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2011 DIGILAW 389 (CHH)

AHIWARAN v. STATE OF M. P.

2011-12-13

SUNIL KUMAR SINHA

body2011
JUDGMENT 1. This appeal is directed against the judgment dated 30th of November, 1994, passed in Special Criminal Case No. 320/1991 by the Special Judge under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Raipur. By the impugned judgment, the appellants have been convicted under Section 3 (l) (v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the 'Special Act') and sentenced to undergo R.I. for 6 months and to pay fine of Rs.500/- with default sentence of S.I. for 3 months. 2. The facts briefly stated are as under : Surjabai (PW-1) is mother of Dongar Singh Dhruv (PW-3). They belong to Gond tribe. Their ancestral property (agricultural land) total 8 khasra nos., area 1.857 hectares is situated in village Sakra, P.C.No.460, Tehsil Mahasamund, the then district Raipur. On 11.4.1991, Dongar Singh Dhruv made a written report (Ex.P/5) to Special Harijan Thana, Raipur. He made allegations that accused Vishnu Manohar Dubey, the ex-Malgujar, with the help of accused Shamshuddin, has sold different portions of his land to the appellants and some other villagers and the possession has also been handed over to them. Some times in the year 1990, he found that the possession was taken by the appellants and they had raised certain construction over the land. When he met accused Vishn Manohar Dubey and co-accused Shamshuddin, Vishnu Manohar Dubey told him that the disputed land was a portion of government land and he had allotted the above portions of the land to the appellants and he is responsible for all this. Accused Vishnu Manohar Dubey was ex village Sarpanch, but at the time of giving possession to the appellants, he was not holding any post in the Panchayat, therefore, suitable action should be taken against the accused persons. The matter was taken up for investigation; the lands belonging to the complainant were demarcated; map was prepared; khasra was taken and it was found in the investigation that the appellants were holding the possession of different portions of land, belonging to the complainant, therefore, an offence under Section 3 (1) (v) of the Special Act was registered vide First Information Report (Ex.P/6) and charge sheet was filed. The accused persons, including the appellants were prosecuted under Section 3 (1) (v) of the Special Act for wrongfully dispossessing the complainant in the year 1990. 3. The accused persons, including the appellants were prosecuted under Section 3 (1) (v) of the Special Act for wrongfully dispossessing the complainant in the year 1990. 3. The learned Special Judge held that on the evidence available on record, no offence was made out against Vishnu Manohar Dubey (accused No.5) and Shamshhuddin (accused No.6), therefore, these two accused persons were acquitted. However, the 4 appellants (accused 1 to 4) were convicted under Section 3 (1) (v) of the Special Act. 4. Learned counsel appearing on behalf of the appellants argued that there is no evidence of wrongful dispossession; the respective plots were handed over to the appellants by the ex-Malgujar and Sarpanch of the village and for that certain payments were made to the father of the complainant, who was the owner of the property, therefore, the possession of the appellants on respective portions of the disputed land was bonafide, and thus, an offence under Section 3 (1) (v) or any other Section of the Special Act would not be made out. 5. On the other hand, learned Panel Lawyer appearing on behalf of the State opposed these arguments and supported the judgment passed by the Special Court. 6. I have heard learned counsel for the parties at length and have also perused the records of the Special Case. 7. Surjabai (PW-1) is the widow of Basu Singh. She deposed that they belong to Gond community. Their agricultural land is situated in village Sakra. Her husband was holding possession of the agricultural land. The accused persons started constructing houses over the portions of their agricultural land. They started construction last year. She denied in the cross-examination that her husband had received advances for selling the lands to the accused persons. However, she admitted that they were not doing agricultural operations on the land since last 4-5 years. She stated in the cross-examination that she does not know that the accused persons had purchased their lands by paying Rs.2200/- and Rs.3100/-. Her evidence was recorded on 5.3.1993. 8. Dongar Singh Dhruv (PW-3) deposed that they had left village Sakra in the year 1987 and were residing in village Bagbahara. When he returned to village Sakra in the year 1990, he found that the appellants were digging foundation for raising construction over a portion of their land. Her evidence was recorded on 5.3.1993. 8. Dongar Singh Dhruv (PW-3) deposed that they had left village Sakra in the year 1987 and were residing in village Bagbahara. When he returned to village Sakra in the year 1990, he found that the appellants were digging foundation for raising construction over a portion of their land. When he asked, they replied that accused Vishnu Manohar Dubey has given this land to them. He had a talk with Vishnu Manohar Dubey, where after he returned to Bagbahara. In the year 1991, his mother came to village Sakra. He also accompanied his mother. His father had died by that time. His mother told him that the accused persons were digging foundation on their land. Thereafter, he lodged a report in the above manner. In the cross-examination, he denied that his father had taken money from the appellants and had sold the portions of land to the appellants. He very specifically admitted that none of the accused had dug foundation in their land till the year 1990, but he had seen them digging the foundation in the year 1991. He has further denied the suggestion saying that he does not know that his father had sold the lands to the accused persons and further that the accused persons were holding possession of the land since last 12 years. 9. The appellants have examined 2 defence witnesses namely Bhanwar Singh Banchhor (DW-1) and Nanhe Khan (DW-2). Bhanwar Singh Banchhor (DW-1) deposed that the appellants Ahiwaran, Pathan Nag and Jageshwar Nai had constructed their houses on the plots of Dongar Singh Dhruv. They had purchased their plots from Basu Singh. Basu Singh has died. At the time of purchasing the plots, Pathan Nag had agreed to purchase it for a consideration of Rs.3100/-, Ahiwaran and Jageshwar Nai had agreed to purchase for considerations of Rs.2200/- and Rs.1300/-. Half payments were made by them. Since he is their neighbour, he was present at the time of above transactions. The accused persons are holding possession since 15 years and the constructions have been raised since 12 years. Bhanwar Singh Banchhor (DW-1) was working as a Clerk in the Gram Panchayat. In cross-examination, he deposed that he does not know as to whether any sale-deed was executed by Basu Singh in favour of these persons or not. He also does not know about any written agreement in this regard. Bhanwar Singh Banchhor (DW-1) was working as a Clerk in the Gram Panchayat. In cross-examination, he deposed that he does not know as to whether any sale-deed was executed by Basu Singh in favour of these persons or not. He also does not know about any written agreement in this regard. Except the above, nothing material could be brought in the cross-examination of DW-1- Bhanwar Singh Banchhor on the fact relating to payment of amount to Basu Singh and further regarding holding the possession by the accused persons since long back. Nanhe Khan (DW-2) has also deposed in similar fashion. He also deposed about purchasing the lands by accused Pathan Nag, Ahiwaran and Jageshwar Nai from Basu Singh for the above considerations and also about making certain payments by them to Basu Singh. In his cross-examination also, nothing adverse could be elicited by the Public Prosecutor. 10. The learned Special Judge has disbelieved the testimonies of the defence witnesses on the ground that the accused persons did not make statements regarding their bonafide purchase from deceased Basu Singh in their 313 Cr.P.C. statements. They were also disbelieved on the ground that no written document was produced in relation to the said transactions between Basu Singh and the accused persons. The Special Judge has held that since transfer of the immovable property of more than Rs. 100/- was not possible without execution and registration of the sale deed and in the present case, since the alleged transaction was between a Tribe and non-Tribe, therefore, a permission under Section 165 (6) of the M.P. Land Revenue Code, 1959 was required which also does not appear to have been obtained, therefore, the defence witnesses, who deposed to the extent of half payment of consideration on account of the sale of the property and handing over possession in lieu of said transaction, do not appear to be reliable. The above reasoning adopted by the learned Special Judge, does not appear to be reasonable. The above reasoning adopted by the learned Special Judge, does not appear to be reasonable. Of course, transfer of agricultural land of a tribe was not possible without obtaining a permission under Section 165 (6) of the above Code of 1959, and registration was also required for such transfer being the immovable property of such amount, but, if the vendor had realized the amount in lieu of would be transfer and had handed over the physical possession of the land to the vendees, then such possession of the vendees would not be a wrongful occupation and in no manner, the action would be classified as "wrongful dispossession" or "interference with the enjoyment and possession" by the vendees. 11. We find from the cross-examination of the prosecution witnesses that the accused persons have taken defence of holding permissive possession after making part payment to Basu Singh, the then owner of the property. Various questions in this regard have been asked. Therefore, even if they did not speak about all this in their 313 Cr.P.C. statements, that alone shall not affect their defence, which they have already taken during the course of cross examination of the prosecution witnesses. I am of the view that the learned Special Judge, in the above facts and circumstances, erred in law in discarding the testimonies of the 2 defence witnesses, who were the witnesses of the same locality and same gram Panchayat and deposed that the land was given to the accused persons in lieu of taking certain money by Basu Singh and the accused persons were holding possession of the land since long back. 12. Section 3 (1) (v) of the Special act provides that "Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, 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 over any land, premises or water, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five year and with fine". This goes to show that to constitute an offence under Section 3(1) (v) of the Special Act, "wrongful dispossession" or "interference with the enjoyment of rights of a member of Scheduled Caste or a Scheduled Tribe over any land, premises or water", is necessary. This goes to show that to constitute an offence under Section 3(1) (v) of the Special Act, "wrongful dispossession" or "interference with the enjoyment of rights of a member of Scheduled Caste or a Scheduled Tribe over any land, premises or water", is necessary. In the present case, in the above facts and circumstances, I do not find any element of either "wrongful dispossession" or "interference with the enjoyment" of the rights of the complainant. If the property was occupied in lieu of certain transactions and the possession was handed over on account of such transactions or on account of realization of advances for transfer after such transactions, an offence under this Section would not be made out. 13. For the foregoing reasons, the appeal is allowed. Conviction and sentences awarded to the appellants under Section 3 (1) (v) of the Special Act are set aside. The appellants are acquitted of the charges framed against them. It is stated that the appellants are on bail. Their bail bonds are cancelled and sureties stand discharged. Appeal Allowed.