PRABHU RAI, AND 5 OTHERS Vs. THE STATE OF BIHAR

JUDGEMENT

(1.) In this appeal, there are six appellants. Appellant No. 1 Prabhu Rai has been convicted under Sec. 436 of the Indian Penal Code (for short 'the Penal Code') and sentenced to undergo rigorous imprisonment for five years. Appellant No. 2 Sheo Sharan Rai (actually, he is Deo Sharon Rai, but he has wrongly been described as Sheo Sharan Rai in the impugned judgment and accordingly in the memorandum of this appeal) has been convicted under Sec. 436 read with Sec. 109 of the Penal Code and sentenced to undergo rigorous imprisonment for five years. Rest of the appellants, namely, Janki Rai (appellant No. 3), Ram Chandra Rai (appellant No. 4), Bharat Rai (appellant No. 5) and Dwarika Rai (appellant No. 6) have been convicted under Sec. 323 of the Penal Code and sentenced to undergo rigorous imprisonment for one year each. All the above six appellants have been further convicted under Sec. 147 of the Penal Code and sentenced to undergo rigorous imprisonment for two years. However, the sentences have been ordered to run concurrently. The prosecution case, according to the Fardbeyan of the informant Ramhit Rai (P.W. 2) is that he constructed his house on his land about 22 years ago and was residing there. According to the informant, his father Sheo Deni Rai (P.W. 4) and his brother Nathuni Rai (P.W. 3) had gone to Motihari on the date of occurrence i.e. 23.10.1972 to do some pairvi in a case in relation to the same land pending between him and appellant No. 1 Prabhu Rai. The informant was at his house along with his mother. The informant was sitting on his Machan after taking his meal. At about 11.30 P.M., he heard sound of some persons and then he came outside the house and saw these appellants, namely, Prabhu Rai, Deo Sharan Rai, Janki Rai, Ramchandra Rai, Sakhichand Rai, (since dead), Bharat Rai and Dwarika Rai armed with lathis. According to him, these appellants asked the informant to leave the house, but the informant said as to why he would leave the house and his mother Sheo Kumari (P.W. 5) also came out. His mother also said that they would not leave the house. Thereupon, Deo Sharan (appellant No. 2) ordered for assault and also ordered for setting fire to the house. In the meantime Janki Rai (appellant No. 3) assaulted him with the hurrah of the lathi on his eyebrow, which caused injury to him, and his mother was assaulted by Dwarika Rai (appellant No. 6) and Ramchandra Rai (Appellant No. 4) and Prabhu Rai (appellant No. 1) set fire to the house. On alarm raised by the informant and his mother a villager, Ram Dent Rai (not examined), the informant's father and brother Nathuni Rai and others came running and saw the occurrence. On the arrival of these persons, the appellants fled away towards their house. The articles in the house were also burnt. This Fardbeyan was recorded at about 5 P.M. on 24 -10.72 by P.W. 6, the Assistant Sub -Inspector of Police, D.N. Singh, of Kotwa Outpost on his visit to the alleged place of occurrence. On this allegation, investigations was taken up and charge sheet was submitted in the case and the appellants were committed to the court of session for trial.

(2.) As it appears from the written statement filed on behalf of the appellants, the defence case is that the prosecution case is false and fabricated and they have been falsely roped in this case by the informant with a view to put undue pressure on them, so that they may be coerced, to give up their rightful claim over survey plot No. 1901 of Khata No. (28 which had been the sheet anchor of the dispute between the parties. It has also been asserted in the memorandum of appeal that prior to the alleged occurrence, appellant No. 1 Prabhu Rai instituted a criminal case bearing Tr. "" against the present informant (P.W. 2), his father Sheodeni Rai (P.W. 4) and his brother Nathuni Rai (P.W. 3) in respect of the aforesaid disputed land under Ss. 143 and 447 of the Penal Code. In that case, the trial court held Sheodeni Rai (P.W. 4), Ramhit Rai, the informant (P.W. 2) and Nathuni Rai (P.W. 3) along with other three persons guilty under Ss. 143 and 447 of the Penal Code and they were accordingly convicted and sentenced to undergo rigorous imprisonment for two months each. On appeal by them, the case was remanded by the appellate court and again they were convicted. They again preferred an appeal before the Sessions Judge of Champaran (Motihari) vide Criminal Appeal No. 215 of 1972 in which their convictions under Ss. 143 and 447 of the Penal Code were upheld, but the period of sentence of two months' rigorous imprisonment was reduced to one month under both the counts, which were ordered to run concurrently.

(3.) According to appellant No. 1 Prabhu Rai, he has taken settlement of the disputed land from the ex -landlord long ago and he was in actual possession of the aforesaid land on the payment of rent to the Maliks concerned. It has been asserted in the memorandum of appeal that several suits were filed for rent in respect of the disputed land between appellant No. 1 and the ex -landlord and one matter came to this Court in Second Appeal No. 478 of 1954 in which the landlord was granted a money decree for arrears of rent against Prabha Rai (appellant No. 1).