Niyati Karan v. Khandu Kharah & Ors.

PW-4, (Smt. Laxmi Ghosh), in her cross-examination stated that “there was no tank in the name of the complainant at the time”. The fish was taken away to the house of accused Paban Ghosh. v. PW-5, (Kachi Patra), on 3rd Ashar, 1401 B.S., at about 10:30 p.m., he heard a hue and cry of women-folk of Karam’s and came out from his house. Then he found the accused persons and others being armed with “lathi”, “tangi” etc., caught fishes from the pond of Karam's. They also brought one hazak light and fishing net. They witnessed the occurrence from a distance. He could not go to resist them as they were armed. He could identify 5/7 accused persons in hazak light. In cross examination he stated that “police kept a camp in our village school from the evening of 18.06.1994. To the northern side of the tank is the moram road. The tank is used by all the villagers.” He deposed as per instruction of the complainant. vi. PW-6, (Chuni Lal Khamru), deposed before the Court in chief similar to the other witnesses. In cross examination PW-6 stated that from the house of Niyati Karam the school was visible. There were 2(two) houses in between. He had deposed in the murder case of Sakti Karam before Ld. 1st Track, First Court, against the accused persons. He had also deposed in the Title Suit before Ld. 2nd Munsif Bijoy Khamru (brother of PW-6) was made accused in the house burn case of Khandu Khara (Respondent No.1 in the instant appeal). 10 vii. PW-7 (Sarathi Karam) also deposed before the Court in chief similar to other witness. viii. PW-8 (Sasanka Sekhar Kuillya) deposed before the Court examination- in-chief that at around 6:30 p.m., police came at the P.O. Later he came to know from Niyati Karam that accused Dinesh Bhattacharya & Ors., came to catch fish from the pond. He was a post occurrence witness. In cross examination stated that he was a supporter of congress party. He lost one election of panchayat where he stood on the congress ticket. He did not know which party was supported by Dinesh Babu. He was implicated as an accused in a criminal case. He did not received any summon to depose in that case. In the petition of complaint his name did not appear as a witnesses. ix. On 25.05.2007 Ld. Judicial Magistrate, 2nd Court, Midnapore delivered the Judgement in Case No. CR 693/1994 (T.R.121/1994) whereby all 31 accused persons were found not guilty of the offence under Sections 148/149/324/379/506 Indian Penal Code and they were acquitted under Section 248(1) Cr.P.C. x. The Learned Magistrate of the Trial Court, observed in the judgement, “the defence suggested that they preferred an appeal against the decree and the operation of such decree is stayed to which the complainant expressed her ignorance. The complainant also drew the attention of the Court to Exbt.-1, the injunction order passed by Ld. Civil Judge, Jr. Div. (2nd Court), Midnapore by which the defendants of suit were restrained to disturb the peaceful possession of the plaintiff. 11 Merely an interlocutory order of a civil Court is not enough to show that the complainant exclusively possessed the disputed tank because the interlocutory order could be totally reversed in the final trail. More so when the witnesses of the complainant, PW-5, admitted during his cross examination that the tank is also used by villagers and therefore it can be said that the villagers also possess the tank. xi. The instant appeal was preferred against 31 persons who were acquitted from all charges by a judgement dated- 25.05.2007 passed in CR 639 of 1994 (T.R. 121 of 1994) by the Ld. Judicial Magistrate, 2nd Court, Midnapore during pendency of the instant appeal being CRA No. 631 of 2007, 8(eight) persons expired before 10th May, 2023 being Respondent No. 3, 6, 9, 13, 19, 20, 22 and 23 which appears from the report submitted by the O/C Kharagpur Local P.S. dated-10.05.2023 and the said report was reflected from the order dated-05.06.2023 passed in the instant appeal. Thereafter respondent No. 2 namely Baidyanath Pramanik expired on 30.05.2023 and respondent no.15 namely Shaktipada Dhal expired on 16.08.2023. xii. According to the petition of complaint dated- 14.07.1994, alleged incident happened on 18.06.1994 but after a month petition of complaint was moved without explaining the delay properly. xiii. The complainant stated in the petition of complaint that she sustained a loss of Rs.6500/- for catching of fish from the pond but in her examination under Section 200 Cr.P.C., she stated that she sustained a loss of about Rs.3000/-. 12 xiv. According to the evidence of PW-1 stated that she informed the matter to police at Kalaikunda Beat House 4(four) days after the incident but the PW-3 Umashankar Sahoo deposed before the Court that they informed the incident at Kharagpur (LPS) on 22.06.1994 which was contrary to each other. xv. According the evidence of PW-5 Kachi Patra stated in cross-examination that police kept a camp in their village school from the evening of

18.06.1994. The pond was used by all the villagers. He also deposed that as per instruction of the complainant he deposed before the Court. xvi. PW-1 also admitted that “prior to the tank was owned by Mitras.” It was admitted that there was a civil suit between the parties over the pond in question. On 28.08.2009 son of the complainant namely Sri Sanajit Karam son of Saktipada Karam along with 3(three) others purchased the share of the pond in question from the respondent No.22, 26, 8, 9, 5 and others by a registered deed of Kabala dated 28.08.2009 registered before the District Sub-Registrar-1, Paschim Medinipore being Deed No.04921 for the year 2009 recorded in book no.1 CD Volume No.15 pages from 1992 to 2010. xvii. Over the incident dated 18.06.1994 at 4:30 p.m., case and counter case was started being Kharagpur local P.S. Case No.124/1994 dated

18.06.1994 and Kharagpur local P.S. Case No.125/1994 dated

18.06.1994. In both the cases trial had commenced before the Ld. Addl. Sessions Judge, 1st Track Court, Paschim Midnapore. Against the judgement and order passed in both the cases appeals were preferred 13 before the Hon’ble High Court at Calcutta being CRA No.151 of 2005 and CRA No.154 of 2005. In the said appeals the convicted persons of both the appeals obtained Bail from the Hon’ble High Court at Calcutta. The said 2(two) appeals being CRA No.151 of 2005 and CRA No.154 of 2005 were still pending. xviii. The husband of the complainant died over the incident dated

18.06.1994 at 4:30 p.m. The instant complain case was cooked up by making a concocted story against the respondents by filing a petition of complaint on 14.07.1994, after 1(one) month from the date of alleged occurrence. The complainant was examined under Section 200 Cr.P.C., on 25.07.1994. In view of the aforesaid facts and circumstances stated hereinabove the instant criminal appeal being CRA No. 631 of 2007 should be dismissed in limine with costs.”

#7. A circumspection of evidence of the prosecution witnesses revealed as follows:- i. PW–1, the de facto complainant, narrated two facets of the occurrence. According to her, on 3rd Ashar, 1401 B.S., at about 4:00/4:30 p.m., the accused persons namely Dinesh Bhattacharya, Paban Ghosh, Amal Ghosh and Rabi Ghosh came to their pond for catching fish. When her husband protested, he was assaulted with fists and blows and fell near the pond. He was thereafter rescued and taken to the hospital. She further stated that at about 10:30 p.m., the accused persons again assembled on the bank of the pond armed 14 with gun, “lathi” and other weapons and removed all the fishes from the pond. When she attempted to resist, she too was assaulted. She alleged loss of fishes valued at about Rs.6,000/- to Rs.6,500/-. Her husband subsequently succumbed to the injuries. She admitted in cross-examination that the written complaint had been prepared as per the instruction of her father-in-law and she herself did not know who had drafted it. She further admitted that she had not earlier informed the police regarding theft of fish on the date of occurrence and that such information was conveyed only after three days. It also transpired that the petition of complaint did not specify from which side of the pond the alleged theft had taken place. ii. PW–2 stated that on hearing hue and cry at about 10:00 p.m., he came out of his house and found the accused persons catching fish from the complainant’s pond while armed with gun and “lathis”. He claimed that the accused persons could be identified in the light of a hazak lamp carried by them. He, however, admitted that he did not intervene out of fear. He asserted that the pond belonged to the complainant who used to cultivate the same. iii. PW–3 deposed that while he was present at the house of Niyati Karam at about 10:30 p.m., he heard cries from the side of the pond situated about 50/60 feet away. On proceeding there, he found nearly forty persons assembled with “lathi”, “tangi”, “ballam” and firearms. According to him, Paban Ghosh, Dinesh Bhattacharya and others had declared that they had come to catch fish from the pond. The 15 fishes, weighing approximately three quintals, were allegedly removed towards the house of Paban Ghosh. He further stated that a General Diary entry had been lodged at Kharagpur Police Station on

22.06.1994 though no action was taken by the police. In cross- examination, he admitted that Kushadhwaj Karam was his father-in- law and that despite police remaining at the place of occurrence for a considerable period, he had not shown the police the place where the alleged stolen articles were kept. He further stated that except informing the villagers and police, he had taken no steps during the occurrence. iv. PW–4 stated that on hearing hue and cry from the side of the pond of Niyati Karam at about 10:00/10:30 p.m., she rushed to the spot and found the accused persons armed with “lathi”, “tangi”, “ballam” and gun, catching fish from the pond. She claimed that hazak light had been brought to the place of occurrence. She further stated that when she attempted to resist, accused Prafulla Ghosh directed her to return home. According to her, the fishes were ultimately taken to the house of Paban Ghosh. v. PW–5 also claimed to have seen the accused persons armed with “lathi”, “tangi”, “ballam”, bows and arrows catching fish from the pond at about 10:30 p.m. He stated that they had brought a hazak lamp and fishing nets and that he could identify five to seven accused persons in the hazak light. In cross-examination, however, he admitted that the pond was used by all villagers and further stated 16 that he had deposed as per the instruction of the complainant. He also disclosed that police had taken him and several others from their houses on 14.06.1994 and had camped in the village school from the evening of 18.06.1994. vi. PW–6 deposed in similar vein that on hearing cries of the womenfolk of the Karam family, he went near the pond and found some persons in the pond and others on its bank armed with “lathi”, “ballam”, bows and arrows. He stated that due to threats extended by the accused persons, he did not proceed further. In cross-examination, he admitted that he had earlier deposed in the murder case concerning Shakti Karam as also in a title suit and that he did not know whether Niyati Karam actually owned the pond in question. vii. PW–7 stated that on hearing hue and cry at about 10:00 p.m., he reached the pond and found Paban Ghosh standing with a gun while Dinesh Bhattacharya and others were catching fish from the pond with the aid of a hazak lamp and fishing nets. He stated that the fishes were removed towards the house of Paban Ghosh and that the accused persons threatened him when he attempted resistance. He further referred to a civil suit concerning ownership of the pond and stated that a decree had been passed in favour of the complainant party, a certified copy whereof was marked Exhibit–1. viii. PW–8, the teacher of the village primary school, stated that on the date of occurrence he first saw Shakti Karam and Bamapada Ghosh lying injured near the pond and later, at about 10:30 p.m., witnessed 17 around twenty to twenty-five persons armed with deadly weapons and carrying hazak lights catching fish from the pond. According to him, some of the accused persons carried the fishes towards the house of Paban Ghosh. In cross-examination, he admitted that some of the accused persons were school teachers and established cultivators. He further admitted that he had been implicated in another criminal case along with members of the complainant party and had deposed in several cases involving the complainant. He also stated that he was a supporter of a political party and had contested a Panchayat election.

#8. At the outset, the substratum of the prosecution case itself appears uncertain and wavering. PW–1, the de facto complainant, introduced two distinct incidents allegedly occurring on the same day — one in the afternoon involving assault upon her husband and another at night concerning alleged theft of fish from the pond. Yet, in her cross-examination, she admitted that she had not informed the police about theft of fish on the date of occurrence and that such allegation surfaced only after three days. The complaint itself did not disclose from which side of the pond the alleged theft had been committed. Such omissions are not peripheral in nature; they strike at the spontaneity and authenticity of the prosecution narrative.

#9. The evidence regarding unlawful assembly and rioting under Sections 148 and 149 Indian Penal Code also remains deficient. Though several witnesses made omnibus allegations that a large number of persons had assembled armed with “lathi”, “tangi”, “ballam” and firearms, the prosecution failed to 18 establish with precision the common object of the assembly or the distinct role attributable to each accused. Mere presence in a gathering, absent clear proof of participation in prosecution of a common object, cannot attract the vicarious liability contemplated under Section 149 Indian Penal Code. The witnesses, in broad and generalized terms, implicated numerous persons without furnishing a coherent account regarding overt acts committed by each accused. Such sweeping allegations, particularly in a case emerging from acknowledged prior hostility and civil litigation concerning possession of the pond, require cautious judicial scrutiny.

#10. Significantly, several witnesses admitted longstanding disputes and prior litigations between the parties. PW–7 referred to a civil suit concerning the pond. PW–6 admitted he had earlier deposed in the murder case involving Shakti Karam and also in the title suit. PW–8 admitted political rivalry and his involvement in previous litigations connected with the complainant party. The evidence therefore unmistakably reveals an atmosphere of entrenched animosity between the factions. In such circumstances, the possibility of embellishment and over-implication cannot be brushed aside.

#11. The charge under Section 324 Indian Penal Code is equally unsupported by reliable evidence. Although references were made to assault by fists, blows and weapons, the prosecution did not produce cogent medical evidence establishing injuries caused by dangerous weapons in the manner alleged. The witnesses spoke in varying tones regarding the nature of assault and weapons used. The evidence remains insufficient to prove beyond reasonable doubt that hurt within the meaning of Section 324 Indian Penal Code had 19 been voluntarily caused by the accused persons by dangerous weapons or means.

#12. Equally fragile is the allegation under Section 379 Indian Penal Code. The prosecution sought to establish theft of fish from the pond, yet the evidence regarding ownership and exclusive possession of the pond itself remained uncertain. PW–5 admitted that the pond was used by all villagers. PW–6 candidly stated that he did not know whether Niyati Karam owned the pond at all. Though PW–7 referred to a civil decree, the prosecution did not establish exclusive possession in a manner eliminating all reasonable doubt. In a prosecution for theft, proof of dishonest removal of movable property out of another’s possession is indispensable. Where possession itself remains clouded in dispute and the occurrence arises amidst ongoing civil discord over property, the criminal charge of theft cannot rest merely on interested assertions unsupported by unimpeachable evidence.

#13. The allegation of criminal intimidation under Section 506 Indian Penal Code also rests upon vague and generalized statements that the accused persons threatened the witnesses with “dire consequences.” None of the witnesses described the precise nature of the threat, the words used or the immediate impact thereof. The evidence falls short of establishing intentional intimidation with the object of causing alarm as contemplated under law.

#14. It is also of considerable significance that many of the witnesses admitted that despite police presence in the locality and subsequent investigation, they had not shown the place where the alleged stolen fishes were kept, nor was any recovery effected. Independent and disinterested witnesses from the 20 locality were conspicuously absent though the prosecution case itself suggested that numerous villagers had assembled at the spot. The prosecution evidence thus remained confined substantially within a circle of interested and previously litigating witnesses.

#15. The inconsistencies regarding the number of accused persons, the weapons carried, the quantity of fish allegedly removed and the sequence of events further weaken the prosecution edifice. The evidence does not attain the degree of certainty necessary for overturning an order of acquittal.

#16. An appellate court dealing with an appeal against acquittal is required to bear in mind that the presumption of innocence stands fortified by the acquittal recorded by the Learned Trial Court. Unless the findings are manifestly unreasonable or wholly unsupported by evidence, interference is not warranted merely because another view may also be possible.

#17. In the present case, the view adopted by the Learned Trial Court emerges as a plausible and reasoned appreciation of the evidence on record. The prosecution having failed to establish the essential ingredients of Sections 148, 149, 324, 379 and 506 Indian Penal Code beyond reasonable doubt, the order of acquittal calls for no interference.

#18. Accordingly, the instant criminal appeal being CRA 631 of 2007 is dismissed.

#19. There is no order as to costs.

#20. Trial Court records along with a copy of this judgment be sent down at once to the Learned Trial Court for necessary action. 21

#21. Photostat certified copy of this judgment, if applied for, be given to the parties on priority basis on compliance of all formalities. (Ananya Bandyopadhyay, J.)