Complainant sought revision against acquittal of accused persons for catching fish from his pond under IPC sections 147/341/427/447/379/34. Both courts below had found a bona fide possession dispute and tutored witnesses. The High Court found no perversity and no scope for reappreciation in revision.
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Revision No. 1029 of 2017
Ram Prasad Halwai, s/o late Hiralal Halwai, R/o village- Tundi, P.O. + P.S.- Tundi, District- Dhanbad … … Petitioner
Versus
… … Opposite Parties
CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
--For the Petitioner : Mr. Mukesh Bihari Lal, Advocate : Mr. Avilash Kumar, Advocate For the State : Mr. Pankaj Kumar, Public Prosecutor For Private Opposite Parties : Mr. Kalyan Banerjee, Advocate
2. This criminal revision petition has been filed for the following reliefs:
"That in the instant revision application is directed against the judgment dated 17.07.2012 passed by Sri Akhilesh Kumar, Judicial Magistrate 1st Class, Dhanbad in C.P. Case No. 1998/2007 (T.R. No. 861/2012) whereby and whereunder the learned Judicial Magistrate acquitted the opposite party no. 2 to 8 for the offence U/s 147/341/427/447/379/34 IPC and the judgment dated 16.02.2017 passed by Sri Mahesh Prasad Yadav, District & Additional Sessions Judge- IV, Dhanbad in Criminal Appeal No. 88/2013 by which the appeal preferred by the petitioner U/s 372 of the Cr.P.C. was dismissed without considering the facts and circumstances of the case."
3. Learned counsel for the petitioner, while assailing the impugned judgments of both the learned Courts whereby the accused (private opposite party nos. 2 to 8) have been acquitted, has submitted
that the learned Courts have not considered the evidences properly and have passed the order of acquittal. The learned counsel has also submitted that the judgment in connection with the pond involved in the present case in title suit has attained finality.
4. Learned counsel for the petitioner, in particular, has referred to evidence of CW- 1 and has submitted that he was eye-witness to the occurrence, but the learned trial Court has not considered his evidence properly. The learned counsel has submitted that the impugned judgments are perverse and therefore, they call for interference.
5. Learned counsel appearing on behalf of opposite party nos. 2 to 8, on the other hand, has opposed the prayer and has submitted that both the learned Courts have considered the evidences on record and he has particularly referred to paragraph 15 of the trial Court’s judgment to submit that the complainant, during his crossexamination, has admitted that the police had come over the properly to give possession to the complainant , but when the complainant could not get the possession of the pond, he filed the complaint case.
6. Learned counsel has further submitted that CW -1 was crossexamined and it has been recorded by the learned Court, while disbelieving his evidence, that this witness had stated that he had given the very evidence which the complainant told him to adduce. The learned counsel submits that there was a serious dispute in connection with the possession of the property and merely because the title has been declared, the same does not mean that there cannot be any dispute regarding possession.
7. Learned counsel appearing on behalf of the opposite party - State has also opposed the prayer and has submitted that there are concurrent findings recorded by both the learned Courts and there is no scope for reappreciation of evidence and coming to a different finding in revisional jurisdiction. This is so particularly in view of the fact that both the learned Courts have acquitted the private opposite parties in the present case.
8. After hearing the learned counsel for the parties and considering the facts and circumstances of this case, this Court finds
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that the incident had occurred in connection with one pond. It was alleged that all the accused persons started catching fish reared by the complainant and as soon as the complainant came to learn, he rushed to the place of occurrence, raised objection on which the accused persons abused him and threatened to kill him. It was alleged that the accused persons had caught about 100 KG of fish and caused damage to the tune of Rs. 6000/- to the complainant. It was also stated that the Title Suit No. 50 of 1996 was already decided in favour of the complainant and the judgment had become final and it was asserted that the accused persons had no right, title, interest or possession over the tank of the complainant and they wanted to forcibly dispossess the complainant.
9. The learned Court, after closure of enquiry, found prima facie case for offence punishable under sections 147/341/427/447/379/34 of Indian Penal Code. At the stage of trial, the complainant had examined altogether six witnesses including himself as CW- 6. He had also adduced evidence and following documents were exhibited:
"Ext.-1 : Judgment in T.S. No. 50/96. Ext.- 1/1 : Certified copy of decree of T.S. No. 50/96. Ext.-2 : Certified copy of Judgment of T. Appeal No. 9/06. Ext.-2/1 : Certified copy of decree of in T. Appeal No. 9/06. Ext.-3 : Certified copy of order-sheet dt. 04.11.09 of Hon'ble High Court in SA No. 196 of 2007. Ext.-4 : Certified copy of order dt. 3.06.04 passed in case No.859/95 u/s 87 of CNT Act."
10. No witness was examined from the side of the defence. However, the defence also produced some documents which were marked as follows:
| "Ext.-A | : Certified copy of order-sheet dt. 23.05.03 in Case No.819/95. |
|---|---|
| Ext.- B | : Certified copy of Raiyati Khatiyan in TS No. 139/10. |
| Ext.-C | : Certified copy order dated 24.12.01 in Case No. 1336/95 u/s 87 of CNT Act. |
| Ext.-D | : Certified copy of order-sheet dt. 24.12.01 in Case No. 793/95 u/s 87 of CNT Act. |
| Ext.-E | : Certified copy of order-sheet dt. 26.08.02/-04.09.02 in Case No. 863/95 u/s 87 of CNT Act." |
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11. This Court finds that the learned Trial Court has discussed evidence of each and every witness produced from the side of the prosecution including their cross-examination. The learned counsel for the petitioner has in particular referred to the evidence of CW-1 and claims that he was an eye-witness, this Court finds that the learned Trial Court has considered the cross-examination of the said witness and has found that the said witness has stated that he had given the very evidence which the complainant had told him to adduce. On this ground, the learned Trial Court has disbelieved the evidence of CW-1. This Court finds that the learned trial Court has committed no error in disbelieving the evidence of CW-1. The learned trial Court has also considered the evidence of other witnesses and while considering the evidence of CW-6, the learned trial Court has recorded as under:
12. Upon perusal of the discussion made by the learned Trial Court, this Court finds that while considering the evidence of CW-6, the learned Trial Court has specifically recorded that the complainant had stated that the police had come over the place to give him possession over the pond, but when the possession could not be procured, he lodged the instant case. The evidence of CW-6 itself reveals that there was a serious dispute in connection with the possession of the property. The learned Trial Court ultimately acquitted the accused persons by citing as many as six reasons as mentioned in paragraph 16 of its judgment which are quoted as under:
"I- First and foremost, there are vital chinks in the prosecution case manifested through the testimonies of the witnesses. As per averment made in the complaint petition, on the date of occurrence, all the accused persons started catching fishes reared by the complainant. However, the evidence of Basiruddin Ansari (CW-1) who is said to be an ocular witness is on different
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score. He has stated that Illiyas Mian and Asruddin Mian were catching fishes in the pond of the complainant while other accused persons were standing there. The other witnesses have on the other hand named all the accused persons mechanically. II- No evidence has been led that the accused persons came at the PO forming an unlawful assembly. No evidence has also been led that any obstruction was caused by the accused persons by which the complainant was prevented from proceeding in any direction which is sine-qua-non of Section 341 IPC.
III- The witnesses who have been examined have stated in their respective evidence that the fishes were reared by the complainant. The complainant himself has stated that the said pond belonged to him and he used to rear the fishes and harvest the same. However, on prodding by the defence, the complainant has uncomfortably stated that he does not remember as to when he had put the fishes in the pond. He has also shown his ignorance as from whom he had bought the fishes. It has also come in his evidence that he does not have any paper with respect to buying of the fishes. Be that as it may, the evidence of the complainant betrays uncertainty and it cannot be said with certitude that the complainant had indeed put the fishes into the pond.
IV- Pond related dispute between the parties have been copiously recorded in the evidence. The parties are in litigating terms for a very long period of time. On the basis of evidence on the record, both oral and documentary, it appears that the parties have bonafide land dispute. At this back drop, the testimony of the complainant has to be understood in the right prospective. The complainant has unequivocally stated in his evidence that the police had come over to the place to give him possession over the pond which could not be procured. This statement of the complainant signifies on the one hand that the possession of the pond is still in fluid condition and on the other hand it goes to show that instant case was not lodged with clean hands. When the complainant failed to get possession of the pond, he lodged the instant case. This aspect of the matter has not been presumed rather the same has been asserted by the complainant himself.
V- Basiruddin Ansari (CW-1) has candidly stated that he had given that very evidence which the complainant told him to adduce. It has also come in the evidence of Bank Bihari Dutta (CW-3) that the complainant had brought him (in court) for giving evidence and accordingly, he was giving evidence. The testimony of these witnesses amply go to show that the witnesses are tutored witnesses and for that matter their evidence are fit to be discarded.
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VI- It is not clear from the evidence of the witnesses as to who took away the fishes. The accused persons do not live under the same roof. At this back drop, the evidence betrays uncertainty. It has also come in evidence that the accused persons caught fishes which was approximately 100 Kg. It is indeed intriguing that the fishes were not weighed but all the witnesses have given uniform statement on that score. It is not out of place to mention that as per the evidence of the complainant and his nephew (CW-6 and CW-4 respectively), Written information was given to the police station and accordingly, the police came in motion. However, no proof of the same has been filed. Had there been iota of truth, the complainant would not have shied away in filing the same."
13. The learned Appellate Court also considered the evidences on record and has specifically recorded that there was a dispute in connection with the pond and the appellant did not have the possession over the pond.
14. Considering the totality of facts and circumstances of this case, this Court finds that both the learned Courts have discussed the materials on record and have considered the aspect of the matter regarding dispute of possession over the pond. The complainant himself had admitted that the police had come to hand over the possession to the complainant, but he could not get the possession of the pond.
15. This Court is also of the view that both the learned Courts have passed judgment of acquittal and there is no scope for reappreciation of materials on record and coming to a different finding. Both the judgments are well reasoned judgments and this Court finds no illegality, perversity or material irregularity in the judgments passed by the concerned Courts.
16. Accordingly, this criminal revision petition is hereby dismissed.
17. Pending interlocutory application, if any, is closed.
18. Let a copy of this order be communicated to the court concerned through ‘FAX’.
(Anubha Rawat Choudhary, J.)
Pankaj
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1 issue framed by the court
Whether the concurrent acquittals by the trial and appellate courts in the pond-related theft case were perverse and warranted revisional interference.
3 provisions across 3 enactments
Ram Prasad Halwai
The State of Jharkhand
Sudhir Besra
Sukdeo Besra @ Sukhdeo Besra
Kameshwar Besra
Rasik Besra
Anubha Rawat Choudhary
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
