Bombay High Court
Raju S/O Ramanna Dasri And Another vs State Of Mah. Thr. Pso Wanjari Tq. ... on 7 April, 2022
Bench: Avinash G. Gharote
(1) 43.revn.133.2020
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL REVISION APPLICATION NO.133 OF 2020
Raju s/o Ramanna Dasri and another
Vs.
State of Maharashtra Through Police Station, Wanjari, Dist. Yavatmal
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Mr. A. A. Mardikar, Advocate for applicants.
Ms. Mayuri Deshmukh, APP for non-applicant/State.
CORAM : AVINASH G. GHAROTE, J.
DATE : 07/04/2022
Heard Mr. Mardikar, learned counsel for the
applicants and Ms. Deshmukh, learned APP for
non-applicant/State.
2. The application challenges the judgment
dated 12.01.2010 passed by the learned Judicial
Magistrate, First Class, Wani whereby the applicants have
been convicted under Section 447 read with Section 34
of the Indian Penal Code and sentenced to suffer simple
imprisonment for two months each and so also convicted
for the offence punishable under Section 506 read with
Section 34 of the Indian Penal Code and sentenced to
suffer simple imprisonment of six months each
(page 25), which has been modified by the learned
Sessions Court by the judgment dated 18.12.2020 by
maintaining the conviction under Section 447 of the
Indian Penal Code, however, acquitted the applicants of
(2) 43.revn.133.2020
the offence under Section 506 of the Indian Penal Code.
3. Mr. Mardikar, learned counsel for the
applicants submits that the judgments on the face of it,
suffer from the perversity of considering material
documents, which was not proved as per law. He
submits, that a case has been claimed that PW 3 -
Avinash Namdeorao Wagwatkar was granted mining
lease of the Government land bearing Gat No.160
admeasuring 11.72 HR by the Collector, Yavatmal, for
extraction of lime stone for a period of 30 years from
13.05.2005 up to 12.05.2035, out of which an area
admeasuring approximately 5 Acres is claimed to have
been encroached by the applicants, as result of which on
a complaint made by PW 3 on 09.06.2006, the Naib
Tahsildar PW 4 alongwith the Police bandobast had gone
to the spot and removed the encroachment by giving
possession receipt to PW 3. Thereafter, the applicants are
again claimed to have encroached upon the same portion
and sown cotton and tur on the said land. On 14.07.2006
at 4.00 p.m. when PW 3 said to have gone to the leased
land, he found again encroachment made by the
applicants, who also quarreled with him, abused him and
threatened to kill him, as a result, on 15.07.2006, a
complaint was lodged, on account of which offence
under Sections 447, 504, 506 read with Section 34 came
to be registered against the applicants.
(3) 43.revn.133.2020
4. On behalf of the prosecution, five witnesses
were examined. PW 3 is the complainant to whom the
lease was given, PW 4 is the Naib Tahsildar, who had on
the earlier occasion removed the encroachment and
placed the PW 3 in possession of the land in question.
PW 5, is the Head Constable, who had gone to the spot of
the incident and prepared the spot panchanama. PW 1 is
the witness to the spot panchanama and PW 2 is the
Supervisor.
5. A perusal of the evidence of PW 3 and 4, who
are the material witnesses, indicates that though they
have deposed that the aforesaid land of Survey No.160
was given on lease; there was encroachment on an earlier
occasion which was removed by the PW 4, who had
handed over the possession to the PW 3, however, none
of these documents, in original have been placed on
record. The evidence of PW 3 indicates that he has only
proved the report at Exh. 47 and the printed FIR at
Exh.48 and nothing else. All other documents placed on
record have been marked as articles, as they had not
been proved. Similar is the position, with the PW 4 -
Devidas Khandare, who though states that the land in
question was measured by the T.I.L.R., who found
encroachment and after removing it, had placed it in
possession of PW 3, however, neither the T.I.L.R.
measurement report nor the possession receipt have been
(4) 43.revn.133.2020
proved by him. Thus, the entire set of documents
necessary to demonstrate lease being given to the PW 3;
the extent of area of the lease, its fixed boundaries, the
alleged encroachment - report of the T.I.L.R.; the
possession receipt, all have not been proved on record,
and they have been marked as articles in absence of the
originals. This being the position, the Courts below could
not have placed reliance upon these documents to infer
that there was any encroachment made by the applicants
on the land of Survey No.160, as the factum thereof, was
not established by cogent evidence on record. The
judgments of the Court below, merely run on
presumption and surmises, which was impermissible,
considering the nature of the allegations made and the
burden upon the prosecution to establish the factum of
encroachment, in which it has in my considered opinion
miserably failed considering what has been discussed
above. The basic requirement of criminal trespass as
defined in Section 441 of the Indian Penal Code is an
entry upon the property of another with an intent to
commit an offence or to intimidate, insult or annoy any
person in possession of such property. In order to
establish that, what is material to establish, is the extent
of the property to which one is entitled, and the nature
and quantum of encroachment made, which could have
only been established by proving the lease deed, the
extent of area under the lease, its boundaries, the report
of the T.I.L.R. and the possession receipt under which
(5) 43.revn.133.2020
PW 3, is claimed to have been delivered possession of the
encroached area by the PW 4. However, none of these
documents have been proved on record, as the originals
of these documents were never brought in the Court by
either PW 3 or PW 4. Thus, the judgment of the learned
Judicial Magistrate, First Class, convicting the applicants
under Section 447 of the Indian Penal Code cannot be
sustained and so also the judgment in appeal rendered by
the learned Sessions Court upholding the conviction
under Section 447 of the Indian Penal Code also cannot
be sustained, as it suffers from the same infirmity, as a
result of which, they are hereby quashed and set aside
and the applicants are acquitted of the offence
punishable under Section 447 of the Indian Penal Code.
Their bail bonds stand cancelled. The fine deposited be
refunded back to the applicants. No costs.
JUDGE
Sarkate
Digitally signed byANANT R
SARKATE
Signing Date:08.04.2022
17:50
