Himachal Pradesh High Court
Mohinder Singh And Another vs State Of Himachal Pradesh on 2 March, 2021
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 81 of 2019
Decided on: March 2, 2021
.
_______________________________________________________________
Mohinder Singh and another ...........Appellants
Versus
State of Himachal Pradesh ....Respondent
_______________________________________________________________
Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1yes.
For the appellants : Mr. Vivek Singh Attri and Mr.
Abhinav Purohit, Advocates.
For the Respondent :
Mr. Sudhir Bhatnagar and Mr.
r Arvind Sharma, Additional
Advocates General with Mr.
Kunal Thakur, Deputy Advocate
General.
_______________________________________________________________
Sandeep Sharma, Judge (oral):
Instant appeal filed under S.374 CrPC, lays challenge to judgment of conviction and order of sentence dated 2.3.2019, passed by learned Special Judge, Una, District Una, Himachal Pradesh in Cr. Case No. 2 of 2016, whereby, learned Court below, while holding the appellants-accused (hereinafter, 'accused') guilty of having committed offences punishable under Ss. 447 and 34 IPC and S.3(1)(g) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter, 'Act'), convicted and sentenced them to undergo simple imprisonment for one month and to pay a fine of Rs. 500 /- each under Section 447 of IPC and in default of payment of 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 04/03/2021 19:52:19 :::HCHP 2fine to further undergo simple imprisonment for seven days.
Besides this, accused have been convicted and sentenced to .
under go simple imprisonment for six months and to pay a fine of Rs. 5,000/- each for commission of offence punishable under S.3(1)(g) of the Act and in default of payment of fine to further undergo simple imprisonment for one month.
2. Facts, borne out from the record reveal that FIR No. 138 dated 19.8.2015 (Ext. PW-8/A) came to be lodged against the accused under Ss. 447 and 34 IPC and S. 3(1)(v) of the Act at Police Station Amb, District Una, Himachal Pradesh on the allegations that the land belonging to complainant Vinod Kumar, who is a member of the Scheduled Caste, measuring 0- 01-53 Hectares comprising of Khasra No. 1509/775 (Khewat No. 192/181), situate in Village Harwal, Tehsil Amb, District Una, Himachal Pradesh has been wrongfully grabbed by the accused.
Complainant named herein above alleged that he belongs to a Scheduled Caste and the accused persons, being upper class, have unauthorizedly occupied his land, as such appropriate action in accordance with law be taken against them. After completion of investigation, police presented Challan in the competent Court of law. Learned Court below, on being satisfied that a prima facie case exists against the accused, framed charges against them for the commission of offences punishable under Ss. 447 and 34 IPC and S. 3(1)(g) of the Act and ::: Downloaded on - 04/03/2021 19:52:19 :::HCHP 3 subsequently, on the basis of the evidence collected on record by the prosecution, held the accused guilty of having committed .
offences punishable under the aforesaid provisions of law vide impugned judgment of conviction and sentenced them, as per description given above.
3. Being aggrieved and dissatisfied with the impugned judgment of conviction and order of sentence passed by learned Court below, accused have approached this Court in the instant proceedings seeking their acquittal after setting aside the judgment of conviction recorded by learned Court below.
4. Having heard learned counsel for the parties and perused the evidence collected on record by the prosecution, this court finds that since the year 2004 accused were in illegal possession of the land owned by the complainant, Vinod Kumar but the FIR which ultimately culminated into Challan under S.173 CrPC, was filed approximately after 11 years of the alleged wrongful dispossession of the complainant from the land. Though the material available on record reveals that prior to filing of FIR in question, complainant had been raising issue with regard to his forcible dispossession from the land in question before other statutory authorities prescribed for redressal of grievances of persons belonging to Scheduled Caste category but till the date of filing of FIR, Ext. PW-8/A, no legal proceedings ever came to be instituted at the behest of the ::: Downloaded on - 04/03/2021 19:52:19 :::HCHP 4 complainant seeking possession of his property/land, unauthorizedly occupied by the accused. Similarly, this court .
finds from the evidence collected on record by the prosecution that though by leading cogent and convincing evidence on record, prosecution has successfully proved on record that the land in question belongs to the complainant, Vinod Kumar and same is in unauthorized possession of the accused, but there is no evidence worth credence that the complainant, Vinod Kumar was dispossessed by accused from the land in question.
Complainant, Vinod Kumar while deposing as PW-1, stated that the accused persons are running a school and around the school, there is boundary wall, which has been constructed on his land. This witness also deposed that the spot was inspected firstly by Kanungo and thereafter by the Tehsildar and these authorities in their reports submitted to the higher authorities have categorically reported the factum with regard to unauthorized possession of the accused over the suit land. This witness (PW-1) in cross-examination, while admitting that he inherited disputed land from his father, also admitted that other co-sharers had assailed aforesaid order before the Collector, but he did not receive any such summons in this regard. This witness also admitted that the partition proceedings inter se cosharers were also initiated and thereafter, cosharers were put in possession of their respective shares. Most importantly, this ::: Downloaded on - 04/03/2021 19:52:19 :::HCHP 5 witness categorically deposed in his cross-examination that since he was not present on the spot at the time of delivery of .
possession, he was not delivered the possession. Though, other prosecution witnesses namely PW-2 Gurmeet Singh, PW-3 Jeet Singh, PW-4 Ram Nath and PW-5 Anil Kumar, while supporting the version put forth by PW-1, complainant Vinod Kumar, categorically deposed that the accused have encroached upon the land of the complainant and demarcation was conducted in their presence but they nowhere stated that the complainant Vinod Kumar was put in possession qua share of land assigned to him in the partition proceedings. Otherwise also, if statements having been made by aforesaid witnesses are perused in conjunction, they suggest that the accused obstructed passage to the land of the complainant by erecting boundary wall. PW-7 Rameshwar Dass, Tehsildar has deposed that he directed the Kanungo to demarcate disputed land. This witness also deposed that PW-6 Kuldeep, Kanungo, after having demarcated the disputed land furnished his report, which was accepted by him vide order dated 6.9.2015 (Ext. PW7/B).
Aforesaid witness also produced on record reports Exts. PW-
7/F, PW-7/G, PW-7/H, perusal whereof reveals that on the spot, it was fond that Khasra No. 1509/775 was in possession of the accused persons, whereupon they had planted trees and flowers. Similarly, report Ext. PW-7/G, reveals that Khasra No. ::: Downloaded on - 04/03/2021 19:52:19 :::HCHP 6 1509/775 was encroached by the accused. Document Ext. PW 7/H i.e. reply given to complainant by Tehsildar under the Right .
to Information Act shows that a boundary wall has been fixed around Khasra No. 1509/775, as a consequence of which path to the land comprised in Khasra No. 1509/775 has been blocked. PW-8 Jatinder, investigation officer has also stated that during investigation he found that Khasra No. 1509/775 was occupied by the accused. If statements made by the aforesaid prosecution witnesses are read juxtaposing the documentary evidence led on record by respective parties, this court finds that the land comprising of Khasra Nos. 1508/775, 1509/775 and 1512/776 was earlier part of Khasra No. 775, which was purchased and possessed by a number of co-sharers. During partition proceedings, initiated at the behest of some of co-
owners, land comprising of Khasra No. 1509/775 fell in the share of complainant, Vinod Kumar. Perusal of Ext. DD reveals that the land comprising in Khasra No. 1510/775 owned by accused is adjoining to land comprising of Khasra No. 1509/775.
5. Though the reports Exts. PW-7/F and PW-7/G reveal that the accused have encroached upon land of the complainant in Khasra No. 1509/775, but once it a stands admitted by PW-1 complainant himself that he, after conclusion of partition proceedings, was never put in possession of land in question, ::: Downloaded on - 04/03/2021 19:52:19 :::HCHP 7 there appears to be considerable force in the submission of Mr. V.S. Attri, learned counsel for the appellant, that since there .
was no evidence worth credence with regard to dispossession of complainant from the land, learned court below has erred while concluding guilt of the accused under S.3(i)(g) of the Act.
Besides the statement of PW-1 that he was not put into possession of land in question and he was not present at the time of delivery of possession, action taken report Ext. PW7/G submitted by Tehsildar Amb to Sub Divisional Officer(Civil), Amb, reveals that the complainant was contacted through mobile phone to remain present on the spot on 22.11.2014 but he showed his inability to remain present since he had undergone surgery. Perusal of aforesaid documents clearly reveals that the Tehsildar Amb pursuant to directions issued by Sub Divisional Officer(Civil), Amb, District Una, Himachal Pradesh visited the spot to ascertain the factum with regard to dispossession of the complainant, Vinod Kumar from the land in question by the accused. Aforesaid reports further reveal that the partition proceedings No. 178/P-2002 inter se cosharers were concluded on 1.10.2003, whereafter, Mutation No. 326, dated 23.11.2014 was entered /attested in favour of the respective cosharers qua the land in their possession. Father of the complainant Nikku Ram was allotted Khasra Nos. 775/3 (0- 1-53) 776/1 (0-10-76) 777/1 (0-07-39) 777/3 (0-03-15) and ::: Downloaded on - 04/03/2021 19:52:19 :::HCHP 8 776/3 (0-04-09) Kita 5, measuring 0-26-92 Hectares, whereas accused, after conclusion of aforesaid partition proceedings, .
became owner by way of mutation No. 326, qua Khasra Nos.
1510/775 (0-01-54), 1513/776 (0-16-00) and 1519/777 (0-09-
25), situate in Village Harwal, Nangal Jaryala. Tehsil Amb. In his report (Ext. PW-7/G), Tehsildar, Amb has submitted that he visited the spot in the presence of Col. Mahender Singh Parmar and Rekha Rani, Pradhan, Gram Panchayat Nangal Jaryala and after perusal of revenue record, he found that warrant of possession was executed on 26.11.2004 qua missal of partition No. 178/P-2002, attested on 1.10.2003. Though, as per the Misal of partition No. 178/P-2002, attested on 1.10.2003, possession was delivered on the spot to the parties but since it stands admitted by complainant Vinod Kumar that he was not present at the time of delivery of possession and no possession was delivered to him, it cannot be concluded that the complainant was dispossessed from the land in question by the accused, who admittedly being cosharer were subsequently found to be in illegal possession of some portions of the land of the complainant, Vinod Kumar.
6. At the cost of repetition, it may be observed that though there is evidence to the effect that the accused are in unauthorized possession of land belonging to the complainant, but there is no evidence much less cogent evidence available on ::: Downloaded on - 04/03/2021 19:52:19 :::HCHP 9 record, suggestive of the fact that accused forcibly dispossessed the complainant, Vinod Kumar from the land in question rather, .
there was dispute inter se so many cosharers qua specific portions of land jointly owned by them and in the partition proceedings initiated at the behest of a few of co-owners, land comprising of Khasra No. 1509/775 fell to the share of the complainant, Vinod Kumar. There is no evidence led on record to prove that after passing of order dated 1.10.2003 by the revenue authority in the partition proceedings, steps, if any, ever came to be taken by the complainant, Vinod Kumar for taking possession of land from the accused. Though, the factum with regard to illegal occupation of land belonging to the complainant, Vinod Kumar by accused was in the knowledge of the complainant since the year 2004, but despite this, he did not take any effective steps for taking back the possession of his land. Even the FIR which is subject matter of the present case, came to be lodged in the year 2015, i.e. after 11 years of partition proceedings, in which complainant Vinod Kumar was assigned his share, i.e. Khasra No. 1509/775 in the joint land.
There is no plausible explanation for the delay in filing the FIR, save and except that the complainant had been pursuing his case before other statutory authorities.
7. Leaving everything aside, bare perusal of S. 3(i)(g) of the Act suggests that to attract aforesaid provision of law, it is ::: Downloaded on - 04/03/2021 19:52:19 :::HCHP 10 incumbent to prove that the member of Scheduled Caste or Scheduled Tribe was wrongfully dispossessed from the land or .
premises. It would be apt to reproduce S. 3(1)(g) of the Act as under:
"3(1)(g) ....wrongfully dispossesses a member of a Scheduled Caste or a Scheduled Tribe from his land or premises or interferes with the enjoyment of his rights, including forest rights, over any land or premises or water or irrigation facilities or destroys the crops or takes away the produce therefrom."
8. Though, in the case at hand, there is overwhelming evidence available on record that the accused have not only blocked /obstructed the passage going to the land of the complainant Vinod Kumar but they have also encroached upon the land belonging to the complainant by erecting boundary wall but, definitely there is no evidence that aforesaid land came to be occupied by the accused after dispossessing the complainant, Vinod Kumar from the land in question. Evidence, if read in its entirety, reveals that the accused alongwith other cosharers including complainant Vinod Kumar, were in possession of certain portions of the land, which admittedly prior to partition was joint inter se parties. Since there was dispute with regard to specific portions as well as extent of land, inter se some of co-sharers, some of the cosharers initiated partition proceedings and in those partition proceedings, Khasra No. 1509/775 measuring 0- ::: Downloaded on - 04/03/2021 19:52:19 :::HCHP 11 01-53 Hectares fell to the share of the complainant Vinod Kumar. Though, in the aforesaid proceedings, complainant .
Vinod Kumar was also held entitled for possession of land comprised in Khasra No. 1509/775, but he himself has admitted in his statement that possession qua aforesaid land was never delivered to him. Once possession qua aforesaid land comprising of Khasra No. 1509/775 measuring 0-01-53 Hectares was not delivered to the complainant, Vinod Kumar, after culmination of partition proceedings, there is no question of his dispossession, if any, from the land in question, by the accused, who were admittedly owners of adjoining land comprising of Khasra No. 1510/775.
9. Though the prosecution with a view to prove possession of the complainant Vinod Kumar qua land in question has successfully proved on record that pursuant to order dated 1.10.2003 passed by revenue authorities in the partition proceedings, warrant of possession was issued in favour of complainant Vinod Kumar, but that itself is not sufficient to prove possession of the complainant Vinod Kumar over the land in question, especially, when there is no evidence led on record suggestive of the fact that pursuant to warrant of possession, complainant Vinod Kumar was ever put in actual physical possession of the land.
::: Downloaded on - 04/03/2021 19:52:19 :::HCHP 1210. Leaving everything aside, PW-1 complainant Vinod Kumar has categorically admitted that since he was not present .
at the time of delivery of possession, he was not put in possession of land in question. Once, complainant Vinod Kumar (PW-1) himself has admitted that he was not put in possession of land in question, there was no occasion for learned Court below to hold accused guilty of having committed offence punishable under S. 3(1) (g) of the Act. Once, complainant was not put in physical possession of the land in question, there is/was no question of his dispossession from the same by the accused. Reliance is placed upon Devi Singh and others vs. State of M.P. decided on 1.7.2002, (2003) CrLJ 147, wherein, Madhya Pradesh High Court has held as under:
"...there has to be actual dispossession from land or premises, belonging to the members of the category of Scheduled Castes or Scheduled Tribes or interference with the enjoyment. Unless this part of the section is met out, there can not be any prosecution for commission of the said offence much less conviction. Thus, the pre- requisite condition is either dispossession or interference with enjoyment of his rights over any land, premises or water. If the prosecution fails to fulfil this, then the necessary consequence would be acquittal of the charged persons."
11. To attract aforesaid provisions, it was incumbent upon the prosecution to prove that pursuant to issuance of warrant of ::: Downloaded on - 04/03/2021 19:52:19 :::HCHP 13 possession in the partition proceedings, complainant, Vinod Kumar was put in physical possession of land in question and .
thereafter, he was wrongfully dispossessed from the same by the accused, however, such evidence in the case at hand is totally missing.
12. Similarly, there appears to be no evidence available on record, which can be said to be sufficient to rope in the accused under S.447 IPC, which provides punishment for commission of offence under S.441 IPC i.e. criminal trespass. Bare reading of S. 441 reveals that, "whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, shall be liable to be punished under S.447 IPC."
13. In the case at hand, as has been discussed in detail herein above, there is no evidence that after issuance of warrant of possession by revenue authorities, complainant, Vinod Kumar was put in physical possession of the land in question, as such, it could not have been held by learned Court below that the accused dispossessed complainant Vinod Kumar from his land comprising of Khasra No. 1509/775.
::: Downloaded on - 04/03/2021 19:52:19 :::HCHP 1414. To prove offence if any, under S.441 IPC, it is also necessary to prove 'intent' of the accused to dispossess the .
complainant from his lawful premises or the land. In the case at hand, no evidence worth credence has been led on record by the prosecution that the accused with an intent to grab the land of the complainant unauthorizedly dispossessed him from his premises/land, as such, learned Court below has fallen in grave error while holding accused guilty of having committed offence punishable under S.447 IPC.
15. Reliance is placed upon State of Rajasthan Etc. Gokula vs. Ram Bharosi & Ors, (1998) 6 SCC 564, wherein, High Court has held as under:
"In the case of Rajinder v. State of Haryana (1995 5 SCC187) where one of us (Mukherjee,J.) was a party this Court was considering the issue of right of private defence available to accused under the provisions of the Indian Penal Code. The court said that the fascicle of Sections 96 to 106 IPC codify the entire law relating to right of private defence of person and property including the extent of and the limitation to exercise of such right. In that case after examining the record that Court was of the view that the only legitimate and reasonable inference that can the only legitimate and reasonable inference that can be drawn is that the accused party had gone to the disputed land with a determination to cultivate it and, for that purpose, fully prepared to thwart any attempt made by complainant party to disturb such cultivation and meet any eventuality. After referring to the provisions of various Sections aforementioned, this Court observed as under :-
"It is evident from the above provision that unauthorised entry into or upon property in the possession of another or ::: Downloaded on - 04/03/2021 19:52:19 :::HCHP 15 unlawfully remaining there after lawful entry can answer the definition of criminal trespass it, and only if, such entry can answer the definition of criminal trespass if, and only it, such entry or unlawful remaining is with the intent to commit an .
offence or to intimidate, insult or annoy the person in possession of the property. In other words, unless any of the intentions referred in Section 441 is proved no offence of criminal trespass can be said to have been committed. Needless to say, such an intention has to be gathered from the facts and circumstances of a given case. Judged in the light of the above principles it cannot be said that the complainant party committed the offence of "criminal trespass" for they had unauthorisedly entered into the disputed land, which was in possession of the accused party, only to persuade the latter to party, only to persuade the latter to withdraw thereupon and not with any intention to commit any offence or to insult, intimidate or annoy them. Indeed there is not an iota of material on record to infer any such intention. That necessarily means that the accused party had no right of private defence to property entitling them to launch the murderous attack. On the contrary, such murderous attack not only gave contrary, such murderous attack not only gave the complainant party the right to strike back in self-defence but disentitled the accused to even claim the right to private defence of person. We hasten to add, that even if we had found that the complainant party had criminally trespassed into the land entitling the accused party to exercise their right, of private defence we would not have been justified in disturbing the convictions under Section 302 read with Section 149 IPC, for Section 104 IPC expressly provides that right of private defence against "criminal trespass" does not extend to the voluntary causing of death and Exception 2 to Section 300 IPC has no manner of application here as the attack by the accused party was premeditated and with an intention of doing more harm than was necessary for the purpose of private defence, which is evident from the injuries sustained by the three deceased, both regarding severity and number as compared to those received by the four accused persons. However, in that case we might have persuaded ourselves to set aside the convictions for the minor offences only, but then that would have been, needless to say, a poor solace to the appellants.""
16. In view of the detailed discussion made and the law taken note herein above, impugned judgment/order of conviction passed by learned Court below is not legally sustainable and deserves to be set aside being based on mis-
appreciation of the evidence and provisions of the relevant law.
::: Downloaded on - 04/03/2021 19:52:19 :::HCHP 1617. Consequently, present appeal is allowed. impugned judgment of conviction is set aside. Accused is acquitted of the .
offences charged against him. Bail bonds, if any, furnished by the accused are discharged. Record of the case be sent back forthwith. All pending applications also stand disposed of.
(Sandeep Sharma)
Judge
March 2, 2021
(vikrant)
r to
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