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2013 DIGILAW 45 (PAT)

Chitra Gupta Prasad v. Rana Singh

2013-01-10

ASHWANI KUMAR SINGH

body2013
JUDGMENT (ORAL) Ashwani Kumar Singh, J. 1. Heard learned counsel appearing on behalf of the appellant. None appears on behalf of the respondents. 2. The present appeal has been filed under Section 378(4) of the Code of Criminal Procedure in pursuance of the leave granted by this Court on 7.3.2005 in S.L.A. No. 36 of 2003. The appeal is directed against the judgment of the acquittal dated 26th May, 2003 passed by the learned Judicial Magistrate-1st Class. Nawada in Complaint Case No. 27 of 1991, corresponding to Trial No. 40 of 1993. 3. The appellant had filed a complaint in the Court of the learned Chief Judicial Magistrate, Nawada on 28.1.1991 with respect to an occurrence which is alleged to have taken place between 27.12.1990 to 29.12.1990. 4. As per prosecution case the complainant was a shebait of the deities of Shrt Guru Granth Saheb Ji Maharaj and other deities installed in Harmandil Jee at village-Naridlal Bigha. There are 70 acres of land belonging to the said deities which had been attached under Section 145 of the Code of Criminal Procedure. The complainant had filed Title Suit No. 43 of 1973 for declaration of Shebaiti rights against one Jagdish Prasad. The said title suit was decided against the complainant. The complainant, thereafter, filed First Appeal No.222 of 1980 before this Court. The appeal was decided by the High Court in favour of the complainant on 11.12.1987 and the receiver Jagdish Prasad, who was appointed by the High Court under order dated 29.4.1981, was directed to hand over the charge possession and management of the lands within one month to the complainant. Since the receiver was creating trouble in handing over the possession the Sub-Judge-l, Nawada in Execution Case No. 1/2 of 1989 got the decree of the High Court executed in favour of the complainant and on 17.12.1989 the possession was given to the complainant at the spot by beat of drum in presence of village chaukidar Prasadi Paswan and other villagers. The accused persons being men of ex-receiver Jagdish Prasad. formed an unlawful assembly to create disturbance and annoyance to the complainant and they being variously armed went to the land of the complainant and started cutting away the paddy crops with the help of labourer on 27.12.1990. On protest being made by the witnesses. They did not stop cutting and removing of crops. formed an unlawful assembly to create disturbance and annoyance to the complainant and they being variously armed went to the land of the complainant and started cutting away the paddy crops with the help of labourer on 27.12.1990. On protest being made by the witnesses. They did not stop cutting and removing of crops. They continued their illegal act of cutting crops on 28.12.1990 and 29.12.1990. On 30.12.1990, PW 2 Nawlesh Bharthuar came to Patna at the residence of the complainant and narrated the entire story of cutting and removing the paddy crops to the complainant but as the complainant was suffering from sciatica pains in both legs. He could not be able to file the complaint earlier. After getting some relief the complainant came to his village home Nandlal Bigha on 27.1.1991 and asked the accused persons as to why they had committed such sort of criminal acts. The accused persons became furious and they gave open threats to the complainant. It has lastly been alleged in the complaint that the accused persons named in, the complaint removed stealthily the paddy crops from the total area measuring 9 acres and 16 decimals of Sebait land of the complainant between 27.12.1990 to 29.12.1990. 5. The complainant after filing the complaint was examined on solemn affirmation and after conducting inquiry under Section 202 of the Code of Criminal Procedure, the accused persons were summoned to face trial. Out of the ten accused persons named in the complaint the accused Mishri Lal died prior to the framing of charge. On 15.9.1996. charge under Sections 144 and 379 of the Indian Penal Code was framed against the accused persons to which they pleaded not guilty. After framing of the charge the accused Prem Lal died and the accused Bishun Singh absconded. The case of Bishun Singh was separated and the trial proceeded against the remaining seven accused persons. After holding the trial by the impugned judgment dated 26th May. 2003 the learned Magistrate acquitted the accused persons. The appellant being aggrieved by the aforesaid judgment has come before this Court in the present appeal. 6. I find that in the complaint petition two witnesses, namely, Bigu Rajbanshi and Nawlesh Bharthuar were named as witnesses to the occurrence. Out of them, Bigu Rajbanshi was, not examined by the complainant in course of trial. The appellant being aggrieved by the aforesaid judgment has come before this Court in the present appeal. 6. I find that in the complaint petition two witnesses, namely, Bigu Rajbanshi and Nawlesh Bharthuar were named as witnesses to the occurrence. Out of them, Bigu Rajbanshi was, not examined by the complainant in course of trial. There is no explanation as to why Bigu Rajbanshi was not examined during trial. 7. The complainant himself is not a witness to the occurrence. Admittedly, during the relevant period he was at Patna. The witness Nawlesh Bharthuar is alleged to have narrated the entire story of cutting and removing the paddy crops to him on 30.12.1990. Surprisingly, the complaint was filed in the Court of the learned Chief Judicial Magistrate. Nawada belatedly on 28.01.1991. The complainant has tried to explain the reason for delay in filing the complaint by saying that as he was suffering from sciatica pains in both of his legs. He was confined to bed and was advised to take complete bed rest. 8. Here. I would like to see that if the complainant was suffering from some sort of ailment, there could have been no impediment in getting the case filed through witness Nawlesh Bharthuar at an earlier point of time. 9. From the evidence recorded in course of trial. I find that in cross-examination, the complainant has stated that after getting information about the occurrence. he had sent information to the Hisua Police Station but, this fact does not find mention in the complaint petition. The witnesses examined on behalf of the complainant have also not corroborated this fact. 10. PW 2 Nawlesh Bharthuar has admitted in cross-examination that he is brother-in-law of the complainant. He also admits that he is a resident of different village. He states that he had protested against the alleged cutting and removing of crops and had informed the police station. From his evidence, it transpires that he went to inform the police on 27.12.1990 itself. However, neither the complainant nor the PW 2 Nawlesh Bharthuar could produce any chit of paper to show that they ever informed the police regarding the incident of occurrence. 11. I further find that PW2 admits in cross-examination that he has nothing to do with the land of the complainant. On inquiry, he could not disclose khata No. or plot No. of the land in question. 12. 11. I further find that PW2 admits in cross-examination that he has nothing to do with the land of the complainant. On inquiry, he could not disclose khata No. or plot No. of the land in question. 12. PW 3 Manoj Kumar Sinha is the brother of the complainant. He has proved exhibits-8 & 9 in the writing of doctor Rajendra Prasad and Dr. Debanshu Banerjee. In cross-examination, he states that he had informed about the occurrence to the choukidar and had also told about the occurrence to the complainant. The complainant has neither stated this fact in the complaint petition nor has stated it while being examined in Court. PW 3 was not even named as witness in 'the complaint petition. 13. PW 4 Anil Kumar is an advocate practicing at Gaya, His evidence is fatal to the prosecution case. In cross-examination, he admits that he has nothing to do with the village in which the occurrence took place. He also admits that he does not known name of any person of the village. The question then arise as to how he could name the accused persons in examination of chief. He further admits that he does not know the facts of the case. He says that he cannot identify even the land in question. 14. Thus, apparently the witnesses are not trustworthy. The witness named in the complaint has not been examined. In the complaint nothing is stated about information given to the police but during trial all witnesses barring PW 4 state that they informed the police or chowkidar. They speak differently in this regard. The chowkidar has not been examined. PW 2 & PW 3 are related to the complainant and PW. 4 is a wholly untrustworthy witness. The complaint has been filed after inordinate delay. 15. Such being the quality of evidence the trial Court committed no mistake in acquitting the accused persons. 16. In case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty. Secondly, the accused having secured his acquittal the presumption of his innocence is further re-inforced, re-affirmed and strengthened by the trial Court. 17. The trial Court has recorded clear cogent and convincing reasons in recording acquittal. Secondly, the accused having secured his acquittal the presumption of his innocence is further re-inforced, re-affirmed and strengthened by the trial Court. 17. The trial Court has recorded clear cogent and convincing reasons in recording acquittal. The findings of the trial Court are neither erroneous nor perverse. 18. Thus. I find no merit in the present appeal. It is dismissed, accordingly. Appeal dismissed.