UPENDRA NARAYAN CHOUDHARY Vs. SHYAMA KANTA BAISHYA

JUDGEMENT

(1.) This is a revision against the order of acquittal. The opposite party-accused was acquitted of the charge framed against him under Sec. 326 I.P.C. There is no denial that in incident in question the accused person sustained a grievous injury, a compound fracture. A case of assault causing grievous hurt to the accused was entertained and investigated by the police whereupon a charge-sheet was submitted against Upendra father of the first-informant petitioner.

(2.) Turning to the present case we find that the prosecution case is that there was a dispute between the accused and the prosecution witnesses in respect of the disputed land. A proceeding under Sec. 145 of Cr. P.C. was drawn up and ultimately the possession of the land was declared in favour of the first informant. It is alleged by the prosecution that the final order was rendered on 4.4.81. After a lapse of one year two months, that is, on 29.5.82, it is alleged that Upendra got delivery of possession of the land with the help of police. But on 1.6.82 when the father of the first informant went to fence the land which had been delivered by the police in favour of the first informant on 29.5.82, the accused, it is alleged, dealt a dao blow on Upendra causing grievous injury. The police registered a case. In fact the accused also filed a cross case against Upendra Choudhury, the petitioner and his son Dhiren Choudhury under Section 326 I.P.C. In the instant case the prosecution examined 6 witnesses including the doctor and the investigating police officer. The defence was clear and simple. The defence plea is that at no point of time the prosecution witnesses could obtain delivery of possession of the land. The accused was all along in actual physical possession of the land including on the date on which the incident happened. The defence plea was that the accused had a standing house, and the prosecution side went to take forcible and illegal possession of the land and attempted to destroy the houses constructed by the accused. Shyamakanta who resisted, sustained grievous injury.

(3.) Learned Magistrate held: (I) That the genesis of the claim of the prosecution side was based on the proceeding under Sec. 145 Cr. P.C. but it failed to produce even a scrap of paper to establish that there was such a proceeding under Section f45 Cr. P.C. (2) That the prosecution failed to establish that the alleged proceeding was in respect of the disputed land. (3) That the prosecution failed to establish that the possession of the first informant was declared by the Magistrate. (4) That the existence of the houses constructed by the accused Shyamakanta was undisputed. (5) That the prosecution had completely failed to establish that on 29.5.82 Upendro and his party could take delivery of possession of the disputed land. Neither police nor anyone allegedly present at the time of deliverer of possession was examined by the prosecution to establish this claim of taking over possession of the land in question. (6) That even the copy of the final order, on the basis of which the complainant claimed possession, could not be produced by the prosecution. (7) That even the prosecution did not call for and produce the records of the proceedings under Sec. 145 Cr. P.C. On the aforesaid ground learned Magistrate held that the prosecution had failed to establish that they could obtain possession of the disputed land by ousting the accused on any date prior to the incident.