Matul & Ors vs State Of Bihar

This revision application has been preferred for setting aside the judgment dated 07.05.2018 passed by learned 3rd Additional Session Judge, Katihar in Criminal Appeal No. 52 of 2013 whereby and whereunder he has been pleased to affirm the judgment of conviction and order of sentence dated 08.07.2013 passed by Sri Md. Manzoor Alam, Judicial Magistrate- Ist Class, Katihar in GR No. 983 of 2003 corresponding to Abadpur P.S. Case No. 19 of 2003.

By the impugned judgment, the conviction and sentence passed by the learned trial court for the offence under Sections 323, 342, 379 and 506 of the Indian Penal Code has been affirmed. The petitioners have been ordered to undergo simple imprisonment for a term of one year under Section 323 of the Indian Penal Code, one year simple imprisonment under Section 342 IPC, 2 ½ years simple imprisonment under Section 379 IPC and two years simple imprisonment under Section 506 IPC. All the sentences are to run concurrently and the period undergone in jail custody, if any, shall be set off.

Prosecution Story:-

As per the prosecution story, the father of the informant had a piece of land in Mauza, Palasi bearing Khata No. 57, Khesra No. 201 measuring area 25 decimals. He had six mango trees standing on his share of land. It is alleged that on 05.06.2003 at about 8:30 am, all the named accused persons variously armed with traditional deadly weapons entered into the orchard by using filthy language against his father and brother. On this, when his own brother Md. Naiyyar objected, he was assaulted by Jainul and Mahboob. All the accused persons plucked the mangoes and when the informant along with other brothers went there to object, they were also assaulted and all of them were threatened to kill. It is alleged that the accused persons took away the mangoes worth Rs. 10-12 thousand. On hulla, the witnesses came and saw the occurrence. On the basis of written report of the informant (PW-9), Abadpur P.S. Case No. 19 of 2003 was instituted under Sections 143, 341, 342, 323, 504, 506 and 379 of the Indian Penal Code.

After investigation, police submitted charge-sheet against the accused persons. Accordingly, cognizance was taken by the learned Judicial Magistrate, Katihar. Charges were framed against the named accused persons under Sections 143, 323, 341, 342, 379, 506 and 504 of the Indian Penal Code. The accused pleaded not guilty and claimed to be tried.

In course of trial, altogether ten witnesses were examined on behalf of the prosecution. PW-1 is Md. Noorul Hoda, the brother of Md. Naiyyar Alam(PW-5). PW-5 claims to be an eye-witness and the victim of the alleged occurrence. PW-2 is Shahnawaz Alam who claims himself another victim as well as eye-witness of the occurrence. He is the brother of Md. Naiyyar (PW-5). PW-3 Idrish Ali claims to be an eye-witness and an independent witness. PW-4 Sk. Tajiluddin is another eye-witness and an independent witness. PW-5 is Md. Naiyyar who is main victim of the alleged occurrence and in his examination-in-chief, he has narrated the story as to what happened with him. PW-6 is said to be an independent witness who has stated that at about 8-9 am, he was at his home and on hulla he went to the mango orchard of Panjenoor (the father of the petitioners) and saw that the accused persons along with 50-60 unknown persons were plucking the mango from the orchard and when the Panjinoor’s son objected them, all assaulted him with fists and slaps and threatened him of dire consequences.

PW-10 Md. Nasim Akhtar has described as the sitting mukhiya of the area. He claims to be an eye-witness as well as an independent witness. He had seen Jainul, Mahboob, Mohsina, Bandu along with 60-65 persons were plucking the mangoes. He has deposed that Naiyyar was given 2-4 slaps and was also threatened.

PW-8 is Md. Noor Alam, brother of the eye-witness to the alleged occurrence and elder brother of Md. Naiyyar (PW-5). PW-9 Md. Naushad Alam is also one of the brothers of Md. Naiyyar and has supported the prosecution story.

PW-7 is investigating officer Rajeshwar Prasad, who has stated that after getting the charge of investigation, he went to the place of occurrence and after re-recording the statement of the witnesses and on being satisfied on every point, handed over the charge of investigation to his successor due to transfer, finding the case to be true submitted the charge-sheet against the accused persons.

On behalf of the prosecution, Exhibit ‘1’ which is the endorsement regarding handing over the charge of investigation; Exhibit ‘2’ the FIR; Exhibit ‘3’ to Exhibit ‘3/6’ the rent receipts of the land in question; Exhibit ‘4’ the order of Mutation Case No. 501/1995-96 of the Anchaladhikari and Exhibit ‘5’ the continuous Khatiyan of Khatiyan Serial No. 57 were proved.

On behalf of the defence, no oral evidence was brought but following documentary evidences were brought on record:-

Exhibit ‘A’ is the certified copy of the judgment in Title Appeal No. 17 of 1991 dated 28.11.2007 (Mohsina Khatoon vs. Md. Panjenoor and Ors.) arising out of title suit no. 31 of 1985; Exhibit ‘A/1’ is the certified copy of the judgment dated 18.07.1987 passed in C.A. Case No. 917 of 1985 brought by Panjenoor the father of the informant of this case against the accused Mohsina Khatoon and others; Exhibit ‘B’ is the certified copy of the order passed in Case No. 225-M of 2003 under Section 107 Cr.P.C. by the then S.D.O, Barsoi; Exhibit ‘B/1’ the certified copy of the police report of the Case No. 225-M of 2003 under Section 107 Cr.P.C. and Exhibit ‘C’ is the certified copy of the decree arising out of the Title Suit No. 31 of 1985 in the court of sub-judge III.

12.The learned trial court recorded that admittedly the parties are own close relatives and have been continuing land related disputes.

The learned trial court rejected the contention of the defence that the witnesses examined on behalf of the prosecution have made several contradictory statements and they are either close relatives or have not supported the prosecution case. The trial court has taken a view that the witnesses are unimpeachable, consistent and they are all corroborating regarding assault on the specified date, time and place of occurrence. The trial court has noticed that there have been land related disputes between the parties and several cases and counter cases have been lodged by both the parties and some of them have been disposed of.

The appellate court has affirmed the judgment of the learned trial court. The appellate court rejected the contention of the defence that there is series of bonafide land dispute between the parties and the prosecution in this case was attempting to falsely implicate and take revenge from the accused persons. The appellate court took a view that the enmity is double-edged sword and it cuts both sides. It may give rise to possibility of false implication but in the same way, it gives the motive of committing the offence. As regards the evidence of PW-1, PW-2, PW-5 and PW-8, the learned appellate court has held that they are closely related witnesses and they had made several contradictory statements but for that reason, the averments made by the witnesses which are unimpeachable, consistent and with all corroborations regarding assault and taken away of the plucked mangoes on the specified date, time and place of occurrence and consistently confirmed cannot be outrightly brushed aside.

Learned counsel for the petitioner submits that the learned trial court as well as learned appellate court could not appreciate that Exhibit ‘5’ which is the continuous Khatiyan of Khata Serial No. 57 duly shows that plot no. 201 is recorded in the name of several persons of a joint family in equal share. In Exhibit ‘5’, name of the father of the petitioners namely Dhan Mohammad, Kafiluddin, Tamijuddin etc. along with informant’s father name were recorded. It is, thus, submitted that in such circumstance where it is a joint family property as per Khatiyan (Exhibit-5) no offence under Section 379 IPC would be made out.

Learned counsel submits that in this case, no document showing partition of the land in question was exhibited. Thus, in absence of there being any material much less any evidence to show that the land in question exclusively belong to the informant-side, learned trial court had committed grave error in convicting the petitioners under Section 379 of the Indian Penal Code.

Learned counsel further submits that the learned trial court had taken note of the admitted fact that both the parties are own close relatives and have continuing land related disputes. Learned trial court has noticed that vide judgment dated 18.07.1987 passed in C.A. Case No. 917 of 1985 in which the informant’s father Md. Panjenoor Alam had filed the complaint case against some of these petitioners, they were acquitted after trial. The learned trial court could not consider Exhibit ‘A’ i.e. the judgment of the title appeal no. 17 of 1996 dated 28.11.2007 arising out of title suit no. 31 of 1985 passed in favour of Mohsina.

It is submitted that P.W. 1, Md. Noorul Hoda is the brother of the informant who has stated that there were 60-70 persons who were plucking the mangoes but he identified only 13 persons. He has stated that boundary raiyats were not present at the place of occurrence. He has further stated that he had not stayed at the place of occurrence and had fled away to his house.

Learned counsel submits that from the evidence of P.W.-1 it does not appear that there was any wrongful confinement of the informant’s side. There is no evidence to that effect.

P.W. 2, Md. Shahnawaz Alam who is younger brother of the informant, claims to be an eye-witness and has stated that his father has got 2-3 cases with Jainul. In paragraph 9 of his evidence, he has stated that “मेरे सामने आम तोडा गया। हम लोगों को कोई मारपीट नहीं हुई। हम लोग 2-4 हाथ बगल मे थे। नययर को जो मार लगा मैं नहीं देखा।”

In Paragraph 20 of his evidence, he has stated that “घटना के समय गॉव के आसपास के लोग थे। वे मुदालय को रोकने का प्रयास नहीं किये। मेरे भाई को रोकने का प्रयास नहीं किये।”

According to this witness, no assault was seen upon the body of Naiyyar who claims to have been assaulted. He has also stated that no person tried to stop the accused persons from plucking the mangoes. Learned counsel, therefore, has submitted that the informant’s side duly understood that this property also belongs to the accused persons so there was no resistance/undue force used by any party.

P.W.3, Idrish Ali claims to be an independent witness. He also denied to have seen any injury. P.W. 4 Sk. Tajiluddin who claims to be an independent witness, has stated that there is a land dispute between Panjinoor and Zainul. He did not know as to who took how much mangoes. He did not know about the Khata number or Khesara number of the land. P.W. 5 Md. Naiyyar Alam who is the victim of the occurrence, has stated that out of 50-60 persons, only Mahboob assaulted him. He has stated that nobody else has assaulted except Mahboob. He has further stated that he had not suffered any injury and did not take any treatment. In Paragraph ‘15’ he says that he stayed at the place of occurrence for 10-15 minutes.

P.W. 6, Gorwa @ Gerwa who claims to be an independent witness, has stated that he reached at the place of occurrence after the mangoes were already plucked and the accused persons had already taken away the same. The Investigating Officer (P.W.7) has though claimed that he had gone to the place of occurrence but had not seized anything from the said place. He had not taken evidence as of the boundary raiyats and had not seen the papers of either side. He has proved that regarding old land dispute he has recorded in Paragraph ‘11’ of the case diary. He had not recorded the defence statement of the accused.

P.W.-8 and P.W.-9 are the brothers of Md. Naiyar. P.W. 8 has stated that all the mangoes were taken away by the Asammies and he cannot say the names. He admitted old enmity with the Asammies due to land dispute.

P.W. 9 has stated that he cannot say the name of the boundary raiyats. He knew from childhood that land disputes are going on. The land is Khatiyani land. In Paragraph ‘13’, he has stated that he had not seen any assault upon his brother. He claims to have stayed for half an hour outside the orchard but did not go inside due to fear.

Learned counsel for the petitioner further submits that P.W.-10. Md. Naseem Akhtar who is the brother-in-law of the informant (P.W.-9) has stated in paragraph ‘4’ of his deposition that he is the Mukhiya and his residence is situated at a distance of 4-5 kilometer. He did not know the boundary of the place of occurrence.

Learned counsel for the petitioner submits that none of the witnesses proved any overt act against any of the accused persons, there is no medical report of any injury on any person and further there is no corroboration of the factum of assault, confinement, theft or criminal intimidation.

On the other hand, learned counsel for the informant submits that in this case, both the learned trial court as well as the appellate court have come to a conclusion that the prosecution witnesses have duly proved the case, they are unimpeachable, consistent and have corroborated each other, therefore, this Court sitting in its revisional jurisdiction need not to interfere with the same.

Learned Additional P.P. for the State has endorsed the submissions made on behalf of the informant.

Consideration

Having heard learned counsel for the petitioners, the informant and the State as also on perusal of the records, this Court finds that the place of occurrence is said to be the land of Mauza Palasi Thana No. 65 Khata No. 57, Khesra No. 201 measuring 0.25 decimal. According to the informant, Md. Naushad Alam (PW-9), on 05.06.2003 at about 08:30 am when he was in his house, his younger brother Naiyyar Alam came there and informed him that about 60-65 persons entered in the mango orchard and they were plucking the mangoes. He further informed that when he objected to the same, the accused Mahboob Alam who is son of Jainul had assaulted him by hand and fist blow and abused him in filthy languages. He allegedly threatened him to kill if he will speak more.

According to PW-9, on asking of his brother Naiyyar Alam, he along with his elder brother Shahnawaj and Noor Alam went in the direction of the orchard. In paragraph ‘3’ of his examination-in-chief, he alleged that the land is Khatiyani land in which the name of his father is mentioned and it had fallen in the share of his father in partition. He alleged that the accused persons named therein plucked the mangoes and took away about 10 to 12 quintals of mangoes. This Court finds that in his examination-in-chief, this witness has nowhere stated that the accused persons either threatened him or his brothers in his presence. There is no allegation that the accused persons assaulted him or any of his brothers. There is also no statement that the accused persons confined them at the place of occurrence.

In his cross-examination, he has stated that at the place of occurrence, the boundary raiyats and other persons were also present. In paragraph ‘13’, he has stated that he had not seen his brother being assaulted. He says that he had not seen the sign of assault. This witness has nowhere stated that at the place of occurrence, he or any of his brothers was threatened by the accused persons or was assaulted.

PW-9 is the informant of the case and he is the brother of Md. Naiyyar, therefore, his evidence gains importance. He has demolished his own case as per FIR. Contrary to his evidence on the point of assault, threat and confinement, PW-1 has stated in his examination-in-chief that some persons came lashed with deadly weapons in the orchard and after plucking the mangoes, they took away the same in jute bags and on protest, they threatened them of dire consequences. In his cross-examination, in paragraph ‘11’ he has stated that the boundary raiyats were not present at the place of occurrence. He has stated that he did not stay at the place of occurrence and had been standing at a distance of 20-25 hands.

PW-2, Md. Shahnawaj Alam has also admitted the land dispute between the families and in paragraph ‘9’ of his evidence, he has stated that in his presence, no marpeet (assault) took place. He had not seen that Naiyyar was assaulted. He had not seen any injury on the body of Naiyyar.

PW-3 Idrish Ali has stated that the residence of the accused persons are situated at a distance of 10-12 kilometer from the mango orchard. He came to know the accused persons only from the date of occurrence and the co-villagers told him about the name of the village from which the accused persons belong to. He had not talked with the sons of Panjinoor. He did not know that the boundary raiyats were present at the place of occurrence. In paragraph ‘8’ he says that marpeet took place for 10-15 minutes. According to him, it is only Mahboob who did the marpeet. Nobody else did it. He had not seen any sign of assault. Evidence of PW-3 is contrary to the evidence of PW-1 & 2.

This witness was suggested that he happened to be the relative of Md. Naushad which he denied but from the evidence of this witness (PW-3), it is evident that he was not even aware of the fact that the accused persons and the informant’s side are closely related. He did not identify the accused persons. He says that marpeet took place for 10-15 minutes which fact has not been supported by PW-1 and PW-2 as also PW-9.

PW-4 Sk. Tajiluddin has only stated that when he reached the mango orchard, he found that 40-45 persons including the accused persons were plucking the mangoes and they were collecting the same. He further stated that Naushad, Shahnawaj and Naiyyar tried to stop whereupon the accused persons did not stop and threatened them. Thereafter, they took away the mangoes. It is evident from the deposition of this witness that in his presence, no one from informant’s side were assaulted. This witness has been suggested that because of his friendship with the informant’s family, he has deposed as a witness.

Md. Naiyyar (PW-5) who is the main victim of the case, has stated that he had stayed at the place of occurrence for 10-12 minutes at a distance of 10-15 hands whereafter he went to the police station. He claimed that out of 50-60 persons only Mahboob assaulted him. He has stated that except Mahboob, nobody else assaulted and he can not say that who had taken away the mangoes.

PW-6 could not say that who were plucking the mangoes and who took away the mangoes. This witness has not stated about any marpeet between the accused and the informant’s side.

Rajeshwar Prasad (PW-7) is the investigating officer. He had recorded the statement of Md. Akhtar, Naiyyar Alam, Noor Alam, Md. Noorul Mahmood and others. In his cross-examination, he has stated that he had gone to the place of occurrence on the same day but he had not seen the document of the land. He had not recorded the statements of the boundary raiyats. He has stated that Md. Naiyyar, Naiyyar Alam and Md. Akhtar, all are relatives of the informant. In paragraph ‘15’, he has stated that he had not recorded the statement of the defence side. In paragraph ‘14’ of his cross-examination, he stated that he had written about the witnesses saying to him that there were old land dispute between the parties.

Md. Noor Alam (PW-8) has stated that the accused persons had taken away 10-12 quintals of mangoes. He along with his brothers had gone to the place of occurrence where the accused persons abused them and threatened to kill if they would enter into the orchard. He has stated that he was standing outside the orchard. This witness has not stated about any assault to Naiyyar in his presence.

Md. Naseem Akhtar (PW 10) is a resident of Mauza Dharampur. He has stated that the accused persons along with 60-65 persons took away the mangoes. He has stated that Naiyyar was given 2-4 fist blow but has not named as to who had assaulted Naiyyar. He has proved the rent receipt issued in the name of Panjenoor as Exhibit 3, 3/1, 3/2, 3/3, 3/4, 3/5, and 3/6 respectively. In his cross-examination, this witness (PW 10) says that his house is situated at a distance of 4-5 kilometer from the place of occurrence and house of Asammese was situated at a distance of 7-8 kilometer.

In paragraph ‘14’ of his evidence, PW-10 says that both the parties are fighting litigation over the orchard. He did not know that the decree of land is in the name of Asammese (accused). He did not know the boundary of the place of occurrence. In Paragraph ‘16’ of his cross-examination, he has admitted that Naushad (PW-9) is his maternal brother. He has stated that nobody had called him at the place of occurrence. He explains that he goes there because it is within his panchayat. In Paragraph ‘25’, he says that he had gone to the place of occurrence after 15-20 minutes. This Court, therefore, finds that this witness is closely related to P.W.-9, he reached at the place of occurrence after 15-20 minutes and he does not name the person who had given 2-4 slaps to Naiyyar. Naiyyar (PW-5) has stated that he had stayed at the place of occurrence only for 10-12 minutes, thus, PW-10 was not present at the time of alleged occurrence.

On perusal of the Exhibits ‘3’, ‘3/1’, ‘3/2’, ‘3/3’, ‘3/4’, ‘3/5’, and ‘3/6’, it appears that these are the revenue receipts in respect of certain land in the name of Md. Panjenoor Alam. These are not the document of title and proof of possession.

In the margin portion of the receipts description of Khata No. and Khesra No. with area has been provided but there is no seal or signature of any authorized person. Exhibit ‘4’ is the copy of the order dated 15.12.1995 passed in Mutation case no. 501/95-96 in which the Khata No. 57 Plot No. 201 is mentioned and on this after obtaining the report of halka karamchari, the mutation has been allowed. Father of the informant had claimed the mutation on the basis of the partition dated 02.12.1979.

Contrary to that, this court find from Exhibit ‘5’ that it is a certified copy of the continuous Khatiyan of Tauji no. 73, Village Palasi, Thana no. 65, Khata no. 57. In the continuous Khatiyan, a total of 26 acres 70 decimal of land has been shown in the joint name of Dhan Mohammad and others. The mutation has been allowed on the basis of a batwara but no partition deed has been brought on record. It is this continuous Khatiyan on the basis of which the accused persons are claiming that this land is in joint family. Exhibit ‘A’ is the copy of the judgment of title appeal no. 17 of 1986 and from this document, it appears that the appeal preferred by Mohsina Khatoon against Panjenoor and others was allowed on contest and it was held that the original title suit no. 31 of 1985 was filed for valid cause of action and the suit filed on behalf of the plaintiff is not barred on the principles of estoppel wavier and acquiescence. Accordingly, a decree was drawn.

This court has further examined the records and found that at the stage of Section 313 Cr.P.C, the attention of the accused persons were not drawn towards the incriminating materials brought by the prosecution against them. The same and one question was asked by all the accused persons. This court would reproduce one of them for ready reference:-

“प्रश्न :- क्या आपने गवाहों का बयान सुना है

उत्तर :- जी हा।

प्रश्न :- आपके विरूद्ध साक्ष्य है कि दि0 5.6.03 को 8.30 बजे सुबह में ग्राम पलासी थाना आबादपुर जिला कटिहार में आप नजायज मजगा बनाकर सुचक नौसाद आलम और उसके भाईयों को घेरकर एवं पकडकर गाली गलौज कर मारपीट किए एवं 10.12 हजार रूपये का आम चुरा लिये। क्या कहना है।

उत्तर :- जी नहीं गलत है।

प्रश्न :- सफाई में क्या कहना है।

उत्तर :- निर्दोष हू। झूठा फंसाया गया है। ”

From the entire materials on record, this court finds that the allegation of assault upon Md. Naiyyar (PW-5) has not been corroborated by any of the witnesses.

The informant (PW-9) has clearly stated that in his presence, no assault took place. There is series of land disputes between the parties and both the parties are fighting several litigation against each other. Exhibit ‘5’ shows that the land in question was also recorded in the joint names of all the co-sharers.

In the kind of evidence present on the record, in the opinion of this court the learned trial court as well as learned appellate court has committed grave error in holding that the prosecution witnesses have proved the guilt beyond all reasonable doubts. The findings of the learned courts below are not sustainable, hence those are hereby set aside. The accused-petitioners are acquitted giving them benefit of doubt and they are discharged from the liabilities of their bail bonds.

This revision application stands allowed.