CRIMINAL APPEAL No. 61 OF 1998 WITH CRIMINAL APPEAL NO. 78 OF 1998 ******* (In the matter of appeals under Sections 374(2) and 389 of the Code of Criminal Procedure against the judgment of conviction dated 03rd February, 1998 and order of sentence dated 05th February, 1998 passed by Shri Nisha Nath Ojha, 4th Additional Sessions Judge, Gaya in Sessions Trial No. 277 of 1997/18 of 1997) ******** 1. SHOAEB MIAN, SON OF MANZOOR MIAN 2. SHAHAB MIAN, SON OF SIDDIQUI MIAN BOTH RESIDENTS OF VILLAGE DUMRA, POLICE STATION CHANDAUTI, DISTRICT GAYA ……………………………. .APPELLANTS (In Cr. App. 61/1998) WITH 1. ZAMIR MIAN @ ZAMIL MIAN, SON OF MOBARAK MIAN, RESIDENT OF VILLAGE SOLARA, POLICE STATION PARAIYA, DISTRICT GAYA 2. MUSTAQUEEM MIAN, SON OF LATE SHAFI MIAN, RESIDENT OF VILLAGE MALWI CHAK, POLICE STATION CHANDAUTI, DISTRICT GAYA 3. KAROO KIAN, SON OF LATE MOHI MIAN 4. BANKE MIAN, SON OF LATE RAMJU MIAN 5. LALLU MIAN, SON OF NAZO MIAN 6. SHAMIM MINA, SON OF LATE KAIL MAIN 3-6 ARE THE RESIDENT OF VILLAGE DUMRA, POLICE STATION CHANDAUTI, DISTRICT GAYA …………………………… ..APPELLANTS (In Cr. App. 78/1998) VERSUS THE STATE OF BIHAR…………..RESPONDENT (in both the appeals) ********** FOR THE APPELLANTS :- MR. N. A. SHAMSI, ADVOCATE (in both the appeals) MR. RASHID RAIS, ADVOCATE FOR THE S T A T E :- MR. SATYA NARAYAN PRASAD, APP (in Cr. App. 61/1998) FOR THE STATE :- MR. RAJENDRA NATH JHA, APP (in Cr. App. 78/1998) ********** 2 P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN O R D E R Sheema Ali Khan, J. There are six appellants in Criminal Appeal No. 78 of 1998 who have been convicted to undergo rigorous imprisonment for one year under Section 147 of the Indian Penal Code and rigorous imprisonment for two years under Section 148 of the Indian Penal Code. The appellants Shoaeb Mian @ Soyab Mian and Shahab Mian @ Sohab Mian are further convicted to undergo rigorous imprisonment for seven years under Section 436 of the Indian Penal Code. The date of occurrence of the present case is 15th January, 1986. There is a case (Chandauti Police Station Case No. 01 of 1986) and counter case (Chandauti Police Station Case No. 02 of 1986). The judgment of the counter case is Exhibit-A which also indicates that the informant side were convicted to undergo rigorous imprisonment for six months each under Sections 147 and 148 of the Indian Penal Code. Ram Bilash Yadav was further convicted to undergo rigorous imprisonment for five years under Section 436 of the Indian Penal Code. The genesis for the alleged occurrence is admitted by the parties. The prosecution case is that there 3 is a piece of GAIR MAZARUA AAM land on which the informant was stacking his straw which was objected to by the appellants who came variously armed and it is alleged that they set fire to the straw and it is further alleged that Soyab and Sohab set fire to the house of the informant. In the First Information Report, it is also alleged that some of the appellants who were armed with Danda, lathi, sword, Garasa inflicted injuries to Ram Sharan, Raghu, Nathuni and daughter-in-law of Nathuni. The defence case is that the so-called GAIR MAZARUA AAM land is infact a graveyard and has been declared as such by the State Government in a proceeding under Sections 144 and 145 of the Code of Criminal Procedure. It is alleged that the informant along with 20-23 persons had come on the said land and were putting up his hay “punj” which the appellants objected to, which resulted in to the exchange of hot words, brick batting and also setting fire to the house of the informant for which a counter case has been filed. It is also alleged that the Harijans set fire to some of their hay stacks in order to make out a case against the appellants. In this case, altogether five witnesses have been examined on behalf of the prosecution. PW 1 is a formal witness who has proved the First Information Report. PW 2 Nathuni Choudhary is tendered for cross-examination 4 as he is accused in the counter case. PW 3 Kameshwar Manjhi is the informant of this case. PW 4 Lochani Devi is the wife of the informant and PW 5 is Rup Chand Chaudhary who has stated that he was at his home when the occurrence took place and his eye-sight is defective for the last ten years. The Official witnesses i.e. the Investigating Officer and the doctor have not been examined in this case. Therefore, the consideration of this case depends on the evidence of PWs 3 and 4 and the Exhibit-A which is the counter case filed for the same occurrence. PW 3, the informant, has given a complete go- bye to the prosecution version as far as it concerns allegation of assault by the appellants and has restricted himself to give evidence on the point of his house and husk stocks being burnt by the appellants. In this regard, he has stated that Soyab has set fire to the straw, as well as to his house. At paragraph 4, this witness has stated that Soyab, Sahab, Soyel, Bankey and Shamim were present at his house. In the same breathe; he has also stated that they were not present there. This witness has admitted that there is a dispute with respect to the lands on which the straw was being stocked and the matter had been under dispute since 1984 between the appellants and the informant side. On the basis of the aforesaid evidence, learned Counsel for the appellants submits that PW 3 apart from 5 stating that Soyab had set fire to the house and to the straw, his evidence is unsupported and uncorroborated by any other witnesses, although 20-25 persons were said to be present at the time of the occurrence. It is submitted that the Investigating Officer of the case has not been examined to support the fact that he had visited the place of occurrence and found sign of burn at the place of occurrence. It is further submitted that PW 3 was present at the disputed plot of land where the straw of husk was being stocked by the members of the Harijan tola. He could not have been present to witness the occurrence at his house. The material facts regarding the sequence of the alleged occurrence have been left out by this witness and as such learned Counsel for the appellants submits that on the basis of the evidence of PW 3, it would not be safe for the Court to hold that Soyab was responsible for the offence us 436 of the Indian Penal Code. Learned Counsel for the appellants supports his submission aforesaid by referring to the evidence of PW 4, the wife of the informant. According to PW 4, it was Sohab and not Soyab who set fire to the house. It is, therefore, submitted that there is contradiction even with respect to this part of the occurrence. PW 4 does not claim to be a witness with respect to the allegation wherein it has been stated that the straw/husk of the informant was set on fire. 6 PW 4 also supports the fact that there is a dispute on the land situated adjacent to the Masjid which is claimed as a graveyard by the Muslim community and which was being alleged encroached by the Harijan community. On perusal of the judgment, Exhibit- A and on the basis of the evidence led in this case, this Court finds that there was a bonafide dispute with a respect to the land where the occurrence took place. On the one hand, the appellants claims that the land was used as a graveyard and also claimed that there are proceeding with respect to the lands which would show that it was being utilized as a graveyard, whereas the other side (informant) claims that it was GAIR MAZARUA AAM land and the appellants time & again tried to encroach on the land either by using it for cultivation or for any other purposes which has resulted in a free fight between the two communities. This Court finds that the Trial Court has found the occurrence true but has given the benefit of the provisions of the Probation of Offenders Act to the accused persons, whereas has convicted Ram Bilash Yadav us 436 of the Indian Penal Code to undergo rigorous imprisonment for five years. On perusal of the evidence, it is very difficult to hold that either Sohab or Soyab was responsible for the offence under Section 436 of the Indian Penal Code in view 7 of the fact that PW 3 has alleged that Sohab was responsible for setting fire in the house and the stock of husk whereas PW 4 has alleged that it was Soyab who was responsible for setting fire to her house. The evidence of both the witnesses are contradict to each other on the main issue. Under the circumstances, this Court finds it difficult to confirm the sentence and send the appellants to jail after a period of more than 20 years. This Court, therefore, orders that the sentence is altered to the period already undergone in prison. The appellants are discharged from the liabilities of their bail bonds furnished earlier before the Trial Court. In the result, the Criminal appeal No. 78 of 1998 is allowed and Criminal Appeal No. 61 of 1998 is disposed of with the aforesaid observations. ( Sheema Ali Khan, J. ) Patna High Court April 08, 2009 N.A.F.R./Anand