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2008 DIGILAW 1488 (JHR)

Rohan Rawani v. Mohi Rawani

2008-12-19

JAYA ROY

body2008
JUDGMENT :- This appeal has been filed by the appellant under Section 378(4) of the Code of Criminal Procedure for setting aside the judgment dated 12-11-1992 passed by the Additional Sessions Judge. Deoghar in Cr. Appeal Nos. 25 and 26 of 1987 whereby judgment of conviction and order of sentence passed against the accused-respondents by the trial Court, has been set aside. 2. Respondents, Marwari Rawani, Narain Rawani and Bengali Ramani were convicted by the trial Court and sentenced to undergo R.I. for two months under Section 147. I.P.C. three months under Section 427. I.P.C. six months under Section 379. I.P.C. Respondents Mohi Rawani, Choudhary Rawani and Suresh Rawani were convicted under Section 379. IPC and sentenced to undergo R.I. for six months, three months under Section 148. IPC. three months under Section 427. IPC by the judgment dated 26-3-87 passed in PCR case No. 262/1981 (T.R No. 748/ 87 by the Judicial Magistrate. 1st class Deoghar. 3. Against the aforesaid judgment of conviction and order of sentence the respondents-accused preferred two criminal appeals being Cr. Appeal Nos. 25 and 26 of 1987. The appellate Court heard both the appeals together and after considering the entire oral and documentary evidences and also after hearing the parties at length set aside the aforesaid judgment of conviction and order of sentence passed by the trial Court by his judgment dated 12th November. 1992 holding them not guilty of the offence alleged. 4. The prosecution case, in brief, is that on the basis of a patta dated 29-9-1971 granted by the Pradhan of the village Chandajori. Rohan Rawani, the complainant came in possession of 12 decimals of land of plot No. 271. He constructed a small house thatched with straw and started using the same for residential purpose. On 3-7-1981 at about 12 a.m. respondents duly armed with bhala, tangi etc. came over the said land of the complainant (the present appellant) and demolished the wall and roof of the house and also removed the building materials worth Rs. 900/- and utensils worth Rs. 200/-. They also caused wrongful loss of Rs. two thousand to the complainant by such demolition. The complainant lodged FIR before the police but as no action was taken, the complaint was filed before the Addl. Chief Judicial Magistrate Deoghar. 5. 900/- and utensils worth Rs. 200/-. They also caused wrongful loss of Rs. two thousand to the complainant by such demolition. The complainant lodged FIR before the police but as no action was taken, the complaint was filed before the Addl. Chief Judicial Magistrate Deoghar. 5. The defence of the respondents-accused was complete denial of the prosecution story and their false implication in the said case due to land dispute between the parties. 6. The prosecution examined five witnesses to substantiate its case. The trial Court, after considering the oral and documentary evidence, convicted and sentenced the accused-respondents in the manner aforesaid. 7. Mr. Rakesh Kumar Sinha, learned counsel appearing on behalf of the complainant-appellant has contended that the lower appellate Court has not considered the evidence available on record and has erroneously set aside the judgment of conviction and order of sentence passed against the accused -respondents. 8. I have perused the records of the case. I have also gone through the oral and documentary evidence adduced by the parties. I find that P.W.5. Suresh Rawani, was examined as a witness though he was not named as a witness in the complaint petition although the complaint petition had been filed after eight days of the occurrence. Furthermore, the named witnesses. Harihar Mandal, and Kabi Mahto were not examined by the complainant. No explanation has been given for their non-examination. I further find that though the complainant had claimed in the complaint petition that he had acquired 12 decmials of land in plot No. 271 through patta No.1 dated 29-9-1971 granted by the Pradhan of the village and he had constructed a small house over the said land but he has not produced a chit of paper in proof thereof i.e. either of settlement of 12 decimals of land or that he had constructed a house thereon. On the other hand, the accused-respondents have filed Ext. B i.e. the order dated 1-10-83 passed by S.D.O. Deoghar in Settlement case No. 136/1980-81 which shows that two blocks of 28 decimals and 26 decimals in plot No. 271 and 271/378 were settled with the respondent, Mohi Rawani. The respondents have also shown that the complainant-Rohan Rawani has no land in plot No. 271. Actually 8decimals of land in plot Nos. 271/378 and 379 were settled with him. The respondents have also shown that the complainant-Rohan Rawani has no land in plot No. 271. Actually 8decimals of land in plot Nos. 271/378 and 379 were settled with him. Thus the claim of settlement of 12 decimals of land with the complainant in lot No. 271 is not tenable. 9. Admittedly occurrence took place on e 3-7-1981 and the complaint was filed on 11-7-81 i.e. after a delay of 8 days. Though in the complaint petition the complainant has alleged that he had filed a written information to the police but as no action was taken, he came to the Court and lodged this complaint. But, the complainant has not substantiated the explanation of delay in his evidence in Court. From the records I find that the complainant has stated on solemn affirmation that he went to the police but his case was not taken by the police and he was asked to go to Court. On the contrary in his deposition in chief the complainant himself stated that he went to the police station but the officer in-charge was not there. Thus it is clear that the complainant has taken a contradictory stand. In my view, the complainant has totally failed to explain the delay in lodging the case. From the evidence I find that P.W.I has stated in his evidence that respondents had also filed a case for the same occurrence against Rohan Rawani. Practically the instant case of the complainant appears to be a counter blast of the case filed by the respondents-accused against the complainant. 10. Lastly, in my view, when both the parties have claimed right of user in the land in question having bona fide belief of their ownership, they cannot be convicted. In view of the aforesaid discussion I am of the opinion that the prosecution has miserably failed to establish the allegation made against the respondents-accused. In my view, the appellate Court has rightly set aside the judgment of conviction passed by the trial Court. 11. In the result, this appeal is dismissed. The judgment of the appellate Court dated 12-11-1992 passed in Cr. Appeal Nos. 25 and 26 of 1987 is hereby confirmed. Appeal dismissed.