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2008 DIGILAW 385 (PAT)

Mandhari Singh v. State Of Bihar

2008-02-22

SHYAM KISHORE SHARMA

body2008
Judgment Shyam Kishore Sharma, J. 1. Both appeals have arisen out of one judgment as such they have been heard together and are being disposed of by this common judgment. 2. Appellants have preferred these appeals against the judgment of conviction and order of sentence dated 13-8-1993 and 17-8-1993 passed by 3rd Additional Sessions Judge, East Champaran, Motihari in Sessions Trial No. 113 of 1978 whereby all the appellants have been found guilty for the offence committed under Section 395, IPC and were sentenced to undergo R.I. for eight years. 3. A complaint case was filed by Complainant Guruj Sahani on 28-8-1976 in which 30 persons were named as accused. Cognizance was taken on 18-2-1977 under Sections 143, 144, 427, 448, and 380 of the Indian Penal Code and the case was transferred to the Judicial Magistrate for disposal. After examination of some of the witnesses by the Judicial Magistrate, a petition dated 18-7-1977 was filed by the complainant in which prayer was made to add some of the persons as accused. The Judicial Magistrate vide order dated 18-7-1977 ordered that the appellants be also added as accused under Section 319, Cr.P.C. and finding the case prima facie under Section 395, IPC committed to the Court of Sessions. 4. The complaint case was filed with regard to an occurrence dated 27-8-1976 at about noon and it was alleged that the accused persons having traditional weapons like Grasa and Bhala shouted slogans and looted the complainants house which was situated on plot No. 548 Khata No. 16 of village Fultakiya. Two Marais (huts), one Samiana, three nads, twochoukis, five buckets, cash Rs. 750/- and three ornaments worth of Rs. 250/- and a heap of maize etc. were looted. Village Dafadar Mandhari Singh appellant of Cr. Appeal No. 249 of 1993 was present and asked the mob to finish the work because the police has been made breathless. A complaint Case was registered and ultimately charge under Section 395, IPC was framed and explained to the accused who pleaded their innocence and preferred to face trial. Occurrence was denied by the appellants and the case of the appellants was that the land was purchased from Ramkalia by the complainant whereas one of the appellants Raj Kishore Sahani took a sale deed for the said land from its legal owner who is the mother of Ramkalia. Occurrence was denied by the appellants and the case of the appellants was that the land was purchased from Ramkalia by the complainant whereas one of the appellants Raj Kishore Sahani took a sale deed for the said land from its legal owner who is the mother of Ramkalia. Ramkalia has no right, and title over the said land to sell the complainant. Later on proceeding under Section 144, Cr.P.C. was contested between Guru) Sahani and his adversary Raj Kishore Sahani and others. A title suit was also contested between them and vide judgment and decree (Exts. B&C) the right and title of the appellant Raj Klshore Sahanl was confirmed and it was found that the complainant had nothing to do with the land in question. The appellants were the bona fide owner of the plot over which the occurrence took place, and so they have every right to do anything upon their land. 5. In order to prove the case, the prosecution out of six named witnesses in the complaint petition has examined 5 witnesses. FW 1 Naga Mahto is the husband of Ramkalia and the vendor of the complainant. He in his evidence has stated that his mother-in-law given some land to his wife and sister-in-law in the year 1960. His wife has transferred 2-3/4 land to complainant Guruj Sahani. He stated that Ram Narain fraudulently obtained a sale deed from his mother-in-law. But he has admitted in his evidence that the complainant Guruj Sahani had lost the civil suit with regard to the land. With regard to the occurrence, his evidence is that the accused persons have committed various overt acts of loot. He was not in a position to say that as to whether any police personnel was present at the time of occurrence or not. One of the appellants is the village Dafadar but his presence has also not been substantially established by the PW1. 6. PW 2 Patiram Mahto who was present nearby field where the place of occurrence is situated has stated that a mob of 200-250 persons, which was led by appellant Raj Kishore Sahani. According to PW 2 the accused persons indulged in looting. In that process, they looted heap of maize of PW 2 kept on the land of the complainant. PW 2 Patiram Mahto who was present nearby field where the place of occurrence is situated has stated that a mob of 200-250 persons, which was led by appellant Raj Kishore Sahani. According to PW 2 the accused persons indulged in looting. In that process, they looted heap of maize of PW 2 kept on the land of the complainant. He named the accused persons but did not take the name of one of the appellants Mandhari Singh as member of the mob having been participated in the crime. PW 2 in his cross-examination stated all the details of the relationship. According to him, PW 1 is the Fufera brother-in-law. He has expressed his ignorance that accused Pirthivi had filed any case against him and also against PW 1. On the point of occurrence the evidence of PW 2 is not consistent. 7. PW 3 Raj Banshi Sahani is the nephew of complainant Guruj Sahani. He has named some of the accused persons but has not named all the appellants who participated in the occurrence. He has supported the case of the complainant that on the date and time of occurrence accused persons indulged in looting articles but exaggerated the version of the complaint petition as well as other witnesses by saying that lota of the complainant was also looted, though it was neither the case of the complainant, nor the witnesses who were examined earlier. 8. PW 4 is Kapildeo Sahani. This wit ness in his examination in chief has stated that the accused persons have vandalized the place of occurrence by committing loot but he has not named the accused persons who are the appellants here. 9. It appears that PW 1 to 4 are related to one family and it is not clear as to why other persons who also gathered at the time of occurrence were not examined as witness. There is only one independent witness who was PW 5 and had been tendered by the prosecution. 10. With regard to the date of occurrence, in the complaint petition it is specifically mentioned that it was Friday. PW 2 in para 1 has stated that it was Friday which was the date of occurrence. But PW 3 in para 1 stated the date of occurrence on Monday. 11. 10. With regard to the date of occurrence, in the complaint petition it is specifically mentioned that it was Friday. PW 2 in para 1 has stated that it was Friday which was the date of occurrence. But PW 3 in para 1 stated the date of occurrence on Monday. 11. It has been submitted on behalf of the appellants that the prosecution has not been able to prove the charges beyond all reasonable doubts. The land was of the appellants and the complainant has nothing to do with the land. The Court has found the title and possession of one of the appellants over the plot in question so the complainant and his persons were the aggressors and the appellants were upon their land. Once it is proved that it was a case of bona fide land dispute then offence under Section 395, IPC cannot be said to have been committed. It is not under challenge that the appellants have purchased the land through a legal owner who is the mother of Ramkalia whereas the complainant had purchased the land through Ramkalia who had no right and title to sell the land in the life time of her mother. Therefore, the complainant was the trespasser and the complainant was adamant to disturb the pos session of the appellants. A proceeding under Section 144, Cr.P.C. was contested which led to institution of title suit. In view of the conclusive finding of the Civil Court, the complainant had no right and title and infer the possession of the appellant over the disputed land. Learned APP submitted that in any view of the matter it has been proved that the appellants have committed loot on the land of the complainant. 12. Once it is proved that there is bona fide land dispute and there is documents to show that the accused persons were the title holders of the plot in question then it cannot be said that they have committed loot upon their own land. It was the case of bona fide land dispute in which the complainant had nothing to do. On the manner of occurrence also evidence are not intact rather contradictions have come. Two sets of evidences are available on the record. One set says that the date of occurrence was Monday whereas another set says that it was Friday. It was the case of bona fide land dispute in which the complainant had nothing to do. On the manner of occurrence also evidence are not intact rather contradictions have come. Two sets of evidences are available on the record. One set says that the date of occurrence was Monday whereas another set says that it was Friday. It appears that contradictions galore are in the evidences of the prosecution witnesses. The witnesses of the complainant are highly interested and were adamant to implicate the appellants in which they succeeded. 13. In view of the fact that the appellants are title holders having possession over the land in question and also there are contradictory evidences, I am of the view that the impugned judgment of conviction and sentence is bad and fit to be set aside. Accordingly, the impugned judgment is set aside and this appeal is allowed. The appellants are discharged from the liabilities of their bail bonds.