Research › Search › Judgment

Chhattisgarh High Court · body

2022 DIGILAW 303 (CHH)

Kewal Sai S/o Purshottam v. Sukhlal S/o Kewal Sai

2022-07-08

DEEPAK KUMAR TIWARI

body2022
ORDER : 1. Being aggrieved by the judgment of conviction and sentence dated 24.8.99 passed by the Special Judge, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Ambikapur in Special Criminal Case No.286/97 convicting the appellant under Section 447 of the IPC read with Section 3(1)(iv) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short ‘the Act’) and sentencing him to undergo RI for 6 months, the appellant has preferred the present Appeal. 2. Case of the prosecution is that complainant Sukhlal has filed a complaint case against the appellant and after preliminary enquiry as also after examination of the complainant and his witnesses, a case was registered against the appellant on 18th October, 1994 under Sections 323, 506-II and 447 of the IPC read with Section 3 (1) (v) & (viii) of the Act and other two accused namely, Digamhila and Vijaypatheen, wife of the appellant have been discharged. The other accused namely, Bhongi has died. Vide impugned judgment, the trial Court has acquitted the appellant of the charge under Sections 323 and 506-II of the IPC whereas convicted him for the charges as mentioned above. 3. Allegation of the complainant is that the appellant has unauthorizedly trespassed his land bearing Khasra No.164, ad measuring 0.061 hectare at village Sargawan. The complainant had sown the crops of Corn and Millet and on 9.6.1993 at about 8-9 am, the appellant along with others entered his field having weapons with them and damaged the crop sown by the complainant. The complainant has lodged a report before the Police Station Ambikapur, but no action was taken on his complaint. So, the said complaint has been filed in which the impugned judgment has been passed. 4. After hearing learned counsel for the parties and on the basis of material on record, the learned trial Court has convicted the appellant as mentioned above. Statement of the appellant was recorded under Section 313 of the CrPC wherein the appellant has stated that he has purchased the land and at the time of sowing, he was ploughing the field and denied that Sukhlal has sown the crop earlier to him. 5. Learned counsel for the appellant would submit that the impugned judgment is bad in law. 5. Learned counsel for the appellant would submit that the impugned judgment is bad in law. During trial, no document has been produced to show that the complainant belongs to a ST community and further there is a prior civil dispute which is also mentioned in the impugned judgment at para-2 that initially the land bearing Khasra No.164 belonged to Devendra Nath Mukherjee and when the name of the complainant has been mutated in the revenue record, the appellant has raised an objection before the SDO and after dismissal of his appeal, the appellant has preferred a civil suit No.54-A/92 before the Court of Civil Judge Class-2, Ambikapur. The said civil suit was partly allowed and Devendra Nath Mukherjee was directed to return the consideration amount to the appellant. So, the appellant preferred a Civil Appeal No.70-A/95 before the 2nd Additional District Judge, Ambikapur and the appeal was dismissed vide judgment dated 26th July, 1999. 6. Learned counsel for the appellant would further submit that there is bonafide civil dispute, which has already been adjudicated in favour of the appellant and the amount was directed to be returned by the seller. They further submit that agreement to sell was executed by Devendra Nath Mukherjee in favour of the appellant for 25 decimal of land and obtained earnest money of Rs.200/- and subsequently, Rs.100/- was also paid. The agreement was executed on 3.5.1983 and the Civil Court has ordered to refund the amount of Rs.300/-. They further submit that only 15 decimal area was sold by Devendra Nath Mukherjee in favour of Sukhlal on 8.7.1991, so the sale made by Devendra Nath Mukherjee in favour of the complainant was subsequent. When the appellant exercised his bonafide claim in the said property, offence under Section 447 of the IPC would not be made out. Therefore, the present Appeal may be allowed and the appellant may be acquitted. 7. On the other hand, learned counsel for the respondent would support the impugned judgment. 8. I have heard learned counsel for the parties at length and perused the record. 9. In the case at hand, the appellant has entered into an agreement of the disputed land i.e. Khasra No.164 ad measuring 0.25 acre and also given an advance to the owner Devendra Nath Mukherjee and obtained a receipt on 3.5.1983 after paying an advance of Rs.200/- and on 6.6.1983 also paid advance of Rs.100/-. 9. In the case at hand, the appellant has entered into an agreement of the disputed land i.e. Khasra No.164 ad measuring 0.25 acre and also given an advance to the owner Devendra Nath Mukherjee and obtained a receipt on 3.5.1983 after paying an advance of Rs.200/- and on 6.6.1983 also paid advance of Rs.100/-. In para-2 of the admitted facts, it has been specifically mentioned that possession was also delivered to the appellant, but later on some part of the land i.e. 0.15 decimal was transferred by way of registered deed in favour of complainant Sukhlal (PW-1) on 8.7.1991, though total area of Khasra No.164 is 0.061 hectares. As the land was not clear, therefore, Patwari Rengu Singh (not examined) had also measured the land and found that the lands of the appellant and Sukhlal are adjoining lands. The prosecution has not produced any such demarcation report or map of the land etc which shows that the land which was transferred in favour of Sukhlal was the same land or different land which was earlier sold by the owner Devendra Nath Mukherjee to the appellant. After such sale, a dispute started about possession of the land and the complainant (PW-1), Ramsewak (PW-2), (PW-3) Pyari and Dev Narayan (PW-4) have categorically admitted that there was continuous litigation in different Courts and the appellant has continuously asserted his bonafide claim on such land. Even on the complaint made by the appellant, the police has registered the criminal case against the complainant, but no complaint was registered by the police at the instance of the complainant. So the complainant has filed the complaint case and the present matter was registered. 10. In the present case, no neighbour of the adjoining land/disputed plot was examined and only on the bald statement of the complainant and his relative witnesses, it cannot be said that the complainant has sown the crops of corn, mustard and millet, though in the complaint case the complainant has only asserted 2 crops i.e. corn and millet crops and himself not deposed in his statement that during the time of incident he has sown any crop, though his witnesses said so. 11. It is settled law that bonafide claim of right negatives the existence of any malice intention to commit offence. 11. It is settled law that bonafide claim of right negatives the existence of any malice intention to commit offence. In the present case, it appears, after the agreement for sale by the registered owner, the appellant enters lawfully and continues to be in possession since 3.5.1983 and the complainant purchased some part of the land in the year 1991 and thereafter dispute of possession has been started. Various civil and criminal litigations were launched. So plea of bonafide claim for possession of the land of the appellant deserves to be allowed in the present case. 12. In the matter of Ram Ekbal Rai and Others Vs. Jaldhari Pandey { AIR 1972 SC 949 }, though the allegation made by the complainant that he had obtained possession in execution by Court’s bailiff, the Hon’ble Supreme Court observed that the only endorsement made thereon acknowledging delivery of possession could not be presumed to be a conclusive proof. So there was a reasonable doubt as to who has cultivated the crop. From the very inception, there was a dispute of title and possession and the appellant under the bonafide belief that he was entitled for possession, there was no question of having trespassed in the said land. 13. Further in the present case, the complainant has not proved any certificate or adduced any evidence that he belong to a particular ST community. Therefore, this Court is of the view that the learned trial Court has not appreciated the evidence in its proper perspective. 14. For the foregoing, the Appeal deserves to be and is hereby allowed. Conviction and sentence imposed on the appellant under Section 447 of the IPC read with Section 3(1)(iv) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 are set aside and he is acquitted of the said charge. He is on bail. His bail bond shall remain in operation for a period of 6 months from today in view of the provisions contained under Section 437-A of the CrPC. He shall appear before the higher Court, as and when directed.