Tileshwar Lohra @ Tileshwar Lohar vs State Of Jharkhand
2021 Latest Caselaw 3380 Jhar

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     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                Cr. Revision No.134 of 2012

     1. Tileshwar Lohra @ Tileshwar Lohar
     2. Santosh Lohara @ Santosh Lohar
     3. Bhambha Lohra @ Bhombha Lohar @ Bonga Lohra
     4. Baura Lohara @ Baura Lohar
     5. Bigal Lohra @ Bigal Lohar
     6. Puran Lohra @ Puran Lohar
     7. Balak Lohara @ Balak Lohar
        All resident of village Agar Toli, Bokhsidih
        Sikidir, Ranchi                        ...       Petitioners
                             Versus
     1. State of Jharkhand
     2. Kali Charan Mahto                      ...     Opposite parties
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CORAM: Hon'ble Mrs. Justice Anubha Rawat Choudhary

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     For the Petitioners     : Mr. Ashutosh Kumar Madhukar, Advocate
     For the State           : Mrs. Niki Sinha, A.P.P.
     For the O.P. No. 2      : Mr. Nehru Mahto, Advocate

                 Through:Video Conferencing

8/13.09.2021       Heard Mr. Ashutosh Kumar Madhukar, learned counsel
           appearing on behalf of the petitioners.

2. Heard Mr. Nehru Mahto, learned counsel appearing on behalf of the opposite party No. 2.

3. Heard Mrs. Niki Sinha, learned counsel appearing on behalf of the opposite party-State.

4. Learned counsel for the petitioners has submitted that the impugned judgment of conviction passed by the learned courts below are perverse and are fit to be set aside. Learned counsel has submitted that there was land dispute between the parties and accordingly, the petitioners could not have been convicted for offence under Section 379 and 447 of the Indian Penal Code. He has relied upon the judgment passed by the Hon'ble Supreme Court reported in AIR 1972 SC 949 equivalent citation (1972)3 SCC 841. Learned counsel for the petitioners submits that sentence of the petitioners is also on the excessive side in view of the fact that as per the allegation, the petitioners had entered into the field of the informant and had taken away

paddy crop worth Rs. 4,000/- only and they have been sentenced for two years simple imprisonment under Section 379 IPC and have also been convicted for the offence under Section 447 IPC for a period of two months. Learned counsel has also submitted that the petitioners have remained in custody at least from the date 17.2.2012, when they surrendered, to 29.03.2012, when they were released on bail. Learned counsel has also submitted that case is of the year 2002 and much time has elapsed from the date of incident.

5. Learned counsel appearing on behalf of the opposite party No. 2 on the other hand has submitted that there are concurrent findings recorded by the learned courts below and out of seven petitioners before this court, except petitioner No. 4 and petitioner No. 7, rest of them have history of previous conviction as recorded by the learned courts below and the conviction of these persons was in connection with Sikidiri P.S. Case No. 27/2002 corresponding to G.R. Case No. 3200 of 2002 for the offence under Sections 147,148,324,323 IPC in connection with the same piece of land i.e. Khata No. 57. Learned counsel submits that considering this aspect of the matter, the petitioners do not deserve any sympathetic view of this court.

6. Learned counsel appearing on behalf of the opposite party-State has also supported the submissions made by learned counsel for the opposite party No. 2.

Finding of the Court

7. As per the prosecution case, the complainant who was examined as PW - 4 has stated that on 10.12.2002, at about 9 am to 1 pm, the alleged occurrence had occurred and all the accused persons harvested the paddy crop from his field, which was sown by him and the value of the stolen paddy crop was Rs.4,000/-. The land in question relating to khata No.57 was purchased by the father of the complainant having area total 30.5 decimal, on which the complainant had sown the paddy crop. It is further stated that on 19.11.2002, at about 8.30 am, the complainant had gone to see

his paddy filed, then all the accused persons armed with lathi, hasua, tangi and bricks, assaulted the complainant, for which FIR was instituted. It has been further stated that at the time of occurrence of paddy harvesting, the accused persons namely Tileshwar Lohra, Santosh Lohra were making bundle of paddy crop and the accused Bhombha Lohra, Boura Lohra, Bigal Lohra, Puran Lohara and others were carrying the paddy bundle.

8. From the side of complainant, altogether five witnesses were examined including PW - 4, the complainant, who has fully supported the prosecution case and had also given the details regarding the ownership of the place of occurrence land. He has also stated that prior of this occurrence, on 19.11.2002, another occurrence had taken place by some accused persons, who had assaulted the informant, for which Sikidiri P.S. Case No.27 of 2002, corresponding to G.R. Case No.3200 of 2002 was registered, in which, the accused persons were convicted. This witness has been thoroughly cross-examined from the side of defence.

9. PW - 1 Narayan Mahto has also fully supported the prosecution case and had stated that all the seven accused persons harvested the paddy crop from the field of the informant and he has stated that at the time, when the accused persons were harvesting the paddy crop, he was in his field, which is adjacent to the place of occurrence land. During his cross-examination, he has stated that there were 50 mounds of paddy crop in 30.5 decimal of land of the informant. Thus, it appears that PW - 1 is the eyewitness to the occurrence, who was fully cross-examined.

10. PW - 2 has also supported the prosecution case and he has stated that all the accused persons harvested the paddy crop from the field of the informant and when the informant objected, they also threatened to kill him. He has specifically stated that the place of occurrence land belongs to the informant, who had sown paddy crop in the field. During his cross-examination, he has stated that he was near the place of occurrence and had seen the occurrence. He has valued the paddy crop taken away by the

accused persons amounting to Rs.4,000/-.

11. PW - 3 is another witness, who has again supported the prosecution case with regard to date, time and place of occurrence and has fully supported the prosecution case. He has stated that the informant had sown the field and paddy crop valued at Rs.4,000/- was taken away by the accused persons. This witness had gone to the place of occurrence, when there was alarm and he had seen the accused persons were harvesting the paddy crop and some of them were carrying the bundle of paddy.

12. PW - 5 has also supported the prosecution case and he has stated in his cross-examination that he was in his filed and his field is situated 2 to 4 fields away from the place of occurrence.

13. On the other hand, the defence has also examined three witnesses, who had stated that the accused had gone to his house, but it appears that no specific name was disclosed by the defence witnesses, as to which accused persons had gone to their house.

14. The learned trial court considered the evidences adduced on behalf of the prosecution and the defence and recorded that the prosecution witnesses, i.e. witnesses number 1 to 5 have supported the prosecution case with regard to time and place of occurrence and on the basis of the documentary evidence filed from the side of the informant party, referring to Ext. 1, 1/1, 1/2 and 1/3, which are mutation receipts, the same indicated that the land in questions belongs to the ancestors of the complainant. The learned court below also recorded that the prosecution witnesses have supported the prosecution case with regard to the occurrence including the place of occurrence and they have consistently stated that the accused persons had harvested the paddy crop, which was sown by the informant and was valued to Rs.4,000/-. The learned trial court referred to the judgment passed by the judicial magistrate, Ranchi in relation to G.R. Case No.3200 of 2002, marked as ext.-3, and recorded that upon perusal of the same, it appeared that on 20.07.2005, the petitioners Nos. 1,2,3,4,5 & 6 were convicted for offences under sections 147, 148, 324, 323 IPC in relation to the

same land relating to khata No.57 and the said case was relating to cutting of paddy crop and assault. The learned trial court ultimately convicted the petitioners for offence under Sections 379 and 447 of IPC and sentenced them for two months simple imprisonment under Section 447 IPC and two years rigorous imprisonment for the offence under Section 379 IPC. The learned trial court, taking into consideration the previous conviction of the petitioners, imposed the sentence as aforesaid.

15. So far as learned appellate court is concerned, the appellate court also considered the evidences on record and found that there were no vital contradictions in the statement of the witnesses from the side of prosecution and the minor contradictions do not create any doubt on the statement of the witnesses, rather the same are natural. The learned appellate court recorded that all the witnesses in one voice have supported the prosecution case and stated that on 10.12.2002, from 9 am to 1 pm, all the accused persons had harvested the paddy crop and have taken it away, which was sown by the complainant and the paddy crop was worth Rs.4,000/-. The learned appellate court also considered the previous conviction of five petitioners i.e petitioner Nos. 1,2,3, 5 and 6 in Sikidiri P.S. Case No.27 of 2002, corresponding to G.R. No.3200 of 2002, and also recorded that the criminal appeal filed against the order of previous conviction was also dismissed. Learned appellate court upheld the conviction and sentence of the petitioners under Sections 379 and 447 of IPC.

16. This Court finds that the conviction of the petitioners is based on the evidence of the complainant as well as the eyewitnesses to the occurrence, who have not only proved the place of occurrence, time and manner of occurrence, but also proved that the paddy crop was sown by the complainant. Further the complainant had produced the mutation receipt in support of his claim regarding the possession of the land in question. So far as the judgement relied upon by the learned counsel for the petitioners reported in (1972)3 SCC 841 ( Ram Ekbal Rai and

others versus Jaldhari ) is concerned the same does not apply to the facts and circumstances of this case . In the said case it was held in the said case that when the entire question of possession and even title was in an extremely fluid state it could not be proved that the accused had formed an unlawful assembly and were guilty of stealing the crop. In the instant case there is cogent evidence on record regarding possession of the property in favour of the informant and that it was the informant party who had sown the crop which was taken away by the petitioners. The defence has not led any evidence regarding their claim of possession or title over the place of occurrence land. This court finds that the learned courts below have duly appreciated the materials on record and have convicted the petitioners. No perversity, as such, has been pointed out by the learned counsel appearing on behalf of the petitioners and accordingly, the judgment of conviction based on concurrent findings of facts recorded by the learned courts below does not call for any interference.

17. So far as the sentence is concerned, this Court finds that the present complaint is relating to offence committed on 10.12.2002, when the petitioners had harvested and taken away the paddy crop sown by the complainant and this incident was proceeded by another incident, which had taken place on 19.11.2002, when the petitioners Nos. 1,2,3, 5 and 6, had entered into the field of the complainant armed with lathi, hasua, tangi and bricks and assaulted the complainant, for which another case was instituted, in which the aforesaid five accused persons were convicted.

18. Considering the totality and facts and circumstances of this case, this Court finds that the sentences of the petitioners, who were convicted earlier, i.e petitioners Nos. 1,2,3, 5 and 6, do not call for any interference in revisional jurisdiction. So far as petitioners Nos.4 and 7 are concerned, there is no previous conviction on record and accordingly they are entitled to some modification of sentence to secure the ends of justice as they have faced the rigours

of the criminal case for a long period since 2002 and have remained in custody at least from the date 17.2.2012, when they surrendered, to 29.03.2012, when they were released on bail.

19. Accordingly, the sentence of the petitioners Nos. 4 and 7 is confined to the period already undergone by them in judicial custody with fine of Rs.4,000/- each to be deposited by them before the learned Court below within three months from the date of communication of this order to the learned court below and in case of non-deposit of fine, the bail bond will be cancelled and they would serve the remaining sentence as awarded by the learned court below. In case they deposit the fine amount, the bailors would be released from their liability of bail bonds. The entire fine amount so deposited by them, is directed to be remitted to the complainant of the case upon due identification.

20. Interim order, if any, stands vacated.

21. Bail bond furnished by the petitioner no petitioners Nos. 1,2,3, 5 and 6 is cancelled.

22. Pending interlocutory application, if any, is dismissed as not pressed.

23. Office is directed to send back the lower court records to the court concerned.

24. Let this order be communicated to the learned court low through FAX/E-mail.

(Anubha Rawat Choudhary, J.) R.Kumar/