Rajdeo Mochi vs The State Of Jharkhand ...... Opp. Party
2025 Latest Caselaw 2062 Jhar

Jharkhand High Court

Rajdeo Mochi vs The State Of Jharkhand ...... Opp. Party on 28 January, 2025

Author: Sanjay Prasad

Bench: Sanjay Prasad

          IN THE HIGH COURT OF JHARKHAND AT RANCHI
                          Cr. Revision No. 638 of 2003
                                     ....

1. Rajdeo Mochi

2. Pyari Mochi Sons of Gani Mochi

3. Dashrath Bhuiyan

4. Jeetu Bhuiyan Sons of Mangu Bhuiyan

5. Guli Bhuiyan son of Rangu Bhuiyan

6. Neknam Bhuiyan son of Dewa Bhuiyan All resident of Village- Gawahi, PS- Manatu, District- Palamau ...... Petitioners Versus The State of Jharkhand ...... Opp. Party

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CORAM: HON'BLE MR. JUSTICE SANJAY PRASAD

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For the Petitioners : Mr. Raj Nandan Chatterjee, Advocate Mr. Akhouri Prakhar Sinha, Advocate For the State : Mr. Prabir Chatterjee, Spl. P. P. .....

ORAL JUDGMNET IN COURT

05/28.01.2025 The present Criminal Revision No. 638 of 2003 has been filed on behalf of the petitioners challenging the judgment dated 24.03.2003 passed in Criminal Appeal No. 63 of 1992 by Sri Ramanuj Narain, VII Additional District and Sessions Judge, Palamau at Daltonganj whereby VII Additional District and Sessions Judge, Palamau at Daltonganj has partly allowed the Criminal Appeal No. 63 of 1992 with modification in the judgment of conviction and order of sentence dated 30.06.1992 passed by Sri Shayam Bihari Rai, then Judicial Magistrate, 1st Class, Palamau at Daltonganj by which the petitioners and 26 others have been acquitted for the offences under Sections 352 and 353 of the Indian Penal Code and under Section 2 of the Forest Conservation Act. However, the conviction of the petitioners and two others has been upheld for the offence under Section

33 of the Indian Forest Act. Although vide the judgment of conviction and order of sentence dated 30.06.1992 passed by Sri Shayam Bihari Rai, then Judicial Magistrate, 1st Class, Palamau at Daltonganj in connection with C. F. Case No. 433 of 1990 corresponding to T. R. No. 80 of 1992 had convicted the petitioners and 26 others for the offences under Sections 352 and 353 of the Indian Penal Code and also Section 33 of the Indian Forest Act and Section 2 of the Forest Conservation Act and sentenced them to undergo R.I. for a period of two (2) months for the offence under Section 352 of the Indian Penal Code and sentenced them to undergo R.I. for a period of six (6) months for the offence under Section 353 of the Indian Penal Code and sentenced them to undergo R.I. for a period of six (6) months for the offence under Section 33 of the Indian Forest Act and sentenced them to undergo R.I. for a period of two (2) months for the offence under Section 2 of the Forest Conservation Act.

However, all the sentences have been directed to run concurrently.

2. Learned counsel for the petitioners has submitted that he is not pressing the Criminal Revision on merit, rather he is pressing on the point of sentence only. It is submitted that the petitioner no. 1, Rajdeo Mochi and the petitioner no. 2, Pyari Mochi are in custody since 06.09.2024 and 25.08.2024 respectively i.e. for more than four months and as such lenient view may be taken for them.

It is further submitted that the petitioner nos. 3 to 6 have faced long protracted trial for more than 30 years and hence, lenient view may be taken for them in view of the above fact also.

3. On the other hand, learned Spl. P. P. raised no

objection and has fairly submitted that the petitioner no. 1, Rajdeo Mochi and the petitioner no. 2, Pyari Mochi are in custody for around four months and hence, the Court may pass appropriate order.

However, learned Spl. P. P. has opposed the submission with respect to the petitioner nos. 3 to 6 and has submitted that they had encroached over the Forest Area in question and the judgment passed by the learned Appellate Court requires no interference.

4. Perused the records of this case and considered the submission of both the sides.

5. It appears that this Criminal Revision No. 638 of 2003 was admitted on 08.08.2003 and Lower Court Records were called for and the petitioners (Rajdeo Mochi, Pyari Mochi, Dashrath Bhuiyan, Jeetu Bhuiyan, Gull Bhuiyan and Neknam Bhuiyan) were granted bail.

6. It appears that Criminal Revision No. 638 of 2003 was dismissed for default by the Co-ordinate Bench (Justice Anant Bijay Singh as then His Lordship was) of this Court on 03.12.2018.

7. It also reveals from the office note that entire Original Lower Court Records were sent to the Court of the concerned Judicial Magistrate, Civil Courts, Palamau at Daltonganj vide Memo No. 2171 dated 20.06.2020 by the office of the Court.

8. It appears that the above Criminal Revision No. 638 of 2003 is restored in light of the order dated 24.01.2025 passed in Cr. M. P. No. 3243 of 2024 by this Court.

9. However, the office has further pointed out that the Lower Court Records have not been received as yet as per the report of the Criminal Receiving Section.

10. From perusal of the records, it appears that on the basis of written report submitted by one Keshwar Uraon, Forest Guard on 20.08.1990 that all the accused persons including these petitioners were found for encroaching the Forest Land. However, none of them could be apprehended, but they had quarrelled with them.

11. Thereafter, on the basis of said report Forester namely Bhuneshwar Singh conducted spot enquiry on 21.08.1990 and found that there is encroachment of Gorkhatand P F Plot No. 43, Notification No. 478, Thana No. 478 for approx. three (3) acres of land and for which information was given to the Divisional Forest Officer, North Division, Daltonganj.

12. Thereafter, the prosecution report was submitted against the petitioners namely petitioner no. 1, Rajdeo Mochi, the petitioner no. 2, Pyari Mochi, the petitioner no. 3, Dashrath Bhuiyan, petitioner no. 4, Jeetu Bhuiyan, petitioner no. 5, Guli Bhuiyan and petitioner no. 6, Neknam Bhuiyan and 26 accused persons namely Jhari Bhuiyan, Nandu Singh, Ramjee Bhuiyan, Ramjeet Singh, Ram Naresh Sao, Kuldeep Singh, Chamaru Singh, Pravesh Singh, Shukan Singh, Jagnarain Singh, Maban Singh, Upendar Manjhi, Judan Mochi, Rajdeo Singh, Kuldip Mochi, Kuldip Singh, Brij Bihari Sao, Jangi Mochi, Ramkishun, Chandardeep, Sikhari Singh, Utim Manjhi, Jagarnath Manjhi, Taju Manjhi before the learned Court below on 29.10.1990.

Thereafter, then learned Chief Judicial Magistrate, Palamau has taken cognizance under Section 33 of the Indian Forest Act against the petitioners and 26 other persons.

13. Thereafter the records were sent to the Court of Sri Shyam Bihari Rai, then Judicial Magistrate, 1st Class,

Palamau at Daltonganj.

14. It reveals from the impugned judgment of the learned Trial Court below that during trial, the prosecution had got examined four (4) witnesses, who are as follows:-

(i) P.W.-1 is Keshwar Uraon, Forest Guard i.e. the Informant,

(ii) P.W.-2 is Raj Kumar Ram, i.e. Forest Guard,

(iii) P.W.-3 is Bhuneshwar Singh, i.e. Forester and

(iv) P.W.-4 is Rajendra Prasad i.e. the Forester,

15. The prosecution, in support of his case, had got proved the following Exhibits which are as follows:-

 (i)        Ext-1 is report of Forest Guard,
 (ii)       Ext-2 is another report by the Forest Guard, (name

not mentioned by the learned Court blow),

(iii) Ext-3 is the map,

(iv) Ext- 4 is the prosecution report,

(v) Ext- 5 is notification no. 193,

(vi) Ext.-6 is Gazette Notification dated 16.07.1958 having page no. 2041 and

(vii) Ext.-7 is Notification No. 1372 dated 10.07.1961

16. On the other hand, the defence has got examined one (1) witness, who is as follows:-

(1) D.W.-1 is Damodar Singh.

17. The defence, in support of their case, had got proved the following documents as the Exhibits which were as follows:-

(i)      Ext.-A is Bandobasti Purcha,
(ii)     Ext.-B to B/III are four fard jamindari receipts and
 (iii)      Ext.-C and C/1 are two fard government receipt.

18. It transpires that vide the judgment of conviction and order of sentence dated 30.06.1992, Sri Shayam Bihari Rai, then Judicial Magistrate, 1st Class, Palamau at Daltonganj has

convicted the petitioners and 26 others for the offences under Sections 352 and 353 of the Indian Penal Code, Section 33 of the Indian Forest Act and Section 2 of the Forest Conservation Act and sentenced them to undergo R.I. for a period of two (2) months for the offence under Section 352 of the Indian Penal Code and sentenced them to undergo R.I. for a period of six (6) months for the offence under Section 353 of the Indian Penal Code and sentenced them to undergo R.I. for a period of six (6) months for the offence under Section 33 of the Indian Forest Act and sentenced them to undergo R.I. for a period of two (2) months for the offence under Section 2 of the Forest Conservation Act.

19. It transpires from the impugned judgment that the learned Trial Court below has convicted the petitioners and 26 others merely on the ground that they were found cultivating on the forest land situated within the area of forest land illegally. However, learned Court below has also observed that no local witnesses had been examined.

20. It further transpires that learned Appellate Court has acquitted the petitioners and 26 others for the offences under Sections 352 and 353 of the Indian Penal Code and under Section 2 of the Forest Conservation Act.

However, the conviction of the petitioners and two others has been upheld for the offence under Section 33 of the Indian Forest Act by the learned Appellate Court.

21. Thus, the petitioners and two others have been convicted only for the offence under Section 33 of the Indian Forest Act.

22. Although, Lower Court Records had not been called for after restoration of the above Criminal Revision No. 638 of 2003. However, it reveals from the impugned judgment

passed by the learned Trial Court below at page-7 that no independent witnesses have been examined. It further appears from the impugned Judgments that only forest officials have been examined.

23. It transpires that the learned Appellate Court below has committed illegality by upholding the conviction of the petitioners and two others for the offence under Section 33 of the Indian Forest Act as there was no independent witness.

24. It further reveals from the records that both the learned Courts below have rejected the defence evidence marked as Ext. -A, Ext.-B to B/III and Ext.-C to C/I respectively.

25. It is further evident that the evidence of defence witnesses of the petitioners has not been taken into consideration, who had taken the plea that they were cultivating the land in light of Bandobasti made by the Ex- landlord with them. Although certain reasons have been given by the learned Appellate Court below for not relying the defence evidence marked as Ext. -A, Ext.-B to B/III and Ext.- C to C/I respectively, but this Court finds that reasons given by the learned Appellate Court below is not sustainable because Jamindari receipts and Government receipts could have been verified from the official concerned by the learned Courts below.

26. It transpires from the impugned judgments passed by the learned Trial Court and learned Appellate Court below that P.W.-1, Keshwar Uraon, Forest Guard i.e. the informant could not say the area of Forest Land over which six petitioners and 26 accused persons were found cultivating the forest land or for encroaching the said forest land.

27. It further transpires that P.W.-1, Keshwar Uraon,

P.W.-2, Raj Kumar Ram, P.W.-3, Bhuneshwar Singh and P.W.-4, Rajendra Prasad have failed to state the area over which the petitioners were said to have made encroachment over the forest land in question.

28. It further transpires that the documents marked as Ext.-6 and Ext.-7 have not been proved by the Competent Authority, which were notification issued by the Department of Forest.

29. It further transpires that neither any co-villagers nor any independent witnesses were examined on behalf of the prosecution to support the assertion of the Forest Department.

Thus, in absence of any independence witnesses, the prosecution case is not proved.

30. It transpires that P.W.-1, Keshwar Uraon, P.W.-2, Raj Kumar Ram, P.W.-3, Bhuneshwar Singh and P.W.-4, Rajendra Prasad are forest officials and they are interested witnesses. Even the local persons i.e. Circle Officer and Block Development Officer of the concerned have not been examined to corroborate the prosecution case.

31. It further reveals that the learned Court below has failed to consider the documents marked as Ext.- A, Ext.-B to B/III respectively and Ext.- C to C/I respectively by which the petitioners and others were trying to show their claim over the area of the land in question on which they were allegedly cultivating over the forest land. The petitioners had taken the defence that the lands of Khata No. 13, Plot No. 43 have been received in Bandobasti (i.e. Settlement)

32. It further transpires that P.W.1, Keshwar Uraon is the informant of this case. However, he himself admitted during his evidence that no persons could be apprehended at the place occurrence over the forest area on which some villagers

were allegedly cultivating the forest land.

Thus, it is evident that none of the petitioners were found cultivating on the forest land in presence of the informant on the date of filling complaint case. Thus, the conviction of the petitioners is not sustainable in law.

33. It is further evident that neither P.W.-2, Raj Kumar Ram nor P.W.-3, Bhuneshwar Singh nor P.W.-4, Rajendra Prasad are the eye witnesses.

Thus, this is a case of no evidence against the petitioners.

34. It further appears to be a case of bonafide civil dispute between the parties as some of the persons have claimed the land in question as their own land, which has not been considered by the learned Trial Court below and has also not been considered by the learned Appellate Court below while convicting the petitioners.

35. It transpires from the judgment of the learned Judicial Magistrate that Ext.-1 (due to clerical error by the learned Trial Court instead of it has been written as Ext.-1 instead of Ext-A at page-8 of the Trial Court Judgment and it should have been written as Ext.-A) is Hukumnama dated 31.03.1948 by one Lal Bahadur Singh son of Bibhuti Singh whereas Ext. -B to B-III respectively are four fard jamindari receipts and on the basis of which Ext.-C to C/1 respectively were issued by the erstwhile Government of Bihar. The defence has further pointed out that Ext.-C to C/1 were written by Karamchari Shatrughan Singh and one other Karamchari Abdul Aziz respectively.

36. Thus, it is evident that the learned Judicial Magistrate as well as the learned Appellate Court below have completely overlooked the defence of the petitioners and

others.

37. The learned Trial Court also failed to notice on which Khata Number and Plot Number and area, the petitioners and others accused persons were found cultivating over the forest land in question. They have failed to say the specific area over which the revisionist petitioners were found cultivating over the forest land.

Thus, the prosecution has failed to prove its case against the petitioners.

38. It further transpires from the judgment of the learned Appellate Court below that D.W-1, Damodar Singh, who had proved (Ext.-A, Ext. -B to Ext.-B/III respectively) had stated during his evidence that his father Lal Bahadur Singh was the Ex-Landlord and he had settled the land to different raiyats in Khata No. 13, Plot No. 43 and he has also proved the Hukumnama marked as Ext.-A.

39. It is evident that even the son of Ex-Landlord had supported the case of the petitioners for taking the land on Bandobasti from the ex-landlord Lal Bahadur Singh, but it was completely overlooked by the learned Appellate Court below as well as the learned Trial Court below. The learned Appellate Court below has rejected Ext. -B, Ext.-B/II and Ext.-B/III respectively on the ground that only plot no. 43 has been mentioned while Ext.-B/1, only plot no. 84 has been mentioned and the rent in all the rent receipts is not similar. Even the area was mentioned as nine (9) acres and twenty (20) decimals.

The learned Appellate Court below further observed that Jamindari returns have not been filed by the petitioners. Thus, the learned Appellate Court below has decided the Criminal case like a Title Suit and the learned Appellate Court

and learned Trial Court below were not empowered to check the genuineness of Ext.-A and Ext.-B to Ext.-B/III respectively and Ext.-C to Ext.-C/1 respectively.

40. It transpires that all the accused persons allegedly were cultivating over the area of three (3) acres of forest land whereas the petitioners and 26 accused persons had claimed the land over an area of nine (9) acres and twenty (20) decimals of land. It is not expected from the poor persons like the petitioners that they will be able to furnish jamindari return over the land in question. Although, they had examined the son of the ex-landlord, but they had produced Hukumnama dated 31.03.1948 and rent receipts issued by the Ex-landlord marked as Ext.-B to Ext.-B/III respectively and thereafter on the basis of which, even erstwhile State of Bihar issued Ext.-C to Ext.-C/1 respectively and rent receipts over the land in question.

41. In that view of the matter, this Court finds that conviction of the petitioners under Section 33 of the Indian Forest Act is not sustainable in the eye of law.

42. Accordingly, the judgment dated 24.03.2003 passed in Criminal Appeal No. 63 of 1992 by Sri Ramanuj Narain, then VII Additional District and Sessions Judge, Palamau at Daltonganj and the judgment of conviction and order of sentence dated 30.06.1992 passed by Sri Shyam Bihari Rai, then Judicial Magistrate, 1st Class, Palamau at Daltonganj in connection with C. F. Case No. 433 of 1990 corresponding to T. R. No. 80 of 1992 are set aside and the petitioner no. 1, Rajdeo Mochi, the petitioner no. 2, Pyari Mochi, petitioner no. 3, Dashrath Bhuiyan, petitioner no. 4, Jeetu Bhuiyan, petitioner no. 5, Guli Bhuiyan and petitioner no. 6, Neknam Bhuiyan are acquitted of the charge for the offence under

Section 33 of the Indian Forest Act and the petitioner no. 1, Rajdeo Mochi, the petitioner no. 2, Pyari Mochi, petitioner no. 3, Dashrath Bhuiyan, petitioner no. 4, Jeetu Bhuiyan, petitioner no. 5, Guli Bhuiyan and petitioner no. 6, Neknam Bhuiyan are discharged from the liability of their respectively bail bonds.

43. The petitioner no. 1, Rajdeo Mochi and the petitioner no. 2, Pyari Mochi are in custody and they are directed to be released and set at liberty forthwith, if their detention is not required in any other case.

44. Accordingly, Criminal Revision No. 638 of 2003 is allowed.

45. Let a copy of this Judgment be sent to the learned Court below by FAX.

(Sanjay Prasad, J.) Kamlesh/