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2013 DIGILAW 226 (PAT)

Kamleshwari Sah v. State Of Bihar

2013-02-19

HEMANT KUMAR SRIVASTAVA

body2013
JUDGMENT 1. Heard learned counsel for the appellants as well as learned Addl. Public Prosecutor for the State and perused the record. 2. This criminal appeal has been preferred against the judgment of conviction and sentence order dated 10.10.2001 passed by learned Addl. Sessions Judge III, Saharsa in Sessions trial no. 158/1994 by which and whereunder he convicted the appellants for the offence punishable under section 147 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for three months for the offence under section 147 of the Indian Penal Code and furthermore, the appellants no. 1, 2, 3 and 8 were convicted for the offence punishable under section 324 of the Indian Penal Code and accordingly, they were sentenced to undergo rigorous imprisonment for one year for the above stated offence. However, all the sentences were ordered to be run concurrently. 3. The brief fact, which lies to file this criminal appeal is, that P.W. 5, Dip Narain Paswan, gave written report to officer-in-charge of Sour Bazar police station on 23.6.1993 stating therein that on the same day at about 8.00 a.m, all the appellants and one accused Mishri Sah being armed with lethal weapons such as lathi, bhala ,Tir, three-nut three came at his orchard and started plucking mango. His brother, Uma Shankar Paswan (not examined) came running and informed that all the aforesaid persons were plucking mango from the orchard and having got the aforesaid information, he along with P.W 3 Vijay Yadav went to the orchard and saw the appellants and accused Mishri Sah plucking mango. He forbade them to do so but the appellants Kamleshwari Sah, Subelal Sah and accused Mishri Sah ordered others to kill him whereupon appellants Rabindra Sah and Pramod Sah shot arrows which hit on his left hand and on the stomach of P.W 3 Vijay Yadav respectively. He as well as Vijay Yadav fell down on the earth and after that accused Mishri Sah as well as appellants Kamleshwari Sah and Subelal Sah caught hold him as well as Vijay Yadav and furthermore, the aforesaid appellants and accused Mishri Sah started pressing his neck as well as neck of Vijay Yadav and the appellants ordered others to take them near Tilabe dhar. Furthermore, Kamleshwari Sah and Mishri Sah fired of three-nut three. Furthermore, Kamleshwari Sah and Mishri Sah fired of three-nut three. In the meantime, having heard sound of firing villagers namely, Gosai Yadav, Janardan Yadav, Ghanshyam Sahu, Fulo Yadav, Baleshwar Yadav, Bechan Yadav and several other persons reached there. In the meantime, appellant Mahanti Sah snatched HMT Kajal wrist watch from him and thereafter appellants and accused Mishri Sah fled away along with plucked mango in gunny bag. They also gave threatening to him. He further stated that all the appellants and accused Mishri Sah looted mango worth Rs 1500/- and also his HMT wrist watch worth Rs 600/-. 4. On the basis of the written report, Saur Bazar P.S. case no.105/1993 for the offences under sections 147, 148, 149, 447, 323, 324 and 379 of the Indian Penal Code was registered and formal first information report was drawn against the appellants and one accused Mishri Sah. The matter was investigated by the Investigating officer and after completion of investigation, charge sheet was submitted for the offences under sections 147, 148, 149, 447, 323, 324 and 379 of the Indian Penal Code. The cognizance of the offences was taken and the case of the appellants was committed to the court of sessions, in usual way. 5. Before commitment accused Mishri Sah died and the proceeding against him was dropped. 6. Appellants were put on trial and they were charged for the offences punishable under sections 307/149 and 147 of the Indian Penal Code. Format of the charge reflects that the aforesaid charges were not read over and explained to the appellants by the learned trial court. 7. As many as five prosecution witnesses were examined. Besides, the prosecution got exhibited injury reports as exhibits 1 series, fardbeyan as exhibit 2, Sale deed dated 7.11.1963 as exhibit 3, Sale deed dated 18.9.1962 as exhibit 3/1, Raiyati Khatiyan as exhibit 4, Parcha as exhibit 5, rent receipts as exhibits 6 series, certified copy of order passed in Suit no. 1464/1982 under section 106 of the B.T. Act as exhibit 7. The statements of the appellants were recorded under section 313 of the Cr.P.C in which they completely denied the prosecution story. Although no oral evidence was adduced on behalf of the appellants but the appellants got exhibited documentary evidence such as certified copy of order dated 11.1.1979 passed in case no. The statements of the appellants were recorded under section 313 of the Cr.P.C in which they completely denied the prosecution story. Although no oral evidence was adduced on behalf of the appellants but the appellants got exhibited documentary evidence such as certified copy of order dated 11.1.1979 passed in case no. 247/1970 as exhibit A, certified copy of order dated 25.7.1978 passed in Misc. case no. 6/1974 as exhibit A/1, certified copy of the sale deed dated 6.6.1941 executed by Doman Hajra and others in favour of Amrendra Jha as exhibit B, original sale deed dated 19.10.1970 executed by Amrendra Jha in favour of Subelal Sah and others as exhibit B/1, certified copy of the judgment passed in case no. 615C/1965 dated 24.11.1967 as exhibit C, Notice as exhibits D series, Sale certificate dated 15.9.1937 as exhibit E, Dakhal Dehani as exhibit F and rent receipts as exhibits G series. It appears that although defence of the appellants was total denial of prosecution story but alternatively, they took the defence that orchard in question was in their possession. 8. The learned trial court, having relied upon the testimony of prosecution witnesses as well as documentary evidence adduced on behalf of the prosecution, passed the impugned judgment of conviction and sentence order in the manner as stated above. 9. As I have already stated that, altogether, five prosecution witnesses were examined on behalf of the prosecution, out of whom P.W 1, Janardan Prasad Yadav supported the occurrence stating in his examination-in-chief that at the time of alleged occurrence, he was at his home and having heard the noise, he went at the orchard of Dip Narain Paswan where the appellants who were plucking mango from the aforesaid orchard and when Dip Narain Paswan, Vijay Yadav and Uma Shankar Paswan forbade the appellants to do so, appellants Subelal Sah and Kamleshwari Sah and accused Mishri Sah ordered others to assault Dip Narain Paswan and others upon which the appellants Rabindra Sah and Pramod Sah shot arrows and arrow of Rabindra Sah hit on the left hand of Dip Narain Paswan whereas arrow of Pramod Sah hit on the abdomen of Vijay Yadav. 10. 10. On being cross-examined by the defence, this witness could not disclose the khata and khesra number of the above stated orchard and also expressed his ignorance to know this fact that the aforesaid orchard had been purchased by the appellant Subelal Sah from one Amrendra Jha. He also expressed his ignorance about this fact as to whether any proceeding under section under section 144 of the Cr.P.C 145 and 146 of the Cr.P.C had been fought between Bishun Dayal and the appellants or not. 11. P.W 3, Vijay Yadav is injured of this case and stated that on the alleged date of occurrence, while he was at his house Uma Shankar Hajra, brother of the informant Dip Narain Hajra, came at his home and after that he went to the house of Dip Narain Hajra where Dip Narain Hajra disclosed that the appellants were plucking mango and after that he along with Dip Narain Hajra and others went to the orchard where they found the appellants who were plucking mango. He further stated that he as well as Dip Narain Hajra forbade the appellants but the appellants Kamleshwari Sah, Subelal Sah and accused Mishri Sah ordered others to kill and after that the appellant Rabindra Sah shot arrow which hit on the left hand of Dip Narain Hajra and the appellant Pramod Sah shot arrow which hit at his abdomen. On being cross-examined by the defence, he also expressed his inability to disclose Khata and khesra number of orchard. He also expressed his inability to say as to whether any proceeding under section 144 and 145 of the Cr.P.C had been initiated between the appellants and the informant or not. 12. P.W 5, Dip Narain Paswan is the informant of this case. He supported the prosecution story and stated that when he along with P.W 3 and others went to the orchard and forbade the appellants, appellants abused him and after that the appellants Rabindra Sah and Pramod Sah shot arrows which hit to him as well as Vijay Yadav. On being cross-examined this witness admitted that Bishun Dayal Hajra was his grand father and a proceeding under section 145 and 146 of the Cr.P.C had been initiated between Bishun Dayal Hajra and the appellants and in the aforesaid proceeding, Munsif, Saharsa had observed that the appellants were in possession of orchard in question. On being cross-examined this witness admitted that Bishun Dayal Hajra was his grand father and a proceeding under section 145 and 146 of the Cr.P.C had been initiated between Bishun Dayal Hajra and the appellants and in the aforesaid proceeding, Munsif, Saharsa had observed that the appellants were in possession of orchard in question. Furthermore, he expressed his inability to state this fact as to whether his grand father had taken loan from Cooperative bank or not. He also expressed his inability to say as to whether Amrendra Jha had purchased the orchard in question in auction sale or not. 13. P.W 2 is the doctor who had examined P.W 5 and P.W 3. This witness found injuries on the persons of P.Ws 3 and 5 and opined that both the injured sustained injuries caused by sharp pointed weapon. He further found that both the injured sustained simple injuries. 14. On perusal of evidence available on record, I find that prosecution succeeded to prove this fact that P.W 3 and P.W 5 had sustained injuries on the alleged date of occurrence and the aforesaid injuries had been caused by sharp pointed weapon. 15. It is apparent from the evidence available on record that alleged occurrence took place on account of land dispute and it is the case of the prosecution that the appellants were plucking mango from the orchard and when P.W 5 along with P.W 3 and others went there and forbade the appellants, appellants committed alleged crime. 16. Although the learned trial court has observed in the impugned judgment that the prosecution could not succeed to prove place of occurrence but according to the prosecution case, alleged occurrence took place in an orchard on the point of plucking mango and the appellants claimed their possession on the aforesaid orchard and to prove their possession, appellants have relied upon exhibit A series and exhibit B series. Exhibit A/1 reveals that the Munsif, Saharsa in Misc. case no.6/1974 found the possession of the appellants and accordingly, referred the matter to SDM, Saharsa for declaring possession of the appellants in respect of disputed land and exhibit A reveals that possession of the appellants and others was subsequently declared by learned SDM, Saharsa vide order dated 11.1.1979 passed in Case no. 247/1979. case no.6/1974 found the possession of the appellants and accordingly, referred the matter to SDM, Saharsa for declaring possession of the appellants in respect of disputed land and exhibit A reveals that possession of the appellants and others was subsequently declared by learned SDM, Saharsa vide order dated 11.1.1979 passed in Case no. 247/1979. There is nothing on the entire record to show that after declaration of possession of the appellants and others in the above stated case no. 247/1979 under section 145 of the Cr.P.C in respect of disputed orchard and other lands, appellants were ever dispossessed from the orchard in question. Moreover, the prosecution got exhibited certified copy of order dated 19.4.1993 passed in Case no. 1464/1982 under section 106 of the B.T. Act to show this fact that Khatiyan was prepared in the name of prosecution party but preparation of khatiyan in the name of prosecution party does not show actual possession of disputed orchard. So, the aforesaid fact clearly suggests that prosecution party was aggressors and the appellants assaulted P.Ws 3 and 5 in exercise of their right to protect their property but it further appears that in exercising the aforesaid right, appellants exceeded their limit and, therefore, in my view, the learned trial court rightly convicted the appellants in the manner as stated above. 17. So far as quantum of sentence is concerned, admittedly, alleged occurrence took place on account of land dispute and the appellants were in actual possession of disputed land at the time of alleged occurrence and it was the prosecution party who came at disputed orchard and tried to create trouble in the possession of the appellants and on account of the aforesaid act of prosecution party, alleged occurrence took place. Moreover, alleged occurrence took place in the year 1993 and since then the appellants are facing this case and, therefore, in the aforesaid circumstances, I am of the opinion that instead of sending the appellants to jail, it would be proper to release them after due admonition under section 3 of the Probation of Offenders Act, 1958 and accordingly, all the appellants are directed to be released under section 3 of the Probation of Offenders Act, 1958 after due admonition. 18. On the basis of the aforesaid discussions, this criminal appeal stands dismissed with modification in the sentence order in the above stated manner.