CRIMINAL APPEAL No.395 OF 1988 ******* Against the judgment dated 16th July, 1988 passed By Madan Mohan Verma,4th Additional Sessions Judge, Bhagalpur, in Sessions Trial no. 13 of 1983 / 31 of 1986. ******* 1. Bhutto Mandal, 2. Bateshwar Mandal 3. Kishun Mandal, 4. Ganesh Mandal 5. Radha Mandal 6. Sadanand Mandal 7. Asharfi Mandal 8. Doman Yadav 9. Lakhan Paswan 10. Hariram Mandal @ Hafiroo Mandal 11. Kishun Mandal 12. Sarjug Singh @ Sarjoo Prasad Singh 13. Chandi Mandal @ Chadi Mandal 14. Bhutto Mandal 15. Dhaneshwar Mandal -----------------Appellants Versus The State of Bihar ------------------Respondents ******* For the Appellants : S/shri Rakesh Kr.Sinha No.I & Anuj Prakash For the Informant : S/shri Jagdish Pd. Bhagat & D.N. Tiwari For the State : Sushri Shashi Bala Verma ******* P R E S E N T THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA THE HON'BLE SHRI JUSTICE AKHILESH CHANDRA Dharnidhar Jha & Akhilesh Chandra,JJ The appeal is on behalf of fifteen appellants 2 out of the eighteen accused put on trial ultimately whereas the first information report had twenty names as accused. Three, out of the eighteen put on trial, were found not guilty and were acquitted. The charges which were framed against the eighteen accused persons originally put on trial, were those under Sections 379, 364 and 302/149 of the Indian Penal Code. The trial was held vide Sessions Trial no. 13 of 1983 and by judgment, which was delivered on the 16th day of July, 1988, the fifteen appellants were found guilty of committing offences under Sections 364 and 302 / 149 of the Penal Code while they were also not found guilty for committing the offences under Section 379 of the Penal Code. After hearing on sentence, the learned Judge directed each of the appellants to suffer rigorous imprisonment for eight years under Section 364 of the Penal Code and further rigorous imprisonment for life under Section 302/149 of the Penal Code. The appellants question the above finding of guilt and sentences passed against each of them through the present appeal. 2. Chhote Lal Mandal, P.W.5, is the 3 informant of the case and he appears filing a written report on 13th July, 1971 before the Officer in charge of Shambhuganj Police Station, in the district of Banka, alleging that seventeen accused named in the first information report along with some unknown others came to his field and uprooted Khesari crop, sown by him and also assaulted Bhagwan Das, deceased, and Bhumi Mandal, P.W.2, and took both of them away with them. 3. It appears that after receipt of the above noted written report (Exhibit-7) Station diary entry no.180 dated 13th March, 1971 was recorded by the Officer-in-charge, Shambhuganj Police Station and probably after the death of Bhagwan Das the same written report was made the basis of drawing up of first information report of Shambhuganj Police Station Case no.5 dated 13th March, 1971. 4. We do not have the evidence of any Police Officer to point out to us as to how the first information report was registered but we have simply deduced that it could have happened only when there was some material information to the Officer-in-charge of the 4 Police Station indicating the commission of cognizable offence also. We again do not have any evidence on record as to how investigation was proceeded with by the Police and what steps were taken and also what objective findings were recorded by the Police during investigation of the case but what we find is that statements of certain witnesses were recorded and the post mortem report or the injury report in respect of the injury of the deceased were also obtained and, ultimately, the accused persons, eighteen in number, were sent up for trial which ultimately ended in the impugned judgment. 5. The defence which appears taken by the appellants was that appellant Bhutto Mandal was in actual physical possession of the land, which was the bone of contention between the parties, who had transplanted paddy and sown Khesari and further that the informant and his men forming Hanseri, had tress-passed into the land so as to forcibly uprooting the Khesari crop and thereby to destabilize the settled possession of appellant Bhutto Mandal over the place of occurrence field and during that melee there could have been some occurrence. 5 They appeared to have also filed a case against the informant and others as appears to us from the cross- examination of different witnesses produced by the prosecution. 6. In support of the charges the prosecution examined nine witnesses, out of whom P.Ws 1 to 4 supported the evidence of the informant, P.W.5, as eye- witnesses to the occurrence. The remaining four witnesses were of all formal characters and they tendered in evidence one document or the other, prepared during the course of investigation or in aid of it like the post mortem report or the injury report and also tendered some parts of the case diary in the prosecution evidence. The defence also examined a solitary witness, Rajendra Paswan, to depose to the fact of defence that it were the informant and the witnesses of the case who had formed an unlawful assembly after having armed themselves with deadly weapons and had come to the field in possession of Bhutto Mandal so as to uprooting Khesari crop. 7. While rendering the judgment of conviction in respect of the fifteen appellants, the learned 6 trial Judge appears holding in paragraph 24 of his judgment that appellant Bhutto Mandal was definitely in possession of the land in dispute, but inspite of that he went on to examine the evidence as regards proof of charges under Sections 364 and 302/149 of the Penal Code. He had held that the charge under Section 379 of the Penal Code had failed. While examining the evidence the learned Judge placed reliance upon the evidence of the witnesses who testified in support of P.W.5, the informant, and, thereafter, went on to hold that the charges under Sections 364 and 302/149 of the Penal Code was established beyond all shadows of reasonable doubt and rendered the judgment of conviction. 8. Shri Rakesh Kumar Sinha No.I, learned counsel appearing for the appellants, has taken us through the evidence of witnesses and has submitted that in a case of nature as the present one, the sole question for decision was the question of being actually in physical possession of the land in dispute and that question having been decided in favour of the appellants, it was erroneous on the part of the learned Judge to hold that the charges 7 under Sections 364 and 302/149 of the Penal Code was established, specially, when the witnesses were giving evidence which could hardly be said to be satisfactory as regards the proof of those charges. It was further contended that the place of occurrence as regards the assault on Bhagwan Das might be stated by one witness at the house of appellant Bhutto Mandal, but that evidence was contradicted by P.W.4 when he was stating to the Court that the deceased Bhagwan Das was assaulted in the very field from where the Khesari crop was being uprooted. Above all, the non-examination of the Investigating Officer rendered it unsafe to place reliance upon the evidence of witnesses who appeared making statements during the course of investigation which could, firstly, render them not eye-witness and again whose statements may raise the probability as if a Hanseri was there which had been brought by the informant and further that the claim of the witnesses that they were present there in connection with uprooting Khesari from their respective fields may also not be acceptable. It was, as such, contended that the very 8 presence of the witnesses at the place of occurrence as they claimed themselves to be there, renders their evidence unsafe to be relied upon. It was contended that enough conflicts appear in the evidence of individual witnesses and that is yet another defect in their evidence so as to accepting it for recording a conviction. 9. Shri Jagdish Prasad Bhagat, learned counsel for the informant and Sushri Shashi Bala Verma, learned Additional Public Prosecutor, appearing for the State, have submitted that consistency may not be possible in the evidence of the witnesses inasmuch as they were deposing after fifteen years of the occurrence which had taken place some time in the year 1971 and on account of inconsistent human memory there could be inconsistencies in their statements and for that the real occurrence, which had taken place, may not appear ever held. It was next contended that at least the witnesses were consistent at one point that the accused persons had assaulted the deceased and P.W.2, Bhumi Mandal @ Bhuneshwar Mandal, after having taken them to their house and as a result of that assault Bhagwan Das had 9 died. It was contended that the charges were proved inspite of the deficiencies of non-examination of the Investigating Officer or the doctor. 10. In a case where the parties appear vying with each other as regards the question of their respective possession over the place of occurrence which could be a culturable land , the question could be decided from many angles. There could be documents in that behalf indicating as if which of the parties could be in possession or there could be orders of judicial or quasi- judicial authorities produced by the parties also to help reach a conclusion as to which of the parties could be in possession of the disputed land. The third class of evidence in such a case could be that we go through the evidence of witnesses. We find earlier two class of evidence not leading to any definite conclusion and reach the probability of any particular party being in possession of the disputed property. P.W.5, the informant, who was claiming the land as against the claim of appellant Bhutto Mandal, has given evidence both about the litigation in respect of the disputed possession over the 3.30 acres of 10 land in dispute and actual physical possession by acts in that behalf. We find that the story of litigation before the Court of Executive Magistrate does not lead us to any definite conclusion as to which of the parties could be in actual possession of the disputed plot. P.W.5 has stated in paragraphs 6, 13, 14, 15 and 16 that there were proceedings under Sections 144 and 145 of the Code of Criminal Procedure in respect of the disputed land and what ultimately was the result of that litigation was pointed out by him in his evidence in paragraph 16. In the proceeding under Section 145 of the Code of Criminal Procedure, it was the informant who got an order finding him in possession of the disputed land which order was challenged by appellant Bhutto Mandal before this Court and as per evidence of P.W.5 this Court remanded the matter back to the Executive Magistrate for re- determination and the subsequent order went in favour of the second party, that is, appellant Bhutto Mandal. P.W.5 has stated in the last line of paragraph 16 that he has preferred the criminal revision petition before this Court and that was pending on the day P.W.5 was deposing in 11 Court. Thus, the disputed question of possession appears still the disputed point to be decided finally on the day P.W.5 was deposing in Court and as such it could not be said with any amount of certainty as to who was really in possession over the land in dispute on the day of occurrence or P.W.5 had deposed in Court. 11. There is a story of purchase which has been referred to by the learned trial Judge in his judgment by P.W.5 but we want to caution us that in a criminal case the title of a person may not be of any substance as it is always the settled possession of the person which is material and settled possession is quite different in connotation as we conceive it in terms of civil litigation. Even the tress-passer could enter into a property and remain there in the knowledge of the real proprietors of the property. If he continues for some times then he could be said to have settled down in his possession over the said property and in criminal law he could be said to be in settled possession of the property. In such a situation, one cannot throw such a person who has acquired settled possession over a property to be thrown 12 out by use of force. It could be achieved only when the man aggrieved takes resort to legal proceedings. 12. In the indefinite state of judicial or quasi-judicial records we have lastly considered the evidence of P.W.5 himself and specially the evidence which was given by him in paragraph 13 of his deposition. From reading of that paragraph what we could find is that the accused persons, that is the appellants, had exercised their act of possession in the year, 1971 by transplanting paddy over the field and that fact that the informant was dispossessed on account of that act of transplanting paddy by the accused persons appears admitted by him several modes. The first mode is that he filed a petition, admittedly, before a Magistrate in the year, 1970 complaining about the accused persons’ act of forcible transplantation of paddy over the field and further that they harvested the paddy crop. P.W.3, Sikander Mandal, who is the nephew of the informant, as is admitted by P.W.4 in paragraph 13 of his evidence, had stated in paragraph 4 that he did not know as to which of the parties had harvested the paddy crop, but he had 13 admitted that Khesari is sown only by a person who had transplanted paddy. This leads to an inference that Khesari seeds were sown by the accused persons. But, as per evidence of P.W.5 the appellants had transplanted the paddy over the land in dispute. They could, as such, be said to be in settled possession of the land, even if they did not have any title or any semblance of story of claiming the land by any other means or by any other means though we find it admitted that the accused persons were, in fact, claiming their interest of share cropper in the disputed land and probably they had some records in Survey proceedings or Consolidation proceedings to that effect. 13. When we consider the evidence of witnesses other than the informant, what we find is that all the witnesses had stated that they were there in their fields, surrounding or being situated just contiguous to the dispute field and they were also getting their Khesari crop uprooted. While deceased Bhagwan Das was there, has not been pointed out by any of the witnesses. This much is clearly indicated by the evidence on record that 14 Bhagwan Das did not had any field around the place of occurrence and this was the reason that a question was put to P.W.4, Rama Nand Singh @Mandal, who was again one of the close relatives of the informant, as per paragraph 21 of his cross-examination. The witness stated that he did not know as to why Bhagwan Das was there near the place of occurrence field. The witness has volunteered that Bhagwan Das was a friend of the informant. As regards the other witness, they had stated, as we have just pointed out that they were in their respective Khesari fields and were getting the crop uprooted and they were being accompanied by some labourers. It is consistent story of witnesses that labourers who were employed, were Santhals. The knowledge of ours regarding locality from where the case has been reported and the class of persons, Santhal could be, we could note that they were jointly employed to uproot the crop of the accused as musclemen and to also to fight a pitched battle in case accused persons resisting the uprooting of the crop by the prosecution party. We raise our inference from the fact that witnesses were 15 specifically questioned in cross-examination to tell the name of a single Santhal who was employed by all of them as labourers but they did not. It is quite difficult for us to accept that the landlords who had employed the labourers for doing certain job were still not knowing the names of any of them. We have no option than to record a conclusion that the informant and the witnesses were there only to do some act which now they are alleging against the appellants and there was a pitched battle between the two sides. We, as such, doubt the claim of the witnesses that they were there for getting Khesari crop uprooted. This doubt of ours could have been allayed by the examination of Investigating Officer of the case. He could have been the only person who could have come in the witness box to say that he was shown by the witnesses their respective fields which were found by him either bearing Khesari crop partially uprooted or fully uprooted. That evidence not having come, makes it all the more shaky for us to place reliance upon the claim of the witnesses in the manner of occurrence as has been claimed by them to have occurred. 16 14. Whether Bhagwan Das was assaulted at the place of occurrence in the field or in the house of Bhutto Mandal has remained a matter of doubt for us. P.W.4, Rama Nand Singh @ Mandal, had stated that Bhagwan Das was assaulted in the field itself as against that P.W.1, Phani Bhushan Pd. Singh @ Gulabi Mandal, has stated that the accused persons captured Bhagwan Das and took him to the house of Bhutto Mandal. The witness stated that he also went to the house of Bhutto Mandal and saw that Bhagwan Das was sitting there and being assaulted by the accused persons. Questions were put to him on the probability as regards the claim of that particular witness of going to the house of his enemy Bhutto. The witness stated that he was neither assaulted nor was moved away from the house of Bhutto Mandal. In such a situation as had just happened, P.W.1 would have been allowed an entry at the house of appellant Bhutto Mandal and had further been allowed to see the whole proceedings of beating of Bhagwan Das there we doubt it. It might be the probability that the Investigating Officer had taken Bhagwan Das into his custody or had 17 taken him to the hospital as appears claimed by P.W.1 in paragraph 32 but from where he was taken to the hospital it remains a matter of mystery for us. The doubt could have been allayed again by the examination of the Investigating Officer who could have been the only person to tell the Court as to where did he find Bhagwan Das and how did he send him to the hospital. This is one aspect of non-examination of the Investigating Officer. The most important aspect of the case is that almost all witnesses were cross-examined by drawing their attention to their statements which they had made allegedly before the Investigating Officer. Their attention had been drawn in different paragraphs of their respective evidence either to show that they were not at the place of occurrence or they would have run away from the place of occurrence to see the real part of the occurrence taking place. The Investigating Officer was not produced, rather some part of the case diary was brought in evidence by examining a formal witness. We see no propriety but instead of that we can say that manner of exhibiting the case diary would not be erasing 18 the defect of non-examination of the Investigating Officer. Not only that, what were the injuries on the deceased or on P.W.2 how they were caused and what were the weapons which had caused them remains yet another mystery for us. The doctors were not produced and as such the evidence was not there on the above points besides the right of the accused to cross-examine those witnesses like the Investigating Officer or the doctor were not allowed to be exercised and that was quite against the principles of fair trial. We are of the view that the non-examination of the doctor and the Investigating Officer created serious infirmity in the prosecution case which also create prejudice to the appellant and on this score alone the appellants deserve to be acquitted. 15. After considering the evidence of the prosecution which was adduced during the trial, we find that a lot was desired to be done by the prosecution as regards the proof of the charge of the guilt. The prosecution case suffers from many infirmities as we have just pointed out and the most serious infirmity was 19 that the witnesses were not consistent in their evidence and the appellants deserve to be acquitted by giving benefit of doubt by allowing the appeal. We acquit them. The judgment of conviction and the order of sentence passed against the appellants are hereby set aside. The appellants are on bail. Each of them is discharged from the liabilities of his respective bail bond. (Dharnidhar Jha, J.) (Akhilesh Chandra, J.) Patna High Court, The 01st July, 2010, AAhmad/(NAFR).