JUDGMENT 1. - Appellants, namely, Khinwaram, Banwari, Dev Karan, Joogram, Guljhari, Shishram, Rohitash, Mohar Singh, Jeeram, Sundaram, Kehruram, Gurudayal, Rameshwar, Ramswrup, Harlal, & Maturam, have been convicted & sentenced as under:- Each of the appellants U/s 147, IPC - 3 months RI. -do- except Ramswarup, Guljari & Banwari U/s 436/149 IPC - 8 month's RI. with a fine of Rs. 100/- (in default, 1 month RI.) Three appellants, named above. U/s 436, IPC - -do- A case against the appellants had been registered on a typed complainant for the incident alleged to have taken place on 2-9-1981, involving 17 persons and the complainant was sent for investigation u/s 156 (3), Cr.P.C. to police station Singhana by the Munsif & Judicial Magistrate, Khetri. 2. In the complainant, it had been alleged that in village Jaisinghsar, Khasra No. 67 was pasture land where plots were allotted to ten Harisans for residential purpose by the Tehsildar, Khetri in December, 1974 and the possession there of was also handed over to the allottees. However, the villagers of Jaisinghsar & Sarpanch Juglal made a complaint against the complainant (Hanumanaram) to the Tehsildar Khetri that the complainant & others were making unauthorised possession over the land bearing khasra No. 67 and they sought their removal from the land. It had been alleged that in the night of 2-8-81 at about 11 to 11 Oclock, 17 persons duly armed with lathis, axes, etc. and started damaging the house of Ved Prakash and then carried away tin-sheets after setting fire the house of Dharampal situated nearby the house of Ved Prakash. It has further alleged that the complainant & one Mungaram went to the police station on the same night on a tractor of one Krishan but none at the police station was prepared to record on the report. 3. First contention on behalf of the appellants before this Court was that the allegation against the appellants are vague in general as no specific overt act has been assigned to any of them and that apart, there is nothing on record to suggest as to which of he accused damaged the house and who had lit the fire and carried away tin-sheds inasmuch as the evidence being omnibus does not establish the complicity of the appellants in the commission of the allege offences. On the night of the incident that too in the mid at about 12 O' clock, admittedly there was darkness being darknight and that bring so, there was no source of light nor it was possible for the prosecution witnesses to have identified the accused persons therefore, it can be inferred that the appellants are being and have been falsely involved in the case mere on the assumption and suspicion created on account of rivalry in between the parties, Shri Sunda added. Shri Sunda urged that the matter of unlawful possession by the complainant and other persons on the pasture land was being protested by the accused appellants because they had unauthorisedly constructed the houses without any permission and, therefore, being prejudiced by their protest, they had rivalry between the parties which is the outcome of the registration of this false criminal case, whereas no offence can be said to have been committed by the appellant even on the evidence on record which has wrongly been appreciated and scanned by the trial Court and in this view of the matter, the prosecution being highly suspicion and doubtful, even if taken at its face value, no offence against the appellants is proved beyond reasonable doubt and the impugned conviction on that basis is not sustainable. 4. Learned Public Prosecutor, on the other hand, supported the judgment of the trial Court and contended that on the basis of the evidence on record, the lower court was justified in convicting the appellants. 5. I have considered the points urged by the learned counsel for the appellants and the Public Prosecutor, and have carefully perused the record. 6. Admittedly, the house regarding which, the offence is alleged to have been committed were constructed upon the pasture Land which was admittedly in supervision of the Gram Panchayat as per the provisions of the Land Revenue Act. The complainant against the complainant and his other associates who trespassed over it, was made by the Sarpanch. That being so, it was essential for the prosecution to have produced relevant documents for the conversion of the pasture land, if any, into the abadi land because, as per the provisions of the Land Revenue Act, a pasture land cannot be used for any other purposes without permission of the Collector. That being so, it was essential for the prosecution to have produced relevant documents for the conversion of the pasture land, if any, into the abadi land because, as per the provisions of the Land Revenue Act, a pasture land cannot be used for any other purposes without permission of the Collector. Therefore, the prosecution could have produced the order of the Collector for the conversion of the pasture land into abadi land but no such document has been produced by the prosecution. As said earlier, the pasture land could not be used for any other purpose but in the instant case, admittedly the complainant party tried to use pasture land for residential purpose and they constructed their houses thereon which was for beneficial purpose of the villagers i.e for grasing their cattles, etc. In such circumstances, the villagers were legally entitled to make protest to any unauthorised act over the pasture land. In doing so, they cannot be punished. 7. Dharampal & Ved Prakash were living at Khasra No. 67 after allotment to them by the Tehsildar but no allotment letter/order has been produced in evidence. The contention of the learned counsel for the appellants has some force that no specific allegation has been averred against any specifies person from the accused side particularising their act of commission of offence about demolition or taking way tin-shed or about burning houses. Moreover, the prosecution witnesses failed to explain as to how could they identify the accused persons in the dark night. 8. As per the prosecution case, upon hullaballo of complainant. Hanumanaram, Ram Singh, Dayaram, Munga, Ved Prakash & Dilip had gone to the spot and tried to persuade the accused persons not to do wrongful act. According to the complainant (Ex. 1), the cause of the incident was that the plots were allotted to the complainant party by the Tehsildar and the accused persons who were of the same village were not happy with the said allotment and they were not interested that the complainant party should construct the houses on the pasture land. But, the prosecution utterly failed to explain and establish these facts and circumstances of the case. When the allotment was disputed, it was necessary for the prosecution to have proved allotment by production of the relevant documents. But, the prosecution utterly failed to explain and establish these facts and circumstances of the case. When the allotment was disputed, it was necessary for the prosecution to have proved allotment by production of the relevant documents. That apart, when admittedly Sarpanch, Juglal made complainants against the complainant party to the Tehsildar khetari on 17.8.81 for such unauthorised possession of the complainant party over the pasture land a portion of which earlier was admittedly allotted for the play ground of the primary school of Jaisinghsar. From the perusal of the record, it also transpires that on 13.8.1981 revenue inspector of the village went to the spot for its inspection and he also found unauthorised possession over the pasture land bearing khasra No. 67. At that time, Satya Narain Patwari who was accompanied by the Revenue Inspector, restrained the complainant party from raising construction over the land bear no khasra No. 67. In these circumstances, the possession of the complainant party can legally be said to be unlawful because also they made construction even after the prohibitory directions of the patwari and the revenue inspector who, in his statement admitted during cross-examination that there was only one wall and there was no residential house on the spot and that the complainant party did not produce any Patta at the spot. In the light of the above evidence of the Patwari & the Circle Inspector, the Pattas produced that too did not specify the size of the plots, cannot be relied upon as a piece of evidence to establish their rightful possession over the pasture land. 9. Admittedly, the report of the incident has not been made promptly. The explanation of this delay given out by the prosecution has been relied upon by the trial Court. The explanation was that the Thanedar refused to record the report. This explanation was exaggerated by the complainant in his court statement deposing that he submitted the report to the Thanedar but when he was coming out the police station he threw the report decling to received the report. The complainant further deposed that he had gone to the police station on the tractor of Krishna driver. But, Krishna Driver has not produced in the witness box and he was the independent one to state true thing about the explanation. The complainant further deposed that he had gone to the police station on the tractor of Krishna driver. But, Krishna Driver has not produced in the witness box and he was the independent one to state true thing about the explanation. Moreover, the police personnel produced in the witness box denied the arrival of the complainant at the police station to lodge the report. The evidence of the police personnel/investigating officer came in the witness box cannot be disbelieved on the subject matter merely because the complainant made allegation against him for not lodging and for sthrowing his report but that too is not supported by other independent source which in the present case, as is the version of the complainant, himself, was the evidence of Krishna Driver on whose tractor the complainant is said to have gone to the police station, but Krishna Driver has not been produced by the prosecution. The investigating officer was the best person to have given explanation but it is lacking herein. The complain is a typed copy. The investigating officer has neither tried to find out as to who is the scribe of the report nor he has attempted to find out at whose behest the complainant has lodged the complainant. I am unable to place reliance on a document the scribe and author of which has not been made known to the Court. Rather, all these circumstances raise inference that the complainant had been drafted by the person having legal knowledge etc. by utilisine the period of delay in lodging the report, with due deliberations by creating evidence after burning some sheds or other articles so as to indulge the opponents to settle their scores. The prosecution withheld the evidence of Hanuman & Krishna Driver by not producing them in the witness box and it makes the explanation false. The prosecution has failed to prove this delay in lodging the report. When a delay has not been explained by the prosecution it leaves great suspicion in the correctness of the prosecution story. It gives inference that either the story is concocted or the witnesses are unreliable. 10. The identification of the accused is not worth credence in the present set of the circumstances when admittedly the incident had taken place in the dead night and there was no source of natural light. It gives inference that either the story is concocted or the witnesses are unreliable. 10. The identification of the accused is not worth credence in the present set of the circumstances when admittedly the incident had taken place in the dead night and there was no source of natural light. But, in the trial Court, PW2 improved his statement by saying that the accused came in a jeep and he could identify them in the head-light flashing by the jeep. It is not worth reliable because, no offender at the time of culpability would present himself to come in light but would try to obscure himself by hiding hither and thither and in that situation also, it was quite unnatural that the offenders said to have come in the jeep would have keep its head light on and in its flash would try to commit any offence. Thus, the identity of the accused is not proved by the prosecution beyond reasonable doubt. Besides that, Sultan Singh (Pw 9) SHO who investigated the matter, did not find marks of the tyre of the jeep. In the site plan, it has not come out that there was any jeep or vehicle having come at the spot. In the complainant, itself, it has not been stated that there was jeep with its head light on, having come at the spot. Thus, prosecution story becomes unreliable and since the complainant tried to improve his story, as wrung out from the above circumstances, no reliance can be placed on the prosecution case. Reliance can be placed upon on the decisions in Yudhishttar v. State of M.P. (AIR 1971 SC 684), and 1974 RLW 479. And, the identity of the accused is held to be doubtful in the dark night, the benefit of which can be given to the accused as held in 1979 Cr. L.R. (Raj. 615), 1984 RLR 329 , & 1988 (2) RLR 144 and p. 707. 11. The site plan was prepared in the presence of Hanumanaram, Umrao s/o Ganesh and Umrao s/o Shobhagram. The prosecution did not produce the witnesses of site plan. Only witness examined by the prosecution is Hanumanaram but he refuted to have signed on the site plan (Ex. p.3 & 3A). Thus, the site plan is not proved by the prosecution raising an adverse inference to the credibility of the prosecution story. 12. The prosecution did not produce the witnesses of site plan. Only witness examined by the prosecution is Hanumanaram but he refuted to have signed on the site plan (Ex. p.3 & 3A). Thus, the site plan is not proved by the prosecution raising an adverse inference to the credibility of the prosecution story. 12. As is the prosecution case, at the time of incident, upon hearing hullabaloo alarmed by the complainant, some persons namely Dayaram, Shishram, Indraj, Sardaram, Amilal, Shrichand & Bhagirath had come at the spot and tried to save the houses. But, all these persons have not been produced by the prosecution. The independent eye witnesses, named above, albeit were available but were withheld by the prosecution to find out the true story of the incident, the benefit of which goes to the accused as held in the decisions reported in 1989 Cr. L.R. (Raj.) 174, 1979 Cr. L.J.P. 236, 1986 RLR p. 573 and 1985 RLR 660. The eye witness alleged to have been produced by the prosecution are closed relations of the complainant and evidently in the prosecution evidence, it self, independent witnesses had come to the spot but their non-examination implicates a false case. 13. The prosecution case is that the accused persons damaged the house of Ved Prakash and burnt house of Dharampal and the complainant party suffered loss to the tune of Rs. 5,000/-, but no list of burnt articles has been filed by the complainant party and no burnt articles were produced before the investigating officer. In Ex. P. 3 I find no description of the property damaged alleged to have been caused by the appellants. Pw 2 has confronted with the complainant about the omission to mention the description of alleged burnt articles, in Ex. p. 3. This also creates doubt on the prosecution story, as observed in 1974 RLW 479. In the case cited supra, it has been held that where no specific allegation against any of the accused is made, the eye witnesses in their police station did not make any specific allegation against them, then no reliance can be made on the prosecution story and the benefit of which goes to the accused. The complainant & other witnesses changed their first version given out in the police statements, by exaggerating while at the trial making specific allegations against Khinvaram, Ramswarup, Guljari & Banwari. The complainant & other witnesses changed their first version given out in the police statements, by exaggerating while at the trial making specific allegations against Khinvaram, Ramswarup, Guljari & Banwari. Moreover, looking to the age of Khinvaram which is 73 years, it could not have been presumed that he could have carried away a tin-sheet of size about 4' X 10'. The trial Court found the appellants guilty merely on the ground that the houses of Harijans were burnt which act of culpability, itself, has not been proved by the prosecution beyond reasonable doubt against the appellants and, therefore, this cannot be a ground for conviction against the appellants. The Court cannot move in emotions. 14. A look at the record together with the judgment under appeal shows that the trial court did not make deep study to find out truth of the incident. The trial Court, itself, in its judgment found and referred to number of contradictions in the prosecution evidence but the same were ignored only on the ground holding them immaterial. Its legal impact has not been taken into consideration while it goads towards the presumption of innocence of the accused appellants. 15. As per the evidence of the prosecution witnesses Dharampal & Ved Prakash, their cattles were inside the house which were also burnt but surprisingly enough there is no evidence on record to suggest that any of the cattles sustained any burnt injuries or died at the post in the huts because there not a single carcass either burnt or injured was found. In their police statements, the prosecution witnesses stated that their houses were damaged but at the same time, they improved their version by saying at the trial that their houses were burnt. However, this part of the story of burning the houses is falsified by the evidence of the investigating officer (PW 9) because no such statement is found in the site plan (Ex. P. 3) and according to him (PW 9), he found only some ashes at one place and he did not see any other burnt huts or articles. Thus, the inconsistencies and in-congruencies pointed out above all are material which cast speck on the prosecution case. The prosecution has completely failed to establish the guilt against the appellants beyond reasonable doubt. 16. Thus, the inconsistencies and in-congruencies pointed out above all are material which cast speck on the prosecution case. The prosecution has completely failed to establish the guilt against the appellants beyond reasonable doubt. 16. In the light of what has been said above, the conclusion irresistible is that the prosecution on the basis of which the appellants have been convicted was replete with vital contradictions and material infirmities pointer to the innocence of the appellants, and therefore, could not be safely acted upon to convict them for the commission of the alleged offences. Consequently, I allow this appeal; set aside the impugned conviction & sentence passed by the trial Court against the appellants who are acquitted of the offences charged. They are on bail and need not surrender. Their bonds stand cancelled. *******