Jharkhand High Court
Dablu Tiwari Son Of Akchaiwat ... vs The State Of Jharkhand on 23 September, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Rev. No. 346 of 2012
1. Dablu Tiwari son of Akchaiwat Tiwari
2. Mahadeo Mohali son of Late Jiwan Mohali
3. Feku Mohali son of Late Bhupal Mohali
4. Pokhan Mohali son of Late Mangar Mohali
5. Arjun Mohali son of Mahadeo Mohali
6. Bhagwan Mohali son of Late Mangar Mohali
(deleted vide order dated 03.09.2021)
7. Sree Tiwari @ Sri Dhar Tiwari
son of Late Badri Narayan Tiwari
(deleted vide order dated 03.09.2021)
8. Surendra Tiwari son of Late Gopali Tiwari
9. Sudhir Rai son of Late Chaturi Rai
10. Binod Rai son of Late IshwariRai
11. Mahindra Tiwari son of Late Hadi Tiwari
12. Ghanshyam Tiwari son of Dukhan Tiwari
13. Karu Tiwari son of Late Laljit Tiwari
14. Nunu Tiwari son of Late Laljit Tiwari
15. Kolha Mohali son of Mahadeo Mohali
All are residents of Village- Parsatand,
P.O. & P.S. - Deori,
District- Giridih (Jharkhand)
... ... ... Petitioners
-Versus-
1. The State of Jharkhand
2. Rahman Ansari son of Tahir Ansari, resident of Village-
Parsatand, P.O. & P.S. - Deori, District - Giridih (Jharkhand)
... ... ... Opp. Parties
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioners : Mr. Vishal Kumar Trivedi, Adv.
For the Opp. Party-State : Mr. Kamdeo Pandey, A.P.P.
For Opposite Party No.2 : Mr. Vishwanath Ray, Advocate
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Through Video Conferencing
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08/23.09.2021 Heard Mr. Vishal Kumar Trivedi, the learned
counsel appearing on behalf of the petitioners.
2. Heard Mr. Vishwanath Ray, the learned counsel
appearing on behalf of the Opposite Party No.2.
3. Heard Mr. Kamdeo Pandey, the learned A.P.P. appearing
on behalf of the Opposite Party No.2
4. This criminal revision application has been filed for
setting aside the judgment dated 18.02.2012 passed by the
learned Principal Sessions Judge, Giridih in Criminal Appeal
No.28 of 2010 whereby and whereunder the learned appellate
court convicted the petitioners under Sections 147, 148, 323/149
and 324/149 of the Indian Penal Code and giving the benefit of
Section 4 of the Probation of Offenders Act, directed to release
the petitioners on probation upon execution of bond of
Rs.20,000/- with two sureties of the like amount each and to
maintain peace and be of good behaviour for a period of three
years. However, the learned appellate court set aside the
conviction and sentence of the Petitioner Nos. 1, 2 and 3 under
Section 326 of the Indian Penal Code and partly allowed the
criminal appeal preferred by the petitioners.
5. The learned trial court, vide judgment dated 16.02.2010
passed by the learned Judicial Magistrate, 1st Class, Giridih, in
G.R. No.1838 of 1997 / T.R. No.34 of 2010, had convicted the
petitioners under Sections 147, 341, 323 and 506 Indian Penal
Code and had also convicted the Petitioner Nos. 1, 2 and 3
under Sections 148, 324 and 326 of the Indian Penal Code and
had sentenced them to undergo rigorous imprisonment for one
year under Section 147 of the Indian Penal Code, one month
under Section 341 of the Indian Penal Code, one year under
Section 323 of the Indian Penal Code and one year under
Section 506 of the Indian Penal Code. The learned trial court
had further sentenced the Petitioner Nos.1, 2 and 3 to undergo
rigorous imprisonment for three years under Section 148 of the
Indian Penal Code and three years under Section 324 of the
Indian Penal Code and rigorous imprisonment for three years
with fine of Rs.5,000/- each for the offence under Section 326 of
the Indian Penal Code and in default of payment of fine, to
undergo additional rigorous imprisonment for one year and all
the sentences were directed to run concurrently.
Arguments on behalf of the Petitioners
6. Learned counsel for the petitioners, at the outset,
submitted that altogether 15 persons had filed the present
criminal revision, who were also the persons convicted by the
learned courts below, but out of them, Petitioner Nos.6 and 7
have died and accordingly, vide order dated03.09.2021, their
names have been deleted from the cause title of the criminal
revision application.
7. Learned counsel submitted that all the petitioners were
extended the benefit Section 4 of the Probation of Offenders Act
by the learned appellate court and they were directed to be
released on probation upon execution of a bond of Rs.20,000/-
with two sureties of the like amount each to the satisfaction of
the learned court below and to maintain peace and be of good
behaviour for a period of three years.
8. During the course of arguments and upon a query by this
Court as to whether the petitioners have furnished the bond as
directed by the learned appellate court, it has been submitted
by learned counsel for the petitioners that the bonds have not
been furnished, in view of the fact that the present criminal
revision application was filed, which was admitted and is
pending. However, admittedly, there is no interim order of
stay passed by this Court, so far as the direction contained in
the impugned judgment of the learned appellate court is
concerned.
9. Learned counsel submitted that considering the facts
and circumstances of this case, the period of probation bond
may be reduced and instead of three years, it may be for a
smaller duration. He also submitted that much time has
elapsed since the direction to execute bond and there has been
no further complaint against the petitioners. However, from the
records of this case, it appears that no such affidavit has been
filed from the side of the petitioners.
Arguments on behalf of the Opposite Parties
10. Learned A.P.P. appearing on behalf of the State, on the
other hand, submitted that the learned appellate court has
given concurrent findings of facts for the offences under
Sections 147, 148, 323/149 and 324/149 of the Indian Penal
Code and have convicted the petitioners including the deceased
petitioners, although the learned appellate court has given them
the benefit of Section 4 of the Probation of the Offenders Act
and has also acquitted the Petitioner Nos. 1, 2 and 3 from the
charge under Section 326 of the Indian Penal Code.
11. He further submitted that the period, for which the bond
was to be furnished pursuant to the appellate court direction,
may not be reduced and he has no objection, if the petitioners
may furnish the bond pursuant to an order which may be
passed by this Court. He submitted that there being no interim
relief in their favour, merely because much time has elapsed is
itself not a ground for non-compliance of the direction issued
by the learned appellate court.
Findings of this Court
12. The prosecution case is based on the written report
alleging that on 04.11.1997 at about 8 A.M., the Informant
Rahman Mian and his family members were harvesting paddy
crops in their field and in the meanwhile, the petitioners
alongwith Mangar Moli (since deceased) surrounded the
informant party and forbade them from cutting the paddy
crops. The informant replied that he is continuously cultivating
the land-in-question for 35 years and the land belongs to him. It
was further alleged that Feku Mohli armed with bhala and
lathi, Dablu Tiwary, Karu Tiwary, Ghanyam Tiwary and
Suerndra Tiwary started assaulting the informant by sword on
his head and all over his body with intention to kill him. When
Israil Mian came for rescue and intervened, he was also
assaulted by Dablu Tiwary, Sree Tiwari, Ganpat Tiwari,
Ghanshyam Tiwary, Feku Mohali, Surendra Tiwari, Mahadeo
Mohali, etc. by rod and lathi. Both the injured were brought by
the villagers, who assembled on hearing halla, and then the
accused persons fled away.
13. On the basis of the written report, a formal F.I.R. was
registered as Deori P.S. Case No.122/97 and after completion of
investigation, charge-sheet was submitted against the
petitioners showing mangal Mohli as dead and cognizance of
the offence was taken against 15 accused persons. After
appearance, the charges under Sections 147, 341, 323 and 506 of
the Indian Penal Code were framed against all the petitioners.
The charges under Sections 148 and 324 of Indian Penal Code
were also framed against Feku Mohali, Dablu Tiwari, Karu
Tiwari, Ghanshyam Tiwari and Surendra Tiwari and the charge
under Section 326 of the Indian Penal Code was framed
separately against Dablu Tiwari, Sree Tiwari, Ganpati Tiwari,
Ghanshyam Tiwari, Feku Mohali, Mahadeo Mohali and
Surendra Tiwari.
14. In course of trial, the prosecution examined altogether
nine witnesses to prove its case. P.W.-1 is Tahir Mian who is the
father of the Informant, P.W.-6 is Mansoor Ansari, and P.W.-8 is
the Informant of the case and P.W.-9 is Md. Maniruddin and
they are the material witnesses of the case. The prosecution
exhibited the injury report of Israil Mian as Exhibit-1 and the
Injury Report of Rahman Mian (Informant) as Exhibit-1/1.
15. The learned trial court convicted the petitioners under
Sections 147, 341, 323 and 506 of Indian Penal Code and also
convicted the Petitioner Nos. 1, 2 and 3 under Sections 148, 324
and 326 of Indian Penal Code and sentenced them accordingly.
16. The the learned appellate court set aside the conviction
and sentence of the Petitioner Nos. 1, 2 and 3 under Section 326
of the Indian Penal Code and convicted the petitioners under
Sections 147, 148, 323/149 and 324/149 of the Indian Penal
Code and giving the benefit of Section 4 of the Probation of
Offenders Act, directed to release the petitioners on probation
for a period of three years.
17. After hearing the learned counsel for the parties and
going through the materials on record, this Court finds that
P.W.-8 Rahman Ansari is the informant of the case and one of
the injured-victim of the case. In his evidence, he deposed that
on 04.11.1997 at about 8 A.M., he was cutting paddy crops in his
own land and in the meanwhile, the petitioners and Mangar
Mohali came to his field and abused them by saying that why
were they cutting the paddy crops. Upon protest by him, the
accused persons started assaulting him. Dablu Tiwari gave
sword blow on his head, Feku gave tangi blow on his right
hand causing cut injury in his finger. Mahadeo Mohali
assaulted him by rod and other accused persons also assaulted
by lathi, sword, bhala and tangi. When Israil Mian came to
rescue him, he was also assaulted by the accused persons and
he sustained injuries. On hearing halla, several villagers
assembled at the place of occurrence and then the accused
persons fled away. He further stated that written report was
scribed by one Kurban Mian on his dictation, which he had
found true and had signed over it, which has been marked as
Exhibit-2. In his cross-examination, he denied any previous
litigation of land dispute with the accused persons and also
denied that Deori P.S. Case No.123/1997 was instituted by the
accused persons against him and others for the same
occurrence, rather admitted that in that case, he is an accused,
which is registered under Section 302/307 of Indian Penal
Code. He further admitted that he did not go to the police
station to inform that the accused persons were forbidding him
from cutting his own crops. He further admitted that when he
raised alarm, Israil Mian came to rescue him and thereafter,
Rauf Ansari, Salim Mian (P.W.-4), Mansoor Ansari (P.W.-6) etc.
came there. Other persons came after 20 minutes from arrival of
Israil Mian. He was under pool of blood and became
unconscious. Thereafter, he does not know what happened and
he regained conscious at hospital. He further admitted that his
blood-stained cloth was not seized by the police and in his
presence, the police did not arrive at the place of occurrence.
and his statement was recorded at police station. He also
admitted that the case is pending before L.R.D.C. in respect of
the place of occurrence land which was filed after the incident.
Other persons adjacent to the place of occurrence land were
also harvesting their paddy crops. His attention was drawn
towards statement under Section 161 of Cr.P.C before the police
that Dablu Tiwari assaulted on his head, causing cut injury,
Feku assaulted him by tangi, causing cut injury in the right
finger and Mahadeo Mohali assaulted by rod and another part
of body and he had not disclosed before the police that the
place of occurrence land is being claimed by Moholies on the
basis of acquisition by Bhudan Committee. He denied the
suggestion of the defence that in order to save himself from the
case of Maholi, this false case was lodged to grab their land and
he has deposed falsely.
18. This Court further finds that P.W.-8 has supported the
prosecution case as recorded in the written report and P.W.-1,
P.W.-6 and P.W.-9 have corroborated the evidence of the
informant.
19. This Court further finds that the learned courts below
have carefully scrutinized the evidences and have recorded
concurrent findings while recording conviction of the
petitioners under Sections 147, 148, 323/149 and 324/149 of the
Indian Penal Code and there is no illegality, perversity or
irregularity in the impugned judgments of conviction of the
petitioners to this extent. Accordingly, conviction of the
petitioners under Sections 147, 148, 323/149 and 324/149
passed by the learned appellate court is upheld.
20. This Court finds that the learned appellate court gave the
benefit of Section 4 of the Probation of Offenders Act to the
petitioners and instead of awarding sentence of imprisonment
to them for the proved offences, directed to release the
petitioners on probation upon execution of bond of Rs.20,000/-
with two sureties of the like amount each to the satisfaction of
the learned court below to maintain peace and be of good
behaviour for a period of three years. However, there is no
justification from the part of the petitioners for non-compliance
of the directions passed by the learned appellate court.
21. Considering the facts and circumstances of the case and
the submissions made on behalf of the learned counsel
appearing on behalf of the parties, the petitioners are directed
to furnish the necessary bond in terms of the order passed by
the learned appellate court within a period of two months from
the date of receipt of a copy of this judgment.
22. It is important to note that so far as Petitioners No.6 & 7
are concerned, they have already expired and accordingly, their
case stands abated by virtue of order dated 03.09.2021 and
consequently, there is no question of any compliance, so far as
the deceased Petitioners Nos.6 & 7 are concerned.
23. With the aforesaid findings, observation and direction,
the present criminal revision application is hereby dismissed.
24. Pending interlocutory application, if any, is closed.
25. Let the lower court records be sent back immediately to
the court concerned.
26. Let a copy of this order be communicated to the learned
court below through FAX/E-mail.
(Anubha Rawat Choudhary, J.)
Saurav/
