Jharkhand High Court

Arjun Mahto vs The State Of Jharkhand on 26 July, 2021

                IN THE HIGH COURT OF JHARKHAND AT RANCHI

                              Cr. Rev. No. 275 of 2012

                1.    Arjun Mahto, son of Lekho Mahto
                2.    Mitan Mahto, son of Late Budhan Mahto
                3.    Narayan Prasad Yadav @ Narayan Mahto, son of Budhan
                      Mahto
                4.    Titu Mahto, son of Lekho Mahto
                5.    Kishun Mahto, son of Lekho Mahto
                6.    Bhatu Mahto, son of Lekho Mahto
                7.    Prasadi Mahto @ Ram Prasad Mahto, son of Late Jagdish
                      Mahto
                8.    Ganesh Mahto, son of Anup Mahto
                9.    Gola Mahto, son of Sarju Mahto
                10. Nunubabu Mahto, son of late Jagdish Mahto
                11. Mahendra Mahto, son of Anup Mahto
                      All resident of Village - Baratanr, P.O. + P.S. -
                      Madhupur, District - Deoghar    ...     ...    Petitioners
                                       Versus
                1. The State of Jharkhand
                2. Mangal Mahto, son of late Patar @ Natar Mahto, resident of
                   Village - Baratanr, P.O. + P.S. Madhupur, District -
                   Deoghar                   ...      ...     Opposite Parties
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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Through Video Conferencing

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12/26.07.2021 Heard Mr. Arvind Kumar Choudhary, learned counsel appearing on behalf of the petitioners.

2. Heard Mr. Abhay Kumar Tiwari, learned counsel appearing on behalf of the opposite party-State.

3. This criminal revision application has been filed against the judgment dated 30.03.2012 passed by learned 2nd Additional Sessions Judge, Deoghar in Criminal Appeal No.62/2006 whereby the appeal has been dismissed.

4. The petitioners were convicted by the learned Sub- Divisional Judicial Magistrate, Madhupur at Deoghar in P.C. R. Case No.345/1999, T.R. No.68 of 2006 whereby the petitioners were sentenced for offence under Sections 147 and 379 of Indian Penal Code and petitioner nos.1 and 4 were additionally convicted for offence under Section 323 of Indian Penal Code. All the sentences were directed to run concurrently.

Arguments on behalf of the Petitioners

5. The date of incident in the instant case is of 24.11.1999. The learned counsel has referred to the impugned judgments to submit that the entire allegation in the instant case arises out of cutting and taking away of paddy crop worth Rs.2,000/-. The learned counsel also submits that the land in question belongs to the common ancestor of the petitioners and the complainant party i.e., Nafar Mahto, the father of the complainant. He also submits that a title partition suit in connection with the family property is also pending. The learned counsel submits that the property involved in this case is subject matter of partition suit and accordingly, no case for offence under Section 379 of Indian Penal Code could be made out as the property is jointly owned and possessed by all the members of the family. The learned counsel further submits that considering the bonafide land dispute between the parties, offence under Section 379 of Indian Penal Code is not made out.

6. The learned counsel for the petitioners also submits that so far as the conviction under other sections are concerned, considering the facts and circumstances of this case and also the fact that the complainant party as well as the petitioners belong to the same extended family and also the fact that the alleged incident is of the year 24.11.1999, some sympathetic view may be taken and sentence be modified and limited to the period already undergone by the petitioners in judicial custody. He submits that the petitioners have remained in custody for some time during the pendency of the present criminal revision petition.

Arguments on behalf of the Opposite Party State

7. The learned counsel appearing on behalf of the opposite party State submits that merely because there is a title partition suit pending between the petitioners and the complainant party that by itself is not sufficient to hold that no offence under

Section 379 of Indian Penal Code can be made out. He submits that it has come on record that it was the complainant party, who were cultivating the crops on the place of occurrence land and they were also in possession of the said land. He submits that the person who has sown the crop has a right to reap and the petitioners were the intruders, who entered into the property and had cut the paddy crops worth Rs.2,000/-. The learned counsel submits that considering the facts and circumstances of this case and also the facts that both the learned courts below have returned concurrent findings and have convicted the petitioners, the same does not call for any interference in revisional jurisdiction.

8. However, on the point of sentence, the learned counsel submits that it is for the Court to take an appropriate decision in the matter. However, it is not in dispute that as per the records of the present case there is no indication of any previous conviction of the present petitioners. Rejoinder on behalf of the Petitioners

9. Upon this, the learned counsel for the petitioners has referred to the following three judgment:

(i) Surendran Vs. Sub-Inspector of Police passed in Criminal Appeal No.536 of 2021 dated 30.06.2021 passed by the Hon'ble Supreme Court.

(ii) Mansha Marandi & Ors. Vs. State of Jharkhand in Cr.

Revision No.454 of 2004 decided on 01.11.2012 passed by this High Court.

(iii) Somar Rana & Ors. Vs. The State of Bihar (now Jharkhand) in Cr. Revision No.272 of 1998 (R) decided on 10.04.2007 passed by this High Court.

10. The learned counsel for the petitioners has also reiterated that the petitioners are the own nephew of the complainant party. He has also submitted that no independent person of the village has been examined in the present case and all the

witnesses examined from the side of the prosecution are the interested witnesses.

Finding of this Court

11. After hearing the learned counsel for the parties and considering the facts and circumstances of this case, this Court finds that as per the prosecution case Plot No.357 area 0.27 acre situated in village Bank P.S. Madhupur, District Deoghar stands recorded in name of Jagarnath Mahto in Parcha of Last Survey settlement known as Gantazer settlement. The recorded tenant died in year 1945 leaving behind his widow Daropatiya Mahtowain and son Choudhary Mahto as legal heir. Thereafter, said Choudhary Mahto died issueless and Daropatiya Mahtowain also died and then the aforesaid property devolved upon recorded tenant Nafar Mahto (the father of the complainant), who came in possession of the aforesaid land and after death of Nafar Mahto, the complainant came in peaceful possession of the aforesaid land.

12. It was further the case of the prosecution that at the time of alleged occurrence, Sona paddy was grown on the aforesaid land. On 24.11.1999 at about 9 a.m. in the morning, all the accused including the present petitioners being members of unlawful assembly and armed with lathi and sickles came to the place of occurrence land and began to harvest the paddy crop of the complainant. When the complainant made protest, the petitioner nos.1 and 4 hit the complainant with lathi causing hurt on his body and they also threw the complainant on earth. It was alleged that all the appellants forcibly harvested 5 quintals of paddy of complainant and took it away, which was valued at Rs.2,000/-.

13. The case was based on complaint filed by Mangal Mahto against the petitioners which was numbered as P.C.R Case No.345 of 1999 before the court of learned S.D.J.M, Madhupur at Deoghar and after enquiry found prima facie case under

Sections 147, 323 and 379 of Indian Penal Code and accordingly, issued summons against the accused.

14. During trial, charge was framed for offence under Sections 147, 323 and 379 of Indian Penal Code against all the accused persons. In order to prove the charges, the prosecution had examined altogether five witnesses. P.W. 5 was the complainant of the case. P.W. 1 was Lakshmi Mahto, P.W.2 Ruplal Mahto, P.W.3 Tulsi Yadav and P.W.4 Shobha Devi, who were witnesses to the occurrence. Beside oral evidence, prosecution also filed documentary evidence being Exhibit 1 to 5/1. Exhibit 1 was the certified copy of Parcha of Jamabandi No.14 of village Bank, Ext. 2 was certified copy of judgment of learned Sub-Judge, Deoghar dated 08.09.1953 passed in Title Suit No.11 of 1953, Ext. 3 and 4 was the Preliminary Decree and final decree respectively of Title Suit No.11 of 1953 and Ext. 5, Ext. 5/1, 5/2 were the certified copies of Map of Title Suit No.11 of 1953. Thus, out of the aforesaid exhibits, Exhibit 1 was the Jamabandi Parcha and the rest were documents relating to Title Suit No.11 of 1953.

15. The complainant was examined as P.W.5. He has stated that he has five daughters and no son and has adopted the son of his 3rd daughter. He has fully supported the prosecution case and has stated that on the fateful day, he saw the accused persons harvesting his paddy crop and the male members in the team were armed with lathi and the female members were armed with sickle. The place of occurrence was plot number

357. When the complainant stopped them, they started assaulting him. Petitioner no.1 i.e., Arjun Mahto assaulted him on his leg which led to swelling and petitioner no.4 Titu Mahto threw him on the floor. All the accused persons took away 5 quintals of paddy which was worth Rs.2,000/-. This witness has clearly stated that the land is his Jamabandi land and he has been cultivating the said land with the help of his daughter and son

in law. The complainant has identified the accused persons. The complainant has been duly cross-examined from the side of the defence and in his cross-examination, he has clearly stated that the accused persons are members of his extended family (gotia). He has also stated that there has been no partition with his brother and on the date of examination, partition suit was going on, but the said suit was filed after institution of the complaint case. He has stated in para 19 of his cross-examination that after about one month from the filing of the complainant case, he has filed a case for partition in which all the parties have appeared. In order to claim title and possession over the place of occurrence, the complainant has filed the aforesaid Exhibit 1 to 5/1.

16. P.W. 1 is the son in law of P.W.5 (complainant). He has fully supported the prosecution case. This witness has also been cross-examined and he has also stated that the accused were the nephews of the complainant and a title suit is going between them. P.W. 2 is the brother of son-in-law of the complainant, P.W. 3 is the son-in-law of the complainant and P.W.4 is the daughter of the complainant. They have also fully supported the prosecution case with regards to the time, place and manner of occurrence as narrated by the complainant P.W-5 and have claimed to have seen the occurrence. All the witnesses have been thoroughly cross-examined by the defence but there have been no material contradictions or inconsistencies in their evidence.

17. This Court finds that there is consistent evidence on record that the complainant has five daughters and no son and he was in possession of the land involved in the present case which was being cultivated by him with the help of his son in laws. There is also consistent evidence on record that the paddy on the land was sown by the complainant. All the prosecution witnesses have fully supported the prosecution case that

accused persons had entered into the land cultivated by the complainant in which paddy was sown. They were duly armed with lathi/sickle and they have cut the paddy crop worth Rs.2,000/- weighing about 5 quintals. There is also consistent evidence that when the complainant protested, he was assaulted by the petitioner nos.1 and 4 due to which he suffered swelling on his leg, but admittedly he was never treated by any doctor. The oral evidence of the prosecution is also supported by Exhibit 1 which is the Jamabandi in relation to the plot involved in the present case bearing plot no.357 area 0.27 acres recorded in possession of Jagarnath Mahto which devolved upon the father of the complainant. Other documentary evidences were filed, which were in relation to one Partition Suit No.11 of 1953 filed by the father of the complainant when certain properties were allocated to him. It has further come in the evidence that on the date of the incident, no title suit or partition suit was pending amongst the complainant party and the accused party. After the incident has taken place, one suit has been filed which was pending before the learned Sub- Judge. It has also come in evidence that the complainant party and the accused have common courtyard.

18. The learned trial court duly appreciated all the evidences on record, both oral and documentary, and held that prosecution has been able to prove that the paddy was sown by the complainant party and was taken away by the accused persons and therefore was of the view that the complainant has been able to prove the case for offence under Section 379 of Indian Penal Code against the accused persons. The learned trial court also considered that the defence has not brought any evidence on record to show that the disputed land was ever in their possession or that they had sown the paddy on the disputed land. The learned trial court also considered that the allegation under Section 147 of Indian Penal Code was also

proved against all the accused persons as they had illegally entered into the land of the complainant in which the complainant had sown paddy and they have taken away the same after cutting and when the complainant protested, two of the accused namely petitioner nos.1 and 4 assaulted the complainant. So far as the offence under Section 323 of Indian Penal code is concerned, the learned trial court convicted only petitioner no.1 and 4 as there was specific allegation against them of assaulting the complainant. The learned trial court also considered that although the doctor never treated the complainant, but he claimed to have been treated at home.

19. So far as learned appellate court is concerned, the learned appellate court also recorded that all the witnesses have fully supported the statement of the complainant and they have been cross-examined at length, but there was no vital contradiction in the statement in order to disbelieve their credit. The learned appellate court noticed that all the witnesses from the side of the prosecution were near relative of the complainant, but they were eye witness to the occurrence and they had deposed that they saw the occurrence. The learned appellate court held that the witnesses of the prosecution have proved that at the time of occurrence, petitioner nos.1 and 4 caused hurt to the complainant and that the hurt was simple and minor, the same may not be treated by a doctor. The learned appellate court also examined the documentary evidences on record and found Exhibit 1 goes to show that plot no.357 is recorded in the name of Nafar Mahto (the father of the complainant) in the Khatian of the village. The appellate court also recorded that all the witnesses of the prosecution in their statement have clearly proved that at the time of occurrence, all the petitioners being member of unlawful assembly armed with lathi and sickle came at the place of occurrence and dishonestly took away the paddy crop of the complainant after cutting the same in the place of

occurrence and it was also proved that petitioner nos.1 and 4 caused hurt on the body of the complainant at the time of occurrence when the complainant protested. Against this, there was no evidence from the side of the accused to prove their possession over the land or on paddy crop planted in the place of occurrence. The learned appellate court recorded that there was no any bonafide land dispute between the parties in respect of the place of occurrence.

20. The learned appellate court scrutinized the evidences on record carefully and upheld the conviction of the accused. The learned appellate court also found that the learned trial court had rightly released the convicted female members after due admonition under Probation of Offenders Act and sentenced the other convicts suitably. The learned appellate court did not find any error or any reason to interfere with the judgment of conviction and sentence as recorded by the learned trial court and dismissed the appeal.

21. Before this Court, it is the specific case of the petitioners as argued by the learned counsel that there is bonafide land dispute between the parties and accordingly no offence under Section 379 of Indian Penal Code was made out and that a title partition suit was pending between the parties. From perusal of the judgment passed by the learned courts below, it is amply clear that on the date of the incident, there was no suit pending between the parties much less any suit of partition. In fact, the suit was instituted after the incident. This Court also finds that so far as the land involved in the present case is concerned, its possession by the complainant is not only supported by the prosecution witnesses in their oral evidences, but is also supported by Exhibit 1 which is a documentary evidence in connection with the property. There is consistent evidence on record that paddy was sown by the complainant party and it was never the case of the defence that crop was sown by the

accused persons. There is also consistent evidence that the crop sown by the complainant was forcibly taken away by the accused persons by entering into the place of occurrence and when the complainant protested, he was specifically assaulted by petitioner nos.1 and 4. All the accused persons were found armed with lathi/sickle at the place of occurrence. This Court is of the considered view that once the possession of the property is established by consistent evidence in favour of the complainant and there is also consistent evidence that the paddy was sown by the complainant and merely because there has been a subsequent suit for partition, the same cannot absolve the accused from the offence under Section 379 of Indian Penal Code, who had forcibly taken away the paddy crop in spite of protest from the side of the complainant and the accused were neither in possession of the place of occurrence land nor had sown the paddy crop on the land.

22. So far as the judgment relied upon by the learned counsel for the petitioners which is reported in 2013 (1) Eastern Criminal Cases 236 Jharkhand passed in Criminal Revision No.454 of 2004 decided on 01.11.2012 (Mansha Marandi & Ors. Vs. State of Jharkhand) is concerned, the same has no applicability to the facts and circumstances of this case, in as much as, in the said case, the defence proved that the disputed land in question was settled in their favour and the defence was seriously prejudiced on account of non-examination of the Investigating officer of the case and under such circumstances, the petitioners of the said case were found entitled to the benefit of doubt by holding that a bonafide land dispute existed between the parties.

23. So far as the judgment passed by this Court in Criminal Revision No.272 of 1998 (R) decided on 10.04.2007 (Somar Rana & Ors. Vs. The State of Bihar (now Jharkhand) is concerned, in the said case, there was a bonafide claim of right regarding ownership of the land and it was the specific case of the defence

that they had cut the paddy crop in assertion of their bonafide claim of right and they claimed that they had harvested the paddy crop grown by them and in support of that a large number of documentary evidences were also produced. In the instant case, this Court finds that it was never the claim of the defence that the paddy crop was sown by them or they were ever in possession of the land involved in the present case and that they have asserted their right over the land / paddy crop. In such circumstances, the aforesaid judgment also does not help the petitioners in any manner.

24. In view of the aforesaid findings, this Court is of the considered view that the learned courts below have passed well-reasoned judgements and have rightly convicted the petitioners and other convicts. This Court does not find any illegality, perversity or irregularity in the impugned judgements passed by the learned courts below calling for any interference in revisional jurisdiction. Accordingly, the conviction of the petitioners is upheld.

25. So far as the 3rd judgment which has been relied upon by the petitioners which is passed in the case of Surendran Vs. Sub- Inspector of Police in Criminal Appeal No.536 of 2021 dated 30.06.2021 passed by the Hon'ble Supreme Court is concerned, the same is in relation to modification of sentence of appellant before the Hon'ble Supreme Court, who was convicted under Sections 279 and 338 of Indian Penal Code. The Hon'ble Supreme Court has considered that the incident was very old and was of the view that it would be harsh to send the appellant to jail after a long period from the date of occurrence and consequently modified the sentence to fine.

26. This Court finds that the complaint in the present case was filed as back as in the year 1999 and about 22 years has elapsed from the date of the incident. The petitioners along with other convicts were convicted vide judgment dated

29.03.2006 and on the date of conviction, the age of the petitioners has been recorded and their present age (approx.) is as under:

Petitioners         Age at the time of Present age (approx.)
                    conviction (approx.)
Petitioner No.1     25 years               40 years
Petitioner No.2     30 years               45 years
Petitioner No.3     28 years               43 years
Petitioner No.4     29 years               44 years
Petitioner No.5     27 years               42 years
Petitioner No.6     36 years               51 years
Petitioner No.7     42 years               57 years
Petitioner No.8     30 years               45 years
Petitioner No.9     37 years               52 years
Petitioner No.10    37 years               52 years
Petitioner No.11    27 years               42 years

27. The petitioners had surrendered before the learned court below during the pendency of the present case on 25.06.2012 and were directed to be released on bail vide order dated 28.06.2012 and were released by the learned court below on 02.07.2012 and have accordingly remained in judicial custody during the pendency of the present case for a week. Admittedly, the present offence of the petitioners is their first offence and the co-convict females were released after due admonition under Probation of Offenders Act, but such benefit was not extended to the petitioners. It is not in dispute that the petitioner nos.1 and 4 have been additionally convicted under Section 323 of Indian Penal Code on account of specific allegation of assault to the complainant. Considering the totality of the facts and circumstances of the case and the fact that the petitioners have faced the rigors of the criminal case for a long time, this Court is of the considered view that no useful

purpose will be served by sending the petitioners to jail at this point of time and the ends of justice will be served if the sentence is modified by limiting it to the period already undergone in judicial custody and imposing fine upon the petitioners. Accordingly, the sentence is modified to the period already undergone in custody and fine in the following manner: -

Petitio   Conviction and sentence     Modified sentence - period
ner no.                               undergone in custody plus -
1         u/s 147 IPC- 3 months R.I. u/s 147 -fine of Rs.1,000/-

u/s 379 IPC -6 months R.I. u/s 379- fine of Rs.1,000/- u/s 323 IPC -3 months R.I. u/s 323- fine of Rs.1,000/- 2 u/s 147 IPC- 3 months R.I. u/s 147 -fine of Rs.1,000/-

u/s 379 IPC -6 months R.I. u/s 379- fine of Rs.1,000/- 3 u/s 147 IPC- 3 months R.I. u/s 147 -fine of Rs.1,000/-

u/s 379 IPC -6 months R.I. u/s 379- fine of Rs.1,000/- 4 u/s 147 IPC- 3 months R.I. u/s 147 -fine of Rs.1,000/-

u/s 379 IPC -6 months R.I. u/s 379- fine of Rs.1,000/- u/s 323 IPC -3 months R.I. u/s 323- fine of Rs.1,000/- 5 u/s 147 IPC- 3 months R.I. u/s 147 -fine of Rs.1,000/-

u/s 379 IPC -6 months R.I. u/s 379- fine of Rs.1,000/- 6 u/s 147 IPC- 3 months R.I. u/s 147 -fine of Rs.1,000/-

u/s 379 IPC -6 months R.I. u/s 379- fine of Rs.1,000/- 7 u/s 147 IPC- 3 months R.I. u/s 147 -fine of Rs.1,000/-

u/s 379 IPC -6 months R.I. u/s 379- fine of Rs.1,000/- 8 u/s 147 IPC- 3 months R.I. u/s 147 -fine of Rs.1,000/-

u/s 379 IPC -6 months R.I. u/s 379- fine of Rs.1,000/- 9 u/s 147 IPC- 3 months R.I. u/s 147 -fine of Rs.1,000/-

u/s 379 IPC -6 months R.I. u/s 379- fine of Rs.1,000/- 10 u/s 147 IPC- 3 months R.I. u/s 147 -fine of Rs.1,000/-

u/s 379 IPC -6 months R.I. u/s 379- fine of Rs.1,000/- 11 u/s 147 IPC- 3 months R.I. u/s 147 -fine of Rs.1,000/-

u/s 379 IPC -6 months R.I. u/s 379- fine of Rs.1,000/-

28. The entire fine amount is directed to be deposited before the learned court below within a period of two months from the date of communication of this order to the learned court below. The fine amount so deposited is directed be remitted to the account of the opposite party No.-2 after due identification and upon furnishing of the details of the bank account of the opposite party No.-2.

29. If the aforesaid fine amount is not deposited within the stipulated timeframe, the bail bonds furnished by the petitioners will be immediately cancelled by the learned court below and the petitioners would undergo the punishment already imposed by the learned court below.