eye witness, (pw-3), as stated above, was found to be cogent, convincing, reliable and trustworthy by the courts below. such like minor and insignificant contradictions are bound to occur, in the statements of the truthfulness witnesses, on account of lapse of time and faltering of memory. in this view of the matter, the submission of the counsel for the revision-petitioner, being without merit, must fail, and the same stands rejected. in such like cases, no ground is made out, to reduce the sentence. the submission of the counsel for the revision-petitioner, being without merit, must fail and the same stands rejected.ordersham sunder, j.1. this revision-petition is directed against the judgment dated 11.10.1999, rendered by the court of additional sessions judge bhiwani, vide which it dismissed the appeal against the judgment of conviction dated 03.03.1998 and the order of sentence dated 04.03.1998, rendered by the court of chief judicial magistrate, bhiwani, convicting the accused for the offences, punishable under sections 279 and 304-a of the indian penal code and awarding him sentence for various terms of imprisonment.2. the facts, in brief, are that on 13.03.1993, at about 5.00/6.00 p.m. suresh kumar, complainant and krishan kumar, an eye witness, were standing on the road side. they were talking to each other. in the meanwhile, kuldeep, nephew of suresh kumar, complainant, was seen going towards dadri gate, on the correct side of the road. a truck bearing registration no. hr-7827, came from dadri gate side, at a very fast speed, and hit against kuldeep, who was run over. kuldeep died, at the spot, on account of the injuries, sustained by him, in the said accident. jitu alias jitender kumar, accused, slipped away from spot, after leaving his truck.3. on the basis of the statement of the complainant, the fir was registered. inquest report of the dead body of kuldeep was prepared. post mortem examination, on the dead body of kuldeep, was conducted. the spot was inspected by the investigating officer. the statements of the witnesses were recorded. the accused was arrested. after the completion of investigation, the accused was challaned.4. on his appearance, in the court, the accused was supplied the copies of documents, relied upon by the prosecution. charge under sections 279 and 304-a ipc, was framed against the accused, to which he pleaded not guilty, and claimed judicial trial.5. the prosecution, in support of its case, examined sandeep kumar, (pw-1), charan dass, mechanic, (pw-2), krishan kumar, (pw-3), ved parkash, (pw-4), suresh, constable, (pw-5), dr. d.s. chaudhary, medical officer, (pw-6), tek chand, (pw-7), (wrongly numbered as pw-6), and suresh kumar, (pw-8), (wrongly numbered as pw-7). thereafter, the trial court closed the prosecution evidence, as no other witness appeared, despite granting a number of opportunities.6. the statement of the accused, under section 313 of the code of criminal procedure, was recorded. he was put all the incriminating circumstances, appearing against him, in the prosecution evidence. he pleaded false implication. however, no defence evidence was led by the accused.7. after hearing the counsel for the parties, and, on going through the record, the trial court convicted and sentenced the accused, as stated above.8. feeling aggrieved, against the judgment of the trial court, an appeal was preferred by the accused/appellant, which was dismissed vide order dated 11.10.1999, by the court of the additional sessions judge, bhiwani.9. still dis-satisfied, the instant revision petition was filed by the revision-petitioner.10. i have heard the counsel for the parties, and have gone through the evidence, and record of the case, carefully.11. the counsel for the revision-petitioner submitted that the findings of the courts below that the accused was guilty of the commission of offences, punishable under sections 279 and 304-a of the indian penal code, are perverse and erroneous, based on the misreading of evidence. he further submitted that suresh kumar, complainant, (pw-7), did not support the case of the prosecution. he further submitted that the courts below were wrong, in recording conviction and awarding sentence on the sole testimony of krishan kumar, an eye witness, which was not reliable. he further submitted that there were contradictions between the statements of krishan kumar, (pw-3), and satbir singh, (pw-6), which were not taken into consideration, by the courts below, resulting into miscarriage of justice. he also submitted that if the court comes to the conclusion, that the courts below rightly recorded the conviction and awarded sentence to the revision-petitioner, the substantive sentence may be reduced, to the minimum.12. on the other hand, the counsel for the respondent, submitted that the courts below were right in placing reliance, on the cogent, convincing, reliable and trustworthy evidence of krishan kumar, an eye witness, (pw-3), to come to the conclusion, that, on account of the rash or negligent driving of the truck, by the revision-petitioner, the accident took place, leading to the death of kuldeep. he further submitted that the contradictions pointed out, by the counsel for the revision-petitioner, occurring in the statements of krishan kumar,(pw-3), and satbir singh, asi, (pw-6), prosecution witnesses, being insignificant, were rightly ignored by the courts below. he further submitted that the findings of the courts below, that the accused was guilty of the commission of offences, punishable under sections 279 and 304-a of the indian penal code, do not warrant any interference.13. after giving my thoughtful consideration, to the rival contentions raised by the counsel for the parties, in my opinion, the contentions advanced by the counsel for the revision-petitioner, being without merit, must fail, and the same stand rejected. the courts below, recorded concurrent findings, on due appreciation of the cogent, convincing, reliable and trustworthy evidence of krishan kumar, an eye-witness (pw-3) that the accused was rash or negligent, in driving the truck, which struck against kuldeep, resulting into injuries, and leading to his death, at the spot. no doubt, suresh kumar, complainant, (pw-7), did not support the case of the prosecution. in the present scenario prevailing, in the society, the witnesses are bound to cave under the threats, pressure, or allurements of the accused and resile from their previous statements, so as to save him (accused). it appears that, on account of this reason, suresh kumar, complainant, (pw-7) did not support the case of the prosecution. it is the quality and not the quantity of evidence which is required to be taken into consideration by the court, to come to the conclusion, as to whether, a particular case was proved or not. the evidence of krishan kumar, an eye witness, (pw-3), as stated above, was found to be cogent, convincing, reliable and trustworthy by the courts below. implicit reliance on the evidence of this witness, was rightly placed by the courts below, to come to the conclusion, that the accused committed the offences, with which he was charged. the mere fact that suresh kumar, complainant, did not support the case of the prosecution, in itself, was not sufficient to cast a doubt, on the case. it is settled principle of law, that while exercising the revisional jurisdiction, the court cannot re-evaluate and re-appreciate the evidence, produced by the prosecution, until and unless it comes to the conclusion, that the findings recorded by the courts below are perverse, illegal or erroneous, on account of the mis-reading of evidence. a careful perusal of the judgments of the courts below, in context of the evidence, produced by the prosecution, does not in any way indicate, that the findings of guilt, recorded, are in any way perverse, illegal or erroneous, on account of the misreading of evidence. under these circumstances, there is no warrant to interfere with the same. the findings recorded by the courts below, are liable to be upheld.14. the contradiction, pointed out by the counsel for the revision-petitioner, to the effect that satbir singh, assistant sub inspector, (pw-6) stated that suresh kumar and krishan came to him to report the accident, whereas, krishan kumar, (pw-3) stated that suresh and one ramesh went to inform the police, about the accident, in my considered opinion, was hardly of any consequence. such like minor and insignificant contradictions are bound to occur, in the statements of the truthfulness witnesses, on account of lapse of time and faltering of memory. the aforesaid contradiction, relates to the minor details of the case, which does not, in any way affect the merits thereof. the courts below were right in coming to the conclusion, that such contradiction did not affect the case, in any manner. in this view of the matter, the submission of the counsel for the revision-petitioner, being without merit, must fail, and the same stands rejected.15. it was, however, submitted by the counsel for the revision-petitioner, that the revision-petitioner has been facing the protracted criminal proceedings, since 13.03.1993, the date when the accident took place, i.e. for the last more than 15 years. he further submitted that lenient view may be taken, and the sentence awarded to the revision-petitioner, be reduced. the submission of the counsel for the revision-petitioner, in this regard, does not appear to be correct. on account of the rash and negligent act of the revision-petitioner, a valuable life of kuldeep, aged about 7 years, upon whom, his parents had pinned high hopes, was lost. in such like cases, no ground is made out, to reduce the sentence. the sentence, awarded to the revision-petitioner, by the courts below, is neither harsh, nor excessive, nor in any way incommensurate with his guilt. the submission of the counsel for the revision-petitioner, being without merit, must fail and the same stands rejected.16. for the reasons recorded above, the revision-petition is dismissed. the judgment of conviction dated 03.03.1998, and the order of sentence dated 04.03.1998, rendered by the trial court, and the judgment dated 11.10.1999, rendered by the appellate court, affirming the judgment of the trial court, are upheld.17. the chief judicial magistrate, shall take necessary steps, to comply with the judgment promptly, in accordance with the provisions of law, on receipt of a copy thereof.

Judgment:
ORDER

Sham Sunder, J.

1. This revision-petition is directed against the judgment dated 11.10.1999, rendered by the Court of Additional Sessions Judge Bhiwani, vide which it dismissed the appeal against the judgment of conviction dated 03.03.1998 and the order of sentence dated 04.03.1998, rendered by the Court of Chief Judicial Magistrate, Bhiwani, convicting the accused for the offences, punishable under Sections 279 and 304-A of the Indian Penal Code and awarding him sentence for various terms of imprisonment.

2. The facts, in brief, are that on 13.03.1993, at about 5.00/6.00 p.m. Suresh Kumar, complainant and Krishan Kumar, an eye witness, were standing on the road side. They were talking to each other. In the meanwhile, Kuldeep, nephew of Suresh Kumar, complainant, was seen going towards Dadri Gate, on the correct side of the road. A truck bearing registration No. HR-7827, came from Dadri Gate side, at a very fast speed, and hit against Kuldeep, who was run over. Kuldeep died, at the spot, on account of the injuries, sustained by him, in the said accident. Jitu alias Jitender Kumar, accused, slipped away from spot, after leaving his truck.

3. On the basis of the statement of the complainant, the FIR was registered. Inquest report of the dead body of Kuldeep was prepared. Post mortem examination, on the dead body of Kuldeep, was conducted. The spot was inspected by the Investigating Officer. The statements of the witnesses were recorded. The accused was arrested. After the completion of investigation, the accused was challaned.

4. On his appearance, in the Court, the accused was supplied the copies of documents, relied upon by the prosecution. Charge under Sections 279 and 304-A IPC, was framed against the accused, to which he pleaded not guilty, and claimed judicial trial.

5. The prosecution, in support of its case, examined Sandeep Kumar, (PW-1), Charan Dass, Mechanic, (PW-2), Krishan Kumar, (PW-3), Ved Parkash, (PW-4), Suresh, Constable, (PW-5), Dr. D.S. Chaudhary, Medical Officer, (PW-6), Tek Chand, (PW-7), (wrongly numbered as PW-6), and Suresh Kumar, (PW-8), (wrongly numbered as PW-7). Thereafter, the trial Court closed the prosecution evidence, as no other witness appeared, despite granting a number of opportunities.

6. The statement of the accused, under Section 313 of the Code of Criminal Procedure, was recorded. He was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. However, no defence evidence was led by the accused.

7. After hearing the Counsel for the parties, and, on going through the record, the trial Court convicted and sentenced the accused, as stated above.

8. Feeling aggrieved, against the judgment of the trial Court, an appeal was preferred by the accused/appellant, which was dismissed vide order dated 11.10.1999, by the Court of the Additional Sessions Judge, Bhiwani.

9. Still dis-satisfied, the instant revision petition was filed by the revision-petitioner.

10. I have heard the Counsel for the parties, and have gone through the evidence, and record of the case, carefully.

11. The Counsel for the revision-petitioner submitted that the findings of the Courts below that the accused was guilty of the commission of offences, punishable under Sections 279 and 304-A of the Indian Penal Code, are perverse and erroneous, based on the misreading of evidence. He further submitted that Suresh Kumar, complainant, (PW-7), did not support the case of the prosecution. He further submitted that the Courts below were wrong, in recording conviction and awarding sentence on the sole testimony of Krishan Kumar, an eye witness, which was not reliable. He further submitted that there were contradictions between the statements of Krishan Kumar, (PW-3), and Satbir Singh, (PW-6), which were not taken into consideration, by the Courts below, resulting into miscarriage of justice. He also submitted that if the Court comes to the conclusion, that the Courts below rightly recorded the conviction and awarded sentence to the revision-petitioner, the substantive sentence may be reduced, to the minimum.

12. On the other hand, the Counsel for the respondent, submitted that the Courts below were right in placing reliance, on the cogent, convincing, reliable and trustworthy evidence of Krishan Kumar, an eye witness, (PW-3), to come to the conclusion, that, on account of the rash or negligent driving of the truck, by the revision-petitioner, the accident took place, leading to the death of Kuldeep. He further submitted that the contradictions pointed out, by the Counsel for the revision-petitioner, occurring in the statements of Krishan Kumar,(PW-3), and Satbir Singh, ASI, (PW-6), prosecution witnesses, being insignificant, were rightly ignored by the Courts below. He further submitted that the findings of the Courts below, that the accused was guilty of the commission of offences, punishable under Sections 279 and 304-A of the Indian Penal Code, do not warrant any interference.

13. After giving my thoughtful consideration, to the rival contentions raised by the Counsel for the parties, in my opinion, the contentions advanced by the Counsel for the revision-petitioner, being without merit, must fail, and the same stand rejected. The Courts below, recorded concurrent findings, on due appreciation of the cogent, convincing, reliable and trustworthy evidence of Krishan Kumar, an eye-witness (PW-3) that the accused was rash or negligent, in driving the truck, which struck against Kuldeep, resulting into injuries, and leading to his death, at the spot. No doubt, Suresh Kumar, complainant, (PW-7), did not support the case of the prosecution. In the present scenario prevailing, in the society, the witnesses are bound to cave under the threats, pressure, or allurements of the accused and resile from their previous statements, so as to save him (accused). It appears that, on account of this reason, Suresh Kumar, complainant, (PW-7) did not support the case of the prosecution. It is the quality and not the quantity of evidence which is required to be taken into consideration by the Court, to come to the conclusion, as to whether, a particular case was proved or not. The evidence of Krishan Kumar, an eye witness, (PW-3), as stated above, was found to be cogent, convincing, reliable and trustworthy by the Courts below. Implicit reliance on the evidence of this witness, was rightly placed by the Courts below, to come to the conclusion, that the accused committed the offences, with which he was charged. The mere fact that Suresh Kumar, complainant, did not support the case of the prosecution, in itself, was not sufficient to cast a doubt, on the case. It is settled principle of law, that while exercising the revisional jurisdiction, the Court cannot re-evaluate and re-appreciate the evidence, produced by the prosecution, until and unless it comes to the conclusion, that the findings recorded by the Courts below are perverse, illegal or erroneous, on account of the mis-reading of evidence. A careful perusal of the judgments of the Courts below, in context of the evidence, produced by the prosecution, does not in any way indicate, that the findings of guilt, recorded, are in any way perverse, illegal or erroneous, on account of the misreading of evidence. Under these circumstances, there is no warrant to interfere with the same. The findings recorded by the Courts below, are liable to be upheld.

14. The contradiction, pointed out by the Counsel for the revision-petitioner, to the effect that Satbir Singh, Assistant Sub Inspector, (PW-6) stated that Suresh Kumar and Krishan came to him to report the accident, whereas, Krishan Kumar, (PW-3) stated that Suresh and one Ramesh went to inform the police, about the accident, in my considered opinion, was hardly of any consequence. Such like minor and insignificant contradictions are bound to occur, in the statements of the truthfulness witnesses, on account of lapse of time and faltering of memory. The aforesaid contradiction, relates to the minor details of the case, which does not, in any way affect the merits thereof. The Courts below were right in coming to the conclusion, that such contradiction did not affect the case, in any manner. In this view of the matter, the submission of the Counsel for the revision-petitioner, being without merit, must fail, and the same stands rejected.

15. It was, however, submitted by the Counsel for the revision-petitioner, that the revision-petitioner has been facing the protracted criminal proceedings, since 13.03.1993, the date when the accident took place, i.e. for the last more than 15 years. He further submitted that lenient view may be taken, and the sentence awarded to the revision-petitioner, be reduced. The submission of the Counsel for the revision-petitioner, in this regard, does not appear to be correct. On account of the rash and negligent act of the revision-petitioner, a valuable life of Kuldeep, aged about 7 years, upon whom, his parents had pinned high hopes, was lost. In such like cases, no ground is made out, to reduce the sentence. The sentence, awarded to the revision-petitioner, by the Courts below, is neither harsh, nor excessive, nor in any way incommensurate with his guilt. The submission of the Counsel for the revision-petitioner, being without merit, must fail and the same stands rejected.

16. For the reasons recorded above, the revision-petition is dismissed. The judgment of conviction dated 03.03.1998, and the order of sentence dated 04.03.1998, rendered by the trial Court, and the judgment dated 11.10.1999, rendered by the Appellate Court, affirming the judgment of the trial Court, are upheld.

17. The Chief Judicial Magistrate, shall take necessary steps, to comply with the judgment promptly, in accordance with the provisions of law, on receipt of a copy thereof.