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2012 DIGILAW 1617 (PAT)

Pana Yadav @ Pano Yadav v. State of Bihar

2012-12-04

SHEEMA ALI KHAN

body2012
JUDGMENT S.A. Khan, J. Mr. Arvind Kumar Singh, learned counsel appearing on behalf of the appellants submits that Kapildeo Yadav, appellant of Cr. Appeal (SJ) No. 121 of 2001 has died. It is submitted that he attended the last rites of Kapildeo Yadav. Learned counsel also submits that perhaps the other appellants of Cr. Appeal (SJ) No. 68 of 2001 have also died be but cannot sure about this fact. This Court, therefore, directs the Trial Court to call for a report from the concerned Police Station/Investigating Officer and if the Court finds that the appellants have died, the appeal against the dead appellants shall abate or else they would be covered by the findings in this appeal. 2. These two appeals arise out of the common judgment of the Additional Sessions Judge, VI, Munger dated 6.2.2012 by which appellants Pana Yadav @ Pano Yadav, Kishun Yadav, Kapildeo Yadav, Kailash Yadav and Lal Bahadur Yadav have been found guilty under Section 436 read with Section 149 of the Indian Penal Code and sentenced to undergo R.I. for five years. They have further been found guilty for the offence under Section 323 of the Indian Penal Code and sentenced to undergo S.I. for one month each. Appellant Pana Yadav @ Pano Yadav has further been found guilty for the offence under Section 380 of the Indian Penal Code and sentenced to undergo R.I. for six months. Appellant Bijay Yadav has been found guilty for the offence under Section 436 of the Indian Penal Code and sentenced to undergo R.I. for five years. He has further been found guilty for the offence under Section 323 of the Indian Penal Code and sentenced to undergo S.I. for one month. It was ordered that all the sentences shall run concurrently. 3. The prosecution case is that on 10.4.1988 about 6.45 in the morning the appellants came to the house of the informant and injured P.W. 1, Ghuteshwar Yadav. It is also alleged against Pana Yadav @ Pano Yadav that he removed wheat, cement bags and ornaments from the house whereas Bijay Yadav is said to have set fire to the house. 4. It is also alleged against Pana Yadav @ Pano Yadav that he removed wheat, cement bags and ornaments from the house whereas Bijay Yadav is said to have set fire to the house. 4. The defence case is that the present case is a counter version to the case filed by Jayabanti Devi, Wife of Kushun Yadav alleging therein that it was the informant and the persons who have been examined in this case who had set fire to her house in order to grab the land. Ext. A dated 4.6.1969 is a sale deed which indicates that the appellant Kishun Yadav had purchased 4 Kathas of land whereas P.W. 1 claims that he had purchased about 10 Dhurs of land which is the subject matter of dispute. The defence has further come out with a specific case that the land allegedly belonging to the informant party had been utilized for construction of a road and as such the informant and others had no right to be on the said land and as such the case made out by them that the appellants have set fire to the hut belonging to the informant is concocted, untrue and that no such occurrence took place. 5. Altogether five witnesses have been examined in this case. P.W. 1, Ghuteshwar Yadav claims that he had purchased 1 Katha of land sometime in the year 1986 or 1987 (The sale deed has not been produced). He has accepted that Kishun Yadav had purchased part of the land from the same plot. According to his case he was assaulted and accused persons specifically Bijay Yadav set his house ablaze. It has been argued that Ghuteshwar Yadav does not live in the same locality and, therefore, he had no occasion to be present at the place of occurrence. P.W. 1 denies that he had assaulted the wife of Kishun Yadav. 6. P.W. 3 is the informant of this case whereas P.W. 2 is his brother. Both these witnesses have supported the occurrence in the chief. During cross-examination it has come that these witnesses had no occasion to be present at the place of occurrence since they do not have their residential house in the Tola where the occurrence took place rather they are resident of different Mohalla. Both these witnesses have supported the occurrence in the chief. During cross-examination it has come that these witnesses had no occasion to be present at the place of occurrence since they do not have their residential house in the Tola where the occurrence took place rather they are resident of different Mohalla. The witnesses tried to deny the fact by stating that he has ‘Phus Hut’ in the said Tola where he ties his animals and, therefore, he was able to witness the occurrence. This witness admits that Ghuteshwar Yadav lives in Chaman Tola in the district of Begusarai. He denies that they are interested witnesses by virtue of being related to P.W. 1. 7. P.W. 3 admits that Bhutto Yadav is a resident of Chaman tola which is in Khagaria district. According to the informant P.W. 1, Ghuteshwar Yadav had purchased only 10 Dhurs of land which is said to be the subject matter of the dispute. He admits that Kishun had purchased 4 Kathas of land whereas the entire plot is measured 5 Kathas and 7 Dhurs. 8. P.W. 5, Shanti Devi is the wife of Ghuteshwar Yadav, P.W. 1. She has supported the case in chief. However, there are some discrepancies in her evidence as a doubt has been created regarding the fact as to whether she lives at the place where the occurrence took place. According to her several persons came from the village to douse the fire. She has also admitted that her husband was residing at some other place earlier and had purchased a land and built a hut in which they were living. She denies the case of the prosecution that P.Ws. 1 and 5 were not living at the place of occurrence at the time when it took place and that the present case has been filed as a counter to the case filed by the wife of Kishun Yadav. 9. From perusal of the evidence, a doubt has been created that P.W. 1 was living at the place of occurrence along with wife. It is submitted that even if it is to be believed that he had purchased 10 Dhurs of land, it cannot be believed that he was indeed living in it as it is admitted by almost all the villagers that he had his house nearly in some other Tola. It is submitted that even if it is to be believed that he had purchased 10 Dhurs of land, it cannot be believed that he was indeed living in it as it is admitted by almost all the villagers that he had his house nearly in some other Tola. Apart from which there is a civil case i.e. Title Suit Ni. 62 of 1989 pending between Kishun Yadav and Bhutto Yadav and others regarding the said land. An injunction petition was filed on behalf of Kishun Yadav to restrain the informant from entering his land which was rejected on the ground that no untoward incident had taken place since filing of the injunction petition and as such, there was no occasion to grant injunction, despite the fact that the criminal cases were brought to the notice of the Munsif who passed the order. Nevertheless, it appears that there is a bona fide land dispute and that Ghuteshwar Yadav was supposedly trying to encroach the land purchased by Kishun Yadav. 10. A counter case was also filed which was earlier in time. The allegations in the counter case are that Ghuteshwar Yadav, P.W. 1 along with others entered the land of Kishun Yadav and thereafter assaulted her and also set fire to her house. The aforesaid being the allegation, the question that would arise is whether the hut belonged to Kishun Yadav or Ghuteshwar Yadav. Since the only person who could have given an independent finding on this issue i.e. the Investigating Officer of this case has not been examined, it would be difficult for this Court to conclude as to who were the aggressors in this case, as it would appear that both the parties have admitted that an occurrence took place on the date of occurrence i.e. 10.4.1988, in which there was ‘Maar Peet’ and a hut was set on fire. 11. In the circumstances, it would appear prima facie from the order of injunction that it was Kishun Yadav who was in possession. Accordingly, this Court acquits the appellants giving them the benefit of doubt. These appeals are allowed. The appellants are also discharged from the liabilities of their bail bonds furnished earlier in this case. Appeal allowed.