Criminal Appeal (SJ) No. 12 OF 1996 Against the judgment and order dated 16th December, 1995 passed by Sri A. K. Verma, 1st Additional Sessions Judge, Sitamarhi in Sessions Trial No. 269 of 1988 / 76 of 1989. 1. Akhilesh Tiwary, Son of Ganesh Tiwary. 2. Satish Tiwary, Son of Ganesh Tiwary. 3. Ganesh Tiwary, Son of Bhola Tiwary. 4. Dinesh Tiwary, Son of Rajendra Tiwary. 5. Suresh Tiwary, Son of Rajendra Tiwary. 6. Manoj Kumar Tiwary, Son of Dinesh Tiwary. 7. Vinay Kumar Tiwary, Son of Dinesh Tiwary. 8. Brajesh Tiwary, Son of Late Bhuvneshwar Tiwary. 9. Ratnesh Tiwary, Son of Bhuvneshwar Tiwary. 10. Dipu Tiwary, Son of Suresh Tiwary. All are the resident of village – Ukhara, Police Station – Nanpur, District – Sitamarhi. …………. (Appellant) Versus THE STATE OF BIHAR …………. (Respondents) ------------- For the Appellant :- Sri V. R. P. Singh, Advocate. For the State :- Sri Parmeshwar Mehta, A.P.P. ----------- P R E S E N T THE HON'BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Appellant no. 1, namely, Akhilesh Tiwary has been convicted under Section 324 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one year and further convicted under Section 148 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for six months, however, ordered that both the sentences shall run concurrently. Appellant no. 2, namely, Satish - 2 - Tiwary has further been convicted under Section 435 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,000/- (one thousand) and further convicted for the offence under Section 147 of the Indian Penal Code sentenced to pay a fine of Rs.1,000/- (one thousand) and in default of payment of fines, to undergo further rigorous imprisonment for four months. Appellant no. 3, namely, Ganesh Tiwary, appellant no. 4, namely, Dinesh Tiwary and appellant no. 5, namely, Suresh Tiwary they have been convicted under Section 147 of the Indian Penal Code but have been ordered to be released under the Probation of Offenders Act on furnishing a probation bond of Rs.2,000/- with two sureties of the like amount each for maintaining peace and good behaviour for a period of one year and the rest appellant no. 6, namely, Manoj Kumar Tiwary, appellant no. 7, namely, Vinay Kumar Tiwary, appellant no. 8, namely, Brajesh Tiwary, appellant no. 9, namely, Ratnesh Tiwary and appellant no. 10, namely, Dipu Tiwary have been convicted under Section 147 of the Indian Penal Code and sentenced to undergo for rigorous imprisonment for three months and fine of Rs.1,000/- each. 2. The prosecution case as alleged in brief is that in the night of 2nd June 1988 at about 10:00 P.M while the informant Paltan Manjhi and others were sleeping in their new hut constructed on the land of State of Bihar which is Bhinda of a Pokhar, accused Akhilesh Tiwary and - 3 - Satish Tiwary came into the hut of Paltan Manjhi and stated that his ‘Chauki’ was stolen and asked them to search. When the informant protested making out a search then the accused persons gave one and two slaps and in the mean time Ganesh Tiwary, Dinesh Tiwary, Suresh Tiwary, Manoj Tiwary, Binay Tiwary, Brajesh Tiwary, Ratnesh Tiwary and Pappu tiwary came armed with various weapons and assaulted and set fire the hut and during the course of this occurrence Akhilesh Tiwary gave a fersa blow on Fekhu Manjhi by which he got injury on the back. 3. The motive for the occurrence is that they have constructed the hut on the land which was recorded in the name of the State of Bihar under the possession of Ratnesh Tiwary, Brajesh Tiwary and Akhilesh Tiwary and on the said land a case is going on before the Consolidation Officer and the accused persons with the intention to take the land committed the offence pretending the theft of Chauki. 4. On the fardbeyan of the informant Paltan Manjhi FIR was lodged and after investigation charge-sheet was submitted, cognizance was taken and subsequently the charge was framed against 10 accused persons for offence under Sections 147, 148, 324, 436 and 323 of the Indian Penal Code. 5. However, during trial 11 witnesses were examined on behalf of the prosecution. - 4 - 6. However, the defence though not examined any witness but has proved some documents i.e. Ext. A injury report prepared by police, Ext. B certified copy of the order dated 28.08.1987, Ext. B/1 certified copy of the order dated 20.08.1988, Ext. C certified copy of FIR of Manpur P.S. Case No. 62 of 1987, Ext. D certified copy of the charge- sheet, Ext. B/2 certified copy of the order dated 30.09.1987, Ext. E true copy of Chakbandi Khatiyan in the name of Suresh Tiwary and Ext. F certified copy of statement of complainant. 7. After considering the oral and documentary evidence the trial court convicted the appellants for the offence under Sections 147, 148, 324, 435, however, acquitted them of offence under Section 323 and 436 of the Indian Penal Code. 8. Learned counsel for the appellants, however, contended that out of 11 witnesses examined in this case witness nos. 1, 2 and 3 are only the witnesses mentioned in the fardbeyan and P.W. 4 is the doctor. 9. However, P.Ws. 5 to 9 are the witnesses who were not examined during investigation by the police and their statement did not find place in the case diary. It has further been contended that the I.O. has not been examined and hence the place of occurrence has not been established and there is no corroboration regarding the setting on fire the huts and however, the attention has been drawn to the witnesses with regard to their statement before the police but due to non- - 5 - examination of the I.O. has caused prejudice as the defence could not take contradiction. It has further been contended that a proceeding under Section 144 Cr. P.C. decided in favour of the appellants and further a consolidation case with regard to the land decided in favour of the appellants. 10. However, question for consideration is whether the prosecution has proved the case beyond reasonable doubt. 11. The prosecution case as alleged in the fardbeyan is that the informant Paltan Manjhi along with others were sleeping on the hut constructed on the land of the State of Bihar then Akhilesh Tiwary came and got him up and enquired about the theft of Chouki and started compelling to proceed for searching the theft Chouki and when the informant and his associates refused then the accused assaulted him by slaps and it is stated that in the meantime other persons came armed with weapons and assaulted and set on fire the hut. 12. However, P.Ws. 1 to 3 has supported the prosecution case but the attention of these witnesses has been drawn with regard to their previous statement before the police but the I.O. has not been examined to record contradiction. The objective finding about the burnt of the remains of hut has also not been brought as the I.O. has not been examined in the case. The witness has admitted that the land though recorded in the name of State of Bihar though the land was in - 6 - possession of defence and there was proceeding under Section 144 Cr. P. C and before consolidation court, the proceeding under Section 144 Cr. P. C decided in favour of the accused persons and consolidation case also decided in favour of the accused. However, there is allegation of assault by the accused persons but only injury proved is on person of Feku Manjhi by sharp cutting weapon proved of size 18” x 1 cm. x ½ cm. on back. P.Ws. 5 to 9 though have come to support the prosecution case but their statement not recorded by police during investigation and even their statement does not find place in case diary. Hence their evidence is suffered from development and after thought and are not reliable to be considered. It has also been admitted that the original house of these witnesses are in Mushari Tola a place different from place of occurrence where they live with their children and family. 13. Hence, having regard to the facts and circumstances of the case, since the I.O. has not been examined and hence the objective evidence of the place of occurrence is not on the record nor the case diary is marked as exhibit and further the attention of the witness has been drawn with regard to his earlier statement and hence non-examination of the I.O. has caused prejudice to the accused persons as neither the fact regarding the setting on fire nor objective evidence of setting on fire brought on record nor any corroborative evidence has been brought to suggest the setting on fire of the hut. - 7 - 14. However, a proceeding under Section 144 Cr. P. C. between the parties shows the enmity and land dispute and in the fardbeyan itself the prosecution has admitted that the land was earlier in possession of the prosecution party and they have also accepted that there were Lichi trees, Kathal trees and Mango trees and other trees on the land in the share of the accused persons. 15. Having regard to the facts and circumstances regarding enmity between the parties that there was a land dispute and a proceeding under Section 144 Cr.P.C. decided in favour of the prosecution and non-examination of the I.O. has caused prejudice to the defence and neither there is corroboration regarding the setting on fire of the huts nor the prosecution could take the contradiction and hence the order of conviction and sentence recorded by the learned lower court is not sustainable in the eye of law and the appellants are entitled for benefits of doubt and hence I give the appellants benefits of doubt and the judgment of conviction and order of sentence is, hereby, set aside. 16. Hence, the appeal is allowed. (Gopal Prasad, J.) Patna High Court, Patna. Dated, the 21st June, 2011 NAFR/Kundan.