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2012 DIGILAW 1640 (PAT)

Basanti Devi v. Md. Rafique

2012-12-06

ASHWANI KUMAR SINGH

body2012
JUDGMENT This appeal against acquittal has been preferred under Section 378(4) of the Code of Criminal Procedure in view of the order dated 22.8.2002 passed in S.L.A. No. 23 of 2002 granting special leave to appeal. 2. The appeal is directed against the judgment of acquittal dated 16.4.2002 passed by the learned Special Judge, S.C. & S.T. (Prevention of Atrocities) Act, Purnea, in Sessions Trial No. 432/1998/27/1998, by which, the Respondent Nos. 1 to 3, namely, Md. Rafique, Chilu and Mainuddin have been acquitted of the charges framed against them under Section 429 of the Indian Penal Code and Section 3(i)(iv) & (v) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989. The appellant had filed a complaint in the court of the learned Sub-Divisional Judicial Magistrate, Kishanganj on 9.12.1996 with respect to an occurrence which is alleged to have taken place on 6.12.1996 at about 3 p.m. 3. The case of the prosecution as per the complaint is that the family members of the complainant were in possession of the land mentioned in the schedule of the complaint since last 15 years on the strength of red card issued in the name of complainant’s son, namely, Mister Mochi. The complainant was regularly paying rent to the Government. The complainant’s son had gone outside in order to earn his livelihood and finding the complainant alone with her minor children, the accused persons who are Respondent Nos. 1 to 3 in the present appeal wanted to take forcible possession of the land in question. They conspired together to oust the complainant from the village. 4. The complainant has further alleged that with great difficulty she had sown “Tisi” on the land in question, the accused persons had committed atrocities on her even at the time of sowing of the “Tisi” crop and they tried to forbid her from doing so. On 6.12.1996 at about 3 p.m., the accused persons came to the house of the complainant and threatened her not to go upon the land in future, otherwise, she and her entire family would be burnt alive and killed by setting her house on fire in the night. They also told that the “Tisi” crop sown by her would be harvested by them. The complainant on account of fear went inside the house and saved her life. 5. They also told that the “Tisi” crop sown by her would be harvested by them. The complainant on account of fear went inside the house and saved her life. 5. The complainant has further alleged that two days ago a bullock belonging to her was killed near dam. She suspected that the accused persons might be instrumental in killing her bullock or getting it killed. Lastly, it is alleged that the accused persons were adamant to dispossess the complainant of her land finding her weak, helpless and a lone harizan in the village. 6. After due inquiry, the learned C.J.M. took cognizance of the offence and issued summons against the accused persons to appear and face trial. Subsequently, the case was committed to the court of sessions by the learned C.J.M., Kishanganj. The Special Judge framed charge under Section 429 of the Indian Penal Code as well as Section 3(i) (iv) & (v) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act. The accused persons pleaded not guilty to the charges and claimed to be tried. 7. In course of trial, in all, on behalf of the prosecution three witnesses including the appellant were examined. Out of them, P.W. 1 Basanti Devi is the complainant herself. While being examined in court in her examination-in-chief, the complainant has stated that the land in question came to her possession on the basis of a red card issued in her name. She has further stated that she is paying the rent to the Government and she is coming in possession of the land for the last 15 years. She has further stated that on the relevant date and time of occurrence, the accused persons named in the complaint along with 4-5 others unknown came to her house and told that they would harvest the “Tisi” crop. She has also stated that the accused persons intend to dispossess her from the land in question. In cross-examination, she has stated that she can submit the red card and rent receipts with respect to the land in question in court. She has denied the allegation that she has falsely deposed against the accused persons. 8. I find that the complainant has alleged in the complaint that red card was issued in the name of her son, namely, Mister Mochi. She has denied the allegation that she has falsely deposed against the accused persons. 8. I find that the complainant has alleged in the complaint that red card was issued in the name of her son, namely, Mister Mochi. However, while being cross-examined in court, she states that the red card on the strength of which, she came in possession over the land in question was issued in her own name. The prosecution has failed to produce the red card or rent receipts of the land in question in course of trial. The prosecution has also failed to examine Mister Mochi. There is no explanation as to why he has not been examined on behalf of the prosecution. 9. Thus, what is important from her deposition is that the appellant, while being examined in court, has not uttered a word regarding any act of mischief by the accused persons. She has given a complete go-bye to the story narrated in the complaint regarding killing of bullock belonging to her two days prior to the alleged occurrence. 10. The essential ingredients for constituting the offence under Section 429 are as follows:- (i) the accused committed mischief; (ii) such mischief was by killing, poisoning, maiming or rendering useless, any elephant, camel, horse, mule, buffalo, bullock, cow or ox; (iii) the value of such animal was Rs. 50/- or more. 11. Again, before Section 429 is pressed into service, the material relied upon by the prosecution even must indicate that the accused concerned had committed mischief as defined in Section 425 of the Indian Penal Code. The elements necessary for constituting an offence of mischief as defined under Section 425 of the Indian Penal Code are as follows:- (a) the accused must have caused the destruction of some property or some change in it or its situation; (b) such change must have destroyed or diminished the value or utility of the property affected; (c) the destruction or change in the property or situation thereof must have been done with the intention to cause or with the knowledge that it is likely to cause wrongful loss or damage to the public or to any person. 12. None of the ingredients of the offence of mischief has been alleged in the deposition of the complainant. Once, the applicability of Section 425 of the Indian Penal Code is ruled out, section 429 will have no application. 12. None of the ingredients of the offence of mischief has been alleged in the deposition of the complainant. Once, the applicability of Section 425 of the Indian Penal Code is ruled out, section 429 will have no application. 13. I further find from the evidence of P.W. 1 Basanti Devi, the complainant herself that she has not alleged anything either in her examination-in-chief or in cross-examination that the accused persons committed any offence, in order to belittle the complainant as she belongs to Scheduled Caste and Scheduled Tribe community. From a bare reading of Section 3(i)(v) of the S.C. & S.T. (Prevention of Atrocities) Act, 1989, it would appear that there has to be actual dispossession from the 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 made out, there can not be any prosecution for commission of the said offence, much less, conviction. From the evidence of complainant, I find that neither the offence under Section 429 IPC nor under Section 3(i)(iv) or (v) of the S.C. & S.T. (Prevention of Atrocities) Act, 1989 is made out. 14. The two other witnesses examined on behalf of the prosecution are wholly unreliable. P.W. 2 Rampati @ Rampriti Ram has exaggerated the prosecution story to a great extent. The complainant has not stated that any of the accused was armed with any weapon. However, P.W. 2 states that the accused persons were armed with stick and lathi and they abused the complainant by taking her caste’s name. He further states that the accused persons assaulted the complainant and she could be rescued only after he and others, namely, Yadu Ram and Hari Ram intervened. The story given by P.W. 2 is quite different from the story narrated in the complaint or stated by the complainant while being examined in court. His version is wholly inconsistent with the original prosecution case. 15. P.W. 3 Hari Kishun Ram has also corroborated P.W.2. However, while being cross-examined, he admitted that he has not seen the red card. The deposition of P.W. 3 is not worthy of reliance for the reason assigned, hereinabove for disbelieving the evidence of P.W. 2. 16. His version is wholly inconsistent with the original prosecution case. 15. P.W. 3 Hari Kishun Ram has also corroborated P.W.2. However, while being cross-examined, he admitted that he has not seen the red card. The deposition of P.W. 3 is not worthy of reliance for the reason assigned, hereinabove for disbelieving the evidence of P.W. 2. 16. Thus, there was absolutely no legal evidence on the basis of which, the trial court could have recorded conviction of the accused persons in the present case. Since, the prosecution has miserably failed to prove the ingredients of the charges levelled against the accused persons, the consequence naturally would have been acquittal of the accused persons. The trial court has given clear, cogent and convincing reasons for recording the acquittal. 17. There is no reason to interfere with the judgment given by the trial court. This appeal lacks merit. It is dismissed accordingly.