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2018 DIGILAW 134 (JHR)

Apurba Kumar Gorai v. State of Jharkhand

2018-01-16

APARESH KUMAR SINGH, B.B.MANGALMURTI

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JUDGMENT : B.B. Mangalmurti, J. Leave to appeal has been urged against the judgment dated 26th June, 2010 in P.C.R. Case No. 37 of 2005, T.R. No. 159 of 2010 by which the learned Judicial Magistrate, 1st Class, Dumka has acquitted accused persons/O.P. Nos. 2 to 5 from the charges under Sections 147 and 379 of the Indian Penal Code. 2. The short fact of the case is that the land under Jamabandi No.19 of Mouza Kukurtopa was recorded in the name of Nawalkishore Gorai, the grandfather of the complainant in Gentzer Settlement and presently it is recorded in the name of father and uncle of the complainant which was finally published on 24.06.2001. The lands in question are in possession of complainant and his family having right, title and interest. The complainant grew paddy crops at plot No.510 of the said Mouza Kukurtopa which was ready for harvesting then on 28.12.2004 at about 8.00 a.m. accused, persons and 50 others after forming unlawful assembly armed with deadly weapons reached to the paddy field of the complainant and started harvesting paddy crops. On protest they became violent and threatened the complainant for dire consequences. They forcibly harvested the paddy crop till 6.00 p.m. and took 10 quintals of crops worth Rs. 5,000/-. The matter was reported to the Officer-in-Charge Jama Police Station but no action was taken then a complaint case was instituted in the court of Chief Judicial Magistrate on 20.01.2005 under Sections 144, 147, 148 and 379 of the Indian Penal Code. 3. After recording the enquiry witnesses, summon was directed to be issued upon all accused persons and after their appearance the substance of accusation were explained to them. The complainant produced 04 witnesses and brought on record 04 exhibits whereas accused persons adduced in their defence 03 witnesses but no documents were exhibited. After consideration of the oral and documentary evidence, the trial court recorded the finding that the alleged land was in custody of the police station and both parties were restrained as both the parties are in dispute since 1979. The court also found that in absence of independent legal witnesses and contradiction in the statements of the witnesses, the case of complainant could not be proved. The court also found that in absence of independent legal witnesses and contradiction in the statements of the witnesses, the case of complainant could not be proved. The court also found that the case is purely of a civil nature and does not impose criminal liability upon the accused persons resulting into passing of order of acquittal by the trial court. 4. Learned counsel for the petitioner submitted that the trial court has not considered the oral evidence of the witnesses in its true perspective. The court has also ignored the evidences of the witnesses who have categorically supported the case of the complainant and the documents brought on record have amply proved the case of the complainant but the court below instead of holding the accused guilty, acquitted them holding the case purely of civil nature. He also submitted that the accused persons after forming unlawful assembly harvested the paddy crops by using the force and demonstrating deadly weapons. They have also removed the paddy crops after harvesting and the oral evidence supports the whole occurrence. 5. Learned A.P.P. appearing on behalf of State submitted that the judgment of acquittal has been passed after due deliberation and appreciation of the oral and documentary evidences. He further submitted that the trial court has held that the documents by which the lands were claimed in their name as per Gentzer Settlement is not well proved. Several litigations were fought by the parties. Apart from this case, another case was also filed by Manoj Kumar, son of complainant, which was also admitted during cross-examination. CW-3 Shailendra Kumar Gorai has stated that Surendra Gorai is his brother and Apurwa Kumar Gorai is his son. A case under Section 144, Cr.P.C., which was later on converted under Section 145, Cr.P.C., was also fought between the parties. His son has also filed another case being 294 of 2004 against accused Mangal Murmu. He has also disclosed the fact that the land was seized under Section 144, Cr.P.C. and the police station was custodian of the land. The witnesses could not prove that who has planted the paddy crops when it was under zimmanama of the police. His son has also filed another case being 294 of 2004 against accused Mangal Murmu. He has also disclosed the fact that the land was seized under Section 144, Cr.P.C. and the police station was custodian of the land. The witnesses could not prove that who has planted the paddy crops when it was under zimmanama of the police. The witness also could not state that in whose name the land was recorded and even in Gentzer's settlement Surendra Gorai and Shailendra Kumar Gorai tried to take possession of the land in the year 1979 so there are lot of contradictions in the evidence of the complainant's witnesses. Only interested witnesses were examined and the court found that no independent witnesses were examined so the court disbelieved the prosecution version and ultimately held that the case is of civil nature and rightly acquitted the accused persons from the charges. 6. Considering the above pleadings of the parties and on perusal of the judgment of the trial court it appears that as per the prosecution version the land in dispute was in the predecessor's interest of the parties and the witnesses have stated that the land was recorded in the Gentzer Settlement also in the name of their grandfather but one party is trying to take possession of the land since 1979 for which criminal cases were filed. CW-3 Shailendra Kumar Gorain has stated that there was proceeding under Section 144, Cr.P.C., which was converted under Section 145, Cr.P.C., and the land was seized under Section 144, Cr.P.C. and police station was made custodian of it. His son Manoj Kumar had also filed one case being one of the shareholders of the land. CW-1 Alok Kumar Chaudhary has stated about the assemblage of persons and he has also named some of the accused persons who were armed with deadly weapons and harvested the paddy crop of complainant and threatened to kill him. About 10 quintals of paddy crops of the value of Rs. 5,000/- were also forcibly removed from the land. The court did not rely upon his version as he was a chance witness. This witness has also stated that he also gave evidence in the case which was filed by Manoj Gorai. About 10 quintals of paddy crops of the value of Rs. 5,000/- were also forcibly removed from the land. The court did not rely upon his version as he was a chance witness. This witness has also stated that he also gave evidence in the case which was filed by Manoj Gorai. CW-2 Dhiren Gorai has stated that he reached to the place of occurrence and has seen the accused persons harvesting paddy crops of the complainant and removal of 10 quintals of paddy as well as identified the accused persons. Before charge evidence, he stated that he could not tell the name of all the accused persons present before the court. He further stated that Hutu Gorai is the owner of the disputed land and one case is also pending in the court of S.D.J.M. for the same land which was filed by Manoj Gorai in which he was also one of the witnesses. This witness has also stated that he has not seen complainant Apurwa Gorai ploughing the land either by tractor or by hal. He also stated that although they were armed with weapon but he has not seen the incident of assault. He also stated that he remained there on the place of occurrence till 12.00 p.m. and no one was assaulted till that time. 7. The court has also appreciated the evidence adduced on behalf of defence. DW-1 Parmeshwar Hansda has stated that neither the paddy crops were planted nor harvested as there was implementation of Section 144, Cr.P.C., over the alleged land. He further stated that he was in custody for harvesting of the paddy crops of the same land in this year. DW-2 has also stated that Section 107 was imposed on the alleged land in the year 2004 so paddy was never planted. He has also stated about the harvesting of paddy crops in the year 2009 in which accused persons remained in custody. In his cross-examination he stated that in the year 2008 he was remanded to jail for harvesting paddy crops in the same case. Another case was filed in the court of Commissioner being Settlement Case No. 22/2006. DW-3 Anand Rai has also stated that he has not seen the complainant. In his cross-examination he stated that in the year 2008 he was remanded to jail for harvesting paddy crops in the same case. Another case was filed in the court of Commissioner being Settlement Case No. 22/2006. DW-3 Anand Rai has also stated that he has not seen the complainant. The court perused the order of the Commissioner, Santhal Pargana, Dumka in Settlement Case No.22/2006 from which it appears that the case was filed by Mangal Murmu and Others against some Gorai (name is illegible) but the names of neither the first party nor the second party were appearing in that case. The trial court has also quoted the order of the learned Commissioner that "not appropriate to give any direction in favour of the petitioner who are attempt him to reopen the finally concluded matter which sought concluded 70 years ago" and thereafter the Commissioner was pleased to disallow the petition of the first party. The court also found that the matter was related to the correction of the entry made in Gentzer's Settlement and the order is dated 09.06.2008 and the case is prior to that order. The court also on perusal of Ext.3 found that G.R. Case No. 1784/2008 the charge-sheet was submitted against Sidho Murmu, Sukhlal Murmu and Sushil Murmu. Ext.4 is the khatiyani slip of mouza Kukurtopa, P.S. Lakrapahari, Sub-Division Dumka of jamabandi No.19. However, this being a photocopy of certified copy and it was vague that the content could not be read out and the court found that these documents are worthless to prove the case of the complainant. The court also found that there are no documentary evidence in their support that the plot No.510 belonged to them. The complainant has himself stated that the police station is the custodian of the alleged land and to the utter surprise that complainant's witnesses stated that being the custodian of the alleged land, the Officer-in-Charge of the concerned police station overlooked the matter being a mere spectator when both parties were harvesting the crop from morning till evening and no action was taken against them by the police. The court also found that for the same land another case was also filed in the court of S.D.J.M., and in this situation the trial court disbelieved the allegation put forward in the complaint petition. The court also found that for the same land another case was also filed in the court of S.D.J.M., and in this situation the trial court disbelieved the allegation put forward in the complaint petition. The court also found this case of civil nature and finally acquitted the accused persons. 8. We do not find any inconsistency or lack of appreciation of evidence by the trial court. The findings of the trial court is based on sound reasoning and after proper appreciation of the oral and documentary evidence. Therefore, we are not inclined to grant leave to appeal against judgment dated 26th June, 2010 passed in P.C.R. Case No. 37 of 2005/T.R. No.159 of 2010 by the learned Judicial Magistrate, 1st Class, Dumka. 9. Accordingly, the instant petition is dismissed. APARESH KUMAR SINGH, J. - 10. I agree. Petition is dismissed.