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2013 DIGILAW 318 (CHH)

DIWAKAR RAO INGLE v. STATE OF M. P.

2013-11-07

GOUTAM BHADURI

body2013
JUDGMENT 1. This is an appeal against the judgment dated 04.02.1998 passed by the Special Judge (Atrocity), Bilaspur, in Special Criminal Case No.255/96, whereby, the appellants were convicted under Section 3(1)(iv) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short "the Act, 1989") and have been sentenced for a period of 1 year R.I. and fine of Rs.300/-, in absence of payment of fine, further the accused had to undergo the sentence of 1 month R.I. During pendency of this appeal, the appellant No.1 i.e. Keshav Rao Ingle has breath his last and, as such, the appeal against him stands abated and his name has been deleted from the cause title of the memo of appeal. 2. The prosecution story, in brief, is that the accused prior to 13.01.1995 at village Pulalikala encroached upon the land of the complainant Ratan Singh who belong to SC, ST while the accused do not belong to the said caste. The land was bearing khasra No.482 ad-measuring 0.263 hectares. It is the case of the prosecution that the accused have forcefully buried the dead body of their family members in the said land and have constructed the Graves and thereby have occupied the land illegally belonging to the complainant. It was therefore case of the prosecution that the land owned by the complainant who belongs to SC ST caste has been deprived of the same and the offence was committed. 3. Learned Court below while convicting the accused come to a conclusion that the accused have constructed the Graves over the land belonging to the accused and have relied on the statement of prosecution witnesses, who have been examined as PW-1 to PW-5 and has relied on the documents. Thereby the finding was recorded to hold the accused guilty, hence this appeal. 4. Learned counsel for the appellant submits that the learned Court below has committed an apparent wrong. He went through the statement of the complainant and the statement of Patwari and other witness and submits that in order to convict the accused there has to be a direct clinching evidence that the act is committed by them, which is missing in the instant case and submits that the conviction has been made on the probabilities, which is not the spirit of the criminal trial. He states that since in order to convict a person there has to be pin point connection and the evidence should point out that the accused have encroached upon the land that of the complainant. In absence of that, the finding is perverse and cannot be sustainable. 5. On the other hand, learned State counsel has supported the judgment and submits that the order is well merited, which do not call for any interference. 6. In order to appreciate the finding, the evidence adduced by the prosecution is examined. The complainant Ratan Singh has been examined as PW-2. His statement was recorded on 18.09.1996. He submits that he knows the accused. The accused belongs to Maratha caste, whereas the complainant belongs to Kanwar (ST). He further deposes that the incident was of 13 years back. The complainant further says that the accused who are present had sent the complainant to jail earlier in same case. He says that the disputed land belongs to him and disputed land is ad-measuring 0.65 decimal wherein he cultivates paddy. He further says that over the land, the accused have constructed four Graves. The Grave he denotes to be a cremation ground. He says that the accused used to cremate their family members in such land by forcefully. He further says since the accused has forcefully occupied his land, he filed a case before the Court, wherein the orders were passed in his favour. He further says that in his land till date the accused used to cremate their family members after their death and prepared Graves and thereby they used to occupy his land. When it is objected then, he subjected to threatening with consequences. 7. The witness further says that the accused had filed a case in the Court against this complainant. Initially the case was at Katghora. The accused had thereafter given a report Ex.P-3 to the police. The said report Ex.P-3 was perused. Ex.P-3 was dated 30.10.1995. The report purports that he owns a land at khasra No.482 ad-measuring 0.263 hectare. It further reflects that over such land 0.03 decimal has been forcefully occupied by Diwakar Rao and Keshav Rao and is being used as cremation ground. When it is objected by the complainant, he is subjected to threatening. He therefore has reported that the enquiry may kindly be done. 8. It further reflects that over such land 0.03 decimal has been forcefully occupied by Diwakar Rao and Keshav Rao and is being used as cremation ground. When it is objected by the complainant, he is subjected to threatening. He therefore has reported that the enquiry may kindly be done. 8. The complainant further says that he had given an application for demarcation of land to the Tahsildar, Pali and on the basis of such application, the Tahsildar had demarcated the land and has given its report, which is proved as Ex.P-4. The demarcation report Ex.P-4 purports that demarcation was taken of land bearing khasra No.482 ad-measuring 0.263 hectares. Ex.P-4 further purports that according to the villagers out of land of 0.263 hectares Diwakar Rao has constructed Graveyard over 0.03 decimal lately in the year 1988-89. The report purports that such construction was said to have been done by Diwakar Rao as it was told by the villagers. The witness further says that Khasra No.482 of village Pulalikala belongs to him and the Khasra Panchsala of such land is proved as Ex.P-5 and the Map was proved as Ex.P-6. 9. This witness was cross examined in detail. It is said that it is true that in order to ply the land of Khasra No.483, on a dispute there had been a Panchayat in the village, but no decision was taken. He further says in cross examination and volunteers that for last 30-35 years, he is cultivating the land and last 15-16 years the accused have constructed the Grave over the land and the new Grave was prepared 2-3 years back. He admits the fact that he has not filed the sale deed of purchase of such land. He further admits that the villagers have reported before the Tahsildar against this complainant that he had plying over the dead bodies and the report was made to the Tahsildar. Thereafter, it is also admitted that there has been a case was registered against him in Katghora Court and fine was imposed upon him. He further admits that he had paid the fine but has not filed any appeal against the order. He further in cross examination says that his land bears Khasra No.482 and he doesn't know the number of the cremation land (Samsan). He further admits that he had paid the fine but has not filed any appeal against the order. He further in cross examination says that his land bears Khasra No.482 and he doesn't know the number of the cremation land (Samsan). He is not aware of the Khasra number of the cremation land and denies the suggestion that he had encroached upon the land on the cremation ground. He further says that the Graves which were existing were in his land and two Graves which were newly constructed that too was in his land. The witness has further volunteers that old and new Graves were made on the same date, as such, he could not objected to it. He further submits that both the old Graves were constructed by the accused itself, this he heard from the villagers. 10. The witness has further said that after construction of Graves when he went to cultivate, at that time, he came to know that Graves have been constructed over the land. This witness has deposed further that 15-16 years back two Graves were prepared. Thereafter, before 2-3 years two Graves were again prepared then it was reported. The witness further says that the Graves prepared by the accused were disclosed to him by the people of the Basti. He further says that he has not disclosed the name of the person by whom it was disclosed that the accused had constructed the Graves over the land. He has denied further suggestion that the case of encroachment is going against him. 11. The prosecution has examined one witness i.e. Patwari- Gajanand Jaiswal as PW-l. He has deposed that on 19.10.1995, he was Patwari of village Pulalikala, Tahsil Katghora and has given a Khasra Panchsala and Map to the complainant Ratan Singh. In his cross examination, this witness says Ratan Singh had demanded Naksha and Khasra. This witness further said that he had went to the spot and had seen that Khasra No.483 contains the mark of Murdawali and there some Graves are existing. The witness has proved the Khasra Panchsala, which is filed in the case as Ex.P-1 & P-2. He again in his cross examination has deposed that over the land bearing Khasra No.482 and 483, the Graves are existing prior to his going there and joining the village. The witness has proved the Khasra Panchsala, which is filed in the case as Ex.P-1 & P-2. He again in his cross examination has deposed that over the land bearing Khasra No.482 and 483, the Graves are existing prior to his going there and joining the village. He has further deposed that the Graves are existing only on Khasra No.483 and not on 482. He further admitted the fact wherein the Grave is existing that is being used by the villagers as Murdawali (Samshan). 12. Another witness Ghashiram is examined by the prosecution, who is cultivator, as PW-3. He in his statement has stated that the disputed land was purchased by Ratan Singh 30-35 years back and over the said land Ratan Singh used to cultivate. He further deposed that when 3-4 family members of the accused had died they were cremated over the land of Ratan Singh and after the cremation they had constructed the Graves over the land. He further submits that presently Ratan Singh, the complainant, is not being disturbed in any manner whatsoever. In his cross examination, this witness has denied the fact that the villagers are also using the land for cremation, however, he further submits in his cross examination that the Graves which were constructed were made 10-12 years back and he also denies the suggestion that over the disputed land, the Graves were constructed. This witness was given a suggestion that 10-12 years back, there had been meeting was conducted by the villagers and in that meeting, Ratan Singh, the complainant, was called. He also admit the fact that Ratan Singh is called so as to make him understand. He said that Ratan Singh did not attend such meeting, but his son had attended. This witness was further confronted with his statement under Section 161 of Cr.P.C. to the police, wherein the omission exists as to purchase of the land by complainant, which was said to be 30-35 years back. 13. Another Witness namely Jamat Singh has been examined by the prosecution as PW-4. He has also deposed the fact that Ratan Singh has purchased the land from Narayan Singh. He also further deposed that over the land, which was purchased, the accused have constructed the Graves (Marghat). 13. Another Witness namely Jamat Singh has been examined by the prosecution as PW-4. He has also deposed the fact that Ratan Singh has purchased the land from Narayan Singh. He also further deposed that over the land, which was purchased, the accused have constructed the Graves (Marghat). He further says that 2 years back when one of the family members died, the accused had constructed the Grave over the land of Ratan Singh. This witness in his cross examination has admitted that the disputed land is being used as Samsan Bhoomi by the villagers. He in his cross examination shows his inability to say that the land wherein the Graves are constructed is situated adjacent to the land of Ratan Singh or not. He further deposes that who has constructed the Graves is not known to him. He also shows in inability that he does not know whether Ratan Singh has encroached upon the land of Samshan or not. He further admits one fact that near Gouthan, the government land ad-measuring about 50 decimal was encroached upon by Ratan Singh, the complainant. 14. The defence in this case has examined three witnesses. The witness DW-1 Vishal Singh has proved that a report was made to the Tahsildar against the complainant that the complainant had encroached upon the land of Samsan (Murdawali). The defence in this case has placed on record a Khasra Panchsala, which is marked as Ex.D-4. This document is proved by DW -3 Vikram Das (Patwari). This witness states and proved the document Ex.D-4 which purports that Khasra No.482 is recorded in name of Ratan Singh and further in Kafiat column it contains that the Ratan Singh, the complainant, had encroached upon as Bejakabja over 0.03 decimal of land bearing khasra No.483. This is also a government document. Khasra Panchsala having the presumptive value of correctness. Now if we see the entire evidence on record, the complainant though have filed the document about his Panchsala Khasra and the demarcation report, that demarcation report do not go to prove that the accused had encroached upon the land that of complainant. If the Ex.P-5 Khasra Panchasala placed by the complainant and Ex.D-4 are read together this will clarify the issue. Ex.D-4 contains both the entry of Khasra No.482 and 483. If the Ex.P-5 Khasra Panchasala placed by the complainant and Ex.D-4 are read together this will clarify the issue. Ex.D-4 contains both the entry of Khasra No.482 and 483. In respect of the Khasra Panchsala column Kaifiat as against khasra No.483 it reflects that the same is recorded as Murdawali of Hindus wherein Ratan Singh, son of Ram Singh has encroached upon the part of land bearing 0.03 decimal is of Khasra No.483. The demarcation report filed by the prosecution Ex.P.-4 also do not show the fact that over which land the Graves have been made and by whom. So the statement of prosecution witness all on hearsay that construction was made by accused over land of complainant is refuted by Khasra Panchsala entry of Ex.D-4. 15. On the contrary, if such Ex.P-4 is placed alongwith Ex.D-4, it reflects that Ratan singh has encroached upon 0.03 decimal of land, which is Murdawali of Hindus. Further the Map Ex.P-6 filed by the prosecution do not disclosed the fact that on which land the Graves were prepared. Further, if we look to the statement of PW-2, the complainant, he has admitted the fact that he has not filed the sale deed of the land. He had referred to a fact which is 15-16 years back for preparation of Graves. 16. Here in the instant case, the complaint is about wrongful occupation of the land belonging to complainant. The prosecution and the witness themselves have not proved that particularly the construction are existing over land bearing Khasra No.482. Though a demarcation report has been filed but in that too it has not been disclosed over the Map on which Khasra, the construction of Graves have been made. The complainant himself has not seen the construction of Graves or have seen the accused have forcefully occupied the land of complainant, but it is all hearsay. The Ex.D-4 filed by the defence has a material bearing in the case. Ex.D-4 contains both Khasra No. 482 and 483. Khasra No.483 itself disclosed in its remark column that the land is being used as Samsan (Cremation of Hindus) wherein the complainant has encroached upon. The Ex.D-4 filed by the defence has a material bearing in the case. Ex.D-4 contains both Khasra No. 482 and 483. Khasra No.483 itself disclosed in its remark column that the land is being used as Samsan (Cremation of Hindus) wherein the complainant has encroached upon. Therefore, if all the statement of the accused alongwith the documents perused with the Map and Khasra Panchsalal, it will be clear that the complainant itself is not in know of fact about the demarcation of his own land and since both the Khasra 482 and 483 are adjacent, it is on presumption the report has been made. On the contrary, government document purports that the complainant has encroached upon the land of Sam san, which is encompassed in khasra No.483. Therefore, the prosecution has failed to prove that the accused have encroached upon the land belonging to the complainant Ratan Singh. Contrarily, it has come on record that Ratan Singh has encroached upon the part of the land. 17. In view of foregoing, considering the entire evidence and reading the document together, I am of the opinion that the prosecution has failed to prove the case beyond reasonable doubt and suspicion, thereby, the finding arrived at by the learned Court below is wrong. 18. In a result, the appeal is allowed and the judgment passed by the learned Court below is set aside. It is submitted that the appellant in on bail. His bail bond shall continue for a period of six months from today. Appeal Allowed.