Patna High Court
Bimal Ram And Anr. vs State Of Bihar on 21 January, 1997
Equivalent citations: 1997CRILJ2846
Author: D.S. Dhaliwal
Bench: D.S. Dhaliwal
ORDER D.S. Dhaliwal, J.
1. Case of the prosecution is that Ram Swarup Pathak (P.W. 5) had purchased 1 Kama 3 dhurs of plot No. 249, Khata No. 9 along with a house standing thereon from Bishundeo Ram and his father Ram Prasad in the year 1966 vide registered sale deed (Ext. 4). The house was thereafter let out to Ram Prasad on monthly rent of Rs. 40/-. The first informant filed ejection suit which was decreed and in execution of that decree possession was delivered to the first informant on 30-8-1981. Petitioners are the grand sons of the said Ram Prasad. Case of the prosecution further is that on 11th January, 1982 at about 7.a.m. when appellant happened to go to the aforesaid house situated in Mohalla Nawranga he both the petitioners along with several other persons demolishing the house. They were seen removing roof, titles and door planks. Petitioners also pulled down walls and removed the building materials. Ram Swarup Pathak on the same day submitted a written report (Ext. 1) to the Officer-in-charge, Begusarai Town Police Station on the basis of which case was formally registered.
2. After completion of the investigation, the petitioners were sent up to stand trial. Judicial Magistrate, 1st Class, Begusarai vide judgment and order dated 30th June, 1987 convicted and sentenced both the petitioners to three months' rigorous imprisonment for an offence under Section 426 of the Indian Penal Code. They were also convicted and sentenced to rigorous imprisonment for six months under Sections 144, 448, 379 and 380 Indian Penal Code on each count. The substantive sentences of imprisonment were, however, made to run concurrently. On appeal being filed, Sessions Judge, Begusarai vide judgment and order dated 23rd February, 1988 dismissed the appeal preferred by the petitioners and maintained the conviction and the sentences passed upon the petitioners.
Hence this revision petition by the convicts.
3. I have heard learned counsel for the petitioners, A.P.P. for the State and Mr. Sade Nand Roy, counsel for the first informant.
4. Learned counsel for the petitioners submits that besides the first informant who appeared as P.W. 5 prosecution has examined four other eyewitnesses, namely, Rajendra Singh (P.W. 1), Ram Rup Pathak (P.W. 2), Devendra Singh (P.W. 3) and Jasodhar Jha (P.W. 4), but none of them can be termed to be natural and independent witness of the occurrence and as such the courts below fell in error in relying upon their testimony. Counsel for the petitioners in this respect canvassed that P.W. 2 is the real brother of first informant and P.W. 1, P.W. 3 and P.W. 4 belong to different locality and an such are only chance witnesses on whose testimony no reliance can be placed.
5. I have given my anxious consideration to these submissions, but I find myself unable to areas with the learned counsel for the petitioners. The settled (sic) of law is that testimony of a witness cannot be thrown overboard merely because he happened to be a chance witness or a relation of the first informant. It is the rule of caution which directs the Court to scrutinise the testimony of such like witnesses with due care and caution and the testimony of a chance witness may not be acted upon where is found to be inimically disposed of towards the accused or is in any way shown to be interested in the prosecution. A close scrutiny of the eye-witnesses examined by the prosecution in this case goes to show that although P.W. 1, P.W. 3 and P.W. 4 belong to different locality of the same town, but there is nothing on record to indicate that they were in any way inimically disposed of towards the petitioners or are under the influence of the first informant. P.W. 2 is no doubt brother of the petitioner, but his house is situated close to the place of occurrence and as such is a natural witness. All the aforesaid witnesses have corroborated the statement of the first informant that on the alleged date of occurrence both the petitioners along with 15/20 other persons came to the place of occurrence and caused damage to the house of the first informant and that they removed the roof, tiles, the door planks as also the building materials in the form of bricks. Testimony of these witnesses is further corroborated from the objective findings of A.S.I. Narendra Kumar Singh (P.W. 6) who visited the place of occurrence on the date of occurrence itself. He has also found that roof of the house and door planks had been removed and that a part of the wall had also been demolished and materials taken away. The conviction of the petitioners recorded by both the courts below is, therefore, well founded and is hereby maintained.
6. Counsel for the petitioners next contended that the impugned orders of both the courts below suffer from anogher legal infirmity as the petitioners who were less than 21 years of age have not been given benefit of Section 360, CrPC or of the Probation of Officers Act. The benefits of these beneficiary provisions, according to the counsel, have been denied to the petitioners without indicating any special reasons. Here again I find myself unable to agree with the learned counsel for the petitioners. No doubt the case of the petitioners, being less than 21 years of age at the time of occurrence, was fit to be considered for extending to them the benefit of the aforesaid beneficiary provisions, but it cannot be said that they have been denied these benefits without recording any reason. Both the courts have considered the case of the petitioners for extending to them the benefit of Section 360, CrPC and the provisions of Probation of Offenders Act. The benefits of these provisions have been denied for the reason that the petitioners had taken the law into their hand after they were not evicted from the house in question in execution of a decree of the competent Court and that too with the police help.
7. In the result, I find that the revision petition is without any merit and the same is hereby dismissed.