Mrityunjay Podhan and ors. Vs. the State of West Bengal - Court Judgment

Excerpt:
[b.seshasayana reddy, j.] code of criminal procedure (cr.p.c) - sections 482, 156, 161(3); right to information act(rti act); indian penal code (ipc) - 419, 465, 468, 406, 403, 506 read with 34 -- saving of inherent power of high court - the petitioners herein executed an agreement of sale, dated 27.7.2006 in favour of k.venkat reddy and k.lakshmi rani forging his signature. the petitioners also forged his signature in the affidavit filed before the estate officer for securing freehold rights in respect of the property covered under registered sale deed dated 4-11-1980. the estate officer filed written statement in the suit. the accused no.1 and 2 have committed breach of trust by misappropriating the complainant property by illegally selling the undivided share of the complainant". learned counsel laid much emphasis on the date of the complaint and the date of filing of the suit. learned counsel appearing for the 2nd respondent-complainant submits that the 2nd respondent-complainant specifically pleaded in the complaint that the petitioners forged his signature on the alleged agreement of sale dated 27.7.2006 and affidavit of "no objection" submitted before the estate officer and therefore, the complaint of 2nd respondent-complainant cannot be thrown out on the ground that a civil remedy is open to him. both criminal law and civil law remedy can be pursued in divers situations. the respondent-complainant specifically pleaded in the complaint that the signatures appearing on the agreement of sale dated 27-7-2006 and the affidavit of no objection are not of him and they are rank of forgery. it is contended by the learned counsel appearing for the petitioners that the complaint came to be filed after an year of filing of the suit. 1) the legality, validity and propriety of the judgement dated 26.7.1995 passed by the learned additional sessions judge, 2nd court, hooghly, in criminal appeal no. 40 of 1991 affirming the order of conviction and modifying the sentence passed by the learned judicial magistrate, 3rd court at chandernagar in c.r. case no. 878 of 1979 under sections 447/323/324/34 i.p.c. has been challenged in this revision application by mrityunjay prodhan, biswanath prodhan, dhananjay prodhan and kashinath prodhan (hereinafter referred to as the petitioners)2) the factual matrix, leading to this revisional application is stated below, in brief :3) umapada majhi (hereinafter referred to as the opposite party no. 2) lodged one petition of complaint against the present petitioners on 24.12.1979 alleging therein that on 5.12.1979, while he was sowing wheat the petitioners being armed entered into his land, in order to dispossess them therefrom. on protest, the petitioners assaulted the opposite party no. 2, one sukumar majhi and kalipada majhi causing severe bleeding injuries on their persons. the petitioners pleaded not guilty to the charge framed against them by learned trial court under sections 447/324/325/34 i.p.c. upon consideration of the evidence on record, the learned trial court found them guilty of offences under section 447/323/324/34 of i.p.c. and convicted them to suffer s.i. for two years and to pay fine of rs. 500/- for committing an offence under section 324 of i.p.c., to suffer s.i. for 6 months and to pay a fine of rs. 250/- for committing the offence under section 323 ipc and also to suffer s.i. for two months for committing offence under section 447 of i.p.c. all the sentences were directed to be ran concurrently and each of the convict would pay rs. 500/- to the petitioners.4) the petitioners not being satisfied with that judgement of the learned trial court and sentence passed by it, preferred an appeal which was registered as criminal appeal no. 40 of 1991. the learned appellate court dismissed the appeal on 26.7.1995 in respect of judgement of conviction but reduced the sentence of s.i. for two years so awarded by the learned trial court to one year only keeping other sentences unchanged.5) this application for revision has been filed by the petitioners challenging the correctness of the order passed by the learned appellate court on the grounds a) that the learned judge erred in law in convicting the petitioner under section 447 of i.p.c. when there was a dispute over the possession of the land in question ;b) that the learned court failed to appreciate the fact that according to the evidence of the doctor, injury detected on the persons of the injured were not caused by any sharp cutting instrument and, as such, the offence under section 324 i.p.c. was not committed ;c) that the learned court erred in believing the testimonies of interested witnesses sacrosanct without getting corroboration from evidence of any independent witness; andd) that the learned court failed to appreciate the factual background of the entire case and evidence recorded by the learned trial court in its proper perspective;6) the petitioners prayed for setting aside of the order of conviction and sentence passed by the learned appellate court. the point to be decided in this revision application is whether the order which has been impugned herein is sustainable?7) the petition of complaint which was filed by the opposite party no. 2 in the learned trial court has been marked exhibit 2. it says that the property described in the scheduled appended to the petition belonged to one manmatho majhi who died leaving behind him two sons and one daughter. father of the opposite party no. 2 was one of the sons of said manmatho maji who had been looking after the property on behalf of his another brother and sister who were residing elsewhere. on 5.12.1979, at about 3 p.m., while the opposite party no. 2 along with sukumar majhi and kalipada majhi was sowing wheat in that piece of land, the petitioners trespassed therein and started assaulted them in order to dispossess them therefrom. the opposite party no. 2, sukumar majhi and kalipada majhi sustained bleeding injuries. the injured were taken to hospital where they were admitted as indoor patients. the opposite party no. 2 was admitted in hospital for 13 days and sukumar majhi was also admitted in hospital for more than 20 days. when the opposite party no. 1 went to police station to lodge the fir he found one of the petitioners gossiping with the police officer who refuse to accept in fir. he, however, entered a g.d entry over the incident but did not record the real state of affairs therein. upon filing of the petition of complaint, the learned magistrate took cognizance of offence and ultimately proceeded with the trial. in course of trial the opposite party no. 1 examined as many as eight witnesses while the petitioners examined two witnesses on their behalf. documents were filed, admitted into evidence and marked exhibit for both the parties. the learned trial court, upon consideration of the evidence recorded by it and materials placed before it, found the petitioners guilty of offences under sections 447/323/324/34 i.p.c. and passed order mentioned earlier.8) in the appeal, the learned appellate court found that the judgement challenging in appeal before it was well founded, well reasoned and based on proper appreciation of evidence on record. the learned appellate court upon re-appreciation of the evidence, oral and documentary, had taken a concurrent view as far as conviction of the petitioners under section 447/323/324/34 ipc is concerned. the learned appellate court, however, reduced the sentence of s.i. for two years to one year in respect of the offence under section 324 of ipc.9) it was the case of the opposite party no. 1 that the land wherein the offence alleged had taken place belonged to one manmotho majhi, his grandfather. manmotho died leaving behind him kalipada, the father of the opposite party no. 2, one dulal majhi and one daughter. the opposite party no. 2 have been looking after the property on behalf of all the co-sharers. the property have never been partitioned amongst the co-sharers. in the trial court, kalipada examined himself as a witness and supported the case of the opposite party no. 1. in support of his case, the opposite party no. 1 also examined other injured person who had been working with him in the land on the particular date. he filed documents like record of rights in order to establish that manmotho was the original owner and after his death the property was devoled upon the legal heirs i.e. two sons and one daughter.10) on the other hand, the present petitioners as accused persons, claimed that they purchased the property from one of the co-sharer dulal by registered deed of sale. in support of their claim they failed to admit any document into evidence. there was no strong supporting evidence regarding their purchase of the property in dispute from co-shares dulal inspiring confidence in the mind of court. learned trial court upon consideration of oral and documentary evidence came to a conclusion that although their existed a dispute over the ownership in respect of land in question, the opposite party no. 1 was in physical possession of the property. i find that the learned appellate court, upon re-appreciation the evidence on record together with the documents admitted into evidence has also come to same findings.11) in a case of trespass like this, a defense can well be taken by the accused persons on the plea that there is dispute over the ownership. but it is settled principle of law that a person in actually and physically possession of a property can not be dispossessed therefrom by force without due process of law. until and unless his possession is declared illegal, entering into the property under his possession forcefully amounts to criminal trespass. the learned trial court as well as the learned appellate court has taken a concurrent view on the facts that the opposite party no. 1 was in actual and physical possession of the property and the present petitioners, in order to dispossess him therefrom, entered into the land with arms and committed the offence. both of them found that the evidence laid by the opposite party no. 1 in that respect was sufficient, cogent, trustworthy and believable. that being the concurrent findings of fact, this court also finds that there is no wrong appreciation of evidence by the learned trial court as well as by the learned appellate court. both the courts assessed the materials placed before them on the proper perspective and factual background. there is no error in their views. therefore, this court finds it undesirable to interfere with that findings of fact concurrently taken by both the trial court and the first appellate court.12) it is pertinent to mention here that a counter case on the self same ground was initiated by the present petitioners against the opposite party no. 1 and others. in that case, the learned trial court found that the allegation of committing trespass and assault was baseless and not established. the possession of the present petitioners in that case was found not established by the trial court. this apart, the trial court, in that case found that the accused persons therein (opposite party no. 1 in this application and the witnesses examined by him in the case in hand) sustained injuries which were not explained. in the instant case, the opposite party no. 1 and two others sustained bleeding injuries by the alleged assault. the learned trial court as well as the learned appellate court found that the case of assault on the opposite party no. 1 as well as sukumar was established by sufficient and satisfactory evidence. besides oral evidence, the documentary evidence, such as, injury reports and discharged certificates issued by the hospital supported the case of the opposite party no. 1. it is found also that umapada was admitted in singur primary health centre and remained there for 13 days for treatment while another injured witness had to undergo medical treatment for 21 days. sukumar majhi who was examined by p.w 5 had given a vivid description of the incident which corroborated the statement of umapada the p.w. 2. the exhibit 3 and 3/1 altogether suggests that their injury were examined and treated by the doctor at singur phc and that they were hospitalised for a considerable period of time.13) the question raised before the learned appellate court as to the acceptability of the oral testimonies of the injured and other witnesses who were categorised was interested witness.14) the learned appellate court analysed the legal position correctly in the judgement impugned. the fact that the witness related to each other is not by itself can be a ground for discarding their oral testimonies. in a case where a person assaulted and sustained severe bleeding injuries, his evidence can not be disbelieved simply because he is interested in the case. rather his evidence has to be taken for granted because an injured man would not substitute a wrong person for his actual assailant. apart from that, the evidence of p.w. 2 and p.w. 3 corroborated the evidence of p.w. 4, the doctor who examined them. their evidence was supported by p.w. 7, non-interested witness, who watched the incident from a distance of 100/200 years. the p.w. 7 is a primary school teacher and there was no reason, whatsoever, to discard his evidence. he has no axe to grind against the present petitioners. although he could not give detail manner of assault caused by the petitioners to the opposite party and his man, overall description of the incident has been stated by him which corroborates the statement of p.w. 2 and the p.w. the p.w. 8, another independent witness, also watched the incident from his cowshed. therefore, it can not be said that the evidence of injured person is not supported of any evidence of independent person.15) be that as it may, the nature of injury caused by the present petitioners and sustained by the opposite party no. 1 and his men altogether establishes that the offences committed by the petitioner are well covered by section 323 and 324 of the i.p.c. the offence of committing trespass has also been established by sufficient and satisfactory evidence. therefore, i find that both the trial court as well as the learned appellate court are justified in recording conviction of the present petitioners for guilty of offence under sections 447/323/324 of the i.p.c.16) it is to be borne in mind that this revision application is filed against an order of acquittal and, as such, there is little scope for this court to probe deep into the factual aspects and upset the concurrent finding of fact. in bansi lal, (1986) crlj 1603, the apex court viewed that it is only in glaring cases of injustice, resulting from some violation of fundamental principle of law by the trial court, that the high court is empowered to set aside the order of the acquittal and direct a re-trial of the acquitted the accused. the power should be exercised sparingly, and with great care and caution. the mere circumstances that finding of fact recorded by the trial court may, in the opinion of the high court, be wrong will not justify setting aside the acquittal and directing re-trial.17) it is true that there are some trivial nature of discrepancies as far as entry in the general diary is concerned and statement of eye witnesses in respect of number of hit/blow given by the petitioners. in my estimate, both the learned trial court as well as the learned appellate court correctly ignored those trivial nature of discrepancies which have no impact on the prosecution case.18) upon consideration of the entire matter, views taken by the learned courts below as well as material placed before this court, it appears to me that the judgement and order impugned is not required to be interfered with in this revision and no order of re-trial is required to be passed.19) accordingly the revision application fails and is, thus, disposed of.

Judgment:
1) The legality, validity and propriety of the judgement dated 26.7.1995 passed by the learned Additional Sessions Judge, 2nd Court, Hooghly, in Criminal Appeal no. 40 of 1991 affirming the order of conviction and modifying the sentence passed by the learned Judicial Magistrate, 3rd Court at Chandernagar in C.R. Case no. 878 of 1979 under Sections 447/323/324/34 I.P.C. has been challenged in this revision application by Mrityunjay Prodhan, Biswanath Prodhan, Dhananjay Prodhan and Kashinath Prodhan (hereinafter referred to as the petitioners)

2) The factual matrix, leading to this revisional application is stated below, in brief :

3) Umapada Majhi (hereinafter referred to as the opposite party no. 2) lodged one petition of complaint against the present petitioners on 24.12.1979 alleging therein that on 5.12.1979, while he was sowing wheat the petitioners being armed entered into his land, in order to dispossess them therefrom. On protest, the petitioners assaulted the opposite party no. 2, one Sukumar Majhi and kalipada Majhi causing severe bleeding injuries on their persons. The petitioners pleaded not guilty to the charge framed against them by learned Trial Court under Sections 447/324/325/34 I.P.C. Upon consideration of the evidence on record, the learned Trial Court found them guilty of offences under Section 447/323/324/34 of I.P.C. and convicted them to suffer S.I. for two years and to pay fine of Rs. 500/- for committing an offence under Section 324 of I.P.C., to suffer S.I. for 6 months and to pay a fine of Rs. 250/- for committing the offence under Section 323 IPC and also to suffer S.I. for two months for committing offence under Section 447 of I.P.C. All the sentences were directed to be ran concurrently and each of the convict would pay Rs. 500/- to the petitioners.

4) The petitioners not being satisfied with that judgement of the learned Trial Court and sentence passed by it, preferred an appeal which was registered as Criminal Appeal no. 40 of 1991. The learned Appellate Court dismissed the appeal on 26.7.1995 in respect of judgement of conviction but reduced the sentence of S.I. for two years so awarded by the learned Trial Court to one year only keeping other sentences unchanged.

5) This application for revision has been filed by the petitioners challenging the correctness of the order passed by the learned Appellate Court on the grounds

a) that the learned Judge erred in law in convicting the petitioner under Section 447 of I.P.C. when there was a dispute over the possession of the land in question ;

b) that the learned Court failed to appreciate the fact that according to the evidence of the Doctor, injury detected on the persons of the injured were not caused by any sharp cutting instrument and, as such, the offence under Section 324 I.P.C. was not committed ;

c) that the learned Court erred in believing the testimonies of interested witnesses sacrosanct without getting corroboration from evidence of any independent witness; and

d) that the learned Court failed to appreciate the factual background of the entire case and evidence recorded by the learned Trial Court in its proper perspective;

6) The petitioners prayed for setting aside of the order of conviction and sentence passed by the learned Appellate Court. The point to be decided in this revision application is whether the order which has been impugned herein is sustainable?

7) The petition of complaint which was filed by the opposite party no. 2 in the learned Trial Court has been marked exhibit 2. It says that the property described in the scheduled appended to the petition belonged to one Manmatho Majhi who died leaving behind him two sons and one daughter. Father of the opposite party no. 2 was one of the sons of said Manmatho Maji who had been looking after the property on behalf of his another brother and sister who were residing elsewhere. On 5.12.1979, at about 3 P.M., while the opposite party no. 2 along with Sukumar Majhi and Kalipada Majhi was sowing wheat in that piece of land, the petitioners trespassed therein and started assaulted them in order to dispossess them therefrom. The opposite party no. 2, Sukumar Majhi and Kalipada Majhi sustained bleeding injuries. The injured were taken to hospital where they were admitted as indoor patients. The opposite party no. 2 was admitted in hospital for 13 days and Sukumar Majhi was also admitted in hospital for more than 20 days. When the opposite party no. 1 went to police station to lodge the FIR he found one of the petitioners gossiping with the police officer who refuse to accept in FIR. He, however, entered a G.D entry over the incident but did not record the real state of affairs therein. Upon filing of the petition of complaint, the learned Magistrate took cognizance of offence and ultimately proceeded with the trial. In course of trial the opposite party no. 1 examined as many as eight witnesses while the petitioners examined two witnesses on their behalf. Documents were filed, admitted into evidence and marked exhibit for both the parties. The learned Trial Court, upon consideration of the evidence recorded by it and materials placed before it, found the petitioners guilty of offences under Sections 447/323/324/34 I.P.C. and passed order mentioned earlier.

8) In the appeal, the learned Appellate Court found that the judgement challenging in appeal before it was well founded, well reasoned and based on proper appreciation of evidence on record. The learned Appellate Court upon re-appreciation of the evidence, oral and documentary, had taken a concurrent view as far as conviction of the petitioners under Section 447/323/324/34 IPC is concerned. The learned Appellate Court, however, reduced the sentence of S.I. for two years to one year in respect of the offence under Section 324 of IPC.

9) It was the case of the opposite party no. 1 that the land wherein the offence alleged had taken place belonged to one Manmotho Majhi, his grandfather. Manmotho died leaving behind him Kalipada, the father of the opposite party no. 2, one Dulal Majhi and one daughter. The opposite party no. 2 have been looking after the property on behalf of all the co-sharers. The property have never been partitioned amongst the co-sharers. In the Trial Court, Kalipada examined himself as a witness and supported the case of the opposite party no. 1. In support of his case, the opposite party no. 1 also examined other injured person who had been working with him in the land on the particular date. He filed documents like record of rights in order to establish that Manmotho was the original owner and after his death the property was devoled upon the legal heirs i.e. two sons and one daughter.

10) On the other hand, the present petitioners as accused persons, claimed that they purchased the property from one of the co-sharer Dulal by registered deed of sale. In support of their claim they failed to admit any document into evidence. There was no strong supporting evidence regarding their purchase of the property in dispute from co-shares Dulal inspiring confidence in the mind of Court. Learned Trial Court upon consideration of oral and documentary evidence came to a conclusion that although their existed a dispute over the ownership in respect of land in question, the opposite party no. 1 was in physical possession of the property. I find that the learned Appellate Court, upon re-appreciation the evidence on record together with the documents admitted into evidence has also come to same findings.

11) In a case of trespass like this, a defense can well be taken by the accused persons on the plea that there is dispute over the ownership. But it is settled principle of law that a person in actually and physically possession of a property can not be dispossessed therefrom by force without due process of law. Until and unless his possession is declared illegal, entering into the property under his possession forcefully amounts to Criminal trespass. The learned Trial Court as well as the learned Appellate Court has taken a concurrent view on the facts that the opposite party no. 1 was in actual and physical possession of the property and the present petitioners, in order to dispossess him therefrom, entered into the land with arms and committed the offence. Both of them found that the evidence laid by the opposite party no. 1 in that respect was sufficient, cogent, trustworthy and believable. That being the concurrent findings of fact, this Court also finds that there is no wrong appreciation of evidence by the learned Trial Court as well as by the learned Appellate Court. Both the Courts assessed the materials placed before them on the proper perspective and factual background. There is no error in their views. Therefore, this Court finds it undesirable to interfere with that findings of fact concurrently taken by both the Trial Court and the First Appellate Court.

12) It is pertinent to mention here that a counter case on the self same ground was initiated by the present petitioners against the opposite party no. 1 and others. In that case, the learned Trial Court found that the allegation of committing trespass and assault was baseless and not established. The possession of the present petitioners in that case was found not established by the Trial Court. This apart, the Trial Court, in that case found that the accused persons therein (opposite party no. 1 in this application and the witnesses examined by him in the case in hand) sustained injuries which were not explained. In the instant case, the opposite party no. 1 and two others sustained bleeding injuries by the alleged assault. The learned Trial Court as well as the learned Appellate Court found that the case of assault on the opposite party no. 1 as well as Sukumar was established by sufficient and satisfactory evidence. Besides oral evidence, the documentary evidence, such as, injury reports and discharged certificates issued by the hospital supported the case of the opposite party no. 1. It is found also that Umapada was admitted in Singur primary health centre and remained there for 13 days for treatment while another injured witness had to undergo medical treatment for 21 days. Sukumar Majhi who was examined by P.W 5 had given a vivid description of the incident which corroborated the statement of Umapada the P.W. 2. The exhibit 3 and 3/1 altogether suggests that their injury were examined and treated by the Doctor at Singur PHC and that they were hospitalised for a considerable period of time.

13) The question raised before the learned Appellate Court as to the acceptability of the oral testimonies of the injured and other witnesses who were categorised was interested witness.

14) The learned Appellate Court analysed the legal position correctly in the judgement impugned. The fact that the witness related to each other is not by itself can be a ground for discarding their oral testimonies. In a case where a person assaulted and sustained severe bleeding injuries, his evidence can not be disbelieved simply because he is interested in the case. Rather his evidence has to be taken for granted because an injured man would not substitute a wrong person for his actual assailant. Apart from that, the evidence of P.W. 2 and P.W. 3 corroborated the evidence of P.W. 4, the Doctor who examined them. Their evidence was supported by P.W. 7, non-interested witness, who watched the incident from a distance of 100/200 years. The P.W. 7 is a primary school teacher and there was no reason, whatsoever, to discard his evidence. He has no axe to grind against the present petitioners. Although he could not give detail manner of assault caused by the petitioners to the opposite party and his man, overall description of the incident has been stated by him which corroborates the statement of P.W. 2 and the P.W. The P.W. 8, another independent witness, also watched the incident from his cowshed. Therefore, it can not be said that the evidence of injured person is not supported of any evidence of independent person.

15) Be that as it may, the nature of injury caused by the present petitioners and sustained by the opposite party no. 1 and his men altogether establishes that the offences committed by the petitioner are well covered by Section 323 and 324 of the I.P.C. The offence of committing trespass has also been established by sufficient and satisfactory evidence. Therefore, I find that both the Trial Court as well as the learned Appellate Court are justified in recording conviction of the present petitioners for guilty of offence under Sections 447/323/324 of the I.P.C.

16) It is to be borne in mind that this revision application is filed against an order of acquittal and, as such, there is little scope for this Court to probe deep into the factual aspects and upset the concurrent finding of fact. In Bansi Lal, (1986) CRLJ 1603, the Apex Court viewed that it is only in glaring cases of injustice, resulting from some violation of fundamental principle of law by the Trial Court, that the High Court is empowered to set aside the order of the acquittal and direct a re-trial of the acquitted the accused. The power should be exercised sparingly, and with great care and caution. The mere circumstances that finding of fact recorded by the Trial Court may, in the opinion of the High Court, be wrong will not justify setting aside the acquittal and directing re-trial.

17) It is true that there are some trivial nature of discrepancies as far as entry in the general diary is concerned and statement of eye witnesses in respect of number of hit/blow given by the petitioners. In my estimate, both the learned Trial Court as well as the learned Appellate Court correctly ignored those trivial nature of discrepancies which have no impact on the prosecution case.

18) Upon consideration of the entire matter, views taken by the learned Courts below as well as material placed before this Court, it appears to me that the judgement and order impugned is not required to be interfered with in this revision and no order of re-trial is required to be passed.

19) Accordingly the revision application fails and is, thus, disposed of.