KHANGIYA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE appellants have been convicted for the offence under Section 147, 436 and 440, I.P.C., and have been sentenced to four months rigorous imprisonment, one year's rigorous imprisonment and a fine of Rs. 100/ - and six months' rigorous imprisonment and a fine of Rs. 50/ -, on each count respectively. Sentences have also been awarded in default of payment of fine for the offences under Section 436 and 440, I.P.C.

(2.) THE prosecution case is that there is an agricultural land situated in village Devki measuring about 86 'bighas' and 5 'biswas' comprised of 'khasra' No. 204 there is a well attached to it on the land for irrigation. The complainant Shankarlal had 1/10th share in the land. According to him, he used to cultivate 32 'bighas' and little more land for the last four years having purchased the land from the different cultivators. There were other co -sharers in 'khasra' No. 204. The prosecution case is that the other co -sharers, namely, Khangiya, Gamia, Chelia, Roopa and Kana wanted to forcibly dispossess the complainant from the land and a report in respect there of was lodged by him, but no action was taken. Then it is said that on 17 -11 -1975 when Ganesh, Bhanwara, Narain and Bagta were working on on the well known as 'katha', the appellant, 14 in number, armed with Dharias, Kulharis, spades and Gentis, entered into the complainants field and Bhanwaria exhorted to demolish the house and to burn it and to demolish the tank etc. Thereafter, it is said, that the accused persons demolished the reservoir and the small tank and set fire in the machine house, whereby the movable property consisting of the beds and cots, was destroyed. Narain went to Jalore and informed the complainant Shankarlal. Shankarlal on receipt of the information lodged the first information report Ex. P/1 on 18.11.1975 at the Police Station, Nosara. A case under Section 147, 430 and 436, I.P.C., was registered. Investigation was undertaken and after investigation a final report was submitted stating that no occurrence took place, as alleged. During investigation, site was also inspected and inspection memo was prepared. Shankarlal lodged a complaint and an inquiry was conducted and thereafter the accused persons were committed for trial. The accused persons were charged for the various offences, to which they pleaded not guilty and claimed trial. The prosecution in all examined three witnesses, nemely, Bagta (P.W. 1), Narain (P.W. 2) and the complainant (P.W 3). Statements of the accused persons were recorded in which they denied the prosecution case and the co sharers stated that the machine, the machine house, as well as reservior and the tank were constructed jointly by all the co -sharers, and the land was not partitioned. In deefence the accused persons examined Jaisingh Patwari (D.W. 1). Dhokalsingh (D.W. 2), Moolsingh (D.W. 3); Bhura (D.W. 4), and the investigating officer Mahboob Khan as D.W. 5. The learned Additional Sessions Judge, Jalore, after hearing the arguments convicted and sentenced the accused persons as aforesaid. Aggrieved against the convictions and sentences the present appeal is filed.

(3.) THE prosecution in this case relies on the occular testimony of Bagta and Narain, who are the servants of the complainant Shankarlal. The The other two witnesses, namely, Ganesha and Bhanwara, who are said to be present on the spot and working along with the other two servants, have not been examined by the prosecution. Shri Chauhan, learned Counsel for the appellants vehemently submitted that the learned Additional Sessions Judge seriously erred in placing implicit reliance on the testimony of these two witnesses. The testimony of these two witnesses will be rendered incredible if the evidence is considered in this prespective that the machine house and the machine and the reservoir and the tank were constructed jointly by all the co -sharers and did not belong exclusively to the complainant Shankarlal He urged that the learned Additional Sessions fudge did not deal with the defence evidence and did not even properly examine the statement of the complainant Shankarlal. Shankarlal admitted that a writing was executed that the machine will be purchased jointly by all the co -sharers and that the constructions would also be made jointly by the co -sharers. If there is such a writing, then necessarily the machine as well as all the constructions must have been made by all the co -sharers. The complainant Shankarlal has given no explanation as to why he alone made the purchase of machine and raised the constructions. Shri Chauhan pointed out that as against the testimony of Shankarlal, there are the statements of two co -sharers, namely, Dhokalsingh (D. W. 2) and Bhura (D.W. 4), who have stated that the machine house, Hoj, Kundi, etc. were jointly constructed and the machine was jointly purchased. If the machine was jointly purchased and the other constructions have been made jointly, then it was most unnatural and improper for the co -sharers to have indulged in the activities, which is alleged against the appellants. If the machine was purchased solely by the complainant and if the constructions would have been solely made by the complainant, the complainant ought to have examined the other witnesses and ought to have produced the relevant documents. In the absence of such a evidence, the statement of Shankarlal should not have been believed, more particularly, when there is reliable evidence of the two co -sharers. Shri Chauhan submitted that this aspect of the case have been completely ignored by the learned Additional Sessions Judge and the learned Additional Sessions Judge only proceeded to consider that even if it be taken that the land had not been partitioned, still the basic facts of the incident are not in any way adversely affected. It may be pointed out that the question of partition was not very material. What was material, was as to whether the machine was purchased jointly and the machine house and the other constructions were made jointly, and in respect of these matters m findings have been given by the learned Additional Sessions Judge. Shri Chauhan urged that in the background of the relations between the parties, this possibility cannot, be ruled out that a false case was concocted against the appellants and that is why the result of the investigation was not in favour of the complainant. The falsity of the occurrence is further apparent from what is contained in the site inspection memo. According to Mr. Chauhan the site inspection memo bears as eloquent testimony to the facts that the occurrence has not taken place in the manner alleged, else there would have been marks of burning in the machine house. What is found actually burnt is some part of the cot, that is, Munj, Iss. If 14 persons armed with weapons would have indulged under the alleged exhortation of Bhanwaria, then the whole machine house would have been destroyed resulting into burning of all movable properties, including the drums containing oil.