RUDAL MAHTO Vs. NARAIN MAHTO & 14 OTHERS

JUDGEMENT

(1.) Petitioner Rudal Mahto has filed this revision against the order dated 10.5.1986 passed by the learned Judicial Magistrate 1st Class, Muzaffarpur, by which he has dismissed the complaint (being Complaint Case No. 148/85) filed by the petitioner on 6.7.1985. In the complaint filed it was stated that on 5.7.1985 at about 2 P.M. one Narain Mahto came at the door of the petitioner with his companions, assaulted him and snatched away some money and Narain Mahto also set fire to the house of the petitioner on account of which the bathan of the petitioner was burnt. The motive for the occurrence was that Narain Mahto had been claiming a piece of land belonging to the petitioner.

(2.) The learned Magistrate sent the complaint to the Principal Probation Officer under Sec. 202of the Code of Criminal Procedure (for short the 'Code') for enquiry after spot inspection. The required report was sent by the Principal Probation Officer on 13.8.1985. Copies of the complaint as well as the said report have been filed as annexures 2 and 3 respectively to the revision petition The Principal Probation Officer reported for taking action against the opposite parties under Ss. 147, 323, 436and 379of the Indian Penal Code. Four witnesses were examined by the complainant -petitioner and the three other witnesses could not be examined; as one of them had died and the two others were not prepared to support him. But the four witnesses, who had been examined, had said categorically, that Narain Mahto had set fire to the house and the cow shed.

(3.) The learned Magistrate by the said order dated 10.5.1986 held that the four witnesses of the prosecution have given contradictory statements. In the complaint it has been specifically mentioned that Narain Mahto had set fire to the bathan used for keeping cattle, nad, khunta etc. P.W. 1 Jagan Singh has said that the bathan in question was open from outside and that bathan is not a dwelling house. P.W. 2 Jai Kishun Mahto has said that the bathan was also used as dwelling house. P.W. 3 Bandhu Mahto says that the petitioner had two houses. Out of them one was used for keeping cattle and the other was used for dwelling purpose and both the houses were burnt. P.W. 4 Jag -dish Thakur had said that the house was partitioned. The Learned Magistrate, therefore, held that the witnesses have contradicted each other and given out a new story that bathan does not denote to be a dwelling house and provision of Sec. 436of the Indian Penal Code (for short I. P. C.) apply if a dwelling house is burnt. He, therefore, dismissed the complaint under Sec. 203of the Code.