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Tripura High Court · body

2015 DIGILAW 136 (TRI)

Nikunja Das v. State of Tripura

2015-04-08

S.C.DAS

body2015
JUDGEMENT : By filing this revisional application the accused (convict) petitioners challenged judgment dated 09.11.2009 passed by learned Additional Sessions Judge, Kamalpur, North Tripura in Criminal Appeal No. 09 of 2009, whereunder the learned Additional Sessions Judge upheld the judgment and order of conviction and sentence dated 19.09.2009 passed by learned SubDivisional Judicial Magistrate(for short ‘SDJM’), Kamalpur, North Tripura in Case No. G.R. 264/2008 under Section 447 of IPC. 2. Heard learned counsel, Mr. S. Chakraborty for the petitioners and learned Additional P.P., Mr. R. C. Debnath for the Staterespondent. 3. Prosecution case is that on 12.10.2008 in the morning at about 1030 am the accusedpetitioners along with others criminally trespassed into the land belonged to the complainant, Nandalal Das (PW3) and they cut down various kinds of trees such as Mango, Banana, Jackfruit etc. and also made a road through the land of the complainant recorded in Khatian No.47 of MoujaDarang. The brothers of the complainant, namely, Anirudhya Das (PW5) and Braja Gopal Das raised protest, but the accused persons threatened them and thereafter the said Anirudhya and Braja Gopal reported the matter to the complainant, who was away from home and he went to the spot and found that the accused persons already caused damage to his land cutting earth and felling trees and as a result he suffered loss of about rupees 10/12 thousand. On 13.10.2008, the complainant, Nandalal Das along with Nepal Das (PW4), Surjyalal Das(PW2) and Ranjit Das(PW1) went to the spot and contacted with Bhanulal Das and thereafter also contacted with the accused, but the accused persons though initially stated for a compromise but ultimately did not agree to the compromise and, therefore, the complainant filed a written complaint before the leaned SDJM, Kamalpur, who forwarded the complaint to the O/C of the P.S. and accordingly, Kamalpur P.S. Case No.102/2008 under Sections 147/447/427 of IPC was registered and after investigation charge sheet was filed against the accused persons. 4. In the course of trial, the accused persons were examined under Section 251 of Cr.P.C. for commission of offence punishable under Sections 147/448/427 of IPC, to which they pleaded not guilty and claimed to be tried. 5. Prosecution examined seven witnesses to prove the charges. After closure of the prosecution evidence the accused persons were examined under Section 313 of Cr.P.C. and in their turn they did not adduce any defence evidence. 5. Prosecution examined seven witnesses to prove the charges. After closure of the prosecution evidence the accused persons were examined under Section 313 of Cr.P.C. and in their turn they did not adduce any defence evidence. The defence case is of denial of the prosecution case and at the time of crossexamination of the prosecution witnesses, it was suggested that there was already a village road existing up to the house of Bhanulal Das and that there was no criminal trespass for mischief in the land of the complainant, Nandalal Das. 6. Learned SDJM at the conclusion of trial found the accused persons guilty of committing offence punishable under Section 447 of IPC and sentenced them to pay a fine of Rs.500/each, in default of payment to suffer S.I. for one month. He acquitted the accused persons from the charges under Section 147/448/427 of IPC. 7. Aggrieved, the accused persons preferred Criminal Appeal No. 09 of 2009 and the learned Additional Sessions Judge by impugned judgment dated 09.11.2009 dismissed the appeal and hence, this revisional application. 8. Learned counsel, Mr. Chakraborty appearing for the accused petitioners submitted that no documents of the land, alleged to have trespassed by the accused petitioners, have been proved in the case and hence, the charge cannot be said to have proved. He has also submitted that there cannot be a punishment under Section 447 of IPC , if there is no other offence committed by the accused petitioners found to have proved in the transaction. 9. The trial Court and the appellate Court arrived at a consisting finding that the accused persons committed criminal trespass by entering into the land of the complainant, Nandalal Das. No documentary evidence was proved during trial. But PWs 1 to 6 made consistent and categorical statement about the criminal trespass. PWs 4, 5 and 6 are the eyewitnesses, who found the accused persons cutting down the trees and earth in the land of the complainant and making a road leading towards the house of Bhanulal Das from the main road. PWs 1, 2 and 3 went to the spot after the occurrence and they found that the trees were already cut and earth was also cut to make a road through the land of the complainant. PWs 1, 2 and 3 went to the spot after the occurrence and they found that the trees were already cut and earth was also cut to make a road through the land of the complainant. The oral evidence of the witnesses cannot be thrown overboard simply on the ground that no documentary evidence was adduced regarding ownership of land of the complainant. I find nothing to interfere in the judgment passed by the Courts below on this ground. 10. The word “Criminal Trespass” has been defined in Section 441 of IPC. It speaks of entering on property of another with intent to commit an offence, or to insult, intimidate or annoy any person in possession of the property. The trial Court acquitted the accused petitioners from the charge under Section 427 of IPC. But it has held that the allegation of criminal trespass has been proved by the evidence of the eyewitnesses. While there is evidence on record that the accused petitioners trespassed into the land of the complainant and cut trees and earth to make a road, they have definitely committed an offence to insult or annoy the person in possession. Simply because the trial Court did not punish the accused petitioners for any other offence, the submission that punishment under Section 447 of IPC cannot stand, in my considered opinion, is not an acceptable argument in the facts and circumstances of the case and, therefore, I find no merit in the argument. 11. Learned counsel, Mr. Chakraborty has finally submitted that the accused petitioners have been found guilty of committing offence punishable under Section 447 of IPC, which is a minor offence and they have been only held guilty of paying a fine of Rs.500/each and in the circumstances the trial Court would give them the benefit of Section 4 of the Probation of Offenders Act. 12. Learned Additional P.P. has submitted that the charge of criminal trespass has been proved, but considering the fact, the benefit of Probation of Offenders Act may be given. 13. I find nothing adverse on record against the accused petitioners that they were previously involved in any other criminal offence or that the offence is so serious that the benefit of Probation of Offenders Act should not be given. 13. I find nothing adverse on record against the accused petitioners that they were previously involved in any other criminal offence or that the offence is so serious that the benefit of Probation of Offenders Act should not be given. An offence of criminal trespass punishable under Section 447 of IPC is a minor offence and considering the facts and circumstances of the case, I think it is a fit case where the benefit of Section 4 of the Probation of Offenders Act may be given to the accused petitioners and they may be released on probation. Before giving the benefit, I think the nature, character, habit and antecedent of the accused petitioners should be enquired by the Probation Officer, Kamalpur, Dhalai District and report of the Probation Officer should be taken into consideration. 14. Accordingly, the revisional application is partly allowed. The accused petitioners may be given the benefit of Section 4 of the Probation of Offenders Act and may be released on probation of good conduct. Before giving the benefit the nature, character, habit and antecedent of the accused petitioners should be enquired by the Probation Officer and accordingly, the Probation Officer, Kamalpur, Dhalai District is directed to enquire the nature, character, habit and antecedent of the accused petitioners and to submit a report in writing to this Court on or before 06.05.2015 and necessary order will be passed after considering the report of the Probation Officer regarding ultimate release on probation. List the matter on 08.05.2015 for order.