IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (US) No.18 of 1998 ------------ Against the judgement and order dated 17.3.1998 passed by Shri Om Prakash, 5, Judicial Magistraate, Ist class, Biharsharif, Nalanda. ========================================================== = Bijeshwar Ram son of late Raghunath Ram, resident of village Deepnagar, P.S. Deepnagar, District Nalanda….. complainant .... .... Appellant/s Versus 1. Lakhan Paswan son of late Prasadi Prasad 2. Girani Paswan 3. Chhotu Paswan 4. Binod Paswan, Sl. No.2 to 4 sons of Lakhan Paswan, resident of village Deepnagar, P.S. Deepnagar, District Nalanda. 5. Jamun Paswan son of Suraj Paswan resident of village Deodha, P.S. Deepnagar District Nalanda…..Accused…… .... .... Respondent/s ========================================================== = Appearance : For the Appellant/s : Mr. Rajendra Prasad Sr. Advocate Mr. Pramod Kumar Advocate Mr. Ritesh Kumar, Advocate. For the Respondent/s : Mr. Sujit Kumar A.P.P. ========================================================== = CORAM: HONOURABLE MR. JUSTICE GOPAL PRASAD ORAL JUDGMENT The 30th September 2011 (Per: HONOURABLE MR. JUSTICE GOPAL PRASAD) This criminal appeal is directed against the acquittal passed by Shri Om Prakash, 5 Judicial Magistrate Ist class, Biharsharif Nalanda . The case of the plaintiff is that he got land of khata No. 132, plot no. 1241 belong to the family of the appellant and after partition he got 66 decimals in his share. The land is on the bank of Panchane river which is filled up with sand and there was a contract with the mining department in the name of Dinesh Ram who used to give the share to complainant with regard to the use of land . And this contract continued for five years. It is further alleged that after the mining the land Patna High Court CR. APP (U/S) No.18 of 1998 dt.30-09-2011 2 become agricultural and several toddy trees were planted and crops were standing. It is alleged that Lakhan Paswan and other trespass upon the land and a Kachha road was constructed which was protested but they did not adhere to the protest regarding which a petition was filed to the Superintendent of Police Nalanda and Superintendent of Police Nalanda endorsed it to the officer in charge Dipnagar police station but no report was given and due to construction of road wheat crops were destroyed worth Rs. 1500/. It is alleged that after construction of the said road the accused persons started selling the earth by extracting it from the land and also cut away the toddy trees of 10 ft height out of 100 in number causing loss of Rs. 10,000/- and there is also assault by the accused persons on protest by the complainant. A case was also instituted bearing Deepnagar P.S. Case no. 160 of 1994. On the complaint cognizance was taken after examining the complainant on oath. During the trial five witnesses were examined as well as some documents were adduced in evidence. Ext. 1 is the signature of the complainant and Ext. 2 series are the rent receipts , Ext. 3 is the certified copy of the Register-II. The trial court after taking into consideration of the witnesses held that P.W.1 had not turned up for evidence before charge and taking into consideration of evidence of P.Ws 2, 3 and 4 held that there are contradictions in the evidence of the witnesses of the prosecution and they have not been able to prove the charges. It is also mentioned that no paper with regard to the land was filed by the complainant and there is land dispute between the parties and held that the complainant has not been able to prove the charges beyond reasonable doubt and acquitted the accused persons of the charges. Learned counsel for the appellant however contended that the finding recorded by the learned trial court is against the record and the learned Patna High Court CR. APP (U/S) No.18 of 1998 dt.30-09-2011 3 trial court has not appreciated the evidence of the witnesses and the finding recorded by the learned trial court is perverse as the evidence has supported the prosecution case and has submitted that the papers of the lands have been filed and the accused persons are not claiming the land. No one appears on behalf of the accused persons. However, from perusal of the record it appears that some documentary evidence has been produced which are marked as Ext. 2 series, rent receipts , and Ext. 3 series Register-II. However, it is pertinent to mention that neither the rent receipt nor the tenant register is a evidence of title or possession. Moreover, it is true that there is no dispute with regard to the land. However, the prosecution case is that the occurrence is for the period of 5th October 1994 to 6th April 1995 as stated in the complaint petition. There is assertion that the land belonged to them and he got it by partition but no document regarding partition or regarding settlement has been shown. There is assertion that Dinesh got a contract from the mining department for mining the sand from the land. However, there is no mention that he has got the mining contract and what is period of the said mining. It has further been asserted that they had planted toddy trees and have grown crops but there is no mention about the date when the toddy trees were planted or wheat was grown when it was taken away and what is date on which toddy trees were cut. It is further asserted that the accused persons made a kacha road but there is no mention about the time and the date when the case was filed before the Superintendent of Police Nalanda nor it has been mentioned that S.P. Nalanda directed the officer in charge to give report and the date and time when the wheat cops were destroyed by the accuse persons. It is further alleged that the accused persons from October 1992 to the date of filing of the complaint carried the tractor on the crops for digging the earth from the land but Patna High Court CR. APP (U/S) No.18 of 1998 dt.30-09-2011 4 there is no mention of any tractor number by which the earth was carried. However five witnesses were examined in the case out of which P.W.1 did not turn up after charge. P.W.2,3 , 4 and 5 during their evidence have supported the prosecution case that the accused persons took out the sand and earth due to which ditches were formed in the field and also constructed a Rasta on the land by cutting the ridge. However, the allegation and evidence about taking out sand is omnibus and vague. The witnesses also have not disclosed in the cross examination the number of the tractor by which the sand was taken away and who were the person engaged in taking out the sand. The witnesses have also not mentioned the name of the labourer who has dig the land. P.W.3 is the laborer of the complainant and his evidence is that the accused persons constructed Rasta. P.W.4 stated that till 1994 the accused persons took out the earth. P.W.5 has stated that there was bandobasti of the land and there was a partition and the accused persons took away the toddy trees and taken out the earth. However, in the cross-examination it is stated that it is wrong to say that the land is Gaimazarua Aam and to the south of the land his land, east to the land is river and west Plot no.1295. He has further stated that he did not file any case with regard to the cutting of the toddy trees. He has not given any information though he has stated that he can file the papers regarding partition and said that Lakhan did not file a case in the court of DCLR and the Lakhan has possession over the same. He has further stated that toddy trees were there since 10 to 15 years ago and again he stated that it was 25 to 30 years old and the land is Gairmazarua Aam. Hence from the evidence it is apparent that the accused persons claimed the land as Gairmazarua Aam and there is admission that there was a case between Bijaychand Ram and Lakhan . However having regard to the fact that Patna High Court CR. APP (U/S) No.18 of 1998 dt.30-09-2011 5 no document of title has been given by the complainant and the receipt and the register-2 is not a document of title or possession and further the time of occurrence has been stated to be in between 1994-1995 and there is allegation that the accused persons destroyed the wheat cops and they cut the toddy trees and take out the earth from the land. However, in the entire complaint there is no mention of time and the date when the wheat was destroyed and the toddy trees were cut and taken away and the road was constructed. In the cross-examination they have stated that they did not report about the cutting of the toddy trees and taking away of the same. It has been stated that the Superintendent of police was informed and he entrusted the inquiry to the officer in charge of the police station. However, no document has been produced to show that such inquiry was ever entrusted. Hence having regard to the fact that neither the time of occurrence has been mentioned in the complaint nor stated in the evidence of witnesses and evidence about cutting of tree and taking of earth is omnibus and vague. In such circumstances the prosecution has not been able to prove the charges beyond doubt as neither time of occurrence nor manner of cutting and taking of earth by whom has been brought in evidence. Hence I do not find any merit in this appeal and the same is dismissed. (Gopal Prasad, J) Patna High Court The 30th September, 2011 Rahman/(NAFR)