KING Vs. JAGDISH TEWARI

JUDGEMENT

(1.) This is a reference by the Assistant Sessions Judge, Arrah, under Section 307, Criminal P. C , against a verdict, by a majority of four to one, finding accused Jagdish Tewari guilty under Section 436, Penal Code, and accused Dipan Singh guilty under Section 436/109, Penal Code.

(2.) The prosecution case is that, on 18th November 1947, at village Katkinar, police station Nawanagar, accused Jagdish Tewari, abetted by Dipan Singh, committed mischief by setting fire to and destroying a hut belonging to the first informant Pati Ram Das and occupied by his servants. The land on which the hut was standing is recorded in the khatian in the name of one Mahanth Gobardhan Das deceased. The case of the first informant is that he was the chela of Gobardhan Das and succeeded to him as mahanth and is in possession of this hut in his capacity of mahanth. That the hut in question has been destroyed by fire is not disputed. The defence of the accused persons is that Pati Ram Das is not the mahanth and was not in possession of the hut. According to them, the mahanth is Sarju Das, guru of the accused Jagdish Tewari, and the hut belonged to him and was in his possession. From the evidence adduced, it appears that there is a dispute between Pati Ram Das and Sarju Das relating to the mahanthship, and that Sarju Das is in possession of the bulk of the properties. Pati Ram's account is that, after being installed as mahanth, he left Sarju Das in charge of all the mathia properties and went out on pilgrimage in Baisakh, 1943 (sic). He returned about two and a half years later in Asin, 1946 (sic), but Sarju Das is not giving up possession. He admits that Sarju Das is in possession of the main mathia house, which is in the basti, but claims to have got possession of this hut and a small samadhi room, which are outside the basti,

(3.) It is clear from the above statement of the case that an important point for consideration was the possession of this hut. If, in fact, this hut is not in the possession of Pati Ram Das, the motive alleged by the prosecution for the commission of the offence disappears. The evidence on the point consists of the statements of Pati Ram Das and of three witnesses, who are residents of the village, Ram Singhasan Singh (P. W. 2), Ajgaib Koeri (P. W. 3) and Markat Koeri (P. W. 4). There are also some documents, which I shall refer to later. On the factum of the arson, the evidence is confined to the statements of the last three named witnesses, who claim to be eye-witnesses to the alleged occurrence.