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2007 DIGILAW 1168 (PAT)

State Of Bihar v. Lal Bahadur Singh

2007-07-19

MADHAVENDRA SARAN

body2007
Judgment Madhavendra Saran, J. 1. This appeal has been preferred against the order and judgment dated 1.10,1992 passed by Shri U.B. Mishra, Judicial Magistrate, 1st Class, Gopalganj in Tr. No. 569 of 1992, by which he acquitted the respondent from the charges under Sections 379 and 447 of the Indian Penal Code (in short as the Code). 2. The prosecution case, in short, as it appears from the record is that respondent Lal Bahadur Singh had filed Case No. 149/86 in the Court of Chakbandi Officer, Bijaipur against Devi Saran Rai. in the said case Jai Prakash Singh @ Jai Prakash Rai and other members of his family appeared as purchaser of the land in question and were made parties. Learned Chakbandi Officer by order dated 16.2.1987 confirmed the entry made in the revisional survey khatian and ordered that the title of opposite party shall continue. Thus Lal Bahadur Singh lost the case before the Chakbandi Officer. In the said case Jai Prakash Singh, the informant of Bijaipur P.S. Case No. 21/87, had filed the following documents in the Court of Chakbandi Officer: (i) Certified copy of new khatian in the name of Rajbans Rai and others, (ii) Two original sale deeds executed by Devi Saran Rai in favour of ancestor of the informant, (iii) Original sale deed executed by Mostt. Shyam Rani Kuer in favour of Rajbans and others, (iv) 46 rent receipts granted by the revenue department and (v) Few other papers like Parcha granted by the Chakbandi Department. 3. It appears that the informant on 27.3.1987 applied for return of the above documents but he was informed by Chakbandi Officer that on 25.2.1987 respondent Lal Bahadur Singh had come to take back his own documents and forcibly snatched away all the documents of the informant. The Chakbandi Officer for that incident had lodged information in the Police Station which was registered as Sanha no. 48 dated 3.3.1987. It appears that thereafter the informant Jai Prakash Singh filed complaint petition against the respondent Lal Bahadur Singh in the Court of Chief Judicial Magistrate, Gopalganj on 1.4.1987, a copy of which was sent to the police for registration and investigation on the basis of which the police registered Bijaipur P.S. Case No. 21/87 and after completing investigation submitted charge sheet against the respondent on the basis of which cognizance was taken on 26.2.1988. Charges were framed under Sections 447 and 379 of the Code. It appears that during trial eight witnesses were examined. Some papers were also exhibited in the case but the learned Magistrate by order and judgment dated 1.10.1992 acquitted the respondent/accused against which the State has preferred the present appeal before this Court. 4. It has been argued on behalf of the appellant that the learned Magistrate has misunderstood the evidence on record. He failed to appreciate that ail the prosecution witnesses have fully supported the prosecution case. It has further been argued that non- examination of the Investigating Officer has not caused any prejudice to the respondent and the judgment of acquittal is based on conjecute and surmises. 5. It appears from the lower Court record that the informant Jai Prakash Singh and the respondent both were fighting Case no. 149/ 86 before the Chakbandi Officer, Bijaipur in which both had filed documents in support of their claim over the disputed plot. It appears from Exhibit-9 that the said case was disposed of on 16.2.1987 and the same was decided in favour of the informant. It further appears from the record of the Trial Court that informant Jai Prakash Singh (P.W. 1) on 27.3.1987 went to Chakbandi office and filed a petition before the Chakbandi Officer for return of all his documents which was filed in Case no. 149/86 but the Chakbandi Officer informed him in writing through Exhibits-1 and 1/1 that all his papers were stolen away by respondent Lal Bahadur Singh on 25.2.1987 from Chakbandi office, Vljaipur for which a Case has been registered in Vijaipur Police Station against the respondent Lal Bahadur Singh. Chakbandi Officer also informed that after recovery all the papers shall be returned to him. It further appears that the police on the basis of the information given by Chakbandi Officer registered Sanha Diary Entry no. 48 dated 3.3.1987, Exhibit-3. When the Police did not take any action on the basis of the report submitted by Chakbandi Officer the informant Jai Prakash Singh filed a petition of complaint, Exhibit-2, before the Chief Judicial Magistrate, Gopalganj on 1.4.1987, a copy of which was sent to Bijaipur Police Station on the basis of which the present F.I.R. was registered. 6. When the Police did not take any action on the basis of the report submitted by Chakbandi Officer the informant Jai Prakash Singh filed a petition of complaint, Exhibit-2, before the Chief Judicial Magistrate, Gopalganj on 1.4.1987, a copy of which was sent to Bijaipur Police Station on the basis of which the present F.I.R. was registered. 6. It appears from Exhibit-9 which is certified copy of the order dated 16.2.1987 of Case No. 149/86 that the above papers were filed on behalf of opposite party and the same were considered by the Chakbandi Officer in his order dated 16.2.1987. The present occurrence took place on 25.2.1987 i.e. nine days after the disposal of Case no. 149/86 by Chakbandi Officer. 7. From the evidence it appears that eight witnesses were examined on behalf of the prosecution in support of the charges who are P.W. 1 Jai Prakash Singh, P.W. 2 Narsing Bhagat, P.W. 3 Chandra Baliabh Mishra, P.W. 4 Md. Shakurulla, P.W. 5 Serajuddin Ansari, P.W. 6 Ram Ekbal Paswan, P.W. 7 Samir Kumar Sent Gupta and P.W. 8 Lallan Giri. Out of them P.Ws 7 and 8 are formal witnesses who have proved Exhibits- 6, 7 and 8. 8. From the evidence of P.W. 1 in paragraph-2, P.W. 5 in paragraph-1 and certified copy of the order, Exhibit-9 of Case No. 149/ 86 it appears that all the papers which are subject matter of theft had been actually filed on behalf of the informant in Chakbandi office in Case No. 149/86. Then from Exhibit-3 which is written report of P.W. 3 Chandra Ballabh Mishra given to the Chakbandi Officer, Bijaipur dated 25.2.1987 shows that the details of ail the documents which were stolen away by the respondent Lai Bahadur Singh. It has come in the evidence of P.W. 5 Serajuddin Ansari in paragraph-3 of his deposition that on 25.2.1987 accused Lal Bahadur Singh had come to the Chakbandi office to take back his papers. P.W. 3 Chandra Baliabh Mishra in paragraphs-2 and 3 of his evidence has also said that Lai Bahadur Singh had come in the Chakbandi office, Bijaipur on 25.2.1987 at 4.30 PM. Similar is the evidence of P.W. 4 in paragraphs-2 and 3 of his deposition. Nothing has been taken in the evidence of these three witnesses to show that they have any enmity with the respondent. Similar is the evidence of P.W. 4 in paragraphs-2 and 3 of his deposition. Nothing has been taken in the evidence of these three witnesses to show that they have any enmity with the respondent. From the evidence of these three witnesses it is clear that respondent Lal Bahadur Singh was present in the Chakbandi office, Bijaipur on 25.2.1987 at 4.30 PM. 9. Now the most important point to be examined is whether respondent snatched away the documents from the case record in possession of P.W. 3 Chandra Baliabh Mishra. P.W. 3 in paragraph-3 has said that he returned the documents of Lal Bahadur Singh. Lal Bahadur Singh then asked him to show papers of Jai Prakash Singh. He refused to show those papers and then accused Lal Bahadur Singh snatched those papers from the record and fled away. P.W. 4, who at the relevant time was an employee of Chakbandi office has said in paragraphs-2 and 3 that Lal Bahadur Singh came and demanded his own papers. Chandra Baliabh Mishra returned him those papers and then accused asked him to show the papers of Jai Prakash Singh and when P.W. 3 refused to show the papers, the accused snatched the papers and fled away. P.W. 5 in paragraph-4 has also narrated the same story. These three witnesses are eye witnesses of the alleged occurrence of snatching of the valuable papers of the informant. Nothing has been taken in the evidence to discredit their version. These three witnesses are all employees of the Chakbandi Office. They have no enmity with the accused respondent. They are quite independent witnesses and so there is no reason to disbelieve their evidence. 10. it also appears from the evidence of P.W. 5 in paragraph-3 that Chandra Ballabh Mishra (P.W. 3) was ordered to return the documents of the accused. From the evidence of P.Ws 3 and 4 it is clear that on the order of P.W. 5 the documents were returned by P.W. 3 to Lal Bahadur Singh. It is also clear from the evidence on record that on the same day P.W. 3 informed in writing about the theft of the documents by the respondent. From the evidence it is clear that on the same day i.e. 25.2.1987 Chakbandi Officer informed the police about the occurrence. 11. It is also clear from the evidence on record that on the same day P.W. 3 informed in writing about the theft of the documents by the respondent. From the evidence it is clear that on the same day i.e. 25.2.1987 Chakbandi Officer informed the police about the occurrence. 11. There is no oral and documentary evidence on the record to show non-presence of the respondent on 25.2.1987 in Chakbandi Office, Bijaipur. There is also no evidence on the record to show that he did not take back his documents on 25.2.1987. 12. The law is well settled that the power of this Court while hearing an appeal against an acquittal is as wide and comprehensive as in an appeal against conviction and it has full power to appreciate the entire evidence. If the judgment of the Trial Court is absolutely perverse, legally erronous and based on wrong appreciation of the evidence, then it would be just and proper to reverse the judgment of acquittal recorded by the Trial Court as otherwise there would be gross miscarriage of justice. From the oral and documentary evidence available on record it is established that the accused respondent came to the office of Chakbandi Officer, Bijaipur on 25.2.1987 and forcibly snatched away the documents filed by the informant Jai Prakash Singh in Case No. 149/86. Thus accused respondent is thus found guilty for offence under Sec. 379 of the Code. 13. Now there is charge under Section 447 of the Code also against the respondent. In this connection it may be mentioned here that every trespass by itself is not criminal. To constitute criminal trespass the prosecution has to prove and the Court has to give a finding on the evidence that the trespass was committed with one of the intent enumerated under Sec. 441 of the Penal Code. From the evidence on record it cannot be accepted that the entry of respondent was unlawful. It also cannot be accepted on the basis of i evidence on record that the accused respondent had intention for any offence against the informant or P.W. 3. It therefore, cannot be accepted that accused respondent has committed the offence under Sec. 447 of the Code also. 14. On behalf of the learned amicus curiae it has been contended that the learned Trial Court rightly acquitted the respondent. It therefore, cannot be accepted that accused respondent has committed the offence under Sec. 447 of the Code also. 14. On behalf of the learned amicus curiae it has been contended that the learned Trial Court rightly acquitted the respondent. The evidence which has been brought on record is contradictory in nature. He also pointed out that no paper has been produced to show as to what papers were filed by Jai Prakash Singh in the Chakbandi case. 15. I have mentioned above that from Exhibit-9 it is clear as to what papers were filed by Jai Prakash Singh in the said case before the Chakbandi Officer. I have also gone through the evidence of P.Ws 3, 4 and 5 which is consistent on the point of alleged occurrence. 16. Heard on the questioned of sentence. Learned amicus curriae submitted that the respondent may be released on probation of good conduct. 17. This occurrence relates to the year 1987 i.e. more than 20 years have elapsed. There is nothing on record to show that the respondent is a habitual offender but the offence committed is a serious one. He has stolen papers from the judicial record. 18. Having regarding to the facts and circumstances of the case, I am not ready to show any leniency to the accused/respondent. Moreover probation cannot be claimed as of right. This appeal is accordingly allowed and judgment of acquittal passed against the respondent is set aside. 19. In the facts and circumstances of the case, respondent Lal Bahadur Singh is sen- fenced to pay a fine of Rs. 500/- and in default of payment of fine he shall undergo simple imprisonment for two months.