Mohinder Singh And Another vs State Of Himachal Pradesh
2021 Latest Caselaw 1499 HP

         IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
                                        Cr. Appeal No. 81 of 2019
                                       Decided on: March 2, 2021




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    _______________________________________________________________





    Mohinder Singh and another                   ...........Appellants

                                               Versus





    State of Himachal Pradesh                        ....Respondent
    _______________________________________________________________
    Coram:
    Hon'ble Mr. Justice Sandeep Sharma, Judge.
    Whether approved for reporting? 1yes.





    For the appellants                     :      Mr. Vivek Singh Attri and Mr.
                                                  Abhinav Purohit, Advocates.

    For the Respondent                     :
                                  Mr. Sudhir Bhatnagar and Mr.
                        r         Arvind     Sharma,     Additional
                                  Advocates General with Mr.

                                  Kunal Thakur, Deputy Advocate
                                  General.
    _______________________________________________________________
    Sandeep Sharma, Judge (oral):

Instant appeal filed under S.374 CrPC, lays

challenge to judgment of conviction and order of sentence dated

2.3.2019, passed by learned Special Judge, Una, District Una,

Himachal Pradesh in Cr. Case No. 2 of 2016, whereby, learned

Court below, while holding the appellants-accused (hereinafter,

'accused') guilty of having committed offences punishable under

Ss. 447 and 34 IPC and S.3(1)(g) of the Scheduled Castes and

the Scheduled Tribes (Prevention of Atrocities) Act, 1989

(hereinafter, 'Act'), convicted and sentenced them to undergo

simple imprisonment for one month and to pay a fine of Rs. 500

/- each under Section 447 of IPC and in default of payment of

Whether the reporters of the local papers may be allowed to see the judgment?

fine to further undergo simple imprisonment for seven days.

Besides this, accused have been convicted and sentenced to

.

under go simple imprisonment for six months and to pay a fine

of Rs. 5,000/- each for commission of offence punishable under

S.3(1)(g) of the Act and in default of payment of fine to further

undergo simple imprisonment for one month.

2. Facts, borne out from the record reveal that FIR No.

138 dated 19.8.2015 (Ext. PW-8/A) came to be lodged against

the accused under Ss. 447 and 34 IPC and S. 3(1)(v) of the Act

at Police Station Amb, District Una, Himachal Pradesh on the

allegations that the land belonging to complainant Vinod

Kumar, who is a member of the Scheduled Caste, measuring 0-

01-53 Hectares comprising of Khasra No. 1509/775 (Khewat No.

192/181), situate in Village Harwal, Tehsil Amb, District Una,

Himachal Pradesh has been wrongfully grabbed by the accused.

Complainant named herein above alleged that he belongs to a

Scheduled Caste and the accused persons, being upper class,

have unauthorizedly occupied his land, as such appropriate

action in accordance with law be taken against them. After

completion of investigation, police presented Challan in the

competent Court of law. Learned Court below, on being satisfied

that a prima facie case exists against the accused, framed

charges against them for the commission of offences punishable

under Ss. 447 and 34 IPC and S. 3(1)(g) of the Act and

subsequently, on the basis of the evidence collected on record

by the prosecution, held the accused guilty of having committed

.

offences punishable under the aforesaid provisions of law vide

impugned judgment of conviction and sentenced them, as per

description given above.

3. Being aggrieved and dissatisfied with the impugned

judgment of conviction and order of sentence passed by learned

Court below, accused have approached this Court in the instant

proceedings seeking their acquittal after setting aside the

judgment of conviction recorded by learned Court below.

4. Having heard learned counsel for the parties and

perused the evidence collected on record by the prosecution,

this court finds that since the year 2004 accused were in illegal

possession of the land owned by the complainant, Vinod Kumar

but the FIR which ultimately culminated into Challan under

S.173 CrPC, was filed approximately after 11 years of the

alleged wrongful dispossession of the complainant from the

land. Though the material available on record reveals that prior

to filing of FIR in question, complainant had been raising issue

with regard to his forcible dispossession from the land in

question before other statutory authorities prescribed for

redressal of grievances of persons belonging to Scheduled Caste

category but till the date of filing of FIR, Ext. PW-8/A, no legal

proceedings ever came to be instituted at the behest of the

complainant seeking possession of his property/land,

unauthorizedly occupied by the accused. Similarly, this court

.

finds from the evidence collected on record by the prosecution

that though by leading cogent and convincing evidence on

record, prosecution has successfully proved on record that the

land in question belongs to the complainant, Vinod Kumar and

same is in unauthorized possession of the accused, but there is

no evidence worth credence that the complainant, Vinod Kumar

was dispossessed by accused from the land in question.

Complainant, Vinod Kumar while deposing as PW-1, stated that

the accused persons are running a school and around the

school, there is boundary wall, which has been constructed on

his land. This witness also deposed that the spot was inspected

firstly by Kanungo and thereafter by the Tehsildar and these

authorities in their reports submitted to the higher authorities

have categorically reported the factum with regard to

unauthorized possession of the accused over the suit land. This

witness (PW-1) in cross-examination, while admitting that he

inherited disputed land from his father, also admitted that other

co-sharers had assailed aforesaid order before the Collector, but

he did not receive any such summons in this regard. This

witness also admitted that the partition proceedings inter se

cosharers were also initiated and thereafter, cosharers were put

in possession of their respective shares. Most importantly, this

witness categorically deposed in his cross-examination that

since he was not present on the spot at the time of delivery of

.

possession, he was not delivered the possession. Though, other

prosecution witnesses namely PW-2 Gurmeet Singh, PW-3 Jeet

Singh, PW-4 Ram Nath and PW-5 Anil Kumar, while supporting

the version put forth by PW-1, complainant Vinod Kumar,

categorically deposed that the accused have encroached upon

the land of the complainant and demarcation was conducted in

their presence but they nowhere stated that the complainant

Vinod Kumar was put in possession qua share of land assigned

to him in the partition proceedings. Otherwise also, if

statements having been made by aforesaid witnesses are

perused in conjunction, they suggest that the accused

obstructed passage to the land of the complainant by erecting

boundary wall. PW-7 Rameshwar Dass, Tehsildar has deposed

that he directed the Kanungo to demarcate disputed land. This

witness also deposed that PW-6 Kuldeep, Kanungo, after having

demarcated the disputed land furnished his report, which was

accepted by him vide order dated 6.9.2015 (Ext. PW7/B).

Aforesaid witness also produced on record reports Exts. PW-

7/F, PW-7/G, PW-7/H, perusal whereof reveals that on the

spot, it was fond that Khasra No. 1509/775 was in possession

of the accused persons, whereupon they had planted trees and

flowers. Similarly, report Ext. PW-7/G, reveals that Khasra No.

1509/775 was encroached by the accused. Document Ext. PW

7/H i.e. reply given to complainant by Tehsildar under the Right

.

to Information Act shows that a boundary wall has been fixed

around Khasra No. 1509/775, as a consequence of which path

to the land comprised in Khasra No. 1509/775 has been

blocked. PW-8 Jatinder, investigation officer has also stated that

during investigation he found that Khasra No. 1509/775 was

occupied by the accused. If statements made by the aforesaid

prosecution witnesses are read juxtaposing the documentary

evidence led on record by respective parties, this court finds

that the land comprising of Khasra Nos. 1508/775, 1509/775

and 1512/776 was earlier part of Khasra No. 775, which was

purchased and possessed by a number of co-sharers. During

partition proceedings, initiated at the behest of some of co-

owners, land comprising of Khasra No. 1509/775 fell in the

share of complainant, Vinod Kumar. Perusal of Ext. DD reveals

that the land comprising in Khasra No. 1510/775 owned by

accused is adjoining to land comprising of Khasra No.

1509/775.

5. Though the reports Exts. PW-7/F and PW-7/G reveal

that the accused have encroached upon land of the complainant

in Khasra No. 1509/775, but once it a stands admitted by PW-1

complainant himself that he, after conclusion of partition

proceedings, was never put in possession of land in question,

there appears to be considerable force in the submission of Mr.

V.S. Attri, learned counsel for the appellant, that since there

.

was no evidence worth credence with regard to dispossession of

complainant from the land, learned court below has erred while

concluding guilt of the accused under S.3(i)(g) of the Act.

Besides the statement of PW-1 that he was not put into

possession of land in question and he was not present at the

time of delivery of possession, action taken report Ext. PW7/G

submitted by Tehsildar Amb to Sub Divisional Officer(Civil),

Amb, reveals that the complainant was contacted through

mobile phone to remain present on the spot on 22.11.2014 but

he showed his inability to remain present since he had

undergone surgery. Perusal of aforesaid documents clearly

reveals that the Tehsildar Amb pursuant to directions issued by

Sub Divisional Officer(Civil), Amb, District Una, Himachal

Pradesh visited the spot to ascertain the factum with regard to

dispossession of the complainant, Vinod Kumar from the land in

question by the accused. Aforesaid reports further reveal that

the partition proceedings No. 178/P-2002 inter se cosharers

were concluded on 1.10.2003, whereafter, Mutation No. 326,

dated 23.11.2014 was entered /attested in favour of the

respective cosharers qua the land in their possession. Father of

the complainant Nikku Ram was allotted Khasra Nos. 775/3 (0-

1-53) 776/1 (0-10-76) 777/1 (0-07-39) 777/3 (0-03-15) and

776/3 (0-04-09) Kita 5, measuring 0-26-92 Hectares, whereas

accused, after conclusion of aforesaid partition proceedings,

.

became owner by way of mutation No. 326, qua Khasra Nos.

1510/775 (0-01-54), 1513/776 (0-16-00) and 1519/777 (0-09-

25), situate in Village Harwal, Nangal Jaryala. Tehsil Amb. In

his report (Ext. PW-7/G), Tehsildar, Amb has submitted that he

visited the spot in the presence of Col. Mahender Singh Parmar

and Rekha Rani, Pradhan, Gram Panchayat Nangal Jaryala

and after perusal of revenue record, he found that warrant of

possession was executed on 26.11.2004 qua missal of partition

No. 178/P-2002, attested on 1.10.2003. Though, as per the

Misal of partition No. 178/P-2002, attested on 1.10.2003,

possession was delivered on the spot to the parties but since it

stands admitted by complainant Vinod Kumar that he was not

present at the time of delivery of possession and no possession

was delivered to him, it cannot be concluded that the

complainant was dispossessed from the land in question by the

accused, who admittedly being cosharer were subsequently

found to be in illegal possession of some portions of the land of

the complainant, Vinod Kumar.

6. At the cost of repetition, it may be observed that

though there is evidence to the effect that the accused are in

unauthorized possession of land belonging to the complainant,

but there is no evidence much less cogent evidence available on

record, suggestive of the fact that accused forcibly dispossessed

the complainant, Vinod Kumar from the land in question rather,

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there was dispute inter se so many cosharers qua specific

portions of land jointly owned by them and in the partition

proceedings initiated at the behest of a few of co-owners, land

comprising of Khasra No. 1509/775 fell to the share of the

complainant, Vinod Kumar. There is no evidence led on record

to prove that after passing of order dated 1.10.2003 by the

revenue authority in the partition proceedings, steps, if any,

ever came to be taken by the complainant, Vinod Kumar for

taking possession of land from the accused. Though, the factum

with regard to illegal occupation of land belonging to the

complainant, Vinod Kumar by accused was in the knowledge of

the complainant since the year 2004, but despite this, he did

not take any effective steps for taking back the possession of his

land. Even the FIR which is subject matter of the present case,

came to be lodged in the year 2015, i.e. after 11 years of

partition proceedings, in which complainant Vinod Kumar was

assigned his share, i.e. Khasra No. 1509/775 in the joint land.

There is no plausible explanation for the delay in filing the FIR,

save and except that the complainant had been pursuing his

case before other statutory authorities.

7. Leaving everything aside, bare perusal of S. 3(i)(g) of

the Act suggests that to attract aforesaid provision of law, it is

incumbent to prove that the member of Scheduled Caste or

Scheduled Tribe was wrongfully dispossessed from the land or

.

premises. It would be apt to reproduce S. 3(1)(g) of the Act as

under:

"3(1)(g) ....wrongfully dispossesses a member of a

Scheduled Caste or a Scheduled Tribe from his land or premises or interferes with the enjoyment of his rights, including forest rights, over any land or

premises or water or irrigation facilities or destroys the crops or takes away the produce therefrom."

8.

Though, in the case at hand, there is overwhelming

evidence available on record that the accused have not only

blocked /obstructed the passage going to the land of the

complainant Vinod Kumar but they have also encroached upon

the land belonging to the complainant by erecting boundary wall

but, definitely there is no evidence that aforesaid land came to

be occupied by the accused after dispossessing the

complainant, Vinod Kumar from the land in question. Evidence,

if read in its entirety, reveals that the accused alongwith other

cosharers including complainant Vinod Kumar, were in

possession of certain portions of the land, which admittedly prior

to partition was joint inter se parties. Since there was dispute with

regard to specific portions as well as extent of land, inter se some of

co-sharers, some of the cosharers initiated partition proceedings and

in those partition proceedings, Khasra No. 1509/775 measuring 0-

01-53 Hectares fell to the share of the complainant Vinod

Kumar. Though, in the aforesaid proceedings, complainant

.

Vinod Kumar was also held entitled for possession of land

comprised in Khasra No. 1509/775, but he himself has

admitted in his statement that possession qua aforesaid land

was never delivered to him. Once possession qua aforesaid land

comprising of Khasra No. 1509/775 measuring 0-01-53

Hectares was not delivered to the complainant, Vinod Kumar,

after culmination of partition proceedings, there is no question

of his dispossession, if any, from the land in question, by the

accused, who were admittedly owners of adjoining land

comprising of Khasra No. 1510/775.

9. Though the prosecution with a view to prove

possession of the complainant Vinod Kumar qua land in

question has successfully proved on record that pursuant to

order dated 1.10.2003 passed by revenue authorities in the

partition proceedings, warrant of possession was issued in

favour of complainant Vinod Kumar, but that itself is not

sufficient to prove possession of the complainant Vinod Kumar

over the land in question, especially, when there is no evidence

led on record suggestive of the fact that pursuant to warrant of

possession, complainant Vinod Kumar was ever put in actual

physical possession of the land.

10. Leaving everything aside, PW-1 complainant Vinod

Kumar has categorically admitted that since he was not present

.

at the time of delivery of possession, he was not put in

possession of land in question. Once, complainant Vinod Kumar

(PW-1) himself has admitted that he was not put in possession

of land in question, there was no occasion for learned Court

below to hold accused guilty of having committed offence

punishable under S. 3(1) (g) of the Act. Once, complainant was

not put in physical possession of the land in question, there

is/was no question of his dispossession from the same by the

accused. Reliance is placed upon Devi Singh and others vs.

State of M.P. decided on 1.7.2002, (2003) CrLJ 147, wherein,

Madhya Pradesh High Court has held as under:

"...there has to be actual dispossession from land or premises, belonging to the members of the category of Scheduled Castes or Scheduled Tribes or interference

with the enjoyment. Unless this part of the section is met

out, there can not be any prosecution for commission of the said offence much less conviction. Thus, the pre- requisite condition is either dispossession or interference

with enjoyment of his rights over any land, premises or water. If the prosecution fails to fulfil this, then the necessary consequence would be acquittal of the charged persons."

11. To attract aforesaid provisions, it was incumbent upon

the prosecution to prove that pursuant to issuance of warrant of

possession in the partition proceedings, complainant, Vinod

Kumar was put in physical possession of land in question and

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thereafter, he was wrongfully dispossessed from the same by the

accused, however, such evidence in the case at hand is totally

missing.

12. Similarly, there appears to be no evidence available on

record, which can be said to be sufficient to rope in the accused

under S.447 IPC, which provides punishment for commission of

offence under S.441 IPC i.e. criminal trespass. Bare reading of

S. 441 reveals that, "whoever enters into or upon property in the

possession of another with intent to commit an offence or to

intimidate, insult or annoy any person in possession of such

property, or having lawfully entered into or upon such property,

unlawfully remains there with intent thereby to intimidate,

insult or annoy any such person, or with intent to commit an

offence, shall be liable to be punished under S.447 IPC."

13. In the case at hand, as has been discussed in detail

herein above, there is no evidence that after issuance of warrant

of possession by revenue authorities, complainant, Vinod

Kumar was put in physical possession of the land in question,

as such, it could not have been held by learned Court below

that the accused dispossessed complainant Vinod Kumar from

his land comprising of Khasra No. 1509/775.

14. To prove offence if any, under S.441 IPC, it is also

necessary to prove 'intent' of the accused to dispossess the

.

complainant from his lawful premises or the land. In the case at

hand, no evidence worth credence has been led on record by the

prosecution that the accused with an intent to grab the land of

the complainant unauthorizedly dispossessed him from his

premises/land, as such, learned Court below has fallen in grave

error while holding accused guilty of having committed offence

punishable under S.447 IPC.

15. Reliance is placed upon State of Rajasthan Etc.

Gokula vs. Ram Bharosi & Ors, (1998) 6 SCC 564, wherein,

High Court has held as under:

"In the case of Rajinder v. State of Haryana (1995 5 SCC187) where

one of us (Mukherjee,J.) was a party this Court was considering the issue of right of private defence available to accused under the

provisions of the Indian Penal Code. The court said that the fascicle of Sections 96 to 106 IPC codify the entire law relating to right of

private defence of person and property including the extent of and the limitation to exercise of such right. In that case after examining the record that Court was of the view that the only legitimate and

reasonable inference that can the only legitimate and reasonable inference that can be drawn is that the accused party had gone to the disputed land with a determination to cultivate it and, for that purpose, fully prepared to thwart any attempt made by complainant party to disturb such cultivation and meet any eventuality. After referring to the provisions of various Sections aforementioned, this Court observed as under :-

"It is evident from the above provision that unauthorised entry into or upon property in the possession of another or

unlawfully remaining there after lawful entry can answer the definition of criminal trespass it, and only if, such entry can answer the definition of criminal trespass if, and only it, such entry or unlawful remaining is with the intent to commit an

.

offence or to intimidate, insult or annoy the person in possession of the property. In other words, unless any of the

intentions referred in Section 441 is proved no offence of criminal trespass can be said to have been committed. Needless to say, such an intention has to be gathered from the facts and circumstances of a given case. Judged in the light of the above

principles it cannot be said that the complainant party committed the offence of "criminal trespass" for they had unauthorisedly entered into the disputed land, which was in possession of the accused party, only to persuade the latter to party, only to persuade the latter to withdraw thereupon and not with any intention to commit any offence or to insult,

intimidate or annoy them. Indeed there is not an iota of material on record to infer any such intention. That necessarily means that the accused party had no right of private defence to property entitling them to launch the murderous attack. On the contrary, such murderous attack not only gave contrary,

such murderous attack not only gave the complainant party the right to strike back in self-defence but disentitled the

accused to even claim the right to private defence of person. We hasten to add, that even if we had found that the complainant party had criminally trespassed into the land entitling the accused party to exercise their right, of private defence we would not have been justified in disturbing the

convictions under Section 302 read with Section 149 IPC, for Section 104 IPC expressly provides that right of private defence against "criminal trespass" does not extend to the voluntary causing of death and Exception 2 to Section 300 IPC

has no manner of application here as the attack by the accused party was premeditated and with an intention of doing more harm than was necessary for the purpose of private defence,

which is evident from the injuries sustained by the three deceased, both regarding severity and number as compared to those received by the four accused persons. However, in that case we might have persuaded ourselves to set aside the

convictions for the minor offences only, but then that would have been, needless to say, a poor solace to the appellants.""

16. In view of the detailed discussion made and the law

taken note herein above, impugned judgment/order of

conviction passed by learned Court below is not legally

sustainable and deserves to be set aside being based on mis-

appreciation of the evidence and provisions of the relevant law.

17. Consequently, present appeal is allowed. impugned

judgment of conviction is set aside. Accused is acquitted of the

.

offences charged against him. Bail bonds, if any, furnished by

the accused are discharged. Record of the case be sent back

forthwith. All pending applications also stand disposed of.

                                              (Sandeep Sharma)
                                                   Judge
     March 2, 2021
        (vikrant)




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