Thummaluru Venkata Konda Reddy ... vs The State Of A.P.
2023 Latest Caselaw 4225 AP

         HON'BLE SRI JUSTICE A.V.RAVINDRA BABU

               CRIMINAL APPEAL No.357 OF 2011

JUDGMENT:

The judgment, dated 16.03.2011, in Special Sessions Case

No.39 of 2008, on the file of the Court of Special Sessions Judge

for trial of offences under the Scheduled Castes and Scheduled

Tribes (POA) Act-cum-IV Additional Sessions Judge, Kadapa (for

short, 'the learned Special Judge'), is under challenge in this

Criminal Appeal filed by the appellants/accused Nos.1 and 2.

2. The parties to this Criminal Appeal will hereinafter be

referred to as described before the trial Court, for the sake of

convenience.

3. The Special Sessions Case No.39 of 2008 on the file of the

Court of Special Judge, Kadapa arose out of committal order in

PRC No.18 of 2008 on the file of the Court of Judicial Magistrate of

First Class, Jammalamadugu (for short, 'the learned Magistrate')

pertaining to Crime No.6 of 2008 of Peddamudiam Police Station,

Kadapa District registered for the offences under Sections 447,

427 and 392 R/w. Section 34 of the Indian Penal Code, 1860 (for

short, 'the IPC') and Section 3(1)(iv)(v)and (x) of the Scheduled

AVRB,J Crl.A. No.357/2011

Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989

(for short, 'the SCs and STs Act') .

4. The case of the prosecution, in brief, according to the

averments in the charge sheet filed by the Sub-Divisional Police

Officer (SDPO), Jammalamadugu, in the aforesaid Crime, is that

the de-facto complainant K. Subba Lakshumma (LW.1) is a

resident of Suddapalli Village of Peddamudiam Mandal belongs to

Yerukala caste as such she comes under the category of

'Scheduled Tribe'. Accused belongs to Kapu caste as such they

belong to the category of Other Caste. A-1 - Thummaluru Venkata

Konda Reddy was an Ex-Army person, served in the Army for 15

years i.e., from 1972 to 1987. He was granted DKT Patta for the

agricultural land of an extent of Ac.2.00 cents in S.No.402 of

Suddapalli Village fields by the then Tahsildar, Peddamudiam.

After his retirement from Army, A-1 secured job as a Fitter in the

Indian Railways at Secunderabad and working as such in

Lallaguda, Secunderabad. Since the land granted to A-1 under

DKT Patta was not cultivated for long time and it was kept fallow,

Tahsildar, Peddamudiam resumed the land by cancelling the DKT

Patta granted to A-1, after following the due process. To that effect

an order was passed by the Tahsildar, Peddamudiam on

AVRB,J Crl.A. No.357/2011

15.05.2007. Thereupon, the land was allotted to the de-facto

complainant vide DKT Patta No.19, dated 13.09.2007. While so,

A-1, who came to know about cancellation of his DKT Patta,

preferred an Appeal against the order of Tahsildar and it was

pending enquiry. After allotment of land and issuance of DKT

Patta to the de-facto complainant, she started cultivating the same

and raised Bengal Gram (sanagalu) crop. A-1, having come down

to Peddamudiam to the house of A-2, who is his brother-in-law,

went to the said land and found the Bengal Gram crop raised by

LW.1 was ready for harvest. A-1 and A-2 got approached LW.3 -

Kotapalli Nagaraju and LW.4 - Siddamreddy Chandra Mouli Reddy

and engaged their harvest machine and on 06.02.2008 morning at

about 11:00 a.m., they took the harvest machine to the land

allotted to LW.1 and harvested the Bengal Gram crop. On coming

to know about the said incident, she rushed to the land and

questioned the accused, who abused her with her caste name and

insulted her. Further, the accused intimidated LW.1 and also

slapped on her cheek and took away the harvested crop in a

tractor. Basing on her report, LW.15 - B Ramakrishna, SI of

Police, Peddamudiam Police Station, registered the FIR as a case

in Crime No.6 of 2008 for the aforesaid offences. The

Superintendent of Police, Kadapa vide proceedings in

AVRB,J Crl.A. No.357/2011

RC.No.32/C3/SC-ST/2008, dated 07.02.2008, appointed LW.16 -

K. Narasimhulu, SDPO, Jammalamadugu, as Investigation Officer

to investigate the case. Thereafter, LW.16 visited the scene of

offence, found the Bengal Gram crop raised by LW.1 was cut with

harvest machine and also found the tyre marks of harvest

machine in the agricultural field. During investigation, he obtained

the caste certificate of de-facto complainant. On 08.02.2008, on

information, he arrested A-1 and A-2 at the house of A-2, who

voluntarily confessed about the offence and produced the

harvested Bengal Gram bags. He seized 11 Bengal Gram gunny

bags each weighing 90 KGs and another Bengal Gram gunny bag

weighing around 80 KGs. He arrested the accused, seized the

property under the cover of a mahazar, attested by the mahazar

witnesses, and thereafter forwarded the accused for judicial

custody. During investigation, A-1 obtained the status-quo order in

W.P.M.P. No.33278 of 2007 in W.P. No.25878 of 2007. But,

according to the investigation, the de-facto complainant was in

possession of the land as on the date of issuance of such status-

quo order. Thus, both the accused, with a mala-fide intention,

criminally trespassed into the land of LW.1, committed mischief by

harvesting the Bengal Gram crop and took away the harvested

crop by committing robbery. Hence, the charge sheet.

AVRB,J Crl.A. No.357/2011

5. The learned Magistrate, Jammalamadugu took cognizance of

the charge sheet and numbered it as PRC No.18 of 2008. After

appearance of the accused and after completing the necessary

formalities under Section 207 Cr.P.C, PRC No.10 of 2008 was

committed to the Special Sessions Court, Kadapa and thereafter it

was numbered as Special Sessions Case No.39 of 2008.

6. After appearance of the accused before the learned Special

Judge, Kadapa, charge under Section 3(1)(x) of the SCs and STs

Act and charges under Sections 427, 447 and 392 IPC were

framed and explained to both the accused in Telugu, for which

they pleaded not guilty and claimed to be tried.

7. In order to establish the guilt against the accused, the

prosecution before the learned Special Judge, examined PWs.1 to

PW.10 and got marked Exs.P-1 to P-12 and further marked MO.1

- 12 bags of Bengal Gram, which is half riped and unfit for human

consumption.

8. After closure of the evidence of the prosecution, both the

accused were examined under Section 313 Cr.P.C and stated that

a false case is filed against them. They did not examine any

defence witnesses.

AVRB,J Crl.A. No.357/2011

9. The learned Special Judge, on hearing both sides and after

considering the oral and documentary evidence on record, found

the accused not guilty of the charge under Section 3(1)(x) of the

SCs and STs Act and charge under Section 392 IPC and

accordingly acquitted them under Section 235(1) Cr.P.C, but

found both the accused guilty for the offences under Sections,

447, 427 and 379 IPC and accordingly convicted them under

Section 235(2) Cr.P.C. The learned Special Judge, after

questioning the accused about the quantum of sentence,

sentenced A-1 and A-2 to pay a fine of Rs.500/- each in default to

undergo Simple Imprisonment for one week each for the offence

under Section 447 IPC; to undergo Rigorous Imprisonment for

three months and to pay a fine of Rs.1,000/- each, in default to

suffer Simple Imprisonment for one week each for the offence

under Section 427 IPC and sentenced them to undergo Rigorous

Imprisonment for six months and also to pay a fine of Rs.2,000/-

each in default to suffer Simple Imprisonment for one month each

for the offence under Section 379 IPC.

10. Felt aggrieved of the same, the un-successful accused

therein filed the present Criminal Appeal.

AVRB,J Crl.A. No.357/2011

11. Now, in deciding this Criminal Appeal, the points that arise

for consideration are:

1) Whether the prosecution before the learned Special

Sessions Judge, Kadapa proved that both the accused

criminally trespassed into the land in possession of

PW.1, committed mischief and theft of harvested

Bengal Gram crop, in the manner as alleged?

2) Whether the impugned judgment is sustainable

under law and facts and whether there are any

grounds to interfere with the same?

12. POINT Nos.1 & 2: Firstly, this Court would like to make it

clear that as against the findings of the learned Special Judge that

the prosecution did not prove the charge under Section 3(1)(x) of

the SCs and STs Act and charge under Section 392 IPC, the State

did not file any Cross-Appeal. So the scope of this Appeal has to be

confined only with regard to the offences under Sections 447, 427

and 379 IPC.

13. PW.1 is the de-facto complainant who deposed, in brief, that

the Government allotted Ac.2.00 cents to her. She knows the

accused. The land was originally given to A-1. As A-1 was not

AVRB,J Crl.A. No.357/2011

residing in the village, the said grant was cancelled and patta was

given to them for the same land about three years prior to the date

of her evidence. She raised Bengal Gram (sanagalu) crop in

Ac.2.00 cents, which was ready for harvest in 10 days. A-1, A-2

and 4 others came to her field with harvesting machine and a

tractor. Then, on coming to know about the incident, she went to

the field and questioned the act of the accused. A-1 abused her

saying 'Yerukala Munda Needemundhi', slapped her and drove her

away. Then, she left the place and went to her house. She sent a

word to her husband. Till evening her husband could not be

contacted. In the afternoon, after coming of her husband, both of

them went to the field and observed that entire crop was cut and

carried away by the accused. They returned to the house and from

there went to Peddamudiam Police Station and presented a

complaint, which is marked as Ex.P-1. Later, they came to know

that their harvest crop was seized by the Police. Ex.P-2 is the

original patta given to her in respect of the land at Suddapally on

13.09.2007. Ex.P-3 is the proceedings of the Tahsildar, dated

15.05.2007, cancelling the patta issued to A-1. Ex.P-4 is the

proceedings of RDO, dated 11.02.2010, confirming the order,

dated 15.05.2007, of the Tahsildar cancelling the patta issued to

A-1. Ex.P-5 is the title deed. Ex.P-6 is the pattedar passbook.

AVRB,J Crl.A. No.357/2011

14. PW.2 is the husband of PW.1, who supported the evidence of

PW.1 with regard to the patta that was issued to PW.1. He further

testified that earlier the land was assigned to A-1 and later patta

granted to A-1 was cancelled. He deposed that they are in

possession of the land. They raised Bengal Gram crop and spent

around Rs.30,000/-. On 06.02.2008 afternoon, PW.1 informed

him that A-1, A-2 and 4 others came with a harvesting machine

and tractor and cut away the crop and that they also abused PW.1

in the name of her caste. They assaulted and drove her away. He

reached to his house at 04:00 p.m. Thereafter along with his wife

went to the Police Station and presented the report. He deposed

that accused approached High Court and he also approached High

Court, wherein the High Court directed the RDO concerned to

enquire into the matter. After due enquiry, the RDO concerned

issue proceedings in their favour assigning the land.

15. The prosecution examined PW.3 to speak about the incident.

According him, he got Ac.3.00 cents of land adjacent to the land of

PW.1. He raised Bengal Gram crop. PW.1 also raised the same

crop. Three years ago at 11:00 a.m., A-1 and A-2 entered into the

land of PW.1 with the help of a harvesting machine cut and carried

away the crop in a tractor. PW.1 came and questioned the accused

AVRB,J Crl.A. No.357/2011

and there was some dispute between them. He observed, from a

distance that A-1 and A-2 chased away PW.1.

16. Prosecution got examined PW.4 to speak about the incident.

He deposed about the land that was granted to PW.1. PW.1 raised

Bengal Gram crop therein. He further deposed that on the date of

incident at about 11:00 a.m. he went to his field and observed

PW.3 also in his field. He found cutting of crop in the field of PW.1.

He enquired PW.3 as to why half riped crop was cut. PW.3

informed him that A-1 and A-2 cut the crop with the help of a

harvesting machine and carried away the crop in a tractor.

17. Turning to the evidence of PW.5, he knows both the accused

who belonged to Reddy Community. PW.1 was assigned land by

the Government and she raised Bengal Gram crop. About three

and half years ago, after performing his duties as night watchman,

he went to his house and came to know through PW.3 that

accused harvested the crop, raised by PW.1, with harvesting

machine and carried away the same.

18. PW.6 is the then in charge VRO of Suddapally village, who

deposed that in the year 1976, A-1 was assigned Ac.2.00 cents of

land at Suddapalli Village. On 05.04.2007, MRO conducted a

AVRB,J Crl.A. No.357/2011

Grama Sabha wherein it was found that A-1 left the land assigned

to him fallow and was residing at Rangareddy. A-1 also had no

house in Suddapally. Notices were issued but they were not

served. Thereafter, the Tahsildar issued proceedings cancelling the

patta issued in favour of A-1 under Ex.P-3 and the same land was

assigned to PW.1 as she belongs to ST community under Ex.P-2.

PW.1 raised Bengal Gram crop in the said land. On 06.02.2008,

he came to know that A-1 and A-2, cut and carried away the crop

raised by PW.1. He informed the said fact to SDPO. Further, on

08.02.2008, at the request of DSP, he went to the house of A-2

and observed 12 bags of Bengal Gram stacked. MO.1 is Bengal

Gram 12 bags (they are completely damaged and unfit for human

use). DSP got weighed the stock and arrested A-1 and A-2. A

mahazar was scribed and Ex.P-7 was his signature in the

mahazar.

19. Prosecution further examined PW.7, Deputy Tahsildar, who

was the then in charge Tahsildar of Peddamudiam, about his

enquiry that A-1 was not cultivating the land and he was not at all

residing in the village. His further evidence is that during 1976

patta was granted to A-1 in respect of Ac.2.00 cents in Survey

No.402/2 at Suddapally village. During Gramasabha held by the

AVRB,J Crl.A. No.357/2011

Tahsildar at Suddapally, it was found that A-1 left the land fallow.

After enquiry, land assigned to A-1 was resumed and it was

allotted to PW.1, who is a landless poor woman from Scheduled

Tribe community. Later, at the instance of A-1, RDO conducted

enquiry and he also attended the same and during enquiry, it was

revealed that A-1 was not residing at Suddapally and he is

residing at Rangareddy/Hyderabad.

20. PW.8 is the Tahsildar, Muddanur who issued caste

certificate of A-1 under Ex.P-8.

21. PW.9 is the SI of Police. He deposed about registration of FIR

basing on the report of PW.1 on 06.02.2008 at about 06:30 p.m.

Ex.P-9 is the original FIR. He further deposed about his presence

at the time of investigation by DSP at the house of A-2 with regard

to seizure of Bengal Gram bags and arrest of the accused.

22. PW.10 is the SDPO, Jammalamadugu, who spoke about the

investigation of case and filing of charge sheet.

23. Sri L.J. Veera Reddy, learned counsel for the

appellants/accused, would contend that PW.1 herself admitted

that A-1 was granted patta in respect of the subject matter of the

land. According to the defence of A-1, he was in possession and

AVRB,J Crl.A. No.357/2011

enjoyment of the property throughout. To protect his possession,

he filed W.P.M.P. No.33278 of 2007 in W.P. No.25878 of 2007 and

obtained interim order of status-quo. The so called resumption of

land by the Revenue Authorities was not at all within the

knowledge of A-1. So, when the accused raised a valid contention

before the learned Special Judge, claiming possession, it cannot be

held that they criminally trespassed into the land of PW.1. In fact,

the patta that was granted to A-1 was not supposed to be

cancelled as A-1 served in the Military for more than 30 years.

Husband of PW.1 i.e., PW.2 was a Journalist, who compelled other

prosecution witnesses to depose in favour of prosecution though

the case is false. The learned Special Judge made erroneous

findings as if the accused failed to show their possession and

enjoyment. Prosecution did not examine Kottapalli Nagaraju

(LW.3) and Siddamreddy Chandra Mouli Reddy (LW.4), whose

harvesting machine was alleged to be used by the accused. In fact,

the Tahsildar concerned was not competent for resumption of the

land in favour of PW.1 in view of the decision of erstwhile High

Court of Andhra Pradesh, Hyderabad in G. Munilakshmamma v.

The District Collector and others1. The testimony of PWs.1 and

PW.2 is interested in nature. They claimed possession over the

1 1991 (1) ALT 617

AVRB,J Crl.A. No.357/2011

property as on the date of alleged offence. The findings of the trial

Court are not at all sustainable under law and facts. Alternatively,

learned counsel for the appellants/accused would submit that, in

the event of dismissal of the Appeal, for any valid reasons, the

sentence of imprisonment imposed against the appellants may be

reduced as the appellants are old aged now.

24. Sri Y. Jagadeeswara Rao, learned Special Assistant,

representing learned Public Prosecutor, would contend that the

evidence of PWs.1 to PW.4 and the documents marked on behalf of

the prosecution proves the possession claimed by the de-facto

complainant. According to the evidence on record, A-1 was

divested of his possession by virtue of resumption of land by the

concerned RDO. A-1 had no residence at Suddapalli Village. He

kept the land fallow as against to the terms and conditions in the

assigned patta. As PW.1 is a Scheduled Tribe woman, Revenue

Authorities granted patta in her favour but the documentary as

well as oral evidence proves the possession of PW.1 as on the date

of offence. PW.3 and PW.4 have no reason to depose false. Half

riped Bengal Gram stock was seized by the SDPO in the presence

of witnesses at the house of A-2. If really, the defence of accused

was true, they would not have harvested the half riped Bengal

AVRB,J Crl.A. No.357/2011

gram crop. The learned Special Judge, with valid reasons, found

the appellants guilty of the offences under Sections 447, 427 and

379 IPC and he took care to appreciate the evidence and extended

benefit of doubt with regard to the charges under Section 3(1)(x) of

the SCs and STs Act and Section 392 of IPC as such the Criminal

Appeal is liable to be dismissed. Lastly, with regard to the

contention of appellants that the Court may reduce the sentence

of imprisonment, as the appellants now became old aged, he

submitted that he is leaving the matter to the discretion of the

Court.

25. To decide the offence of criminal trespass attributed against

the accused, prosecution has to prove that PW.1 was in lawful

possession of the property as on the date of offence. Apart from

the evidence of PWs.1 and PW.2, there is evidence of PW.3 in

support of the case of prosecution. PWs.1 and PW.2 asserted that

the patta that was granted in favour of A-1 was cancelled and the

land was resumed and it was put in possession of PW.1. Apart

from this, PW.3 is an independent witness and he supported the

case of prosecution stating that about three years ago at about

11:00 a.m., A-1 and A-2 entered into the land of PW.1, harvested

the crop with the help of a harvesting machine and carried away

AVRB,J Crl.A. No.357/2011

the crop in a tractor trailer. Apart from this, there is evidence of

PW.6, VRO of the village, which means that PW.1 was put in

possession of the land in question. There is evidence of PW.7 -

Deputy Tahsildar, in support of the case of prosecution. Apart

from this oral testimony, the prosecution got marked Ex.P-3, the

proceedings of the Tahsildar, dated 15.05.2007, cancelling the

assignment proceedings issued to A-1. As seen from the cross-

examination of PWs.1 and 2, it is not the case of A-1 that he was

residing in the Suddapally village but not residing at Rangareddy/

Hyderabad and that throughout i.e., right from granting of patta,

he was cultivating the land and did not kept the land fallow. When

there was categorical evidence of PWs.1 and PW.2 that A-1 left the

village to Hyderabad or Rangareddy and kept the patta land fallow

and was not at all residing in the village, no contra version was

put forth before PWs.1 and PW.2 during their cross-examination.

Ex.P-2 literally whispers that patta was granted in favour of PW.1

on 13.09.2007. Prior to that by virtue of Ex.P-3, proceedings the

Tahsildar cancelled the patta that was granted in favour of A-1

and directed resumption of land. So, after the resumption of land

it was allotted to PW.1. It may not be out of place to make a

mention here that the defence of the accused, at the time of

arguments before the trial Court, was that A-1 filed Writ Petition

AVRB,J Crl.A. No.357/2011

No.25878 of 2007 before the High Court of Andhra Pradesh and

obtained a status-quo order with regard to possession of the land.

Learned Special Judge, elaborately dealt with this aspect by giving

a finding that the date on which the order passed was on

06.12.2007 by which time the de-facto complainant was put in

possession of the property by the Revenue Authorities and order of

the status-quo means to maintain the existing state of things at

the given point of time and by that time A-1 was not in possession

of the land. So, the obvious effort made by the accused at the time

of arguments as if the order in Writ Petition supports his case

cannot stand to any reason. As seen from Ex.P-4, the proceedings

of the RDO, dated 11.02.2010, it further transpires that in the

Writ Petition filed by A-1 before the High Court of Andhra Pradesh,

he obtained a status-quo order and later the Writ Petition was

disposed of. Accordingly, the RDO, conducted enquiry and during

the course of enquiry, he found that family of A-1 was not at all

residing in the village and the land that was allotted to A-1 was

kept fallow and as A-1 did not follow the terms and conditions, the

patta granted to him was cancelled and the land was resumed.

While giving such findings, the RDO, confirmed the proceedings

issued under Ex.P-3. So, apart from the above documentary

evidence, there is oral testimony of PW.1, PW.2, PW.3, PW.6 and

AVRB,J Crl.A. No.357/2011

PW.7 to show that as on the date of offence PW.1 was put in

possession of the land in dispute. As PW.1 came into possession of

the land under Ex.P-2, her possession can be stated to be lawful.

26. The decision of High Court of Andhra Pradesh in G.

Munilakshmamma (supra) is of no use to his case as the

proceedings issued under Ex.P-4 by the RDO were not further

challenged by A-1. Apart from this, this Court cannot deal with the

legality or validity of Exs.P-3 and P-4. What the Court has to see

now is as to whether the possession claimed by PW.1, as on the

date of offence, is valid in the eye of law. It is not a case where she

came into possession of the land by trespass or otherwise. So,

when she claimed her possession under Exs.P-3 and P-4, which

are not impugned by A-1, ultimately the possession claimed by

PW.1 as on the date of offence can be said to be lawful. So, one of

the essential ingredients as regards the offence under Section 447

IPC was quietly established by the prosecution.

27. Coming to the allegations that A-1 and A-2 trespassed into

the land of PW.1 and harvested the crop which amounts to

mischief and later took away the crop, there is evidence of PW.1,

PW.2 and PW.3. During the course of cross-examination of PW.1,

she deposed that the distance from their village to Peddamudiam

AVRB,J Crl.A. No.357/2011

Police Station is about 4 KMs. At about 10:00 a.m. she came to

know that accused came to the fields and harvested their crop.

She denied that Revenue officials did not hand over the possession

of the land and they have not raised any crop. There remained

nothing in the above cross-examination. When Exs.P-2, P-3 and

P-4 confirmed the possession of PW.1, accused cannot contend

that the Revenue authorities did not handover the possession to

PW.1. Absolutely, it is never the defence of A-1 that he did not

kept the land fallow and he cultivated the same and further he did

not leave the village and that he was residing in the village itself.

Even during cross-examination of PW.2, nothing is elicited to

disbelieve his testimony. He denied the suggestion that no

proceedings were issued by the RDO assigning the land to his wife.

PW.3 is an independent witness to the occurrence and was

neighbour to the land of PW.1. He has no reason to depose false.

His evidence proves the fact that both the accused entered into the

land of PW.1, harvested the crop with the help of a harvesting

machine and carried away the crop in a tractor trailer. There is

evidence of PW.4 that on the date of incident at about 11:00 a.m.

he went to his field and observed PW.3 in his field and found the

harvested Bengal Gram crop in the field of PW.1 and he came to

know about the incident through PW.3. So, the fact that there was

AVRB,J Crl.A. No.357/2011

crop which was lying in the filed of PW.1 after harvesting is also

testified by PW.4, who came to know about the facts through

PW.3. The non examination of owners of the harvesting machine

cannot be a circumstance to disbelieve the case of prosecution as

PW.3 has no reason to depose false against the accused.

28. Coming to the evidence of PW.10, the SDPO,

Jammalamadugu and Investigating Officer in this case, he spoke

about his investigation. His specific evidence is that, during

investigation on 08.02.2008, he arrested the accused at the house

of A-2. He seized the stored Bengal Gram crop at the house of A-2

under the cover of a panchanama, Ex.P-7, attested by

panchayatdars. He brought the seized Bengal Gram produce to the

Pedamudiam Police Station and sent to the Court of Judicial First

Class Magistrate, Jammalamadugu. During cross-examination,

except denying the case of prosecution both the accused did not

elicit any favourable answers from him. So, the half riped Bengal

gram crop stored in 12 gunny bags was seized at the house of

A-2. So, the prosecution established a further link that both the

accused took away the half riped harvested Bengal gram crop to

their house. The seizure of 12 bags of half riped harvested Bengal

gram crop was quietly spoken by PW.10.

AVRB,J Crl.A. No.357/2011

29. Having regard to the above, I am of the considered view that

the evidence of PWs.1 to PW.4 is believable. There are no doubtful

circumstances in their testimony. The accused miserably failed to

probabilize their defence that they were in actual possession of the

subject property as on the date of offence.

30. Though the charge was under Section 392 IPC, the trial

Court convicted the accused under Section 379 IPC as against the

original charge under Section 392 IPC. As Section 379 IPC is

minor offence, when compared to Section 392 IPC, there is no bar

to convict the accused under Section 379 IPC. Further, the

evidence adduced by the prosecution clinchingly proves that both

the accused trespassed into the land of PW.1, cut away the half

riped Bengal gram crop and their act would further attract the

essential ingredients of criminal trespass and mischief. The

learned Special Judge on thorough appreciation of the evidence on

record with sound reasons believed the case of prosecution with

regard to the charges under Sections 447, 427 and 379 IPC.

Further, the learned Special Judge took care to analyze the

evidence with regard to the charge under Section 3(1)(x) of the SCs

and STs Act and extended benefit of doubt in favour of the

accused. Under the above circumstances, the impugned judgment

AVRB,J Crl.A. No.357/2011

is sustainable under law and facts and there are no reasons to set-

aside the impugned judgment as canvassed by the appellants.

31. As pointed out, the alternative argument of learned counsel

for the appellants is that in the event of dismissal of the Appeal,

for any valid reasons, the sentence of imprisonment imposed

against the appellants may be reduced as the appellants are very

old now. There is no dispute that the ages of the accused in the

charge sheet, filed in the year 2008, were shown as 56 and 37

years respectively. So, by this time, the 1st appellant must have

been in the age of 71 years and the 2nd appellant must have been

in the age group of 52 years. Almost since 15 years, they are

waiting for the result of this Criminal Appeal. Having regard to the

above, the contention of learned counsel for the appellants to

reduce the sentence of imprisonment is found convincing.

32. The learned Special Judge, sentenced A-1 and A-2 to pay a

fine of Rs.500/- each in default to undergo Simple Imprisonment

for one week for the offence under Section 447 IPC. Further, the

learned Special Judge sentenced them to undergo Rigorous

Imprisonment for three months and to pay a fine of Rs.1,000/-

each in default to suffer Simple Imprisonment for one week each

for the offence under Section 427 IPC. Insofar as the offence under

AVRB,J Crl.A. No.357/2011

Section 379 IPC is concerned, they were sentenced to undergo

Rigorous Imprisonment for six months and to pay a fine of

Rs.2,000/- each in default to undergo Rigorous Imprisonment for

one month each.

33. Having regard to the overall facts and circumstances and

looking into the fact that the Criminal Appeal has been pending

since long time and also considering the age of the appellants as of

now, it is just and necessary to modify the punishment imposed

against them under Section 427 IPC to that of fine which the trial

Court already imposed and further to reduce the Rigorous

Imprisonment of six months, imposed under Section 379 IPC, to

that of three months while maintaining the fine imposed against

the appellants by the trial Court with default clause.

34. In the result, the Criminal Appeal is allowed in part

modifying the punishment imposed under Section 427 IPC to that

of fine of Rs.1,000/- each, as imposed by the trial Court, with the

same default clause by setting-aside the Rigorous Imprisonment of

three months and further reducing the Rigorous Imprisonment of

six months to three months insofar as the offence under Section

379 IPC is concerned while maintaining the fine imposed under

Section 379 IPC with default clause by the trial Court against the

AVRB,J Crl.A. No.357/2011

appellants. The rest of the judgment of the trial Court in Special

Sessions Case No.39 of 2008, dated 16.03.2011, in all other

respects stands confirmed.

35. The Registry is directed to take steps immediately under

Section 388 Cr.P.C. to certify the judgment of this Court including

the trial Court record, if any, to the trial Court on or before

22.09.2023 and on such certification, the trial Court shall take

necessary steps to carry out the modified sentence of the

appellants/accused, as above, and to report compliance to this

Court. A copy of this judgment be placed before the Registrar

(Judicial), forthwith, for giving necessary instructions to the

concerned Officers in the Registry.

Consequently, Miscellaneous Applications pending, if any,

shall stand closed.

________________________________ JUSTICE A.V.RAVINDRA BABU Date: 13.09.2023 DSH