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2005 DIGILAW 1004 (BOM)

Babarao Namdeo Nagre v. State of Maharashtra

2005-08-09

A.H.JOSHI

body2005
Judgment A. H. JOSHI, J. ( 1 ) THE appellants were tried for offence punishable under section 341 r/w section 34 of Indian Penal Code and section 3 (1) (iv) of Scheduled Castes and scheduled Tribes (Prevention of Atrocities) act, 1989, in Special Case No. 16/92 by session Judge, Buldana. The accused were acquitted for offence punishable under section 341 r/w section 34 of I. P. C. , and were convicted and sentenced to suffer R. I. for six months for offence punishable under section 3 (1) (iv) of S. C. S. T. (P. A.) Act, 1989. ( 2 ) THE judgment of conviction is challenged in this Court mainly on two grounds: - (i) that the charge itself spells out actual imputation which do not even describe the offence punishable under section 3 (1) (iv) of s. C. S. T. (P. A.) Act; (ii) the learned Sessions Judge has recorded a finding that though the complainant was put in possession, "the accused have wrongfully retained possession of property and cultivated the same. " ( 3 ) THE learned Advocate for the appellants in support of submissions pointed out the contents of charge. It can be seen from the charge, which reads as follows :-"that you, on the said date, time and place, not being member of a Scheduled Caste or scheduled Tribe, wrongfully occupied the land owned by complainant Maroti Sakharam tanpure, which is allotted to him and notified by competent authority to be allotted to said Maroti Sakharam Tanpure, a member of Scheduled Tribe by caste and thereby committed an offence punishable under section 3 (1) (iv) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, and within the cognizance of this Court. "which refers to, "occupying the land owned by the complainant", but does not refer to dispossession as contemplated by section 3 (1) (iv) of the Act. ( 4 ) THE findings recorded by the Sessions judge further reveals that the entire property was not put in possession of the complaint. The relevant para of the judgment is quoted below for ready reference. "10. . . . . . . . . . From the documentary evidence produced at Exh. ( 4 ) THE findings recorded by the Sessions judge further reveals that the entire property was not put in possession of the complaint. The relevant para of the judgment is quoted below for ready reference. "10. . . . . . . . . . From the documentary evidence produced at Exh. 32 to 41 it has been established that after declaring the sale in favour of accused Babarao void by the competent authority, initiating a proceeding under section 36-A of the Maharashtra Land Revenue Code, the accused Babarao was evicted and possession of some portion of land was allotted to complainant Maroti. Inspite of that, the accused persons admittedly have retained possession and wrongfully cultivating the same. " ( 5 ) IT will be seen from the underlined portion that it was not duly proved before the Sessions Judge that "entire property was put in possession of the complainant". Once it is held by the Sessions Court that the entire property subject-matter of offence - was not put in possession of the complainant, it would be totally inappropriate to hold the accused guilty for dispossession on the basis of approximate consideration as to possession and dispossession. ( 6 ) THE above point noted by this Court from the record and evidence goes to the root of the case. It becomes difficult to uphold the view taken by the learned Sessions judge. The result that follows is that appeal is liable to be allowed and judgment and order of conviction and sentence is hereby set aside. Appeal allowed.