The non-examination of the Investigating Officer was essential to establish the actual possession of the disputed land, and conflicting evidence over possession led to the setting aside of the lower court's finding.

Aditya Kumar Trivedi, J.

None appears on behalf of appellants, on account thereof, Sri Baban Ray, learned counsel has been requested to assist the Court as an Amicus Curiae.

2. Appellants Shankar Singh, Jagropan Singh, Prabhu Singh, Mahendra Singh, Bhorik Singh, Lorik Singh, Hari Singh, Shiv Parsan Singh @ Shiv Prasan Singh, Jamuna Singh and Ram Bilas Singh have been found guilty for an offence punishable under Section 379 of the I.P.C. and each one has been sentenced to undergo R.I. for three years as well as to pay fine appertaining to Rs. 1,000/- and in default thereof, to undergo R.I. for six months, additionally, under Section 504 of the I.P.C. and sentenced to undergo R.I. for six months with a further direction to run the sentences concurrently vide judgment of conviction and order of sentence dated 21.01.2009 passed by the Additional Sessions Judge, Fast Track Court No.1st, Kaimur at Bhabua in Sessions Trial No.156 of 2005.

3. Somaru Singh (PW-5) filed written report on 19.11.2001, divulging the fact that his land lies half kilometer away from his village-Semara, which has been settled by the D.C.L.R., Bhabua bearing Khata No.143, Khesra No.769, area four acre and Plot No.1294 area 01 acre. Then had disclosed that aforesaid land happens to be his Khatiyani land. Then had narrated that he had planted paddy in the aforesaid plot, which was ready for harvesting. On 05.11.2001, his co-villagers, Hari Singh, Prabhu Singh, Mahendra Singh, Shankar Singh, Jamuna Singh, Bhorik Singh, Lorik Singh, Ram Bilas Singh, Shiv Parsan Singh @ Shiv Prasan Singh, Jagropan Singh began to harvest, whereupon he along with co-villagers Ramdahin Yadav, Dina Singh, Ram Lal Singh, Sardar Singh, have gone and protested over the illegal activities of the accused, who were engaged in carrying the bundles of harvested paddy to their house. Accused persons abused and further, threatened of dire consequences. Out of fear, he returned back to his house. In the night, while they were asleep, Hari Singh came at 2.00 A.M. at his house, abused and then thereafter, Hari Singh took out match box and set ablaze kitchen as a result of which, paddy one quintal, one cot along with other articles turned to ashes. On the next day, while he was in a way to police station, accused persons threatened of dire consequence. Accordingly, delay has been caused in filing of the written report.

4. On the basis of the aforesaid written report, Chainpur P. S. Case No.128 of 2001 has been registered followed with an investigation as well as submission of chargesheet facilitating the trial, wherein the appellants/ accused persons were acquitted for other offences, but convicted and sentenced for the offences punishable under Section 379 as well as 504 of the I.P.C., respectively and the same happens to be the subject matter of instant appeal.

5. Defence case, as is evident from mode of cross-examination as well as statement recorded under Section 313 of the Cr.P.C. is that of complete denial. It has also been pleaded that the land under dispute happens to be under their exclusive possession since long, but the prosecution party in order to coerce the appellants/ accused to give up their possession is in habit of filing of case after case putting false and frivolous allegation and for that, also placed Exhibit-A on the record.

6. In order to substantiate its case, prosecution has examined altogether six PWs, who are PW-1, Sardar Singh, PW-2, Ramdahin Yadav, PW-3, Dina Singh, PW-4, Ram Lal Ram, PW-5, Somaru Singh and PW-6, Om Prakash Srivastava as well as has also exhibited, red card as Exhibit-1, an order dated 19.09.2001 passed under Section 144 of the Cr.P.C. as Exhibit-2, formal F.I.R. as Exhibit-3. In likewise manner, defence had also exhibited certified copy of judgment of Complaint Case No.110 of 2001 as Exhibit-A.

7. From the record, it is evident that I.O. has not been examined. Non-examination of I.O. has been dealt with by the learned lower Court under Paragraph-17 o