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Gauhati High Court · body

2014 DIGILAW 848 (GAU)

Boloram Boro and Ors. v. State of Assam

2014-09-04

K.SREEDHAR RAO

body2014
1. The facts of the present case is that the accused persons had encroached a Government land and they were evicted. It also appears that the complainant and the witnesses have residences in the Government land that is by way of encroachment. The accused persons also re-entered and put up residences in the said Government land. The complainant and the witnesses have formed an association called "Agiyathuri Mahila Kalyan Samity" and they wanted to construct a temple on the land in their possession and had put up a signboard. On 13.9.2003, in the noon, the accused-persons illegally entered into the land under the possession of the complainant and the witnesses, threatened the complainant and the witnesses and threw away the sign board. The complainant gave a private complaint before the Magistrate and it was referred to the police about one month after the incident for investigation. 2. PW7 is the investigating officer, who has conducted investigation and filed a charge sheet for committing offences under sections 387/447/506/295(A)/34/ IPC. The trial court has convicted the accused persons for the offences they are charged with. The. trial court also found that the accused are not entitled to 'the benefit of section 4 of the Probation of Offenders Act. The trial court levied a liberal sentence of fine of Rs.100 for conviction under section 447, IPC, Rs.100 for conviction under section 506, IPC and Rs.300 for conviction under section 295A, IPC. The Sessions Court in appeal found that there is no material for conviction under section 506 and that for conviction under section 295A, IPC, is untenable because no prosecution can be launched without sanction from the Government. Therefore, conviction under sections 295A and 506, IPC has been set aside. The Sessions Court confirmed the conviction under section 447, IPC. The accused persons, aggrieved by the said order have filed this petition. 3. Counsel for the petitioners submits that the complaint disclose that it is solely a civil dispute. The accused have never used criminal force or assaulted the complainant and the witnesses and they totally deny the incident. 4. Counsel for the respondent submits that the evidence of the investigating officer clearly disclose that accused persons and the petitioners are residents in the area and that he did not find the signboard. No seizure of the incriminating material was made to prove that the signboard was damaged by the petitioners. 5. 4. Counsel for the respondent submits that the evidence of the investigating officer clearly disclose that accused persons and the petitioners are residents in the area and that he did not find the signboard. No seizure of the incriminating material was made to prove that the signboard was damaged by the petitioners. 5. Per contra, the complainant and the witnesses have deposed that it was the intention of the accused to put up a church on the same land. Therefore, they trespassed the land and damaged the signboard. The finding of the Sessions Judge is that there is no material to prove an offence under section 506, IPC since no criminal force was used on the complainants and the witnesses and there is no credible material to prove that threat to life or physical assault was made. The acquittal granted by the Sessions Court for offences under sections 506, IPC and 295A, IPC is held to be proper. 6. The definition of criminal trespass under section 441, IPC reads, thus : "441. Criminal trespass. - Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to, commit an offence, is said to commit "criminal trespass"." 7. The necessary ingredient under section 441, IPC does not require a title to the property. A mere lawful possession if disturbed by somebody else amounts to trespass. The complainant and witnesses for the complainant have categorically stated that the accused persons came and damaged the signboard and they intended to put up a church and to prevent construction of the temple. 8. On overall consideration of the evidence of the witnesses, it is to be seen that the evidence placed by the prosecution for offence under section 447, IPC is sound and proper and does not call for interference. However, keeping in view the facts and circumstances, the sentence imposed is modified. The accused persons are given the benefit of probation for a period of one year and they shall execute bonds before the trial court to bind themselves to keep peace and order and not to commit offence. However, keeping in view the facts and circumstances, the sentence imposed is modified. The accused persons are given the benefit of probation for a period of one year and they shall execute bonds before the trial court to bind themselves to keep peace and order and not to commit offence. The concerned Probation Officer shall keep watch over the conduct of the petitioners. Accordingly, the petition is disposed of.