Rajasthan High Court - Jaipur
Genia And Ors. vs State Of Rajasthan on 18 September, 1987
Equivalent citations: 1987WLN(UC)576
JUDGMENT Milap Chandra, J.
1. This is an appeal against the judgment of the learned Sessions Judge, Jalore dated 18-7-78 by which he convicted the accused appellants as under:
Name of the Conviction
S. No. appellant under Section Sentences
of the IPC
1 2 3 4
(1) Narayan 147 RI for 1-1/2 years;
148 RI for 2 years;
342 RI for 6 months;
454 RI for 3 years and fine
of Rs.500/- in default
further RI for 3 months;
495 RI for 4 years and fine
of Rs. 2000/- in default
further RI for 6 months;
(2) Hema ) 147 RI for 1-1/2 years;
(3) Verma)
(4) Geoa ) 342 RI for 6 months;
454 RI for 3 years and fine
of Rs. 500/- in default
further RI for 3 months;
395 RI for 4 years and fine
of Rs. 2000/-, in
default further RI for 6
months;
(5) Harda 147 RI for 1-1/2 years;
1 2 3 4
(6) Bagta 454 RI for 3 years and fine
of Rs. 5000/- in default
further RI for 3 months;
395 RI for 4 years and fine
of Rs. 2000/- in default
further RI for 6 months;
(7) Lakha) 147 RI for 1-1/2 years.
(8) Kesa ) " " "
(9) Sawa ) " " "
(10) Kalia) " " "
2. The prosecution case may be briefly summarised thus. At about 10 a.m. on 7-10-1975, the accused-appellants along with 30 other persons formed an unlawful assembly with the common object of committing dacoity in field, bearing Khasra No. 591 situated in village Hema Gudha (Sanchore). In pursuance thereof, they came armed with gun, kulharis, lathis and dharias in three tractors. They tied the hands of Harchand PW 12 and Meera PW 11, broke open the iron box and took away 'Bajri Sattis' and also ornaments, cash and clothes lying in the box. Written report Ex. P 4 was lodged by Poora PW 10 at the police station, Sanchore on 10-10-1975. Thereon, FIR Ex. P 12 was registered under Sections 147, 342 and 382, IPC. After usual investigation, challan under Sections 147, 342, 382 and 454, IPC was filed against the accused-appellants and also against Molia, Raga, Genda, Peera and Oka who have been challaned, before the Munsif cum-Judicial Magistrate, Sanchore. He committed them to the Court of Sessions Judge, Jalore. Charges under Sections 147, 148, 342, 454 and 395, IPC were framed against all of them. The prosecution examined 19 witnesses and tendered and proved 11 documents. All the accused-persons denied the prosecution story except their arrest. The accused Veerma stated in his examination under Section 313, Cr. PC that the Sub-Divisional Officer, Bhinmal had decided the case regarding the disputed field in his favour, accordingly, mutation was effected in his favour, injunction order was issued against the complainant-party, he cultivated the said field in S.Y. 2032, Peelan, box and 'Bajri Sattis' were recovered from his house, they belonged to him and he has not committed any theft. The other accused persons have stated that they have falsely been implicated because of close relations with the accused Veerma. They examined six witnesses and tendered and proved 11 documents in their defence. After hearing the parties, the learned Sessions Judge convicted the accused appellants as said above and acquitted the remaining five accused persons, namely, Molia, Rama, Bonda, Peera and Oka.
3. The learned Counsel for the accused-appellants has contended thus. Admittedly, dispute in between Chatra PW 18 and Veerma was going on over the disputed field prior to October, 1975. This false case was got made against the accused-persons with the help of the police when the complainant party could not succeed in the Revenue Court. Proceedings under the Rajasthan Escheats Regulation Act were commenced in respect of the disputed field after its Khatedar Rama died without leaving any heir. The disputed field was put to auction and the accused Rama gave the highest bid. After depositing the bid money, he cultivated it. An inordinate delay of over 50 hours in lodging the report Ex. P 4 has not been explained. It does not contain essential details of the occurrence despite the fact that it was drafted by a lawyer of Jalore. No identification parade of any accused or any article was held. As such the identification of the accused persons and articles in the Court was of no value. He cited Budh Sen v. State of UP. AIR 1970 SC 1921 ;Jadunath Singh v. State of UP(AW 1971 SC 363), Hasib v. State of Bihar ) and State v. V.C. Shukla ).
4. The learned Public Prosecutor duly supported the judgment of the learned Sessions Judge, Jalore,
5. The first question for consideration in this appeal is as to who was in possession and cultivation of the disputed field bearing Khasra No. 591 measuring 42 Bighas and 4 Biswas situated in village Hema Gudha in S.Y. 2032. The prosecution witnesses Jag Ram PW 1, Jumma PW 2, Lada PW 3, Punma PW 6, Dar Ram PW 7, Toga Ram PW 9, Pura PW 10, Mira PW 11, Harchand PW 12, Kheta Ram PW 14 and Chatra PW 18 have deposed that it was in possession and cultivation of the complainant Chatra. On the other hand, the defence witnesses Mangi DW 1 Maina DW 2, Asha DW 4, Bhola DW 5 and Narain DW 6 say that it was in possession and cultivation of the accused Veerma. Consistency is not the only test of truth. The essential question whether the fact deposed to is true or not is to be determined by other tests which may be available under the facts and circumstances of a case. Chatra PW 18 admits in his cross-examination that the disputed field was auctioned in the escheat proceedings and the highest bid of the accused Veerma was accepted by the Government but he continued in its possession and cultivation. Column No. 6 of the Khasra Girdawari Ex. P 11 mentions the name of the former Khatedar Shri Ram Jet. It is also mentioned in it that the mutation has been affected in favour of Rama s/o Kehra and Veerma s/o Rama in pursuance of the order No. 196 dated 30-6-74 Ghatna Bahi Ex. D 3 of the Halka Patwari dated 6-10-1975 (a day before the occurrence) clearly mentions that the attesting witness of the village disclosed on the spot that Bajra crop was cultivated by the accused Veerma, a Dhani of Chatra PW 18 was also found there and in respect of which the accused Veerma has filed a suit in the Court of the Sub-Divisional Officer, Bhinmal and has obtained an order for its possession. Remark column of the Jamabandi Ex. D 4 mentions that the disputed field has been mutated in favour of Rama s/o Kehra and Veerma s/o Rama Kalwi r/o Milavas vide mutation No. 196 dated 30-6-1974. The mutation sheet Ex. D 9 is also in favour of the accused Veerma and his father. It is mentioned in it that Assistant Collector, Bhinmal has passed order on 17-10-1973 in Revenue case No. 53/73 for effecting mutation in favour of the accused Veerma and his father Kehra and hence this mutation. The accused persons have filed a certified copy of the order Ex. D 10 dated 28-6-1975 of the Sub-Divisional Officer, Bhinmal. It would be best to quote it in extenso. It runs as under:
oknh us izfroknh ds f[kykQ ,s nj[okLr e; 'kiFk&i= is'k dj tkfgj fd;k fd [ksr [k- ua-591 jdck 42@4 ch?kk okds xzke xqMfg;k mldk dCtk lqn dk'r dk [ksr gS rFkk mDr vkjkth ij izfroknh dk dHkh dCtk dk'r ugh jgk gSA bl [ksr dh tekcUnh o E;wVS'ku Hkh oknh ds uke ls Hkjk x;k gS Abl fooknxzLr [ksr dk [kkrsnkjh xyr bUnzkt Jh jkek iq= ihjk tkV ds uke dk gks x;k Fkk Aftl ij ,fle- dysDVj] Hkheuky dksVZ es fnukad 11&10&1973 dks nkok dk dsl ua- 53@73 es fMDysjsV&fjfMdjh feyh oknh ds gd es bl izdkj izkbZeQSlh fyVy o itS'ku gekjs uke ls gS A izfroknh u rks dksbZ jkek dk HkkbZ vFkok fjysfVo gS A >wBk DysaesaV viuk crk dj mDr [ksr dks gM+iuk pkgrk gS Aog dgrk jgrk gS fd bl [ksr es ls k.kh mBk ys vU;Fkk uqDl veu igqapkuk pkgrk gS Abl fu;r ls oknh dks dk'r ls oafNr jgus dh iwjh&iwjh lEHkkouk izrhr gksrh gSA bl oDr dk'r dk le; gS Aoknh }kjk izLrqr 'kiFk&i= ikl cqd udy ,oa nkok la[;k 53@73 oknh ds gd es fMdzh izkIr gqbZ ftldh izekf.kr izfrfyfi ds voyksdu ls izkbZeQSlh dsl oknh ds gd es curk gSA vRk% lqfo/kk ds lUrqyu dks /;ku es j[krs gq, oknh ds gd es fo:) izfroknh vLFkkbZ fu"ks/kkKk bl vlj ls dh tkrh gSA fd os rkgqDe oknh ds dCtk dk'r es fdlh rjg dk n[ky vUnkt u djs rFkk mUgs dksbZ vkifRr gks rks og rkjh[k 30&7&1975 dks gkftj gksdj otg djs fd D;ks ugh mDr vkKk dks duQeZ dh tk; A izfroknh tfj;s uksfVl vkKk ls lwfpr gks A Q+dr rkjh[k 28&6&1975 A^^ Admittedly, document has been filed by the prosecution showing that this order was subsequently set aside or modified by the Sub-Divisional Officer, Bhinmal or the Appellate or Revisional Authority. It may also be mentioned here that details of the ploughing, sowing and cutting of the disputed crop have also not been given by any prosecution witness. The report Ex. P 3 prepared by Tehsildar Sher Singh PW 3 on 22-10-1975 (after occurrence) is of no help to the prosecution as he admits that the accused Veerma was not called when it was prepared. All these facts and circumstances leave no doubt that the prosecution witnesses do not speak truth when they say that the disputed field was in possession and cultivation of the complainant party in Samvat 2032. On the other hand, they fully support the version of the said defence witnesses. It can thus safely be held that the accused Veerma was in possession and cultivation of the disputed field and he cultivated the disputed crop of bajra in S.Y. 2032.
6. The second question for consideration is as to whom the dhani standing on the disputed land belonged. It is well proved from the evidence on record that a dhani existed on the disputed field on the day of occurrence. It is mentioned in the Gahtna Bahi Ex. P 3 that the attesting witnesses of the village disclosed that the accused Veerma left the dhani and went to the village after cutting the standing crop and, thereafter, Chatra PW 18 occupied it. It is stated in the order Ex. D 10 of the Sub-Divisional Officer, Bhinmal that Chatra PW 18 intended to usurp the disputed field and he used to tell the father of the accused Veerma (Plaintiff Rama) to remove his dhani. Informant Pura PW 10 stated in her examination-in-chief that the accused persons along with 40-45 persons came in three tractors on the day of the occurrence on the disputed field and asked her to vacate the dhani and threatened to kill them if they fail to vacate it. She replied that it belonged to her, she would not vacate it and, thereafter, they started damaging it and taking away 'Bajra Sattis' and other articles from the box lying therein. Rama, father of the accused Veerma, filed suit No. 5/75 against Chatra PW 18 in the Court of the Sub-Divisional Officer, Bhinmal and moved an application under Section 212, Rajasthan Tenancy Act and O. XXXIX, R. 1, CPC. The Sub-Divisional Officer, Bhinmal issued the said order on 28-6-1976 restraining the defendant Chatra PW 18 from interfering with the possession and cultivation of the plaintiff Rama. As already observed above, there is nothing on the record to indicate that this order was set aside before 7-10-1975. Despite this order, Chatra occupied the dhani standing on the disputed land. These facts and circumstances leave no doubt that the dhani belonged to and possessed by the accused Veerma and subsequently, it was occupied by Chatra.
7. The prosecution case is that 'Peelan' Article 1 belonged to Chatra PW 18, it was lying in this dhani and it was unlawfully taken away by the accused-persons. The version of the accused appellant is that it belonged to the accused Veerma. The Investigating Officer, Motilal PW 19 admits in his cross-examination that the words "Rama Kehra Samvat 2011" are inscribed on the Peelan Article 1. It is not disputed that the name of Veerma's father is Rama. No attempt was made from the side of the prosecution to explain or to connect this inscription with the complainant. This fact leaves no doubt that the Peelan Article 1 belonged to the accused Veerma. Bharata PW 8 has also deposed that the Peelan belonged to the accused Veerma. It is clear from the recovery memo Ex. P 2 that 'Dala' was also recovered along with it. This shows that the prosecution witnesses Tagaram PW 9, Pura PW 10, Mira PW 11, Harchand PW 12 and Chatra PW 18 have no regard for the truth. They have claimed the articles of the accused Veerma as their own. As observed above, the disputed field was cultivated by the accused Veerma. As such "Bajri Sattis" belonged to him. He had a right to cut and take away. Moreover, "Bajri Sattis" are unidentifiable articles. They are found in the dhanis of almost all agriculturists. Thus the recoveries of these articles from the possession of accused Veerma is of no help to the prosecution. These facts also prove that the dhani was in possession of accused Veerma and was illegally occupied by Chatra when accused Veerma had gone to the village. He had a right to remove there from the articles of Chatra brought there.
8. It is very much doubtful that the occurrence as alleged by the prosecution actually took place. The following facts and circumstances deserve to be noticed here:
(1) As held above, the disputed field was possessed and cultivated by the accused Veerma and the dhani & 'Bajri Sattis' belonged to him. Chatra PW 18 illegally occupied the dhani in the absence of the accused Veerma;
(2) Admittedly, report Ex. P 4 mentions the names of only five accused-appellants and no identification parade was held for the remaining accused-appellants. Meera PW 11 have named accused Bakta only besides the said five accused-persons. Dairam has not named any other accused except Veerma, Gina, Bakta, Harda and Hema. Harji PW 13 says that he came late and could not see any person. Gangaram PW 15 has named all the ten accused-appellants. He seems to be a highly interested witness. He admits that he was convicted by the Sessions Judge under Section 326, IPC. His statement does not inspire confidence;
(3) Admittedly, litigation was going on in between Chatra PW 12 and the accused Veerma prior to the occurrence. The relations in between them were very strained;
(4) The alleged occurrence took place at about 6 a.m. on 7-10-75, report Ex. P (4) was lodged in the police station, Sanchore at 10 a.m. on 9-10-75 and the distance in between the place of occurrence and the police station was only 20 miles. This introdinate delay has not been explained;
(5) Admittedly, report Ex. P 4 was got drafted by a lawyer of Jalore. It does not contain essential details of the cultivation, sowing and cutting of the disputed bazra crop and also occurrence. Overt act of no accused except one (whose name was disclosed in statement of Narain) has been given;
(6) Dr. Nirmal Hemani PW 4 has deposed that he saw only four small scratches on one hand of Meera PW 12 only and they could be self inflicted. The nature and number of these very minor injuries alone indicate that the occurrence as alleged by the prosecution did not in fact take place;
(7) Admittedly, Poora PW 10 was not asked to identify the accused persons who were not named in her report Ex. P 4. Similarly, Meera PW 11 and Harchand PW 12 were also not required to identify the accused persons who were not named in their police statements;
(8) Meera PW 11 admits that she did not tell the name of any accused when Ganga Ram PW 15 came.
9. The prosecution case that the articles belonging to the complainant and taken away by the accused persons were distributed amongst themselves, they gave information under Section 27, Evidence Act and got recovered them is highly improbable. These clothes were not valuable. It is not understandable as to why the accused persons distributed them amongst themselves. The prosecution case is not that the accused persons took away the respective articles from the dhani at the time of occurrence. Caps are not mentioned in the lengthy list of articles and despite it caps have been shown to have recovered at the instance of the accused Kaliya and Kesba. The alleged recoveries of clothes do not inspire confidence. In view of these facts and circumstances, it would be highly unsafe to hold all the accused-appellants guilty of the aforesaid offences. All of them deserve acquittal.
10. In the result, the appeal is allowed and all the accused-appellants are acquitted of the aforesaid offences. Their bail-bonds are hereby cancelled.