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Jharkhand High Court

Gandauri Paswan vs The State Of Jharkhand on 14 December, 2022

Author: Shree Chandrashekhar

Bench: Shree Chandrashekhar

         IN THE HIGH COURT OF JHARKHAND AT RANCHI
                       (Criminal Revisional Jurisdiction)

                      Cr. Revision No. 858 of 2015

1. Gandauri Paswan
2. Suresh Paswan
both sons of late Rameshwar Paswan
3. Sewak Paswan @ Ram Sewak Paswan, son of late Kesho Paswan
4. Arjun Paswan, son of late Kesho Paswan
5. Shivnandan Paswan, son of late Devraj Paswan
6. Ramnandan Paswan, son of late Devraj Paswan
7. Jirwa Devi, wife of Gandouri Paswan
Petitioner nos. 1 to 7 all are residents of village Salaiya, PO Pandeypura,
PS Huntergunj, District Chatra (Jharkhand)                    ... Petitioners

                                    Versus
1.The State of Jharkhand
2. Ramdeo Yadav, son of late Shankar Yadav, resident of village Salaiya,
PO Pandeypura, PS Hunterganj, District Chatra (Jharkhand)
                                                      ... Opposite Parties
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CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR For the Petitioners : Mr. Rakesh Kumar Sinha, Advocate For the State : Mr. Bishwambhar Shastri, APP

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Order No. 06/Dated: 14th December 2022 The petitioners are aggrieved of the judgment dated 28 th February 2015 by which Criminal Appeal No. 37 of 2009 preferred by them against the order of their conviction under sections 147, 447, 379, 504 and 506 of the Indian Penal Code (in short, IPC) has been dismissed.

2. In Complaint Case No. 425 of 2006 in connection to which TR No. 1037 of 2009 proceeded against the petitioners, the complainant who has examined himself as CW4 produced four more witnesses to establish that the petitioners have committed the offence under sections 147, 447, 379/149, 504/149 and 506/149 IPC.

3. In TR No. 1037 of 2009, the petitioners have been convicted and sentenced to RI for six months under section 379 IPC. They have further been convicted and sentenced to RI for one month each under sections 147, 447, 504 and 506 IPC.

4. The trial Court has held as under:

"24. Considering the above facts and circumstances of the case, I am of the opinion that the complainant has proved one can beyond all reasonable doubts against the accused persons named in the complaint. Hence I hold accused Gandauri Paswan, Suresh Paswan, Sewak Paswan, Arjun Paswan, Shivnandan Paswan, Ramnandan Paswan and Jirwa Devi guilty u/s 147, 447, 379, 504 & 506 IPC. The bail bond of the convicts are hereby cancelled.

25. Since the incident is related to using due brute force for acquising the land and crops therefore the release of the convict on probation bond will not suffice the ends of justice. Hence put up for hearing on the point of sentence.

Heard on the point of sentence and perused the case record. Since the cost of stolen article was about Rs. 4,000/-, the convict has faced the ordeal of trial for three years, each of them shall undergo six months RI u/s 379 IPC and shall also undergo one month RI each u/s 147, 447, 504 & 506 IPC. All the sentences shall run concurrently."

5. Criminal Appeal No. 37 of 2009 filed by the petitioners has been partly allowed to the extent that conviction of the petitioners under sections 504 and 506 IPC has been set-aside for the following reasons:

"23. As far as question of abusing by the accused/appellant to the complainant is concerned. The complainant has stated only that when he objected to the accused/appellant from cutting his paddy crop from his field they abused him. But I find that he has not stated the words from which it may be gathered that the accused/appellant abused the complainant. Therefore, the complainant has failed to prove the charge u/s 504 of IPC. Therefore, the findings of learned lower court in this regard is reversed.

24. Further I find that complainant has stated he was threatened by the accused/appellant with death. On this point I find that simple statement of complainant that accused/appellant threatened to kill him is not sufficient to substantiate the charge unless the threat from the accused appellant was real one. Further complainant has not stated which of the accused has threatened to kill him. The omnibus allegation by the complainant is not sufficient to prove the material facts necessary for constituting the charge u/s 506 of IPC. Therefore, the findings of learned lower court in this regard is reversed."

6. The appellate Court has confirmed conviction of the petitioners under sections 147, 447 and 379 IPC but the sentence of RI for 6 months under section 379 IPC has been reduced to SI for one month.

7. The appellate Court has held as under:

"26. As far as the charge u/s 147, 379 and 447 of IPC is concerned after scrutinsing oral testimony of witnesses of the complainant and complainant himself as discussed above. I find that accused/appellants have cut the paddy crop from the field of complainant after entering upon his field after framing an unlawful assembly and taken away the paddy crop of the complainant without his consent.

27. Therefore, I also find that the accused appellants have committed offences punishable u/s 147, 447 and 379 of IPC.

Therefore, the findings of the learned lower court in this regard are confirmed.

28. As far as the sentences on punishment is concerned the learned lower court has directed the accused/appellants to undergo six months RI u/s 379 IPC. And one month RI u/s 147, 447 of IPC each. All the sentences shall run concurrently.

29. After taking into consideration the entire facts and circumstances of this case as well as the age of the convicts and no previous conviction I find that simple imprisonment for one month u/s 379, 147 and 447 of IPC each shall meet the ends of justice. Therefore, accused appellants are directed to undergo simple imprisonment for one month u/s 379, 147 and 447 of IPC each. All the sentences shall run concurrently."

8. Mr. Rakesh Kumar Sinha, the learned counsel for the petitioners has submitted that the petitioners under a bonafide belief that they have right, title and interest over the lands comprised under plot no. 4, khata no. 31 in village Salaia exercised their right to private defence of property and while so their conviction for the aforesaid offences is not sustainable.

9. In Criminal Appeal No. 37 of 2009, the appellate Court has observed as under:

"19. As far as the documents of title have been filed on behalf of both the parties i.e. complainant and accused persons it appears that plot no. 4 of khata no. 31 of village Salaiya, Pargana Dantar, Thana Hunterganj, Thana no. 3 the then District Hazaribagh present District Chatra before vesting was recorded as Gair Majarua.

20. It further appears from the documents that plot no. 4 has large area and out of which 1.70 acre was settled by the ex-landlord in favour of the grandfather of the complainant, namely, Lurak Mahto and others and area 4.23 acre was allotted in favour of Jageshwar Dusad the ancestor of the accused appellants.

21. It further appears that complainant has admitted that land of accused/appellant is situated in the west of his land. On the other hand DW2 Ram Sewak Pasawan one of the accused/appellant has also admitted in the boundary of land allotted to their ancestor in east side Lurak Mahto.

22. Therefore, I find that it is admitted to the accused/appellant that land of complainant is on the boundary of their land on east side."

10. On a glance at the prosecution's story which is sought to be supported by the witnesses produced by the complainant, it appears that when the petitioners were removing the paddy crops from the field the complainant party arrived there and a heated exchange ensued between them. This is, however, the prosecution's own case that in course of the verbal duel the petitioners did not even attempt to assault the complainant party.

11. The offence of criminal trespass necessarily involves possession of property by the other person into which the accused makes an entry. As noticed by the appellate Court, the petitioners have produced hukumnama and rent receipts to establish that they have valid right, title and interest over the land comprised under khata no. 31, plot no. 4, area 4.23 acres in village Salaiya within the district of Chatra. Similarly, the offence of theft also cannot be said to have been proved by the prosecution as the petitioners under a bonafide belief had removed paddy crops from the aforesaid land over which they have claimed possession.

12. Having regard to the aforesaid facts and circumstances in the case, the judgment in TR No. 1037 of 2009 is set-aside.

13. Consequently, the judgment passed in Criminal Appeal No. 37 of 2009 is also set-aside.

14. Criminal Revision No. 858 of 2015 is allowed.

15. The petitioners shall stand discharged of the liability of the bail bonds furnished by them pursuant to the order dated 17 th September 2015 passed by the coordinate Bench of this Court.

(Shree Chandrashekhar, J.) Tanuj/-