Rajasthan High Court - Jaipur
Banwari Lal vs State on 8 September, 2016
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JAIPUR BENCH, JAIPUR
JUDGMENT
S.B. CRIMINAL APPEAL No.386/1995
Banwari Lal S/o Shri Parasram,
By caste Yadav, Resident of Jajor-ka-Bas,
Police Station Sadar, Alwar.
...Accused-appellant
Vs.
State of Rajasthan
..Respondent
Date of Judgment ::: 8.9.2016
PRESENT
HON'BLE MR. JUSTICE VIJAY KUMAR VYAS
Shri Rakesh Bhargava, for accused appellant.
Ms. Meenakshi Pareek, Public Prosecutor.
1. This criminal appeal has arisen out of judgment dated 18.7.1995 passed by learned Special Judge, Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act Cases, Alwar in Sessions Case No.230/1993 by which appellant has been convicted for the offences u/s 447, 379 IPC and Section 3(1)(v) of the Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act (hereinafter referred to be as "the SC & ST Act") and sentenced as follows :-
u/s 447 IPC - One month's Simple Imprisonment with fine of Rs.100/-; in default thereof, to further undergo one month's Simple Imprisonment.
U/s 379 IPC - Three months' Simple imprisonment with fine of Rs.200/-; in default thereof, to further undergo two month's Simple imprisonment. 2 U/s 3(1)(v) SC - Six months' Simple Imprisonment with & ST Act fine of Rs.500/-; in default thereof, to further undergo five months' Simple Imprisonment.
All the sentences were ordered to run concurrently.
2. Brief facts giving rise to the appeal are that on 27.1.1993 at about 3.15 PM, complainant Rati Ram (PW-4) submitted a written report (Ex.P-2) before SHO, Police Station Sadar (Alwar) stating therein that his mother-in-law, Smt. Jummi is having agricultural land bearing Khasra No.37 admeasuring 3 bighas, at Bahadurpur. Smt. Jummi is recorded tenant of the said land having possession over it. Smt. Jummi filed a suit before the Court of Assistant Collector, Alwar against Heera Lal and Banwari Lal in which temporary injunction was granted in favour of her. Learned Assistant Collector, Alwar restrained Heera Lal and Banwari Lal not to interfere in possession of Smt. Jummi. Mustard crop belonging to Smt. Jummi was there in the field. At about 9-10 AM, Banwari Lal, Kistoori and Prem along with 20-25 other persons entered into the field. They started to cut the mustard crop. On this report, Police lodged a formal FIR No.25/1993 (Ex.P-3). After investigation, police submitted chargesheet against accused Banwari Lal. Learned trial court framed charges for the offence u/s 447, 379 IPC and section 3(1)(v) of the SC & ST Act. The accused appellant denied the charges and claimed trial. Prosecution examined 12 3 witnesses and exhibited 26 documents. The accused appellant was examined u/s 313 Cr.P.C. The accused appellant stated the evidence of the prosecution to be false and further stated that he did not cut the mustard crop of Smt. Jummi. She has nothing to do with this agricultural field. She did not cultivate any crop in this agriculture field. From defence side, three witnesses were examined and five documents were exhibited. Learned trial court, after hearing both the parties, vide impugned judgment dated 18.7.1995 convicted and sentenced the accused appellant as stated hereinabove.
3. Learned counsel for the appellant submits that the disputed land is in the name of accused appellant. Prosecution did not produce any evidence to prove possession and title of Smt. Jummi (PW-1). Shyamlal Gupta (PW-11), Patwari of the area, has stated that the disputed agriculture field belongs to Banwari. Smt. Jummi (PW-1) has stated that the disputed agricultural field bearing Khasra No.37 was bequeathed to her by father-in-law, Chhota. Will is Ex.P-13. In cross examination, she admits that in the Will, Khasra No.37 does not find place. Learned counsel submits that there are many discrepancies in the statements of witnesses. There are substantial improvements and contradictions in their statements. On confrontation, the witnesses have admitted several contradictions and 4 omissions in their statements recorded u/s 161 Cr.P.C. Despite of that, learned trial court has believed the witnesses.
4. Learned trial court has pointed out the deficiencies in the evidence adduced by defence. Learned trial court has based its finding on deficiencies found in the evidence of defence, rather then on evidence produced by the prosecution. Weakness in the evidence of defence, cannot be made basis for conviction. Prosecution has to prove its case on its own strength.
5. Per contra, learned Public Prosecutor submits that learned trial court has committed no error in passing the impugned judgment. He supports the impugned judgment and submits that learned trial court has rightly passed the impugned judgment.
6. I have given thoughtful consideration to the rival submissions and gone through the whole material available on record.
7. Smt. Jummi (PW-1) has been examined twice. She has stated that the disputed Khasra number is 35. Later on, she states that Khasra number of her agriculture field is 37. She had given this land to Kishori for cultivation on sharing basis. Accused Banwari along with 5 other men came to the field and started to cut mustard crop and took away, 5 which was cultivated by her. He abused her and told that "you have no right on this filed". He also manhandled with her. The disputed land was given to her by way of Will by her father-in-law - Chhota. The Will is Ex.P-13. In cross examination, she states that Khasra No.37 does not find place in the Will. On confrontation, she admits certain omissions in her statement recorded u/s 161 Cr.P.C. Documents Ex.P-13 to Ex.P-26 have been exhibited through the witnesses but she did not utter any single word as to what are these documents and why she is submitting them (documents) in the court at the time of her evidence.
8. Mamman (PW-2), Bhup Singh (PW-3), Chaolo Khan (PW-6), Ramesh Punjabi (PW-7) and Kishori (PW-12) have been examined as eye witnesses. Chaolo Khan (PW-6) denies seeing any incident. Ramesh Punjabi (PW-7) has stated that accused Banwari had cultivated the agriculture field and cut the crop of mustard. He saw only Banwari cultivating the disputed land. All these witnesses have been declared hostile. Mamman (PW-2) has stated that Smt. Jummi cultivated the mustard crop in her agriculture field but accused Banwari was saying that under what right she was in this field. Accused Banwari cut and took away the mustard crop. Both of them are saying that mustard crop belongs to them. In cross examination, he admits that all 6 these things which he is saying today, are not there in his statement (Ex.D-2) recorded by police u/s 161 Cr.P.C. Bhup Singh (PW-3) has stated that Smt. Jummi had come in the field along with 5-6 ladies. After half an hour, 15-20 men came riding in tractor. Smt. Jummi cried, then he (Bhup Singh) asked Smt. Jummi as to why she was coming back, as to from where she was going and why she was crying. Smt. Jummi told that "Banwari has come with other persons and forceably get cutting mustard crop and I am going to report to police". Banwari and others had brought camel cart. They took away the crop in the camel cart. Police had come at the spot. Site memo (Ex.P-1) was prepared. In cross examination, he states that crop was cultivated by his tractor. He denied that Kishori Lal had cultivated the crop though his tractor. He states that Smt. Jummi had paid him for cultivation. He further denies that the disputed land was cultivated by Kishori. He states that Smt. Jummi is cultivating the crop since two years. He has also admitted that all the things stated today by him, are not found in the statement (Ex.D-3) recorded by police u/s 161 Cr.P.C. Kishori (PW-12) has stated that Smt. Jummi has given this agriculture field to him for cultivating on sharing basis since 5-7 years. He was in his own field and saw Banwari cutting and taking away the mustard crop which was grown by 7 Smt. Jummi. In cross examination, he states that in the year of the incident, Smt. Jummi had got cultivated this land from him. He admits that Banwari has filed a case against his son but denies that due to this enmity, he is giving false evidence. Rati Ram (PW-4) is a person who submitted written report (Ex.P-2) before police. While corroborating the written report, he further states that Banwari was saying at the spot that he has got a lease of this land in his name. Smt. Jummi has now nothing to do with this land. He has also admitted in cross examination that many things which he is stating today, are not mentioned in the statement (Ex.D-5) recorded by police u/s 161 Cr.P.C.
9. Investigating Officer - Kanhaiya Lal (PW-10) has admitted in cross examination that as per revenue record, the disputed land was in the name of father-in-law of Smt. Jummi. He also admits that he came to know during investigation that some days ago, Banwari Lal has got this land mutated in his name.
10. A perusal of the evidence given by the witnesses, reveals that there is no consistency in the evidence with regard to possession and title of the disputed land. Documents submitted by Smt. Jummi (PW-1) before learned trial court at the time of recording her statement, have been exhibited as Ex.-13 to Ex.P-26. A perusal of these 8 documents indicates that the disputed land was not bequeathed by Chhota, father-in-law of Smt.Jummi (PW-1). In the revenue record, after death of Chhota, obviously, all the family members of both the deceased's sons, Mohan and Heera Lal have shares in the disputed land. As per written report (Ex.P-2), Kisturi W/o Heera Lal and Prem D/o Heera Lal were also accompanying Banwari Lal. Kisturi W/o Heera Lal was examined by the accused as DW-1. She has stated that she had cultivated the disputed land and also cut the mustard crop. Banwari Lal did not cut the mustard crop. Kishanpyari (DW-2) is daughter of Chhota. She states that her father never gave this land for cultivation to Smt. Jummi. Smt. Jummi was never in possession of this land. After perusal of all the documents exhibited on behalf of prosecution and gone through the evidence adduced by the appellant in his defence, it is clear that there is a dispute between the parties with regard to the land in question. The same land is under litigation between the parties. On the basis of available evidence, it may be true that the land in dispute be in possession of Smt. Jummi. She might have cultivated the crop but it cannot be concluded that possession of Smt. Jummi is established as peaceful. Learned trial court has tried to derive evidence by reading and interpreting the documents Ex.P-13 to Ex.P-26 to support 9 its finding that Smt. Jummi was in the possession of the land in question. Learned trial court has pointed out deficiencies in the evidence produced on behalf of the defence. It is established principle of law that the prosecution has to prove its case on its own strength. Prosecution cannot derive the strength from weakness or deficiencies of the defence. It has not been established beyond all probable doubts that at the time of incident, only Smt. Jummi was in peaceful possession of the disputed land and hence the finding given by the trial court about conviction, cannot be affirmed.
11. Thus, the appeal succeeds. It is hereby allowed. The impugned judgment dated 18.7.1995 passed by learned Special Judge, Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act Cases, Alwar is set aside. The appellant is acquitted of the charges u/s 447 and 379 IPC. He is also acquitted of the charge for the offence u/s 3(1)(v) of the SC & ST Act.
12. Keeping in view, however, the provisions of section 437-A of the Code of Criminal Procedure, accused appellant Banwari Lal is directed to forthwith furnish a person bond in the sum of Rs.20,000/- and a surety bond in the like amount, before the Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six months to the effect that in the event of filing of Special Leave Petition against this 10 judgment or on grant of leave, the said appellant, on receipt of notice thereof, shall appear before the Supreme Court.
[VIJAY KUMAR VYAS], J.
CHAUHAN-12