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2013 DIGILAW 776 (PAT)

Baijnath Prasad v. State of Bihar

2013-07-08

ADITYA KUMAR TRIVEDI

body2013
Judgment Heard learned counsel for the petitioner, learned lawyer of O.P. No.2 as well as learned APP for the State. 2. Initially, the instant petition was filed on behalf of two petitioners/convict namely, Baijnath Prasad and Rakesh Kumar out of whom, Baijnath Prasad died and so his legal heirs were substituted on account of having the sentence of fine also. 3. This revision petition has been filed against judgment dated 21.02.1997 passed by Sri Rajendra Pratap Singh, Judicial Magistrate, 1st Class, Siwan in Complaint Case No. 639/1995, Tr. No. 939/97 (Prem Kumar v. Baijnath Prasad & Anr.) convicting Baijnath Prasad as well as Rakesh Kumar for an offence punishable under Sections 448, 506 of the IPC directing each of them to undergo S.I. for six months as well as slapped with fine of Rs.1000/-, in default thereof to undergo S.I. for two months under Section 448 IPC while S.I. for two years under Section 506 IPC with a further direction to run the sentences concurrently as well as the judgment dated 17.08.2002 passed by 7th Additional District & Sessions Judge, Siwan in Cr. Appeal No. 12/97 dismissing the appeal as well as directing restoration of possession. 4. Complainant Prem Kumar filed a complaint petition on 10.07.1995 for an occurrence committed on 07.07.1995 at about 9:00 p.m. putting an allegation that he had purchased Survey Plot No.1955 along with tiled shop standing thereupon wherein one Aklu Mian is a tenant for the last five years and is running Chand Tent House. On the alleged date and time of occurrence while Aklu Mian had gone to participate in “Urs Mela” after closing the shop, all of a sudden, accused, Baijnath Prasad (since deceased), Kedar Prasad (died during course of trial) and Rakesh Kumar along with other unknown persons broke open the lock and made house trespass and then thereafter took away all the articles belonging to Aklu Mian. The details thereof would be furnished by Aklu Mian. The witnesses have seen the accused persons along with unknown persons indulged in removing the articles as well as throwing of table and chair. On protest made by the complainant and witnesses, the accused persons threatened of life with the country made gun and on account thereof, none dared to intervene. The learned Chief Judicial Magistrate transferred the same for holding an enquiry under Section 202 of the Cr. On protest made by the complainant and witnesses, the accused persons threatened of life with the country made gun and on account thereof, none dared to intervene. The learned Chief Judicial Magistrate transferred the same for holding an enquiry under Section 202 of the Cr. P.C. to the court of Magistrate as per Section 192(2) of the Cr. P.C. whereupon inquiry commenced and concluded vide order dated 20.07.1995 by which cognizance of an offence punishable under Sections-448, 379, 504 of the IPC was taken up and the accused were summoned after whose appearance, the trial commenced and concluded in conviction of petitioner which was found confirmed in Cr. Appeal and accordingly both the judgments happens to be the subject matter of the instant revision. 5. It has been submitted on behalf of the petitioner that the successive judgments passed by the learned courts below are bad in law as well as on facts because of the fact that by the documents which have been filed and exhibited on behalf both the parties as well as from oral evidence, it is apparent that there is civil litigation pending before the Hon’ble High Court with regard to title of the land under dispute during course of occurrence. It has further been submitted that when there is claim and counter-claim and in the background of fact that the complaint petition is totally silent with regard to possession having been made by the petitioners over the land under dispute, then in that event, the learned lower courts should not have believed the version of complainant so far house trespass is concerned. It has also been submitted that court of appeal going a step forward has directed restoration of possession which in the facts and circumstances of the case is totally illegal and should not have been passed. Then it has been submitted that none of the witnesses was specific on the score that he was threatened on account of which he became apprehensive concerning his life and so, no offence under Section 506 of the IPC is made out. 6. Then it has been submitted that none of the witnesses was specific on the score that he was threatened on account of which he became apprehensive concerning his life and so, no offence under Section 506 of the IPC is made out. 6. It has further been submitted that once the trial court had disbelieved the allegation of theft, then in that circumstance, there was no question of application of Section 448 as well as 506 of the IPC because of the fact that apart from having the offence committed in its continuity rather presence of petitioner at the shop for the purpose of committing theft in the room hired by Aklu Mian and further during course thereof, there was threat at the hands of petitioners when the witnesses and complainant intervened will not find its reliability. Therefore, the successive courts should not have convicted the petitioners under Section 448, 506 of the IPC and in likewise manner, also has argued that sentence in its present form ought not have been inflicted in the background of civil dispute persisting amongst the parties. 7. On the other hand, learned lawyer for O.P. No.2 along with learned APP while supporting the concurrent finding submitted that the successive judgments are based upon appreciation of the facts available on the record and on account thereof, should not be interfered with. It has further been submitted that the witnesses have categorically supported the case of the prosecution which justify the conviction and sentence. 8. The revisional court should not in regular phenomenon interfere with concurrent finding of fact unless and until the finding is based upon conjecture and surmises. Only in an exceptional case when there is glaring defect or manifest error visualizing from the successive judgments resulting flagrant miscarriage of justice, then and then only, the scope for interference during exercising of revisional jurisdiction arise. 9. From the complaint petition as narrated above, the complainant had kept complete silence over having illegal possession made by the petitioners on account of an occurrence so alleged committed by them. The occurrence is of 07.07.1995 while the complaint petition was filed on 10.07.1995, after a gap of three days without any cogent explanation and on account thereof, it could safely be inferred that had there been house trespass and remaining thereupon by such illegal act then, certainly, the aforesaid fact would have properly been narrated. 10. The occurrence is of 07.07.1995 while the complaint petition was filed on 10.07.1995, after a gap of three days without any cogent explanation and on account thereof, it could safely be inferred that had there been house trespass and remaining thereupon by such illegal act then, certainly, the aforesaid fact would have properly been narrated. 10. Now coming to the evidence available on record, PW-1 Madan Prasad had not disclosed in his examination-in-chief that accused persons remained there. He had not spoken with regard to the fact that accused persons have threatened with dire consequences rather he had simply deposed that on protest made by Prem, Nirmal, Motilal, the accused persons had shown Danda and Katta. He had further stated that after breaking lock, the accused persons have gone inside the shop and began to throw chair and table. He had further stated that Kedar and Baijnath took away articles. PW-2 had stated that after breaking lock of the shop accused persons entered inside the shop and began to throw table and chair. Baijnath and Kedar took away two Dekcha. When he along with Madan (PW-1) tried to intervene, they have spoken that whoever would come, would be shot dead. Baijnath and Rakesh who were armed with country made pistol threatened to kill them. PW-3 is Aklu Mian who had deposed that when he returned on 11.07.1995 he found the lock of his shop broken. Chair and table were lying outside. He found two Dekcha, five Balti and five Kalchhul missing therefrom. On query Prem had disclosed that Baijnath, Kedar and Rakesh had gone inside the shop after breaking the lock. Therefore, from his evidence, it is apparent that neither he showed presence of accused persons insider the room nor Prem (complainant) had disclosed regarding removing of the articles which he found missing from his shop. Once he had inspected the articles, then in that event, presence of accused inside the shop has become unreliable and in likewise manner the story of theft for want of having disclosure made by the complainant himself. Not only this, this witness had not spoken with regard to presence of accused persons inside the so alleged shop. 11. Once he had inspected the articles, then in that event, presence of accused inside the shop has become unreliable and in likewise manner the story of theft for want of having disclosure made by the complainant himself. Not only this, this witness had not spoken with regard to presence of accused persons inside the so alleged shop. 11. PW-4 is the complainant himself who had narrated that on an alarm raised by Madan, Surendra, Niraml he came at the place of occurrence where he found presence of accused, Baijnath, Kedar, Rakesh along with 5-6 unknown persons who were indulged in breaking the lock of the shop belonging to Aklu Mian. After breaking the lock, all of them had gone inside, thrown table and chair, took away Dekcha. On his protest, Rakesh and Baijnath had threatened him to kill by means of fire arm. The shop stands over Survey Plot No. 1955 which he had given on rent to Aklu Mian. During cross-examination, this witness had admitted the litigation amongst both the parties since 1988 and for the present it is pending before the High Court. This witness had further stated that the accused persons had pointed country made pistol at him and directed to be away, otherwise, he will be murdered. At para-6, he had stated that when he reached at the place accused persons were taking out the articles. He further stated that Baijnath and Kedar took away Dekcha. He further stated that accused persons have gone there for possessing the same. He had further stated that when he had gone to the police station, he found Kedar and others sitting there. He had further stated that all the witnesses are his tenants. 12. PW-5 is a formal witness who had exhibited Kirayanama as well as also exhibited the rent receipt, the list of article furnished by Aklu Mian. 13. Defence has also examined DW-1 through which had exhibited the informatory petition. 14. From para-7 and 8 of the judgment of learned trial court, it is evident that both the parties had adduced and exhibited series of documents which speak regarding continuance of litigation relating to land under dispute. 15. 13. Defence has also examined DW-1 through which had exhibited the informatory petition. 14. From para-7 and 8 of the judgment of learned trial court, it is evident that both the parties had adduced and exhibited series of documents which speak regarding continuance of litigation relating to land under dispute. 15. In the background of the fact that neither the complaint petition nor having been alleged by any of the PW regarding possession of the petitioner over shop under dispute and subsequently, putting stress with regard to illegal presence of petitioners over the shop under dispute appears to be of a vital issue which has got much relevance over fate of the proceedings that too when the evidence with regard to theft of the property having been made from the said shop occupied by Aklu has been disbelieved. Not only this, from exhibit-3, it is evident that no list of stolen article has been furnished rather it is the list of article possessed by Aklu Mian. After going through the same, it is evident that there is no disclosure with regard to theft property. 16. When the story of theft had been disbelieved then in that event, forbidding the accused on account of which there was threatening at their end, has also become doubtful. Furthermore, the prosecution, while attracting prosecution for criminal intimidation must prove that the threatening should be perceived by the persons so threatened and that could have an effect, impact upon his mind. Apart from having inconsistency amongst the evidence of the PWs on this very score, the evidence of none of the PWs satisfies the aforesaid ingredients. In like wise manner the evidence on the point of house trespass appear to be. Because of the fact that at one occasion, the prosecution witnesses deposed that the house trespass was for committing theft, which was ruled out on account of acquittal of petitioner for theft while the informant stated that it was for possession. 17. After going through the concurrent judgments of successive courts, it is apparent that there is vital lapses on their part while appreciating the evidence available on record in its right perspective. Furthermore, the judgment of appellate court is found to be passed in more enthusiastic manner while ordered for restoration. Thus, the concurrent judgment of conviction and sentences recorded by the successive courts are set aside. 18. The revision petition is allowed. Furthermore, the judgment of appellate court is found to be passed in more enthusiastic manner while ordered for restoration. Thus, the concurrent judgment of conviction and sentences recorded by the successive courts are set aside. 18. The revision petition is allowed. 19. Petitioner no.2 is on bail. Hence, he is discharged from the liability of bail bond.