KISHAN LAL Vs. GIR RAJ AND OTHERS

JUDGEMENT

(1.) This is an appeal against the judgement and order of acquittal recorded by Shri Bhanwar Singh, I Assistant Sessions Judge, Mathura on 22.11.79 acquitting the appellant under Sec. 70 of the Canal Act. Heard the learned counsel for the appellant and the learned A.G.A. and examined the judgement under appeal. The record of the Canal Magistrate seems to have been weeded out. In view of the note of this office the record of Criminal Appeal No. 114 of 1979 was received and as per report the record of Criminal Case No. 12 of 1979 has been weeded out, on 19th June, 1984. Since the record has been weeded out, the statements of the witnesses could not be made available. In these circumstances the only material available is the judgement under appeal. This is an appeal against acquittal and unless it is shown that the evidence was not properly assessed and appreciated or there is perversity in assessment of evidence or the findings on acquittal are such that no reasonable man could have recorded such finding, interference in such matter is not desirable. The brief facts are that Kishan lal filed a complaint before the Special Judicial Magistrate Canal, Mathura alleging that on 17.7.78 at about 3 P.M. the accused Girraj with the help of three-four labourers demolished the water course existing on the Mend of plot No. 1094. This water course, according to the complaint, was used for irrigating his plot No. 1022 situated towards east of plot No. 1094. In the complaint names of eye witnesses were mentioned before whom the alleged water course was demolished. The accused not only pleaded not guilty, but also denied the existence of any water course over his plot. After considering the entire evidence, Special Judicial Magistrate Canal convicted the accused, but in appeal the Judgement and order of the Special Judicial Magistrate Canal was reversed and the accused was acquitted. This appeal was filed by the complainant Kishan Lal. The learned Assistant Sessions Judge, Mathura has recorded the findings based on proper appreciation of evidence on record and also considered the inspection note prepared by the Special Judicial Magistrate Canal that the prosecution case regarding the existence of disputed water course is not trust worthy. it therefore, implies that the appellate court was of the view that there was no water course at the spot. It was further observed by the appellate court that even if any water course existed, it was not of public utility and since it allegedly existed over the plot of the accused, he had every right to use every inch of his plot, hence if he demolished the alleged water course, he committed no offence. He was again of the view that there was no public record showing the existence of the alleged water course. He also gave finding that the prosecution has miserably failed to show how the disputed water course came into existence. On the above findings,he concluded that there was no water course at the disputed place, so the question of its demolition did not arise. He also took into consideration the circumstances that if there would have been any water course, the land of the water course should have been at a high level but it was not so at the spot. The above finding, to my mind, is on proper appreciation of evidence. The learned Assistant Sessions Judge in these circumstances, did not commit any illegality in allowing the appeal and acquitting the accused. The appeal against acquittal is liable to be dismissed. Appeal Dismissed.