Gopal Singh vs Dhaneshwar Sao

Heard learned counsel for the petitioner and learned A.P.P.

Petitioner has sought Special Leave to Appeal in terms of Section 378 (4) of Code of Criminal Procedure against the judgment of acquittal dated

06.12.2016 passed in Complaint Case No. 118/2006 by the Learned Additional Chief Judicial Magistrate, Chatra, whereunder accused persons /

opposite parties herein have been acquitted of the charges under sections 147, 148 and 448 of Indian Penal Code.

There is delay of 21 days in preferring the instant petition, for condonation of which, I.A. No. 2337/2017 has been filed under section 5 of Limitation

Act, 1963.

Learned counsel for the petitioner has sought to explain the delay on the ground that the petitioner after obtaining the certified copy along with the

entire file from the office of the conducting lawyer, approached the learned counsel of this court for filing the instant petition which consumed

sometime. Delay is not intentional. Petitioner would suffer irreparably if delay is not condoned.

Learned A.P.P. does not oppose the prayer for condonation of delay.

On consideration of submission of learned counsel for the parties and the grounds urged, delay is condoned. I.A. stands disposed of.

We have heard learned counsel for the petitioner and learned A.P.P. on the merits of the prayer seeking Special Leave to Appeal.

Complainant / petitioner herein alleged that on 17.12.2005 at 9.00 am, while he was going towards Chatra from his house in the village Banasandi

P.S. Simariya, he saw accused persons armed with lathi, spear, axe, pistol etc. present on his field bearing Khata No. 111 Plot No. 203 with an

intention to take its possession. They were laying bamboo and wooden pillars on the field. When he raised objection, they attempted to kill him. On

intervention of the witnesses, they fled away. He further alleged that the accused persons had attempted to take possession illegally of two parts of

the land in question. The accused Rameshwar Yadav had made attempt to take illegal possession of two decimal of land. Other named accused

persons, Dhaneshar Sao, Prayag Sao, Shivnarayan Sao and Chhedi Mistri had made attempt to take possession of the land having an area of 6

decimal. Complainant asserted that he got the land through Hukumnama from the ex-landlord of Ramgarh Raj and rent receipts were also issued in his

favour. Since then, he is in cultivating possession of the land in question. It is further alleged that the accused persons had caused loss of Rs. 1.00 lakh

by grabbing lands of the complainant and Rs. 2,000/- by laying pillars in the land in question. Since Officer-in-charge of Simariya Police Station and

Superintendent of Police, Chatra did not take action, complaint was filed.

After solemn affirmation and inquiry under sections 200 and 202 of Cr. PC and finding prima facie case under sections 147, 148 and 448 of Indian

Penal Code, accused were summoned. On their appearance, accusation was explained to them, to which they pleaded not guilty and claimed to be

tried.

Complainant examined the following witnesses before charge:

CW-1 Ramchandra Singh

CW-2 Gopal Singh

CW-3 Mundrika Singh

CW-4 Awadh Singh

CW-5 Arun Singh

CW-6 Lakhan Sahu

CW-7 Jitendra Sahu

After the charge, he produced the following witnesses for their further cross-examination:

CW-1 Ramchandra Singh

CW-7 Jitendra Sahu

CW-2 Gopal Singh

CW-4 Awadh Singh

CW-6 Lakhan Sahu

CWs-3 & 5 did not appear for further cross-examination at the stage of evidence after charge. Complainant examined two formal witnesses, CW-8

Bajarang Singh and CW-9 Nirmal Kumar Sao. CW-9 exhibited the following documents:

Ext.-2

Ext.-3

Ext.-4, 4/1 & 4/2:

Ext.-1 & 1/1:

Fard Amin Report

Hukumnama

Rent Receipts

Signature of the typist and learned lawyer on complaint petition were proved by CW-8.

After conclusion of the evidence of the complainant, statement of the accused persons were recorded under section 313 Cr. PC in which they denied

the case of the complainant and claimed to be innocent.

Defence examined six witnesses.

DW-1 Kamdev Ram

DW-2 Madhusudan Singh

DW-3 Santosh Singh

DW-4 Karan Sahu

DW-5 Shankar Pathak

DW-6 Bhola Singh

It also adduced and proved the following documentary evidence. Ext.-A: A certificate dated 29.01.2014 issued by the headmaster of Government

Middle School, Dadi, Simariya Ext.-B: Certified copy of order sheet dated 04.09.2010 passed in case no. 30/2010 by the Court of SDM, Chatra Ext.-

C: Certified copy of letter no. 422 dated 30.08.2010 of the office of Circle Officer, Simariya to the SDM, Chatra in case no. 50/2010 under section

144 of the Cr. PC pending in the court of SDM, Chatra.

Learned Trial Court proceeded to deal with the evidence of each of the witnesses produced by the complainant and defence. From the

complainant’s side, Ext.-1 to 4/2 were adduced in support their case. Complainant’s witnesses CWs-1, 2, 4, 6, 7, 8 and 9 were examined and

considered by the Learned Trial Court. Six witnesses and documentary evidence adduced by the defence were also discussed. Learned Trial Court on

examination of the statement of the complainant (CW-2), CW-1 Ramchandra Singh who is the father of the complainant and CW-4 who is the brother

of the complainant, found that all three witnesses were close related witnesses. CW-6 who claimed to reach at the place of occurrence on hearing

noise, had stated that the accused persons were cutting foundation. On objection being raised by the complainant, they attempted to kill him. He was a

para teacher in a school situate at Lawalong.

His house was situate at a distance of about 200 yard from the house of the complainant. CW-7 testified that on the relevant day and time, he had

seen crowd at the place of occurrence. Both parties were quarrelling. Except this, he had not witnessed anything. In his cross-examination, he stated

that about 30-40 persons were present at the place of occurrence. The land in question is not under the cultivation of anyone. A Government drain is

passing through it. CW-8 Bajarang Singh, a formal witness, proved the signatures of the typist and learned lawyer on the complaint petition, which

were marked as Ext.-1 and 1/2. In his cross-examination, he had stated that the complainant is his nephew. CW-9 Nirmal Kumar Sao, a formal

witness, aged 19 years, had identified the Fard Amin report dated 22.03.1937 (Ext.-2), Hukumnama (Ext.-3), rent receipt no. 825769 dated

25.03.1955, rent receipt no. 795102 dated 06.09.1965 and rent receipt no. 44 of the year 1937 (Ext.4, 4/1 & 4/2). He stated that all the documents

have been filed by the complainant. In his cross-examination, he had stated that he does not know the age of CW-1 Ramchandra Singh and the

documents proved by him are prior to his birth. He had seen the said documents when he was aged about 11 years in the possession of Ramchandra

Singh. He does not know the person who had signed upon the said documents. Defence witnesses claimed that the land in question is gairmajarua and

villagers are using the same for coming and going through the alleged land. Government drain has been constructed on the land in question.

DW-2 also stated that the plot no. 203 of Banasahi is a Government land used by the villagers; no occurrence took place on 17.12.2005. DWs-3 & 4

also stated in the similar fashion. DW-4 further stated that he had seen some straw kept over the land and 6-7 pillars were placed; accused persons

were not claiming title over the land in question. DW-5 stated that the accused Rameshwar Yadav was working with him in the Middle School Dari

between 8 am to 11 am on 17.12.2005; they were Assistant Teacher in the said school. He identified the writing and signature of the Headmaster of

the said school who had issued the certificate dated 29.01.2014, which has been marked as Ext.-A. During cross-examination, he stated that he had

not put his signature on the said certificate and not brought any attendance register of the said school. Ext.-A was not prepared in his presence. DW-6

is the member of Panchayat Samiti. He testified that the land at the place of occurrence is gairmajarua which is used for coming and going by the

villagers as a public land; no occurrence took place on 17.12.2005.

On analysis of the oral and documentary evidence of the parties, Learned Trial Court was of the opinion that Ext.-3 Hukumnama dated 21.03.1937

in the name of the father of the complainant (Ramchandra Singh) was alleged to be issued by the Manager of the Estate of Ramgarh Raj, Padama for

the land under Plot No. 203 indicating that plot is gairmajarua khas land. Ext.-4, 4/1 and 4/2 were rent receipts dated 25.03.1955 and 06.02.1965 and

third one was not visible. Ext.-2 is Fard Amin Report dated 22.03.1937. CW-9 could not be a competent witness to prove Ext.- 2 to 4/2 as he was

aged about 19 years and had no knowledge about the alleged documents. Mere identification of a document by the witness about its nature, does not

prove the document and makes it admissible in evidence. These documents further did not establish the right, title and possession of the complainant.

The complainant had failed to adduce any cogent and reliable documentary evidence for establishing the fact of possession and that the State

Government had recognized the father of the complainant as raiyat over the land in question after vesting of Zamindari. Documentary evidence

adduced by the accused persons showed that the land in question had come in possession of the State Government. Ext.-B is the certified copy of

order sheet dated 04.09.2010 passed in case no. 50/2010 by the Learned SDM, Chatra holding that “on the disputed land either party has no

possession or jamabandi is not running in either name.

This proceeding appears to be fictious and hence droppedâ€. Ext.-C is the certified copy of the letter no. 422 dated 30.08.2010 of the Circle Office,

Simariya sent to the SDM, Chatra in the case no. 50/2010 under section 144 of Cr. PC, wherein it has been stated that Khata No. 111 of Plot No. 203

area 0.28 acre is gairmajarua khas land and jamabandi is not running in the name of either party and no one is in the possession of the said land. These

documentary evidence persuaded the Learned Trial Court to come to an opinion that the land in question was in the possession of the State

Government. CW-7 also had deposed in his cross-examination that the land in question is not under cultivation of anyone. A Government drain is also

passing through it. CWs-1, 2 and 4 were interested witnesses being the father of the complainant, complainant himself and his brother. Learned Trial

Court discussed the ingredients of section 448 of IPC. According to it, to constitute the offence of trespass, prosecution should establish that the

accused had entered into or upon property in possession of another, as envisaged in section 441 of IPC. If a person enters on land in the possession of

another in exercise of a bonafide claim of right but without any intention to intimidate, insult or annoy the person in possession or to commit an offence

then although he may have no right to the land, he cannot be convicted of criminal trespass because the entry was not made with any such intention as

constitutes the offence. Learned Trial Court also discussed the ingredients of section 147 IPC. On appraisal of the entire material evidence on record

in the light of the ingredients of these offences, it concluded that the complainant had not succeeded to prove its case beyond shadow of all reasonable

doubts, hence they were acquitted.

Learned counsel for the petitioner has questioned the findings of the Learned Trial Court on the ground that the evidence of the complainant’s

witnesses have not been considered in proper manner while recording an order of acquittal. Learned Trial Court has failed to take into account the

existence of Hukumnama dated 21.03.1937 (Ext.-3), rent receipts of 1955 and 1965 (Ext. 4 to 4/2) which showed the possessions of the father of the

complainant. Learned counsel for the petitioner has however not been able to dislodge the findings of the Learned Trial Court based upon the

documents (Ext.-B & C) being the order sheet of case no. 50/2010 and letter of Circle Officer, Simariya sent to SDM, Chatra which showed that

either party was not in possession of the land or jamabandi was also not running in either name. CW-9 aged 19 years besides identifying the Ext.-3,

Hukumnama dated 21.03.1937 and Ext.-2 being rent receipts of 1955 and 1965, could not prove as to who was the person who had signed upon the

said document. Undisputedly, these documents were issued much prior to his birth.

Learned counsel has further submitted that there is a suit pending as against the Government instituted by the complainant party. In any case,

findings are susceptible to challenge before the Appellate Court if Special Leave to Appeal is allowed.

Learned A.P.P. has opposed the prayer. He submits that the possession of land is not shown undisputedly in favour of the complainant party.

Allegation of criminal trespass under section 448 of IPC were not established. Therefore, the impugned finding does not require any interference.

We have considered the submissions of the learned counsel for the petitioner and learned A.P.P. and also gone through the impugned judgment

and relevant discussions on the material evidence adduced by the parties as well. As noted above, Learned Trial Court upon consideration of the

entire evidence on record, specifically Ext.-B & C being the order passed in case no. 50/2010 by the learned SDM, Chatra and letter of Circle

Officer, Simariya dated 30.08.2010, observed that on disputed land, neither party were in possession, nor jamabandi was running in either name. Thus,

ingredients of section 448 IPC could not be established. In the light of aforesaid facts and circumstances and discussions made hereinabove, we are of

the opinion that the petitioner has failed to make out any ground to seek Special Leave to Appeal to challenge the findings of acquittal before the

Appellate Court. Accordingly, instant petition is dismissed.