Kewal Sai vs Sukhlal
2022 Latest Caselaw 4314 Chatt

                                        1

                                                                       AFR

           HIGH COURT OF CHHATTISGARH, BILASPUR

                           CRA No. 2785 of 1999

   • Kewal Sai S/o Purshottam Aged About 45 Years Caste Bargah, R/o
     Village Sargava, P. S. Ambikapur, District Surguja M. P. (Now
     Chhattisgarh), District : Surguja (Ambikapur), Chhattisgarh

                                                              ---- Appellant

                                      Versus

   • Sukhlal S/o Kewal Sai Aged About 35 Years Caste Bargah, R/o Village
     Sargava, P. S. Ambikapur District Surguja M. P. (Now Chhattisgarh),
     District : Surguja (Ambikapur), Chhattisgarh

                                                           ---- Respondent

For Appellant : Shri Rahul Mishra and Shri Samir Singh, Advocates. For Respondent : Shri VK Pandey and Shri TR Chandrakar, Advocates.

Hon'ble Shri Deepak Kumar Tiwari, J

Order On Board

08/07/2022 :

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. 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/-. 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. 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.

Sd/-

(Deepak Kumar Tiwari) Judge Barve

HEADLINES

When the bonafide claim of right was proved and also possession of

complainant not clear, offence under Section 447 of the IPC not made out.

Further without proof of caste certificate, conviction under the SC/ST

(Prevention of Atrocities) Act, 1989 was bad in law.