CRIMINAL REVISION No.297 OF 2002 -------------- Being aggrieved and dissatisfied with the order and judgment dated 5.2.2002 passed by Shri Sheo Shankar Verma, the 4th Addl. Sessions Judge, Barh, in Cr. Appeal no.146 of 2000. -------------- CHANDESHWAR PASWAN, son of Bhola Paswan, resident of vill.- Kazichak Beldariya, P.S.-Bhadour, Distt.-Patna----- ---------------------------------------------------------(Petitioner ) Versus 1. STATE OF BIHAR 2. Bishwanath Paswan son of Ramdhari Paswan, resident of vill.-Kani Chak Beldaria, P.S.-Bhadour, Distt.-Patna----------- -----------------------------------------------------(Opposite parties) ----------- For the petitioner : Mr. Anil Kumar Mukund and Rekha Mukund , advocates For the informant : Mr. Sanjay Kumar Griyaghey, Adv. For the State : Mr. Ramchandra Singh, Addl. P.P. ----------------- P R E S E N T THE HON'BLE MR. JUSTICE MANDHATA SINGH Mandhata Singh,J. This revision petition is directed against the order and judgement dated 5.2.2002 passed by the Addl. Sessions Judge-IV, Barh, in Cr. Appeal no.146 of 2000 whereby the appeal has been dismissed and the conviction of this petitioner awarded by the trial court is confirmed. 2. The prosecution case in brief is that informant Ramanand Singh, the then Sub-Inspector of Bhaduar Police Station along with other police officials had gone to enquire into Sanha no.363 dated 30.6.1995 in village Kajichak, Beldariya. He was informed by Vishwanath Paswan that paddy seedling was grown on his behalf in plot no.577 one week earlier. On the date of occurrence i.e. on - 2 - 29.6.1995 petitioner Chandeshwar Paswan, having counry made rifle in his hand along with son Mohan Paswan having country made pistol went there, ploughed the field and damaged all the paddy seedlings. On protest both abused Vishwanath Paswan and shot firing also. 3. After concluding trial petitioner is convicted for the offence under section 447 and 427 of the Indian Penal Code and that is confirmed in appeal also by passing the impugned order. Legality, correctness and propriety of which have been questioned in filing this revision petition. 4. The only point raised on behalf of the learned counsel for the petitioner is that bonafide claim of the petitioner was over the disputed plot. Trial court as well as the appellate court were not empowered to decide possession of the parties over the disputed land. For the title para-8 of the judgment of the trial court is referred to show that bonafide title was involved in the case. So, court had no right to decide but possession was taken into consideration and that is decided also. Strange enough once it is observed by the trial court which is confirmed by the appellate court that bonafide title was there in between the parties then how possession could be decided as possession always follows the title. Section 145 of the Code of Criminal Procedure only empowers criminal court to decide possession of rivalry claim that also is subject to the decision of the competent court only to prevent breach of peace. 5. Learned counsel appearing on behalf of opposite party no.2 pointed out observation made in section 144 of the Code of - 3 - Criminal Procedure proceeding and that proceeding was dropped on admission of the petitioner. Admission made by any one cannot be accepted as conclusive proof if any admission is made in earlier proceeding is in writing then section 145 of the Evidence Act comes in picture. Part of the admission in case of denial if cross-examined by showing the same can only be used as stated in Section 145 of the Evidence Act which runs as follows:- “ S.145- Cross-examination as to previous statements in writing- A witness may be cross- examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. ” 6. On the point of possession rent receipt has been filed in the case on behalf of the prosecution while Hukumnama and rent receipts have been filed in the case by the defence. Other documents are also there but not relevant to mention as submission of the learned counsel for the petitioner is about existence of bonafide dispute on the point of possession also. Admittedly, that was continuing from earlier even the transfer of opposite party no.2. Title Suit was filed for cancellation of opposite party no.2’s sale deed. 7. Petitioner was found tress passing over the disputed land. Posssession over it has been admittedly proved by adducing oral evidence also. But possession always means legal possession not possible if bonafide dispute was existing as in the present case. Once - 4 - opposite party no.2’s possession over the land is disputed and seedling , if any, was grown and damaged/mischieved may not be extended to the person who is claiming his possession over it. Otherwise, indirectly it will amount a decree for title or possession passed in favour of either of the parties which has not been considered by the trial court or by the Sessions Court in appeal. So their conclusions are not liable to be sustained. 8. Accordingly, the revision petition is allowed. The order dated 5.2.2002 passed by the 4th Addl. Sessions Judge, Barh, Distt.- Patna, in Cr. Appeal no.146 of 2000 is hereby set aside. The petitioner is acquitted of the charges and set at liberty. Patna High Court, 27th April, 2010 AFR/Sudip ( Mandhata Singh, J. )