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2013 DIGILAW 612 (RAJ)

Udai Singh v. State of Rajasthan

2013-03-21

BANWARI LAL SHARMA

body2013
Hon'ble SHARMA, J.—Accused appellants Udai Singh and Rod Singh have assailed the validity of the impugned judgment of conviction and order of sentence dated 28.3.1992, passed by the learned Special Judge SC/ST (Prevention of Atrocities) Cases, Udaipur, in Sessions Case No. 32/1991, titled as State of Rajasthan vs. Udai Singh & three Ors., whereby the learned Special Judge SC/ST (Prevention of Atrocities) Cases, Udaipur (hereinafter referred as `the learned trial court') convicted the accused appellants Udai Singh and Rod Singh for offence punishable under Section 3(i)(v) & (x) of the SC/ST (Prevention of Atrocities Act, 1989 (hereinafter referred to as `the Act of 1989') and sentenced them for six months imprisonment alongwith fine of Rs. 200/- each. It was ordered that in the event of default in payment of fine accused appellants will further undergo 15 days' simple imprisonment. The benefit of Section 428 Cr.P.C. was also extended to the accused appellants. 2. Dissatisfied with the impugned judgment of conviction and order of sentence, accused appellants Udai Singh and Rod Singh have preferred this appeal, which was admitted by this Court for hearing on 17.4.1992, notice was issued to respondent and trial court record was called for. 3. From the perusal of the trial Court record, it reveals that complainant Mana PW.3 submitted a written report addressing to Collector Udaipur on 16.7.1992 stating therein that agricultural land bearing Khasra No. 5077/4658 situated at Village Nayagunda, Tehsil Gogunda, Distt. Udaipur is recorded in his name and his brother Logar and the fencing of the agricultural land has been damaged by Udai Singh and Rod Singh Rajput and forcefully constructed `Rodi' (cattle dunk) over the agricultural land and threatened for beating and killing. Therefore, he submitted that he wants to have demarkation of land by Patwari. He has reasonable apprehension against Udai Singh and Rod Singh. Lastly, he prayed that his land be measured and demarkated. 4. The above report Ex. P.2 was forwarded to Tehsildar Gogunda for necessary action by Collector Udaipur. 5. Tehsildar Gogunda after seeking report from Patwari lodged a report Ex.P.9, at Police Station Gogunda bearing FIR No. 76/1991, for offences punishable under Sections 447/34 IPC and under Section 3(i)(v) of the Act of 1989 and started investigation. 4. The above report Ex. P.2 was forwarded to Tehsildar Gogunda for necessary action by Collector Udaipur. 5. Tehsildar Gogunda after seeking report from Patwari lodged a report Ex.P.9, at Police Station Gogunda bearing FIR No. 76/1991, for offences punishable under Sections 447/34 IPC and under Section 3(i)(v) of the Act of 1989 and started investigation. After investigation, charge sheet was filed against the accused appellants Udai Singh, Rod Singh and co-accused Nathu Singh and Leep Singh for offences punishable under Section 447 of the IPC and under Section 3 (i)(v) of the Act of 1989. 6. Being the matter exclusively triable by Special Court, SC/ST (Prevention of Atrocities) Cases, the case was committed to the Court of learned Special Judge, SC/ST (Prevention of Atrocities) Cases, Udaipur by learned Judicial Magistrate, Gogunda, where the charge sheet was filed. 7. Learned trial court, after hearing the parties, framed the charges against accused appellants and co-accused for the offence punishable under Section 447 of the IPC and Section 3(i)(v) of the Act of 1989, vide order dated 5.2.1991 for which, the accused appellants denied and claimed for trial. 8. To substantiate the charges against the accused appellants and co-accused, prosecution examined as many as 7 witnesses. Therefore, accused appellants and co-accused were examined under Section 313 Cr.P.C. wherein they stated that their `Rodies' were there for more than 10 years and it was not in their knowledge that the land in question belongs to complainant and soon after the knowing the fact that land in question belongs to complainant, they removed their `Rodies'. Accused appellants did not prefer to examine any witness in their defence. Thereafter, learned trial court, after hearing the Special Public Prosecutor and counsel for the accused, vide impugned judgment dated 28.3.1992, acquitted the co-accused Nathu Singh and Leep Singh for offences punishable under Section 447 and Section 3(i)(v) of the Act of 1989 and convicted the accused appellants Udai Singh and Rod Singh for offence under Section 3(i)(v) of the Act of 1989 and sentenced as aforesaid: 9. Heard learned counsel for the accused appellants and learned Public prosecutor for the State and perused the record of the learned trial Court. 10. Heard learned counsel for the accused appellants and learned Public prosecutor for the State and perused the record of the learned trial Court. 10. Learned counsel for the accused appellants Sri A.K. Acharya submits that the prosecution witnesses admitted the fact that the land inquestion was `Bilanaam' and it has also been admitted that the Rodies were there since 15 years from the date prior to commencement of the Act of 1989. He further submitted that when the fact came to the knowledge of accused appellants that the land in question belongs to complainant, they removed their `Rodies but the learned trial court, without considering this fact, convicted the accused appellants. As such the impugned judgment of conviction and order of sentence is erroneous, illegal and not sustainable. Hence, this appeal of the accused appellants may be allowed and the impugned judgment of conviction and order of sentence may be set aside. 11. Per contra, learned Public Prosecutor has supported the impugned judgment of conviction and order of sentence in general. 12. Having heard learned counsel for the accused appellants and learned Public Prosecutor for the State and also considered the entire record of the trial court and perused the statement of PW. 3 Mana complainant, who has admitted that disputed land was recorded as `Bilanaam' . Thereafter they entered their names in revenue record and it has also been admitted by PW.3 Mana complainant that since last two years Rodies were there i.e. from the year 1989. ExP.2 report was submitted to Collector, Udaipur on 16.7.1991. 13. PW.1 Kakku Singh has stated in support of the complainant that he is a witness of site plan Ex. P.1 and disputed Rodies were constructed 30-40 years ago and further stated that police inspected the site and this witness did not say anything regarding demolishing of fencing. 14. PW.2 Moti has stated that about 1-1/2 years ago Rod Singh, Udai Singh, Leep Singh and Nathu Singh accused quarreled with Logar and Mana regarding disputed land in question. In cross examination, he further stated that complainant is his cousin and this witness also deposed that accused persons constructed Rodi and refused to remove it. In cross examination her further stated that the disputed land was changed as `Bilanaam' and admitted that accused persons constructed Rodi (cattle dunk) 15 years ago and further admitted that accused persons removed the `Rodies'. 15. In cross examination her further stated that the disputed land was changed as `Bilanaam' and admitted that accused persons constructed Rodi (cattle dunk) 15 years ago and further admitted that accused persons removed the `Rodies'. 15. PW.3 complainant Mana in his statement has stated that when he was fencing his agricultural land, accused persons came there and obstructed and demolished the fencing and threatened to give him beatings and killings. To this effect he made a complaint to Collector, Udaipur Ex. P.2 on which police prepared site plan Ex.P.1. In cross examination he admitted that previously the land was recorded as `Bilanaam', thereafter, it was entered in his name. He further admitted that `Rodies' were there since last two years and also stated that he was not having knowledge that the land in question where the `rodies' were constructed belongs to him and further admitted that the accused persons had removed the `Rodies' from there. 16. PW. 4 Kewla has deposited that accused persons have constructed the `Rodies' in the agricultural field of Mana for which the police initiated the proceedings and admitted that he was seeing `Rodies' since last two years. 17. PW.5 Veerbhan Ajwani Investigating Officer in cross examination has admitted that when he visited the site there was no fencing around the `Rodies'. 18. PW. 6 Malam Singh, Tehsildar has stated that he lodged report Ex.P/9 at Police Station Gogunda and PW.7 Bheru Lal Patwari has proved the report Ex.P/10. Jamabandi and tressmap and stated that agricultural land bearing Khasra No. 5077/4658 measuring 1080 air belongs to Bhura, Logar and Man sons of Vena and proved the Jamabandi of Svt. 2046 Ex.P/12. He also proved site plan Ex.P/1 and stated that there were `Rodies' on the disputed land. 19. Apart from the statement of PW.3 Mana complainant, no-one has stated that accused persons demolished the fencing of disputed land. Even Investigating Officer, PW.5 Veerbhan Ajwani who prepared the site plan Ex. P.1 in presence of PW.7 Bheru Lal, Patwari and Motbirs have also not supported the fact that fencing was demolished by the accused appellants. 20. So far as the construction of `Rodies' are concerned, above witnesses categorically stated that the land was `Bilanaam' and accused appellants constructed the `Rodies' two years before the report Ex. P.2 dated 16.7.1991 was filed. P.1 in presence of PW.7 Bheru Lal, Patwari and Motbirs have also not supported the fact that fencing was demolished by the accused appellants. 20. So far as the construction of `Rodies' are concerned, above witnesses categorically stated that the land was `Bilanaam' and accused appellants constructed the `Rodies' two years before the report Ex. P.2 dated 16.7.1991 was filed. As such, `Rodies were constructed, as per the prosecution case in the Year 1989 came into force on 30th January, 1990. As such when the land in question was `Bilanaam' and the `Rodies' were constructed before coming into force of the Act of 1989 and when the fact that land in question belongs to complainant was not in knowledge of accused appellants and Mana PW.3 Complainant himself then it cannot be said that accused dispossessed or interfered with the enjoyment of rights of the complainant and committed offence punishable under Section 3(1)(v) of the Act of 1989. Further, the Rodies were constructed prior to coming into force of the Act of 1989. Since the provisions of the Act of 1989 are penal in nature and the penal provisions cannot have retrospective effect, without considering it learned trial Court has wrongly convicted the accused appellants for offence under Section 3(1)(v) of the Act of 1989. Therefore, impugned judgment of conviction and order of sentence deserves to be set aside. 21. Accordingly, this appeal is allowed and the impugned judgment of conviction and order of sentence is set aside. Accused appellants Udai Singh and Rod Singh are acquitted from the offence under Section 3(1)(v) of the Act of 1989. They are no bail, their bail bonds are cancelled. 22. The record of the learned trial court is remitted back with the copy of this judgment.