Jharkhand High Court
Tirath Prasad Choudhary vs The State Of Jharkhand on 1 December, 2020
Equivalent citations: AIRONLINE 2020 JHA 1369
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Rev. No. 926 of 2013
1. Tirath Prasad Choudhary, son of Shakti Pad Choudhary
2. Umesh Choudhary @ Umesh Pd. Choudhary
son of Shakti Pad Choudhary
3. Tarani Choudhary @ Tarini Pd. Choudhary
son of Shakti Pad Choudhary
4. Babu Chand Rajwar
5. Bhagirath Rajwar @ Bhgirath
both are sons of Late Gopi Rajwar
6. Jai Kumar Rajwar
7. Anil Rajwar
both are sons of Late Pran Gope
8. Jagat Rajwar son of Late Moti Rajwar
9. Ghanu Rajwar son of Late Haresh Rajwar
10. Ajit Rajwar son of Late Jageshwar Rajwar
All above named petitioners are residents of
village- Chakulia, P.O.- Kashi Jharia, P.S.-
Pindrajora, Distt. Bokaro
... ... ... Petitioners
-Versus-
1. The State of Jharkhand
2. Janardan Pandey son of late Dhananjay Pandey,
resident of Village- Chakulia, Tola- Kurmidih,
P.O.- Kashi Jharia, P.S.- Pindrajora, Distt. Bokaro
... ... Opposite Parties
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioners : Mr. Sanjay Kumar, Advocate For the State : Mr. Suraj Verma, A.P.P. For the O.P. No. 2 : Mr. A.K. Sahani, Advocate
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Through Video Conferencing
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Order No.06/ C.A.V. on 25.11.2020 Pronounced on 01.12.2020
1. Heard Mr. Sanjay Kumar, the learned counsel appearing on behalf of the petitioners.
2. Heard Mr. A.K. Sahani, the learned counsel appearing on behalf of the Opposite Party No. 2.
3. Heard Mr. Suraj Verma, learned A.P.P. is appearing on behalf of the Opposite Party-State.
24. The learned trial court vide Judgment of conviction and the order of sentence dated 09.05.2012 passed by the learned Judicial Magistrate, 1st Class, Bokaro in C.P. No. 127 of 2006 / T.R. No. 61 of 2012 held the petitioners guilty and convicted them under Sections 323 and 379 of the Indian Penal Code only and released them under Section 4 of the Probation of Offenders Act, 1958 after furnishing personal bond of Rs. 2,000/- with the direction to maintain peace and good behavior for one year.
5. Being aggrieved by and dissatisfied with the judgment passed by the learned trial court, the petitioners preferred Criminal Appeal No. 114/2012 in which the learned appellate court vide Judgment dated 18.07.2013 passed by the learned Sessions Judge, Bokaro convicted the petitioners under Sections 147, 447, 427, 323, 379, 341, 148 read with Section 149 of the Indian Penal Code and directed to release them under Section 4 of the Probation of the Offenders Act after furnishing personal bond of Rs. 2,000/- with the direction to maintain peace and good behavior for one year and dismissed the appeal.
6. This criminal revision petition is directed against the judgments passed by both the learned courts below.
Arguments on behalf of the petitioners
7. The learned counsel appearing on behalf of the petitioners submitted that the impugned judgment passed by the learned appellate court is ex-facie perverse in view of the fact that the learned appellate court has convicted the petitioners under Sections 148, 447, 427, 341 read with Section 149 of the Indian Penal Code also, whereas the learned trial court had convicted the petitioners under Sections 323 and 379 of the Indian Penal Code only.
8. The learned counsel for the petitioners further submitted that the learned appellate court has recorded that the learned trial court has not recorded any finding regarding the offences under which the accused persons were charged. The learned counsel 3 submitted that the learned trial court, by a reasoned judgment, had acquitted the petitioners for offence under Sections 147, 447, 427, 341 read with Section 149 of Indian Penal Code, but the learned appellate court has committed error in holding that no finding was recorded by the learned trial court with respect to those sections. The learned counsel submitted that there was no appeal as such filed by the State or by the complainant against the order of acquittal under the aforesaid sections and no notice as such was issued by the learned appellate court to convict the petitioners under Sections 148, 447, 427, 341 read with Section 149 of Indian Penal Code, particularly when the petitioners were convicted by the learned trial court under Sections 323 and 379 of Indian Penal Code only. The learned counsel submitted that the learned trial court had recorded that the records clearly indicated that there was land dispute between the parties and many cases were running between the parties.
Arguments on behalf of the Opposite Party-State
9. The learned counsel appearing on behalf of the Opposite Party No. 2 submitted that so far as the conviction of the petitioners under Sections 147, 447, 427, 341, 148 read with Section 149 of Indian Penal Code by the learned appellate court is concerned, he has nothing to say, but he does not dispute the fact that the petitioners were convicted by the learned trial court under Sections 323 and 379 of the Indian Penal Code only and were acquitted under the other sections.
10. The learned counsel further submitted that in spite of the fact that the petitioners were found guilty under Sections 323/379 of Indian Penal Code, the petitioners were only directed to be enlarged under Section 4 of the Probation of Offenders Act, 1958 after furnishing personal bond of Rs. 2000/- with a direction to maintain peace and good behavior for one year only. Learned counsel also submitted that apart from the conviction of the petitioners under the aforesaid sections, there is no other illegality 4 or perversity and the findings of the learned courts below, so far as the conviction of the petitioners under Sections 323 and 379 of Indian Penal Code are concerned, may not be interfered with in absence of any perversity.
11. The learned A.P.P. appearing for the State supported the arguments placed by the learned counsel appearing for the Opposite Party No.2.
Findings of this Court
12. After hearing the learned counsel for the parties and upon going through the impugned judgments and the lower court records of the case, this Court finds that the prosecution case is based on the Complaint being Complaint Case No. 127/2006 presented by Janardan Pandey on 07.03.2006 against 11 accused persons alleging inter-alia that he is permanent resident of Village- Chakulia, Kurmidih and he and his sons/family acquired and possessed the land over Plot No. 277, Khata No. 217 measuring 08 acres 06 decimals and on a portion of the plot, a pond has been dug and plantation has been made. On 24-02-2006 at about 07:00 A.M., the accused persons variously armed with axe, lathi, farsa, spade, etc. cut down 60-70 the trees and damaged the ridge and the pipe and caused loss of about 15-20 thousand rupees to the Complainant. On 25.02.2006 at about 8-9 A.M., when the Complainant went for measurement of the earth work done by the labourers, the accused persons assembled there and abused him and assaulted him and his labourers and the Petitioner No.1 snatched away Rs. 1,000/- from the pocket of the Complainant and the Petitioner No.2 snatched away his H.M.T. watch. The accused persons also took away the trees, pipes, etc. with them.
13. On 10-04-2006, the Complainant was examined on solemn affirmation and thereafter, statements of four enquiry witnesses were recorded. On 21-08-2006, a prima facie case under Sections 147, 149, 447, 341, 323, 379, 427 of the Indian Penal Code was 5 found to be made out against the petitioners and summons were issued to them. After appearance of the petitioners, the evidence before charge was recorded.
14. On 05-01-2010, the charges under Sections 447/149, 427/149, 323/149, 379/149, 341/149, 147 and 149 of the Indian Penal Code were framed against the petitioners which were read over and explained to them in Hindi to which they pleaded not guilty and claimed to be tried.
15. This Court further finds that in course of trial, altogether 05 witnesses were examined on behalf of the Complainant. C.W.-1 is Mahiduddin Ansari, C.W.-2 is Khalif Ansari, C.W.-3 is Patal Rajwar, C.W.-4 is Janardan Pandey who is the Complainant himself and C.W.-5 is Vijay Pandey. The Khatiyan regarding Khata No. 217/New/376G, Plot No.233/277, 151/3465/277 of Mouza Chakulia was exhibited as Exhibit-1 on behalf of the Complainant.
16. After closure of the evidence of behalf of the Complainant, the statements of the petitioners were recorded under Section 313 of Cr.P.C. on 02-04-2012 wherein they simply denied the incriminating evidences put to them and claimed to be innocent. The petitioners did not adduce any oral evidence in their defence. However, the Khatiyan Khata No.217 filed on behalf of the petitioners has been marked as Exhibit-A.
17. This Court finds that the learned trial court considered the evidences, both oral and documentary evidences, adduced on behalf of the Complainant, documentary evidence filed on behalf of the petitioners and also considered the arguments advanced on behalf of the parties and recorded its findings in Para-7 and 8 which reads as under:
"7. That the prosecution has examined altogether 5 CWs in support of his case including informant CW-4 himself. That regarding allegation u/s 447/427 of IPC, there is land dispute between the parties and both parties are claiming the land of occurrence and produced khatiyan by both the parties which is marked as Ext.-1 and Ext.-A. There is completely civil nature 6 dispute. Thus there is no question arise regarding allegation under the aforesaid sections against the accused persons. Therefore, the accused persons are acquitted u/s 427 and 447 of IPC. That regarding u/s 341/147/149 of IPC, the Complainant is unable to establish that accused persons caught him at the time of occurrence and also not established that accused persons are present there with common object and unlawful assembly. The land is claiming by both the parties and whether such types of claim by both the parties, the allegations under Sections 147/149/341 are not affected. Therefore, the accused persons are hereby acquitted from the aforesaid charges. That regarding allegation u/s 323 and 379 of IPC, the prosecution witness no.1, CW-1 disclosed in his chief that accused person has assaulted the complainant. The accused persons were cutting the tree and taken away. That during the course of cross-examination, the defence has not taken any contradiction regarding mar-pit to the complainant by the accused persons and also snatching rupees one thousand from the complainant by the accused persons and also in Para-22 clearly deposed that the snatching of rupees was told to him by Haru Bowri. That CW-2 is also independent witness and he deposed in his chief that accused cut the tree of the complainant and taken away and also stated that accused persons beaten the complainant and also disclosed that accused persons snatched one thousand rupees from the complainant. That during the course of cross-examination, the defence has not taken any contradiction regarding mar-pit, snatching of one thousand rupees and also cutting the tree of the complainant by the accused persons. The statement of chief is intact during the course of cross-examination. That PW-3 Patit Rajwar also deposed in his chief at para-5 that accused persons assaulted the complainant by muka and also taken away one thousand rupees from the complainant. The defence has not taken any contradiction regarding assault and snatching of rupees one thousand from the complainant. That CW-4 is the complainant himself and he has supported his case in his chief. That during the course of cross-examination, defence cross-examined regarding land dispute and he has not taken any contradiction regarding assault, cutting tree and snatching of rupees one thousand from the complainant by the accused persons. That CW-5 is the son of the complainant and he also deposed in his chief and in Para-3 that accused persons had beaten by fists and slaps and also snatched one thousand from the pocket of his father. That further at Para-4 deposed that accused had taken away the tree which was cut by the accused persons. That during the course of cross-examination, regarding assault and snatching 7 of rupees one thousand is not taken any contradiction by the defence.
8. That on perusal of record the complainant are able to prove his case against trial facing accused persons only u/s 323 and 379 of IPC. That oral evidence as well as documentary evidences as regarding allegation u/s 323/379 are not contradicted by the defence. Considering the all facts and aforesaid circumstances the accused persons are found guilty and convicted and his bail bond has been cancelled and taken into judicial custody."
18. This Court further finds that the learned appellate court also considered the evidences adduced on behalf of the Complainant and the petitioners and also considered the arguments advanced on their behalves and recorded its findings in Para-8, 11 and 12 which read as under:
"8. On the combined reading of the testimony of the witnesses, I find that there is consistent case of the complainant that accused persons along with others by forming an unlawful assembly raided the land on which the complainant was getting some earth work done. The incidence took place on two consecutive days. First on 24th and Second on 25th February, 2006. On the first day they came and damaged the ridge of the pond and also the irrigation pipe. It has also come in the evidence that 60-70 trees were felled by the accused persons which were planted by the complainant. On the next day on 25th in the morning, when the complainant had gone to the place of occurrence for measurement of the earth work done by the labours so as to make payment the accused persons again came there and assaulted him and took away with them trees that had been felled on the previous day. The complainant has stated that Rs.1000/- was taken out from his pocket and H.M.T watch was also snatched. These facts has come not only in the evidence of complainant and his son but also has been corroborated by the independent witnesses of the same village. The defence has failed to impeach the credit of the witnesses, either by eliciting any contradiction in their account, or to so that they had any oblique motive to falsely implicate the accused persons. There is nothing on record to disbelieve the account of the complainant and the witnesses. The only defence that has been pleaded on behalf of the accused persons is that the land under Khata No.217 plot no.264 was Gairabad land and complainant had no exclusive right over it.
9.......8
10........
11. Be that it may, the fact of the matter is that witnesses have consistently stated that it was the accused persons who were the aggressors. There is no evidence to show that they had any colour of right for staking the claim over the land which was in settled possession of the complainant. The accused persons by forming unlawful assembly armed with dangerous weapons like axe, lathi, danda, farsa, etc. committed trespass on the land of the complainant and committed act of assault and also damaged the ridges of the pond, irrigation pipe and fell the trees which they took alongwith them on the next day. These acts were committed in prosecution to common object of the unlawful assembly to disrupt the settled possession of the complainant and therefore, each member of the unlawful assembly is liable for the act done in prosecution to the common object. On these facts, I find that the complainant has succeeded to prove the charge, u/s 148, 447, 427, 323, 379, 341 read with Sec. 149 of the I.P.C. The appellants are accordingly convicted under these sections.
12. On perusal of judgment passed by the learned court below, it is surprisingly to note that the learned court below has not recorded any finding regarding the offence under which the accused has been charged. The accused persons have been convicted u/s 323, 379 I.P.C., but no finding has been recorded with respect to the other sections in which the accused persons had been charged. Neither the accused persons have been convicted, not acquitted of the other sections to which they were charged. It is of fundamental importance that the court should record its finding with respect to each and every offence for which the accused is charged. Such a cryptic Judgment is against the mandate of law."
19. This Court finds that C.W.-4 is the Complainant and he deposed that the occurrence took place on 24.02.2006 and 25.02.2006. On 24.02.2006 in the morning, he was getting some earth work done in the raiyati agricultural land and in the meantime, his co-villagers namely, Tirath Choudhary, Umesh Pd. Choudhary, Tarani Pd. Choudhary, Ajit Rajwar, Sudhir Rajwar, Babuchar Rajwar, Bhagirath Rajwar, Murka @ Jagat Rajwar, Anil Rajwar, Judge Rajwar and Dhunuwa Rajwar came there armed with lathi, axe, crow bar, spade and started damaging the boundary of the land and about 60-70 plants which he had planted over the boundary were fell down by them and the pipes 9 for irrigation purpose was also damaged. The labourers were also assaulted by the accused persons. The matter was reported by him to the police station. On 25-02-2006 between 08 to 09 A.M., he went there to make payment to the labourers with regard to the earth work done by them and he was getting the land measured, but in the meantime, the accused persons came there and surrounded him. It was further alleged that the Petitioner No.1 took out Rs. 1,000/- from his pocket and the Petitioner No.2 snatched away his H.M.T. watch and also assaulted him and they also took away the trees with them which had been fell down. On 25th, he went to enquire regarding institution of the case and he was informed that the matter has been forwarded for initiating a proceeding under Section 107 of Cr.P.C.
20. This Court further finds that C.W.-1, C.W.-2 and C.W.-3 are co-villagers of the Complainant and are independent witnesses and C.W.-5 is the son of the Complainant and they have fully corroborated the case of the Complainant with regard to assaulting the Complainant by the petitioners and taking away Rs. 1,000/- from his pocket and also taking away the cut down trees by the petitioners.
21. From the perusal of both the judgements passed by the learned court below, it is apparent that the complaint was filed under section 147,148,447,342,323,379,427 of Indian Penal Code but charges were framed under Sections 447, 427, 323, 379, 341, 147 and 149 of the Indian Penal Code.
From perusal of the trial court judgment, this Court finds that the learned trial court in Para-7 recorded its findings that there is land dispute between the parties and both parties are claiming the place of occurrence land and both parties have produced the khatiyan of the place of occurrence land which have been marked as Exhibit-1 and Exhibit-A respectively and the dispute is completely in the nature of civil dispute and accordingly, the learned trial court has acquitted the petitioners 10 from the charges under Sections 427 and 447 of the Indian Penal Code. The learned trial court further recorded that the Complainant has failed to establish that the accused persons had caught him at the place of occurrence and also failed to establish that the accused persons were present there with common object forming unlawful assembly and accordingly, the learned trial court acquitted the petitioners from the charges under Sections 147, 149 and 341 of the Indian Penal Code also. Thus, the learned trial court acquitted the petitioners for offence u/s 427 and 447 of IPC and also for offence u/s 341/147/149 of IPC and convicted the petitioners only under section 323 and 379 of Indian Penal Code. Admittedly, no appeal was filed against the order of acquittal of the petitioners u/s 427 and 447 of IPC and also for the offence u/s 341/147/149 of IPC and no notice was issued by the learned lower appellate court to convict the petitioners under the said sections at the appellate stage.
22. This Court finds that the learned appellate court has, on the one hand, not considered the findings of the learned trial court in para 7 of the trial court judgement whereby the learned trial court acquitted the petitioners from the charges under Sections 147, 447, 427, 341 read with Section 149 of the Indian Penal Code by a reasoned order and, on the other hand, observed that the learned trial court has neither convicted, nor acquitted the accused persons of the said charges. The appellate court convicted the petitioners for the charges under Sections 148, 447, 427, 341 read with Section 149 of the Indian Penal Code and also under section 323 and 379 of Indian Penal Code as per para 11 of the impugned judgement. However , in the operative portion of the judgement at para 13 recorded that the petitioners are convicted under sections 147, 447, 427, 323 , 379, 341, 148 read with Section 149 of the Indian Penal Code. The appellate court also granted the benefit under Section 4 of the Probation of the Offenders Act to the petitioners. From perusal of the impugned judgments, it is 11 apparent that the petitioners were not charged under Section 148 IPC, but they were charged under section 447, 427, 323 , 379, 341, 147 read with Section 149 of the Indian Penal Code . Thus, the learned appellate court has not only convicted the petitioners for offence under section 148 IPC for which the petitioners were never charged, but also convicted the petitioners under section 447, 427, 341,147, 148 and 149 IPC as per para 13 of the impugned judgement although the petitioners were acquitted for charges under all other sections except section 323 and 379 of Indian Penal Code by the learned trial court.
23. In view of the aforesaid facts and circumstances, the conviction of the petitioners, for offence other than section 323 and 379 of Indian Penal Code by the learned appellate court, cannot be sustained in the eyes of law, which calls for interference in revisional jurisdiction for the ends of justice. Accordingly, the conviction of the petitioners, for offence other than Section 323 and 379 of Indian Penal Code by the learned lower appellate court is hereby set-aside.
24. So far the conviction and sentence of the petitioners under Sections 323 and 379 of the Indian Penal Code is concerned, this Court finds that the learned courts below have recorded consistent and concurrent finding of facts with regard to assaulting the Complainant by the petitioners and taking away Rs. 1,000/- from his pocket and also taking away the fell down trees by the petitioners. This Court further finds that the learned trial court, after considering the facts that this is the first offence of the petitioners and the case arises out of land dispute and many cases are pending between the parties and the age of the accused persons, ordered to release the petitioners granting benefit under Section 4 of the Probation of the Offenders Act which has been upheld by the learned appellate court.
25. This Court is of the considered view that there is no scope for re-appreciation of evidences in revisional jurisdiction and 12 there is no illegality or perversity in the impugned judgments, so far conviction of the petitioners under Sections 323 and 379 of the Indian Penal Code is concerned. Accordingly, the conviction and sentence of the petitioners for the offences under Sections 323 and 379 of the Indian Penal Code does not call for any interference which is hereby affirmed.
26. Accordingly, with the aforesaid observations, this criminal revision petition is hereby partly allowed.
27. Pending interlocutory application, if any, is dismissed as not pressed.
28. Interim order dated 17.01.2014 stands vacated. The petitioners are directed to enter into probation bonds, as directed by the learned trial court and confirmed by the learned appellate court below within a period of two months from the date of communication of this order to the learned court below.
29. Let the lower court records be sent back immediately to the court concerned.
30. Let a copy of this order be communicated to the learned court below through 'e-mail/FAX'.
(Anubha Rawat Choudhary, J.) Pankaj