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2011 DIGILAW 863 (JHR)

Kanchan Mahato v. The State of Jharkhand

2011-09-13

JAYA ROY

body2011
JUDGMENT By Court.-Heard the counsel for the appellants and learned counsel for the State. 2. The appellants have tiled this appeal against the judgment of conviction and order of sentence dated 19th December, 2002 passed by Shri Kamlesh Mishra, learned Additional Sessions Judge, F.T.C.-IV, Deoghar in S.C. Case No. 215 of 1999 (T.R. No. 107 of 2002) whereby the appellant nos. 1-9 have been convicted under Sections 147/323 of the Indian Penal Code and the appellant no. 10 namely Kamdeo Mahato has been convicted under Sections 148/324 of the Indian Penal Code. All are sentenced under Section 3/4 of Probation of Offenders Act to execute the bond of Rs. 3,000/- for maintaining good behaviour for a period of two years. 3. Prosecution case in brief is that on 7.7.1998 at about 2.30 p.m., the informant-Jaideo Mahato has submitted a written complaint before the Officer-in-Charge, Palajore P.S. stating therein that at about 11 a.m., when the informant and his father and other members of his family were ploughing the Plot No. 116 of Village-Shimla then all the accused appellants namely Kanchan Mahato, Radhey Shyam Mahato @ Radhey Mahato, Manohar Mahato, Faudi Mahato, Chunni Mahato, Khubhlal Mahato, Sukhdeo Mahato, Baldeo Mahato, Amin Mahato and Kamdeo Mahato reached there armed with Lathi, Rod and Farsa and objected them to plough the said land. Thereafter, after some altercation, they started assaulting the informant and his members on which few persons of the informant party have sustained injuries. On the basis of the said written complaint by the informant, the case has been registered under Sections 147/148/149/323/324/307 of the Indian Penal Code. After investigation, the police has submitted charge-sheet under Sections 323/324/307/149/147/148 of the Indian Penal Code against all the aforesaid accused-appellants. 4. Thereafter, the case has been committed to the Court of Sessions. The prosecution has examined seven witnesses to prove its case. Defence has also examined three witnesses on its behalf. Both the parties have filed number of documents which are made exhibits. After considering oral and documentary evidence adduced by the witnesses of both the parties, the Trial Court has convicted the aforesaid accused-appellants as stated earlier. 5. Mr. Arvind Kumar Chaudhary, counsel of the appellants, has submitted that Exhibits-A & B clearly show that the land in question i.e. Plot No. 116 is recorded in the name of Bihari Mahato who was grandfather of appellant nos. 1-5. 5. Mr. Arvind Kumar Chaudhary, counsel of the appellants, has submitted that Exhibits-A & B clearly show that the land in question i.e. Plot No. 116 is recorded in the name of Bihari Mahato who was grandfather of appellant nos. 1-5. It is also submitted that land in question is in possession of the accused-appellants and there are numbers of land disputes between the informant party and the accused party from last five decades. 6. Counsel of the appellants has pointed out that none of the prosecution witnesses has stated about the possession of the informant party over the land in question. On the other hand, all the three defence witnesses have categorically stated that though there is a dispute in respect of the said land but the accused-appellants are still in possession of the land in question. It is also contended by the counsel of the appellants that PW. 2 in his cross-examination has submitted that the land in question is still recorded in the name of Bihari Mahato who is grand-father of some of the accused-appellants. Not only that the other witnesses have also admitted about the long standing enmity between the parties in respect of the aforesaid land in question. The said witness P.W.2 has also admitted in his cross-examination that a number of cases have been instituted and also decided between the parties. In this way, P.W. 3 has also admitted in his evidence regarding the possession of the accused-appellants over the land in question. 7. Counsel of the appellants has further argued that Ext.-A is rent receipt of the land in dispute and Ext.-B is record of right which shows the land in dispute is recorded in the name of Bihari Mahato who was admittedly grandfather of some of the accused appellants. 8. Counsel of the State, Mr. S.N. Rajgarhia has fairly admitted that none of the prosecution witnesses has said about the possession of the informant party over the land in question though on the other hand, they have admitted the land in question is recorded in the name of Bihari Mahato. 9. From the record, I find that prosecution witnesses could not establish the fact as claimed by the informant party that the informant party are in possession of the land. 9. From the record, I find that prosecution witnesses could not establish the fact as claimed by the informant party that the informant party are in possession of the land. I further find from the documents which are exhibited by the defence specially Exhibit-B which shows that the land in dispute is recorded in the name of Bihari Mahato. On the other hand, defence witnesses have stated about the possession of the family of the accused-appellants over the land in question. No doubt, number of witnesses have stated in their evidence a long standing enmity is going on between the parties and number of litigations are also going on between them. Some of the cases have already been decided in favour of the informant but at this stage it is difficult to say that the informant party are in possession of the land in dispute. I am not going to give any opinion regarding the possession of the land in dispute in this case but as there is some doubt regarding the possession of the lands in dispute, in my opinion, the accused-appellants should be given benefit of doubt as they are also claiming their right over the land in question. 10. Considering the facts and circumstances of the case and oral and documentary evidence adduced by the parties in totality, giving benefit of doubt to the aforesaid accused-appellants, I set aside the impugned judgment of conviction and order of sentence dated 19th December, 2002 passed by Shri Kamlesh Mishra, learned Additional Sessions Judge, F.T.C.-IV, Deoghar in Sessions Case No. 215 of 1999 and acquit all the aforesaid accused appellants from the charges aforesaid. 11. Accordingly, the appeal is allowed.