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2017 DIGILAW 312 (JHR)

Rajendra Pandey v. State Of Jharkhand

2017-02-13

RONGON MUKHOPADHYAY

body2017
JUDGMENT Rongon Mukhopadhyay, J. – Heard Mr. Jai Prakash Pandey, learned counsel appearing on behalf of the petitioners and Mr. Shailendra Kumar Tiwary, learned A.P.P. for the State. 2. This application is directed against the judgment dated 04.09.2002 passed by the learned Ist Additional Sessions Judge, Rajmahal in Criminal Appeal No.31 of 2001 whereby and where-under the judgment and order of conviction of sentence passed by the Judicial Magistrate, Ist Class, Rajmahal on 13.07.2001 in Rajmahal P.S. Case No.228 of 1994 convicting the petitioners for the offences punishable under sections 144 and 379 of the IPC and sentencing them accordingly has been affirmed. 3. It appears that a first information report was instituted in which it was alleged that the portion of land measuring 3 bighas, 19 Kathas, 16 dhur of Mouja Jairam Danga was recorded in the name of the grandfather of the informant. It is alleged that the informant and her younger sister inherited the entire property. The informant had given her portion of land in "Adha Batai" to one Lakhinder Saha who had grown paddy but on 07.11.1994, the accused persons had harvested the part of the paddy. On 13.11.1994, the remaining paddy crops were also harvested. When the Bataidar of the informant had informed her, she had instituted the police case. After investigation, the charge-sheet was submitted against the petitioners and after cognizance was taken, the case was transferred to the court of Judicial Magistrate, Ist Class, Rajmahal who vide judgment dated 13.07.2001 was pleased to convict the petitioners for the offences punishable under sections 144 and 379 of the IPC and sentenced them accordingly. The appeal preferred by the petitioners being Criminal Appeal No.31 of 2001 was ended in dismissal. 4. It has been submitted by the learned counsel for the petitioners that none of the independent witnesses had been examined on behalf of the prosecution. Learned counsel further submits that the petitioner no.1 has also his share in the property which is an admitted fact. It has also been submitted that P.Ws-1, 2 and 3 are related to each other and also are interested witnesses and their evidence could not have been taken into consideration by the learned trial court. Learned counsel further submits that the petitioner no.1 has also his share in the property which is an admitted fact. It has also been submitted that P.Ws-1, 2 and 3 are related to each other and also are interested witnesses and their evidence could not have been taken into consideration by the learned trial court. It has been submitted that the dispute has not been resolved as to who had sown the paddy as none of the courts below could conclusively come to a finding with respect to the share of the petitioner no.1 as well as pin-point as to the person who had harvested the paddy. Learned counsel submits that in absence of proper evidence on record, the petitioners deserve to be acquitted. 5. Learned A.P.P. appearing on behalf of the State has opposed the prayer made by the petitioner. 6. It appears that in course of trial, six witnesses were examined on behalf of the prosecution. P.W-5 and P.W-6 are formal witnesses who had merely proved the rent receipt. P.W-4 is the informant who has admitted in her evidence that Parvati Devi is the sister of Tulsi Pandey and Rajendra Pandey (petitioner no.1) is the son of Parvati Devi. P.W-1 Ayoudhya Dubey is the husband of the informant who has also stated that the recorded tenant Suraj Narayan Pandey had one son Tulsi Pandey and two daughters Parvati Devi and Ganga Devi. Petitioner no.1 Rajendra Pandey is the son of Parvati Devi. This witness has further admitted to the fact that the petitioner Rajendra Pandey had filed a case against Lakhindra Saha who is the Bataidar of the informant. P.W.-2 Lakhindra Saha is the Bataidar of P.W-4 who has stated that he had grown the paddy crops and had subsequently informed the informant about the incident. P.W-3 is the wife of P.W-2 who has also stated in similar terms. It thus appears that P.Ws 1, 2, 3 and 4 all are interested witnesses and their evidence has not been carefully scrutinized by the learned trial court as well as by the learned appellate court in the backdrop of the fact that admittedly there was a land dispute existing between the parties and the possession of the land was also disputed. The petitioner no.1 Rajendra Pandey is admittedly the son of Parvati Devi who definitely had a share in the property. The petitioner no.1 Rajendra Pandey is admittedly the son of Parvati Devi who definitely had a share in the property. Although, P.W.2 Lakhindra Saha has stated about raising the paddy crops in the field but the same has already been supported by the P.W.-3. So far as the P.Ws 1 and 4 are concerned, they are not the eye witnesses with respect to harvesting of the paddy field. 7. Moreover, the evidence available on record do not conclusively prove as to who had harvested the paddy. The false implication of the petitioners also cannot be ruled out. Since the petitioner no.1 happens to be one of the co-sharers of the property in question standing in the name of recorded tenant Suraj Narayan Pandey, these facts have not been properly appreciated by the learned courts below while convicting the petitioners for the offence punishable under sections 144 and 379 of the IPC. 8. Since, the petitioners have been able to make out a case for their innocence, this application is allowed and the impugned order dated 04.09.2002 passed by the Ist A.D.J., Rajmahal in Criminal Appeal No.31 of 2001 as well as the order passed by the learned Judicial Magistrate, Ist Class, Rajmahal on 13.07.2001 in connection with Rajmahal P.S. Case No.228 of 1994 are hereby set aside. The petitioners are discharged from the liability of bail bonds.