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2017 DIGILAW 1740 (JHR)

Durga @ Dhananjai Mandal v. State of Jharkhand

2017-10-05

RONGON MUKHOPADHYAY

body2017
JUDGMENT : 1. Heard Mr. Apurv, learned counsel for the petitioners and Mr. Mukesh Kumar, learned A.P.P. for the State. 2. This application is directed against the judgment dated 27.06.2005 passed in Criminal Appeal No. 71 of 1991 by learned Sessions Judge, Dumka, whereby and where under, the judgment of conviction and the order of sentence dated 11.04.1991 passed by learned Judicial Magistrate, 1st class, Dumka in P.C.R. Case No. 145 of 1987 (T.R. No. 672 of 1991), convicting the petitioners for the offences punishable u/s 148 and 379 of the Indian Penal Code (I.P.C.) and sentencing them to various terms, has been affirmed. 3. It has been submitted by learned counsel for the petitioners that the plot itself was disputed about which it was alleged that the petitioners had committed trespass and stolen away paddy crops. Learned counsel further submits that several documents were exhibited by the defence to substantiate their cases, but the same was not considered. Both the courts only on the basis of evidence of complainant have convicted the petitioners without considering the fact that there are vital contradictions in the evidence. An alternative argument has been advanced that if this Court is not inclined to interfere with the impugned judgment of conviction, the period of sentence be modified, considering the fact that the petitioners are facing rigours of prosecution case since 1987 and they have also remained for sometime in custody. 4. Mr. Mukesh Kumar, learned APP has opposed the prayer of the petitioners. 5. The allegation made in the complaint petition is that Plot Nos. 36, 37 and 38, having a total area of 3 Bigha 18 Dhurs, appertaining to Jamabandi No. 2 of Mouza Ganeshdih was recorded in the name of Pitambar @ Jabhu Singh (since deceased) in the Gantzer settlement and the complainant was in possession of the same on payment of rent. It is alleged that the accused No. 1 came to the father of the complainant and requested to him to give him some lands for residence in lieu of exchange of land in other place and out of compassion the father of the complainant gave 01 Katha of land in the year 1959, wherein he had constructed a house. It is alleged that the accused No. 1 came to the father of the complainant and requested to him to give him some lands for residence in lieu of exchange of land in other place and out of compassion the father of the complainant gave 01 Katha of land in the year 1959, wherein he had constructed a house. It is also alleged that since the accused No. 1 did not give land in exchange to the complainant, he had filed a case for eviction which was allowed in his favour on 30.04.1985. It has also been alleged that on 08.10.1987 all the accused persons with a common intention armed with deadly weapon entered into the said plots of land and cut and removed unripe paddy crops grown by the complainant. Based on the aforesaid allegation, P.C.R. Case No. 145 of 1987 was instituted. Upon conducting an enquiry u/s 202 Cr.P.C. by examining the complainant as well as her witnesses, cognizance was taken and thereafter trial proceeded. 6. In course of trial the prosecution has examined as many as 04 witnesses in support of its case. C.W. 1, Som Marandi, has stated that on the alleged day of occurrence he was harvesting his own paddy crop and on hearing the cry of alarm he reached the place of occurrence, where he had seen the accused persons cutting and removing the paddy crop which the complainant had grown. This witness had also stated that the accused persons were variously armed. He had also stated that previous disputes were going on between the parties. C.W. 2, Uday Narayan Singh has stated the accused persons armed with bows and arrows had forcibly cut the paddy crops of the complainant worth Rs. 800/-. This witness has categorically stated that on the date of occurrence he was in his house and had gone to the place of occurrence along with Binod Bihari Singh and he had tried to prevent the accused persons but he failed. C.W. 3, Binod Bihari Singh, is the complainant, who has stated about the trespass made in his plots of land by the accused persons and of cutting away paddy crops on the point of deadly weapons. This witness has stated that he had paid rent for the said plots of land. C.W. 3, Binod Bihari Singh, is the complainant, who has stated about the trespass made in his plots of land by the accused persons and of cutting away paddy crops on the point of deadly weapons. This witness has stated that he had paid rent for the said plots of land. This witness has further stated that in fact the land was mutated in the name of accused No. 1, but in appeal the order of mutation was set aside. This witness has admitted to a proceeding u/s 144 Cr.P.C. between both the sides. P.W. 4, Charan Marandi has been tendered by the prosecution. 7. Both the parties had filed their documents in relation to their respective claims. It seems that the accused No. 1 had not been successful in retaining the plot which was allegedly given by the father of the complainant, as he lost in all the courts in the dispute relating to the said plots of land. C.W. 3, the complainant, has therefore been able to support the allegation made in the complaint petition by dint of the documents which goes to show that he was actually in possession of all the plots of land from which paddy crops were cut and removed. C.W. 1 and C.W. 2 have supported the case of the complainant with respect to forcible removal of paddy crops from the plots of land belonging to the complainant. 8. Thus on consideration of the depositions of C.Ws. 1, 2 and 3, the prosecution has proved its case beyond all reasonable doubt that the accused persons had forcibly entered into the plots of land belonging to the complainant and had cut unripe paddy causing loss to the complainant. The conviction of the petitioners u/s 379 and 148 I.P.C. by the learned trial court is therefore justified. The learned appellate court on proper appreciation of the materials available on record has also rightly affirmed the judgment of conviction passed by the learned trial court against the petitioners. 9. The conviction of the petitioners u/s 379 and 148 I.P.C. by the learned trial court is therefore justified. The learned appellate court on proper appreciation of the materials available on record has also rightly affirmed the judgment of conviction passed by the learned trial court against the petitioners. 9. There being no reason to conclude otherwise so far as the judgment of conviction is concerned, in such circumstances, the judgment of conviction dated 11.04.1991 passed by learned Judicial Magistrate, 1st class, Dumka in P.C.R. Case No. 145 of 1987 (T.R. No. 672 of 1991) and subsequent affirmation of the same in Criminal Appeal No. 71 of 1991 by learned Sessions Judge, Dumka vide judgment dated 27.06.2005, are hereby sustained. However, with respect to the sentence imposed upon the petitioners, it appears that the petitioners have been facing rigours of the prosecution case since the year 1987 and they had remained for sometime in custody out of maximum sentence of R.I. for 02 years. It also appears that two accused have been directed to execute bond of Rs. 3000/- for keeping peace for one year under the provision of Section 360 Cr.P.C. On consideration of the aforesaid facts, the sentence imposed upon the petitioners, who were sentenced to undergo R.I. for 02 years is modified to the period already undergone by them. So far as the petitioners, who have been directed to execute bond of Rs. 3000/- for keeping peace for one year under the provision of Section 360 Cr.P.C, are concerned, no interference is required in the same. 10. This application stands dismissed with the aforesaid modification in the order of sentence awarded to the petitioners. Revision dismissed.