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2014 DIGILAW 499 (PAT)

Panchanand Tatma v. State of Bihar

2014-04-24

DHARNIDHAR JHA

body2014
JUDGMENT : DHARNIDHAR JHA, J.:–The two connected appeals arise out of judgment of conviction dated 25.6.2002 and order of sentence dated 28.6.2002 passed by F.T.C. – II, Katihar in Sessions Case No. 3/2001 / 83/87 by which the four appellants of Cr. Appeal No. 497 of 2002 were held guilty of committing offences under Sections 147, 323 and 379 of the Indian Penal Code and each of them was directed to be released on execution of a bond of Rs. 2,000/- with two sureties of the like amount each so as to appear and receive sentence when called upon during the period of two years for keeping peace and being of good behaviour. As regards Panchanand Tatma @ Panchu, appellant in the other appeal, he was held guilty of committing offences under Sections 148, 323, 379 and 436 of the Indian Penal Code and was directed to suffer rigorous imprisonment for two years, one year, two years and five years respectively on the above four counts, with a further direction that the sentences imposed upon him was to run concurrently. 2. Altogether 14 accused persons were put on trial in Sessions Trial No. 3/2001 / 83/87. Four, out of the 14 accused, died during the trial and the proceedings as against them was dropped by order dated 12.2.2002 passed by the learned trial judge, leaving 10 accused persons on trial and the judgment was pronounced against all the 10 accused. Except Panchanand Tatma @ Panchu, no one had been inflicted substantive sentence of imprisonment and five others, like, Mahant Tatma, Ghoghai Tatma, Bigwa Tatma, Ramrup Tatma and Bhuma Tatma had also been held guilty of committing offences under Sections 147, 323 and 379 of the Indian Penal Code with the four appellants of Cr. Appeal No. 497 of 2002 and were released under Section 360 of the Code of Criminal Procedure, as was the case with the appellants of Cr. Appeal No. 497 of 2002. Those five convicts have not preferred any appeal. 3. It appears that there was a land dispute between the parties. Appeal No. 497 of 2002 and were released under Section 360 of the Code of Criminal Procedure, as was the case with the appellants of Cr. Appeal No. 497 of 2002. Those five convicts have not preferred any appeal. 3. It appears that there was a land dispute between the parties. It is very much noted in the First Information Report itself that for a particular piece of land, which the informant Kokan Tatma, PW 8 claimed due to being a sharecropper, was the subject matter of dispute and there had been proceedings under Sections 144 and 145 of the Code of Criminal Procedure as also under Section 48E of the Bihar Tenancy Act, 1885 (hereinafter referred to as “The BT Act”). The informant claimed that he had orders and judgment in his favour and the order, which was passed by the Executive Magistrate in the proceedings under Sections 144 Cr.P.C., had also been upheld by the Sessions Judge in a criminal revision petition. Being aggrieved and annoyed with the result of litigation, the accused persons came variously armed to the house of the informant on 25.12.1981 at 7:00 A.M. and started uprooting and cutting potatoes and cauliflowers which were grown on the field. Wheat crop was also sown and harvesting of potatoes and cauliflowers was made by the accused persons on the order of the appellant Panchanand Tatma @ Panchu. The informant stated that he, his wife and others attempted to stop the accused persons, but they ran to assault them and he ran away from the scene to a safer place, where after appellant Khantar Tatma dealt a lathi blow and appellant Panchanand Tatma @ Panchu gave a Bhala blow upon Kulo Tatma, PW 3. Deceased accused Sewak Tatma assaulted the wife of Kulo Tatma, namely, Lukho Devi, PW 7. Bhuma Tatma assaulted the wife of Dahogi Tatma. Simultaneously, appellant Panchanand Tatma @ Panchu set fire to the dwelling house of the informant and the house was completely gutted, but it was also alleged that the accused persons decamped with one chauki, two sujni, one cot, 3½ kg. of sattu, 5½ kg. of rice, 20 kg. of kerai (pulse grain), cooking utensils, two buckets, two lotas and two thalis. At the same time, the accused persons also picked up the kurta of the informant, in the pocket of which Rs. of sattu, 5½ kg. of rice, 20 kg. of kerai (pulse grain), cooking utensils, two buckets, two lotas and two thalis. At the same time, the accused persons also picked up the kurta of the informant, in the pocket of which Rs. 145/- was lying which was the sale proceeds of cauliflowers and, in addition to the theft of the above properties, the accused persons also unscrewed the hand-pump of the tube well and took that away. 4. The case was lodged through Ext. 1, the written report of PW 8 and, as appears, the First Information Report was drawn up and the investigation was proceeded with. The Investigating Officer has not been examined. As such, there is no evidence to indicate as to how the investigation had proceeded but, as may appear from the record of the case, the 14 accused persons, out of the 16 named in the F.I.R. along with 25-30 unknown, were sent up for trial and, as I have noted a little earlier, 4 accused died during the trial leaving the trial only against 10 accused, who were covered by the impugned judgment. 5. The defence of the appellants was that the story of tilling a piece of land as a sharecropper was a hoax. In fact, the land admittedly belonged to one Khantar Yadav and the said Khantar Yadav and the appellant Panchanand Tatma @ Panchu had some litigation in the consolidation proceedings and ultimately Khantar Yadav relinquished his claim and the land was ultimately recorded in the name of Panchanand Tatma @ Panchu, who was very much in possession of the land which was quite big in area measuring over two acres and the informant was laying a false claim over it. It was also suggested to some of the witnesses, as appears from the impugned judgment (para 4), that the potato or the cauliflower or the wheat crop, which were standing on the land in question, were sown by the defence. 6. The prosecution examined 8 witnesses in support of the charges. PW 1 Pran Ballav Sahay had proved the writings of the FIR, Ext. 2 as also the writings of the written report, Ext. 1. PW 2 Mahendra Narain Choudhary was a villager, who had supported the prosecution story. 6. The prosecution examined 8 witnesses in support of the charges. PW 1 Pran Ballav Sahay had proved the writings of the FIR, Ext. 2 as also the writings of the written report, Ext. 1. PW 2 Mahendra Narain Choudhary was a villager, who had supported the prosecution story. PW 3 Kulo Tatma was one of the injured, as per the prosecution story, and he also supported the charges and, as may appear from his evidence, he was not cross-examined by the defence. PWs 4 and 5, namely, Kapildeo Tatma and Jagdish Tatma respectively did support that there was some incident but categorically stated that none of them could identify as to who were the persons who had indulged in the commission of the offence of assaulting the witnesses or harvesting potatoes or cauliflowers as also setting fire to the house. PW 5 Jagdish Tatma has also admitted that the accused and the informant had a dispute for the land and further that the accused persons were claiming that the potatoes had been grown by them. PW 6 Shakuntala Devi, wife of the informant Kokan Tatma (PW 8) was examined and she also supported the prosecution story. PW 7 Lakho Devi was the wife of Kulo Tatma, PW 3 and she also came out in support of the prosecution charges which was supported by PW 8, the informant. 7. I was taken through the evidence of the witnesses by the learned counsel appearing for the appellants and it was contended that there was no evidence that indeed the land belonged to the informant Kokan Tatma and further that he had sown or grown any of the crops, like, potato, cauliflower or wheat. It was admitted that there was a dispute between the parties and there had been litigation also prior to the incident and, in absence of any evidence bringing on record, the objective findings, like, the existence of the house or the same having been gutted on account of arson allegedly committed by the accused, it was very difficult for the court to hold that indeed the offence had been committed. It was also submitted that the story of assault and causing injuries to different persons, like, PW 3 Kulo Tatma or his wife PW 7 Lakho Devi or even to Shakuntala Devi, PW 6, the wife of the informant, appears not acceptable on account of the non-examination of the Doctor. 8. Learned Additional Public Prosecutor submitted that the non-examination of the Investigating Officer and the Doctor had its own effect on the proof of the charges, and further, that after having been convicted, Panchanand Tatma @ Panchu, the appellant, has attained a matured age and the sentence of imprisonment, which was inflicted upon him in the year 2002, appears too harsh upon him. 9. There does not appear any dispute that the parties were vying for the land and had also opposed that the informant had any title and his case of possession was due to being a sharecropper. PW 8, the informant has admitted in para 3 that the land belonged to Khantar Yadav and that PW 8 had held the land as a sharecropper. PW 8 further stated that he had filed a petition under Section 48E of the BT Act and further that the appellant Panchanand Tatma @ Panchu had not been impleaded as a party in the proceedings under Section 48E of the BT Act. It was also not disputed by PW 8 that Panchanand Tatma @ Panchu had filed a title suit and that suit was pending in the civil courts. This is the background in which the evidence of the witnesses has to be appreciated as regards the claim of the informant over the land. 10. This Court is not concerned much about the title part of the civil litigation or the litigation under the BT Act because even if the informant was not holding any interest in the property and if he was found from the evidence in possession on the date of the occurrence or prior to that date, then it would have been sufficient in criminal law perspective to hold that he could be the person, who would had grown the potato or raised the cauliflower or wheat crops. But, when I was scanning the evidence of the witnesses, I found that none of the witnesses stated that indeed potato or cauliflower or even wheat had been grown by the informant. It was a mere claim. But, when I was scanning the evidence of the witnesses, I found that none of the witnesses stated that indeed potato or cauliflower or even wheat had been grown by the informant. It was a mere claim. It was stated by the witnesses and the informant that the accused persons came and stated uprooting potato and cauliflower. There was a complete lack of evidence on raising of the crops over the disputed property and, in absence of any acceptable evidence that Kokan Tatma, PW 8 was really in possession of the disputed land, it would be very difficult for this Court to accept his claim that he had raised the crops. 11. Here was the importance of examining the Investigating Officer of the case because he would have been the only witness who could have told the Court that during his inspection of the place of occurrence, he had found wheat crop standing over the land or had found marks of uprooting the potatoes and harvesting of the cauliflower plants. The act of uprooting potatoes and cauliflowers were such acts which could have left telling marks on the place of occurrence, not to be missed by even an untrained person and, as appears from some of the evidences, the wheat crop was trampled which appears reasonably an acceptable evidence, but the Investigating Officer was not produced so as to testifying to the above facts. 12. The witnesses have admitted that the parties were litigating for a piece of land. In fact, that evidence also appears suspect inasmuch as the informant himself stated that he had not impleaded Panchanand Tatma @ Panchu as one of the parties to the proceedings under Section 48E of the BT Act, who was necessary to be impleaded in the light of the provisions of Section 48E(3) of the BT Act. Panchanand Tatma @ Panchu had filed a title suit and it is not denied that it was within the knowledge of the informant that the suit was pending. It further appears from the evidence of PW 2 Mahendra Narain Choudhary, who appeared as an independent person otherwise, that one of the accused Bhuma Tatma had filed a criminal case and PW 2 Mahendra Narain Choudhary had been an accused in that case and had even been remanded to jail custody. It further appears from the evidence of PW 2 Mahendra Narain Choudhary, who appeared as an independent person otherwise, that one of the accused Bhuma Tatma had filed a criminal case and PW 2 Mahendra Narain Choudhary had been an accused in that case and had even been remanded to jail custody. Except PWs 2, 3, 6, 7 & 8, the two persons, namely, PW 4 Kapildeo Tatma and PW 5 Jagdish Tatma, who were also belonging to the same caste of the informant and who had come to depose in support of the story stated that they did not identify as to who had committed the theft of the properties or who had set the house on fire. This evidence of PWs 4 and 5 was never challenged by the prosecution as it could not even suggest that they had never made all these statements or had made the collusive statement. Thus, the very evidence of the prosecution was such which created a doubt as regards the participation of the appellants in the alleged occurrence. 13. I have already noted that there was no document or any other evidence in favour of or in possession of the informant to lay a valid claim over the disputed property and that he was merely claiming the land on the basis of being a sharecropper. Sharecroppers are known to till the land and not to build a house. This proposition itself takes care of the claim of the prosecution that the informant had erected a house which had been used both for dwelling purposes as also for the purpose of storing properties. The very nature of the claim of PW 8 is itself sufficient to reject his claim that he had a house over it and, as such, the case of the prosecution that the same was set on fire by Panchanand Tatma @ Panchu is never acceptable. In this regard, what I have discussed just now in the light of the evidence and the shortcomings thereof, it appeared a case of the charges having not been proved to the hilt. 14. In the result, the two appeals succeed and they are allowed. The judgment of conviction and the order of sentence passed upon the appellants are hereby set aside. Appellant Panchanand Tatma @ Panchu is already on bail. He shall stand discharged from the liability of his bond. ?