BAGALA PROSAD KAR Vs. SEIKH JOHAD
LAWS(CAL)-1986-7-54
HIGH COURT OF CALCUTTA
Decided on July 16,1986

BAGALA PROSAD KAR Appellant
VERSUS
SEIKH JOHAD Respondents


Referred Judgements :-

STEPHEN V. NASIBULLA [REFERRED TO]
BHIMAPPA BASAPPA BHU SANNAVAR VS. LAXMAN SHIVARAYAPPA SAMAGOUDA [REFERRED TO]
PAKALAPATI NARAYANA GAJAPATHI RAJU VS. BONAPALLI PEDA APPADU [REFERRED TO]


JUDGEMENT

- (1.)THIS is. an appeal filed by the complainant against the order of acquittal dated 10. 8. 78 passed by Sri D. P. Shama, Judicial Magistrate, 1st class, Bankuru in Case no. O. R. 958/74/t. R. 192/76. The complainant lodged a first information repot before the Officer- in- Charge, Bariora Police Station in the district of Bankura or a on 22,7. 74 alleging that on that date at about 6. 30/700 am, when he had gone to his with four plough and with manick ch. Garai and other labourers in order to transplant paddy seedlings there in and when they were working on the held for above 22/23 Minutes, the accused respondents along with others armed with the, tangi, from rods etc. attacked them and a used Sk. Johad assented the complaint with jathi and accused Jotil assaulted him on he right should with iron cod and accused 5k, 3ohad attacked him with the tangi, but he anyhow escaped. Thereafter the accused persons assaulted his men and snatched away his ploughs and cattle. The police on investigation submitted charge sheet against the accused person. Charges were framed against the accused persons under sections 324-, 379 and 411 of the Indian Penal Code which was read over and explained to the accused persons to which they pleaded not guilty and claimed to be tried. Their defence is that he was all along in possession of the disputed land, that the complainant along with 10/11 persons formed an unlawful assembly with the common object of dispossession the accused Johad his brother from the said land and started damaging the transplanted paddy and also the seed bed, that the vendor of Bagala to whom Bagla claims to have purchased 50 decimals of land m plot No. 62 of Bahadur pur mouza which is the disputed land never possessed the disputed land that when the accused. "johad and others protested to the illegal acts being committed by the complainant party the complainant and his men assaulted them and others for which a criminal case has been started against them and as a counterblast this false case has been started in order to save themselves.
(2.)THE learned magistrate on considering the whole evidence on record arrived at the finding that the prosecution has failed to prove that the complainant was in actual possession of the disputed land on the alleged date of occurrence, that the documents produced would clearly indicate that he was not in such possession, that in the circumstances the defence story appears to be probable, that if the accused party were in possession and. the complainant party went to cultivate the land forcibly even if the complainant party received some injuries the accused cannot be convicted under section 324 as they had the right of private defence of person as well property. It is also contended trial it is-admitted that there is a counter case, that the accused party also received injury and that the complainant did not explain. as to hove the accused could also receive the injuries. With these findings the learned Magistrate held tire injuries. With these findings the learned Magistrate held that the'' prosecution has hopelessly failed to prove the case as alleged against the accused persons and on the other hand, the defence case is well prove by the evidence of the prosecution witnesses themselves in the circumstances the learned magistrate acquitted the accused respondents under section 248 (1)of the Code of Criminal Procedure and directed the seized articles to be returned to the persons from whom seized.
(3.)BEING aggrieved the complainant has preferred this appeal on taking special leave. It is contended in the memorandum of appeal that the learned magistrate has failed to consider that the evidence on record has clearly provided the charge under section 379 of the indian Penal Code and that the learned magistrate has not considered this aspect of the case at all. It is also contended that the seized cattle and ploughs were recovered by the police from the khamar of the accused persons who would clearly prove that the accused persons actually snatched away the ploughs and cattle and the charge under section 3 79 of the Indian Penal Code must be held to have been proved beyond all reasonable doubt. . It is further contended that the learned magistrate failed to consider that the right of private defence if at all available to the accused respondents would not entitle the accused respondent to commit there in respect of ploughs and cattle of the appellant and that the acquittal of the accused persons of tie charge under section 32 4 of the Indian Penal Code on the plea that if the accused persons caused injury to the appellant and his men the same were done in exercise of the right of private defence, completely failing to consider that the accused respondents never took the plea of right of private defence at any stage of the trial and has taken the specific plea that the injuries of the complaint party were self-inflicted ones is illegal and perverse.


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