Soma Munda Son Of Late Mango Munda vs The State Of Jharkhand
2021 Latest Caselaw 4061 Jhar

         IN THE HIGH COURT OF JHARKHAND AT RANCHI

                     Cr. Revision No. 959 of 2012

         1. Soma Munda Son of Late Mango Munda
         2. Ram Munda Son of Raunak Munda
                                  (Deleted vide order dated 29.09.2021)
         3. Sumbar Munda Son of Mago Munda
                                  (deleted vide order dated 01.03.2013)
         4. Singrai Munda Son of Mangu Munda
         5. Mangal Munda Son of Mangu Munda
         6. Munda Munda Son of Late Bedega Munda
                                  (Deleted vide order dated 29.09.2021)
         7. Panda Munda Son of Late Bedega Munda
         8. Dasai Munda Son of Sumbar Munda
         9. Soma Munda @ Som Munda son of Ram Munda
            All Residents of Jamditola, P.O. & P.S.- Khunti,
            District-Khunti.                ...     ...    ... Petitioners
                                -Versus-
            The State of Jharkhand           ...       ...      Opp. Party
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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13/28.10.2021

1. Heard Mr. B.R. Rochan, learned counsel appearing on behalf of the petitioners.

2. Heard Ms. Mahua Palit, learned A.P.P. appearing on behalf of the opposite party-State.

3. From perusal of the order-sheets of the case, it appears that Order No. 12 dated 29.09.2021 has been wrongly typed as Order No. 12 dated 29.07.2021. Accordingly, Order No. 12 dated 29.07.2021 be treated as Order No. 12 dated 29.09.2021.

4. The present criminal revision application is directed against the judgment dated 07.08.2012 passed by the learned Additional Judicial Commissioner-XVI, Ranchi in Criminal Appeal No. 148/2011 whereby and whereunder the conviction of the petitioners under Sections 144 and 379 of the Indian Penal Code passed by the learned trial court has been affirmed and they were acquitted for the charges under Sections 447 and 506

of the Indian Penal Code and the criminal appeal filed by the petitioners has been partly allowed.

5. The learned trial court vide judgment of conviction and the order of sentence dated 30.08.2011 passed by the learned Sub-Divisional Judicial Magistrate, Khunti in G.R. Case No. 708/2005 had convicted the petitioners under Sections 144, 447, 379 and 506 of the Indian Penal Code and sentenced them as under: -

- to undergo rigorous imprisonment for two years each for the offence under Section 144 of IPC;

- to undergo rigorous imprisonment for three months each for the offence under Section 447 of IPC;

- to undergo rigorous imprisonment for two years each for the offence under Section 379 of IPC and

- to undergo rigorous imprisonment for two years each for the offence under Section 506 of IPC.

Arguments on behalf of the petitioners

6. The learned counsel appearing on behalf of the petitioners submitted that the judgments passed by the learned courts below are fit to be set-aside on account of the fact that the impugned judgments are perverse. He submitted that the learned courts below have passed the impugned judgments by referring to the earlier conviction of the petitioners passed in G.R. Case No. 653/2002 which was confirmed by the learned appellate court in Criminal Appeal No. 04/2006, against which Cr. Rev. No. 203/2009 was preferred before this Court which was dismissed vide order dated 05.09.2009. The learned counsel further submitted that the evidences which were brought from the side of the defence, particularly Exhibit-A related to the judgment passed in favour of the accused party in S.A.R. Case No. 33/2004-05 dated 12.12.2006, have not been considered by the learned courts below. The said judgment in S.A.R. Case No.

33/2004-05 was passed in a petition for restoration of land, but the accused-party of the present case was found in possession of the land and the S.A.R. case was dismissed. However, during the course of argument, it has not been disputed that the S.A.R. case for restoration of land was not filed by the informant party of the present case, but by another person.

7. The learned counsel further referred to Paragraph-16 of the trial court judgment wherein the evidence of P.W.-4 has been recorded and P.W.-4 at Paragraph-16 of the evidence has stated that the informant of the present case had also filed a case under Section 71 of the Chota Nagpur Tenancy Act for restoration of land, but the same was dismissed. The learned counsel submitted that the very fact that the informant-party had also filed an application for restoration of land itself indicates that the accused-party were in possession of the land. He also submitted that the possession of the informant-party over the land-in-question is in doubt and it was not proved that the informant party had cultivated the land. He submitted that the learned trial court has recorded that the informant-party was in possession of the property and on that basis, has convicted the accused persons ignoring the aforesaid two vital evidences on record. He also submitted that the earlier case of the year 2002 was decided on its own facts, but the aforesaid development in connection with S.A.R. case was subsequent to the earlier case and these materials on record ought to have been considered by the learned courts below while convicting the petitioners. He also submitted that as per the FIR itself, these facts ought to have been considered by the learned courts below which clearly create doubt regarding possession of the land.

8. The learned counsel further submitted that the incident is of 19.11.2005 and the First Information Report was filed on

26.12.2005 and the delay in filing the F.I.R. remained totally unexplained, in as much as the informant of the case could not be examined as he had expired and only the F.I.R. has been exhibited by his son who was examined as P.W.-5. The learned counsel submitted that the investigating officer of the case was examined as P.W.-6 and in his evidence, he stated that he had gone to the place of occurrence and had found that the paddy crop was cut in haphazard manner and on that basis, he had stated that the paddy was cut by the accused-party.

9. The learned counsel for the petitioners further submitted that most of the witnesses were interested witnesses and out of them, P.W.-1 was the brother of the informant, P.W.-2 was a labourer working under the informant, P.W.-3 was also the brother of the informant, P.W.-5 was the son of the informant and P.W.-6 was the investigating officer of the case. The learned counsel submitted that considering the totality of the facts and circumstances of the case and on the evidences which have been discussed by the learned courts below in the impugned judgments, the impugned judgments cannot be sustained in the eyes of law.

Arguments on behalf of the Opposite Party-State

10. Learned A.P.P. appearing on behalf of the Opposite Party-State, on the other hand, opposed the prayer and submitted that the learned courts below have given concurrent findings considering the materials on record and no interference is called for in revisional jurisdiction. However, she did not dispute the fact that there was unexplained delay in filing the F.I.R. and also the fact that P.W.-4 in his evidence has stated that the informant Sukta Pahan had filed an application for restoration of land under Section 71 of the Chota Nagpur Tenancy Act, which he had lost. She also did not dispute the fact that one S.A.R. No. 33/2004-05 was filed which was

decided in favor of the accused-party on 12.12.2006 which reflected possession of the accused-party over the land. However, she submitted that in the S.A.R. case, the informant- party were not the applicants.

Findings of this Court

11. The prosecution case, as reflected from the impugned judgment, is based on the written report of Sukta Pahan in which it was stated that one Prashant Kumar Ghosh was the Ex-Landlord who executed a 'Hukumnama' Patta in favour of Late Lohar Singh on 14.02.1944 for the lands of Khata Nos. 1 to 82, Plot Nos. 522, 523 and 527 having an area of 22 decimals, 2.02 acres and 007 acres respectively and after mutation, rent receipt was being paid by him regularly. It was further stated that the uncle of the informant had also purchased land vide document No. 3324 dated 17.05.1960 and the lands of aforesaid khata being Plot Nos. 517, 519, 520 and 300 was being an area of 0.11 acres, 0.53 acres, 1.75 acres and 0.22 acres respectively. Mutation was also done and they were paying rent. It was also stated that one of the accused-persons namely, Soma Munda had also purchased some land from the Ex-Landlord vide document No. 3323 over the same piece of land and the same khata and plot numbers. It was further stated that the informant party were in peaceful possession over the aforesaid land and they used to plant paddy crops since long and in the year 2005 also, they had planted the paddy crops, but the accused persons cut and taken away the crops of the informant and on protest, they were adamant to assault the informant party.

12. On the aforesaid written report, one Khunti P.S. Case No. 156/2005 dated 26.12.2005 under Sections 144/379 of IPC was registered and after completion of investigation, charge-sheet was submitted by the investigating officer of the case under Sections 144, 447, 379 and 506 of IPC.

13. In course of trial, altogether six witnesses were examined on behalf of the prosecution. P.W.-1 is Mahadeo Pahan, P.W.-2 is Biswanath Singh, P.W.-3 is Chamar Singh Pahan, P.W.-4 is Lohar Singh Pahan, P.W.-5 is another Lohar Singh Pahan and P.W.-6 is Dilip Gagrai who was the investigating officer of the case. The prosecution also produced several documentary evidences to prove its case. Exhibit-1 is a compromise petition, Exhibit-2 is endorsement on written report, Exhibit-3 is formal FIR, Exhibit-4 is the certified copy of judgment passed in G.R. Case No. 653/2002, Exhibit-5 is the certified copy of judgment passed in Criminal Appeal No. 04/2006 and Exhibit-6 is the certified copy of the order passed by this Court in Cr. Rev. No. 203/2009. The prosecution relied upon the previous conviction of the petitioners by filing Exhibits-4, 5 and 6 to prove its possession over the disputed land. In the said case of the year 2002, the petitioners were convicted under section 143 and 379 of IPC in the matter of theft of paddy crop and were released on furnishing probation bond. However, from the side of the defence in the present case, documents like rent receipts, etc. were produced and a certified copy of order passed by the learned Sub-Divisional Judicial Magistrate, Khunti in S.A.R. Case No. 33/04-05 was also produced which was marked as Exhibit-A. In the S.A.R. Case, the accused-party were the opposite party and the application for restoration of land filed by third party was dismissed.

14. The learned trial court in its finding recorded that P.W.-4 in his cross-examination has clearly stated that the informant Sukta Pahan had filed an application under Section 71 of the Chota Nagpur Tenancy Act for restoration of land which was dismissed. The learned trial court also recorded about Exhibit-A being S.A.R. No. 33/2004-05 dated 12.12.2006 filed for restoration of land which was decided in favour of the accused

party of the present case. However, the learned trial court was of the view that P.Ws.-1 to 4 have stated that on the date and time of occurrence, the informant was in possession of the land, where he had cultivated the paddy crop and the accused-party had cut and taken away the paddy crop. The learned trial court recorded that the investigating officer of the case has also supported this fact by stating that he had gone to the place of occurrence for investigation and saw that the paddy crops were cut in haphazard manner. The learned trial court also considered the delay in filing the F.I.R. and recorded that although there is delay in filing of the case, but mere on account of delay, no order can be passed in favour of the accused. The learned trial court convicted the petitioners for offence under Sections 144, 447, 379 and 506 of the Indian Penal Code.

15. The learned appellate court also considered the evidences on record and gave its findings that almost all the prosecution witnesses have categorically deposed that on the date of occurrence, the paddy crop grown by the informant party was harvested and taken away by the accused persons, whereas it was the specific case of the defence that they had also purchased the land in question and had grown up the paddy crop in the relevant year and therefore, they harvested the paddy crop. The learned appellate court recorded that the defence has not adduced any evidence to show that they had grown up paddy crop in the relevant year, whereas Exhibits- 4, 5 and 6 show that for the occurrence of the year 2002, the accused were convicted and therefore, it is crystal clear that the informant was in possession over the disputed land since the year 2002 and accordingly, question did not arise that the accused persons had grown the paddy crop in the relevant year and it is not the specific case of the defence as to in which year they dispossessed the prosecution party. With this finding, the

learned appellate court upheld the conviction of the petitioners under Sections 144 and 379 of the Indian Penal Code. So far as the offences under Sections 447 and 506 of the Indian Penal Code are concerned, the learned appellate court held that the offences could not be proved by the prosecution because a person claiming the land has every right to go upon the land and there is no evidence at all to show regarding the offence under Section 506 of the IPC. Accordingly, the learned appellate court acquitted the petitioners from the charges under Sections 447 and 506 of the Indian Penal Code.

16. This Court finds that the learned trial court while considering Exhibit-A has recorded that although the petition for restoration of land involved in this case was filed against the accused party, but the learned trial court refused to consider the same as proof of possession of the accused party on the ground that petition for restoration of land was filed by a third party and not the informant party. The learned trial court although recorded that it has come in the evidence of P.W-4 that the informant also had filed an application for restoration of land under Chota Nagpur Tenancy Act against the accused party, which was ultimately dismissed, but did not consider the same at all while convicting the petitioners.

17. This Court further finds that the learned appellate court while upholding the conviction, totally ignored the Exhibit-A (order of SAR Case no. 33 of 2004-05) as well as the aforesaid fact which has come in the evidence of the P.W.-4 that the informant himself had filed an application for restoration of land under Chota Nagpur Tenancy Act against the accused party, which was ultimately dismissed. On the point of possession, the appellate court relied upon the previous conviction of the petitioners relating to the incident of the year 2002 and totally ignored the aforesaid evidence on record that

Exhibit-A which indicated possession of disputed land in favour of accused party and also ignored the aforesaid evidence of P.W.-4.

18. The learned appellate court, on the one hand, upheld the conviction under Sections 144 and 379 IPC and held that the informant party was in possession of the disputed land since 2002 on the basis of earlier conviction of the petitioners, but on the other hand, acquitted the petitioners under section 447 and 506 of the Indian Penal Code by holding that a person claiming the land has every right to go upon the land. Thus, the learned appellate court clearly acknowledged that the petitioners were also claiming the property.

19. In view of the aforesaid, it has been established that both the parties were claiming the land-in-question and there was a bonafide land dispute between the parties. It has been held by the Hon'ble Supreme Court in the judgment reported in AIR 1982 SC 586 (Suvvari Sanyasi Apparao and another -versus- Boddepalli Lakshminarayana and another) that it is settled law that where a bonafide claim of right exists, it can be a good defence to a prosecution for theft. An act does not amount to theft, unless there be not only no legal right, but no appearance of colour of a legal right.

20. It is not in dispute that the incident in the present case is of 19.11.2005 and the First Information Report was filed on 26.12.2005 and there is no explanation whatsoever in connection with delay in filing the case. This Court also finds that there are no findings in the impugned judgments with regard to the ingredients of offence under Section 144 of the Indian Penal Code.

21. Considering the aforesaid facts and circumstances and on account of bonafide land dispute between the parties, it cannot be said that the prosecution has proved the case against the

petitioners beyond shadow of all reasonable doubts. This is particularly in view of Exhibit-A of the year 2004-05 and the aforesaid evidence of P.W.-4 in the light of claimed possession of the disputed property in favour of the accused party on the date and time of the occurrence. Consequently, impugned judgments of conviction of the petitioners under section 379 and 144 of Indian Penal Code alleging theft of paddy crop are perverse and cannot be sustained in the eyes of law and accordingly, the same are set-aside and the present criminal revision application is hereby allowed.

22. Pending interlocutory application, if any, is closed.

23. The petitioners as well as their bailors are discharged from their liability under the bail bond furnished by them in connection with the present case.

24. Let the lower court records be immediately sent back to the court concerned.

25. Let a copy of this order be communicated to the learned court below through 'e-mail/FAX'.

(Anubha Rawat Choudhary, J.) Mukul