Hutu Ansari @ Futu Ansari Son Of ... vs The State Of Jharkhand
2023 Latest Caselaw 894 Jhar

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                CRIMINAL APPEAL(SJ) NO. 360 of 2010

          [Against the judgment of conviction and the order of sentence
          both dated 19.03.2010 passed in S.T. No. 212 of 2006 by the
          learned Sessions Judge, Lohardaga.]

          1. Hutu Ansari @ Futu Ansari son of Usman Ansari
          2. Usman Ansari, son of Late Hulas Ansari,
          3. Israil Ansari, son of Usman Ansari
          4. Muntajir Ansari, son of Usman Ansari,
          5. Bhuttu Ansari, son of Israil Ansari,
          6. Izrail Ansari, son of Late Hulas Ansari
          7. Fauzia Ansari, son of Alam Ansari,
          8. Sutu Ansari, son of Alam Ansari,
          9. Alam Ansari, son of Late Sheikh Hulas
           All residents of Village-Chandlaso, P.O.- Hangala, P.S.- Kuru,
          District- Lohardaga                                     ...
                                                         ....Appellants
                              Vs.
          The State of Jharkhand                        ....Respondent

          For the Appellants:      Mr. D.K. Karmakar, Advocate
          For the Resp/State:      Mrs. Nehala Sharmin, APP

                       PRESENT
          HON'BLE MR. JUSTICE RATNAKER BHENGRA

     C.A.V. ON 04.03.2022          DELIVERED ON 24 /02 /2023


Ratnaker Bhengra,J:    This appeal is directed against the judgment of

conviction and order of sentence both dated 19.03.2010, passed by the learned Sessions Judge, Lohardaga in S.T. No. 212 of 2006, arising out of Kuru P.S. Case No. 124 of 2005 in G.R. Case No. 549 of 2005, whereby and whereunder the learned Sessions Judge, Lohardaga had convicted the appellants under section 447 of the Indian Penal Code and under section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The appellants were sentenced to undergo SI for three months under section 447 of the Indian Penal Code and SI of two years and fine of Rs. 3000/- each under section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. In default of payment of fine, the appellants were to undergo SI for one month each and both the sentences were ordered to run concurrently.

2. The prosecution case arose out of the complaint case no. 58 of 2005 dated 03.06.2005 filed before the Court of Chief Judicial Magistrate, Lohardaga, by the complainant PW-3 Daso Orain. The prosecution case in brief is that complainant was a lady of Scheduled Tribe and resident of village Chandlaso, PS Kuru, District-Lohardaga. On 22.05.2005 at about 7.00 am, appellants namely Alam Ansari and Usman Ansari armed with iron rod along with other appellants formed an unlawful assembly. Appellants Alam Ansari and Usman Ansari, firstly broke the lock of the house of the complainant and thereafter, all the accused persons entered into the house of the complainant and stole away kitchen utensils, rice, pulse, bed with bed sheet valued Rs. 3000/-. The appellants threatened the complainant and her husband to kill and abused them by saying "kolh Oraon bhago nahi to uda denge". The complainant further stated that the genesis of the offence was that there was a case under section 71A of CNT Act between Jura Oraon (PW-1 or the husband of the complainant Daso Orain) and appellants Alam Ansari, Usman Ansari and Israil Ansari in which delivery of possession had been effected to the complainant side on 25.04.2005 by the Court of L.R.D.C., Lohardaga.

3. The complaint petition was forwarded under section 156 (3) of the Cr.P.C. for institution of the case and investigation. On the basis of complaint petition Kuru P.S. Case No. 124 of 2005 dated 21.11.2005 was registered under sections 147, 148, 149, 323, 448, 380, 504 of the IPC and 3/ 4 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 against altogether nine named accused persons or the appellants herein. Charge sheet was submitted and cognizance of the offences were taken and the case was committed to the Court of sessions. Charges were framed against the appellants under sections 447 and 448 IPC and section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and trial was held. At the conclusion of trial appellants were convicted and sentenced as aforesaid, hence, this appeal.

4. (i) Prosecution had examined altogether eight witnesses out

of whom PW-3 is Daso Orain, who is the complainant of the case; PW-1 is Jura Oraon, who is the husband of the complainant; PW-2 is Jagdeo Oraon; PW-4 is Sushil Oraon, who is the son of the complainant; PW-5 is Satish Prasad, who is the Investigating Officer of the case; PW-6 is Tiwari Oraon; PW-7 is Budheswar Oraon and PW-8 is Manoj Kumar Singh, who is the Deputy S.P.

(ii) Prosecution had also filed documentary evidences. Ext.-1 is certified copy of the khatiyan in the name of Gandura Oraon, Ext.-2 is khatiyan of R.S. khata no. 138 in the name of Mathia Oraon, Ext.-3 is certified copy of the order of L.R.D.C., passed in SAR Case No. 14/2003, Ext.-4 is the certified copy of the order of Deputy Commissioner passed in SAR Appeal Case no. 6 R15/2005-2006 and Ext.-5 is the copy of the delivery of possession of the land effected by Circle Officer, Kuru.

5. Defence had also filed certified copy of the order dated 19.03.1981 passed by the Special Officer in SAR Case no. 50/1980- 81 which was marked as Ext.-A and Ext.-B is the certified copy of the present survey khatiyan.

6. PW-3 Daso Orain is the complainant of the case.

Complainant had stated in her evidence that on the day of occurrence on Sunday at 7.00 am, in the morning, she along with her husband (PW-1 or Jura Oraon), Jagdeo (PW-2) and Tiwari Oraon (PW-6) went to the place of occurrence. Her land was captured by the accused Usman, for which she had filed a case, which was decreed in her favour and she was given possession over it. Complainant further stated that at the place of occurrence accused Alam, Usman, Israil, Izrail, Muntajin, Futu, Fauzi, Sutu and Bhuttu came and abused them by calling kolh and asked them to leave the land. In her cross- examination, complainant stated that she had land dispute with the accused persons. The accused persons had captured 28 decimal of land for the last twenty five years. She denied the suggestion of panchayati and that she had compromised taking Rs. 1,00,000/-.

7. PW-1 is Jura Oraon, who is the husband of the complainant. PW-1 had stated in his evidence that the incidence took

place on Sunday at 7.00 am, in the morning and at that time Daso Devi, Tiwari Oraon, Jagdeo Oraon were with him. Accused Usman Ansari, Alam, Israil, Izrail, Muntajin, Futu, Fauzia and other nine persons came and said kolh kukur and asked them to flee away from there. PW-1 further stated that accused persons had captured his land and he had won the case and delivery of possession of the land was given to him. In his cross-examination PW-1 had stated that the case was filed after two months. The distance between his house and place of occurrence is one kilometer.

8. PW-2 is Jagdeo Oraon and he had stated in his evidence that on the day of occurrence, on Sunday at 7 am, in the morning, he along with his uncle, aunt and father had gone to the field. Accused Usman, Alam Israil, Izrail, Muntajin, Fauzi, Siltu and Futu came and told to flee away from the land and abused them by saying kolh. In his cross examination, PW-2 stated that the place of occurrence is one kilometer away from his house.

9. PW-4 is Sushil Oraon and he is the son of the complainant. PW-4 had stated in his evidence that incidence took place on 22.04.2005, at 7 am, in the morning and he was at home. Usman had captured the land and delivery of possession of the land had been effected by the Court. In his cross-examination PW-4 had stated that the dispute with respect to the land was going on since last 2-3 years.

10. PW-5 Satish Prasad is the Investigating Officer of the case. Investigating Officer had stated in his evidence that in spite of the order of the Court, the delivery of possession of the house was not effected to the complainant and in the process of taking possession, the incidence took place.

ARGUMENT OF THE APPELLANTS

11. The learned counsel for the appellants Mr. D.K. Karmakar, has first taken the Court to the evidence of PW-3 Daso Orain, who is the complainant and referred to paragraph no. 4 of her deposition and submitted that complainant had deposed that she had not gone to the police station and hence, raises doubt in the

prosecution case. Learned counsel then submitted that prosecution witnesses have alleged the use of abusive words and in para no.-2 of her evidence complainant stated that accused had called them kolh, but, at variance PW-1 Jura Oraon, who is the husband of the complainant, at para no.-1 of his evidence had deposed that accused persons abused them by saying kukur. Learned counsel argued that there is difference in the usage of the alleged abusive words in the deposition of the complainant and her husband PW-1 and hence, this is a contradiction.

12. Learned counsel then pointed out para no. 3 of the cross- examination of the PW-1 and para no.-8 of the cross-examination of the complainant PW-3 wherein both PW-1 and PW-3 had deposed that at the time of occurrence, no villagers were present at the place of occurrence. Learned counsel submitted that no villagers had seen the occurrence and prosecution had examined only PW-1, PW-2, PW-3, PW-4 and PW-6, who are family members and are interested witnesses, but, learned trial Court had convicted the appellants on the basis of the evidence of the interested witnesses.

13. Learned counsel further pointed out paragraph no. 7 of the deposition of PW-1, wherein it is indicated that 28 decimals land were in possession of the accused out of which on 10-12 decimals of land, Usman had built a house 20 years ago and for which they had not lodged any case. Learned counsel submitted when the land including the house was in the possession of the appellants, then in that situation there could not have been offence of trespass. Learned counsel further points out paragraph no. 5 of the cross-examination of PW-2 wherein PW-2 had deposed that Usman had constructed a house on the land and they had not lodged any case. Hence, learned counsel submitted that if the house was also, in the possession or constructed by the appellants, then how the offence of trespass can be made out against the appellants. Learned counsel for the appellants has then taken to the evidence of PW-4 Sushil Oraon, who is the son of complainant and submitted that PW-4 had also deposed that Usman was in possession of the said land and hence question of trespass does not arise. Learned

counsel for the appellants then referred to the evidence of PW 6 Tiwari Oraon and PW-7 Bodheswar Oraon and submitted that both PW-6 and PW-7 had also deposed that Usman had constructed the house and hence appellants cannot be trespasser.

14. Learned counsel for the appellants then pointed out the evidence of PW-5, who is the Investigating Officer of the case and pointed out that Investigating Officer had stated in his evidence that a house was built in the southern part of the land, in which earlier appellant used to reside. Hence, learned counsel submits that when accused had built the house and were living in it, then appellants could not have committed the offence of trespass. Learned counsel further submitted that on going through the entire deposition of the Investigating Officer, it is clear that no investigation regarding any offence under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 was conducted by the Investigating Officer. There is no observations by the Investigating Officer against any offence or atrocities against the Scheduled tribes being made out.

15. Learned counsel for the appellants then submitted that there was delay in the lodging of the complaint and for this he has pointed out that the delivery of possession of the land was effected on the 25th April 2005 and the date of occurrence is of 22.5.2005, however, the FIR is lodged on 21.11.2005. Learned counsel for the appellants, therefore says that the date of the alleged occurrence is in May but, FIR was lodged as late as on November, after the delay of 6 months and hence, the allegations against the appellants can be very much doubted.

16. Learned counsel further submitted that the SAR Case No. 50/80-81 was filed by the father of the PW-1 namely Mathia Oraon and in this case no final order was passed by the Court of Special Officer, Lohardaga, rather an observation was made that it was not a fit case for passing an order under section 71A of the Chotanagpur Tenancy Act. Learned counsel further says that in this case it was also observed by the Special Officer that the second party had acquired right over the disputed land by adverse possession and therefore, in

such situation the offence of trespass cannot be made out.

ARGUMENTS OF THE APP

17. On the other hand, the learned counsel for the State, argued that there has not been any delay in filing the complaint as complainant is an illiterate tribal lady and she had approached the police station and apparently the case was not registered at the police station and then she filed the complaint case before the Court of CJM. Learned counsel for the State further submitted that it is apparent from the evidence of all the prosecution witnesses that appellants came to the land and they threatened the complainant side to leave the land. The possession of the land was legally delivered to the complainant side on 25.04.2005 and thereafter, criminal trespass was committed by the appellants which shows the highhandedness and the criminal nature of the appellants. It is clear from the records that the accused was in illegal possession of 28 decimals of land and on a portion of which even a house was constructed, nevertheless by order of the Court of L.R.D.C., Lohardaga passed in SAR Case no. 14/2003 possession of the land was handed over to the complainant side on 25.04.2005. The delivery of possession of the land to the complainant side is dated on 25.04.2005 and the date of occurrence is of 22.05.2005, which means after the delivery of possession of the land was given to the complainant side, the appellants had trespassed and created obstructions and this shows that appellants took law in their hands. It is clear that complainant side were in the possession of the land at the time of occurrence and therefore trespass has been committed and also in the process of trespass appellants used abusive words and threatening was given to the complainant side.

CONCLUSION

18. I have heard learned counsels for the parties, gone through the records and facts and circumstances of the case. The prosecution case arose out of the complaint case no. 58/2005 dated 03.06.2005 filed by the complainant PW-3 Daso Orain. The appellants were convicted under section 447 of IPC and section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)

Act, 1989. From the evidence, I find that the background of the case in hand is land dispute and, hence, it would be fruitful to look into the background of the land dispute between the parties.

19.(i) From the records and deposition of the prosecution witnesses, it appears that husband of the complainant, who is PW-1 Jura Oraon had filed S.A.R. Case No. 14/2003 before the Court of L.R.D.C, Lohardaga, for restoration of 28 decimals of land of khata no. 116, plot no. 698 from the appellant no.2 Usman Ansari, appellant no.6 Izrail Ansari and appellant no.9 Alam Ansari, all sons of Hulas Ansari. In this case L.R.D.C, Lohardaga, vide its order dated 30.12.2004 (Ext.-3), had ordered the Circle Officer to give the possession of the land to the applicant PW-1 Jura Oraon. Thereafter, appellant no.9 Alam Ansari, appellant no.2 Usman Ansari and appellant no.6 Izrail Ansari had filed an appeal being S.A.R. Appeal Case. No. 6/R 15/2005-06, before the Court of Deputy Commissioner, Lohardaga, and this appeal was dismissed by the Deputy Commissioner, Lohardaga, vide his order (Ext.-4) and order passed by the L.R.D.C, Lohardaga in SAR Case no. 14/2003 was upheld. Therefore, in compliance of order passed in S.A.R. Case No. 14/2003, Circle Officer, Kuru, Lohardaga, delivered the possession of the land along with the house, measuring 28 decimals of khata no. 116, plot no. 698 to the complainant party on 25.04.2005, vide Ext.-5.

(ii) Ongoing through the order dated 30.12.2004 (Ext.-3) passed in S.A.R. Case No. 14/2003, I find that appellants had constructed house on the land in question and for which L.R.D.C, Lohardaga, had ordered payment of Rs. 30,000/- to the appellants for the cost of the house. Further, Deputy Commissioner, Lohardaga, in his order vide Ext.-4, passed in S.A.R. Appeal Case. No. 6/R 15/2005-06, had noted that opposite party (PW-1 Jura Oraon herein) had paid Rs. 30,000/- to the appellant side herein. Ongoing to Ext.-5, which is copy of delivery of possession, here also Circle Officer, Kuru, had noted that delivery of possession of land was given along with the house.

20. So, from the documentary evidence and discussions in the preceding paras fact emerges that delivery of the land along with house was given to the complainant party on 25.04.2005 and as per complaint petition offence was committed on 22.05.2005. Hence, at the time of occurrence complainant side were in the possession of the land along with the house.

21. From the complaint petition and the evidence of the prosecution witnesses, I find that after the delivery of possession of the land including the house on 25.04.2005, offences were committed by the appellant on 22.05.2005 at 7 am, in the morning. PW-1 Jura Oraon, who was the applicant in the S.A.R Case No. 14/2003 or husband of the complainant PW-3, had deposed in his cross- examination that appellant had grabbed 28 decimal of his land out of which on 10/12 decimal, appellant Usman had constructed house. PW-1 also deposed in his examination-in-chief that appellants came and abused them by saying kukur and asked them to flee away. Complainant PW-3 and PW-2 had also deposed in their evidence that appellants came and abused them by saying kolh and told to flee away from the land.

22. So, when possession of the land including the house, was given to the complainant party on 25.04.2005 itself vide Ext.-5, by the order dated 30.12.2004 (Ext.-3) of the Court of LRDC, Lohardaga and which was upheld by the Court of Deputy Commissioner, Lohardaga, vide Ext.-4, then appellants instead of taking recourse to the other legal remedies available to them, entered into the house which were in the possession of the complainant party. Hence, charge under section 447 IPC is proved against the appellants.

23. So, far as the conviction of the appellants under sections 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, is concerned I find from the evidence of the PW-1, PW-2, PW-3 that in course of trespass, appellants had used abusive words and intimidated the complainant party. Interference with the enjoyment of the rights over the land is an offence under section 3(1)(v) of the Scheduled Castes and Scheduled Tribes

( Prevention of Atrocities) Act, 1989. Therefore, charge under sections 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 are proved against the appellants.

24. Learned counsel for the appellants has submitted that occurrence is of 22.05.2005 and FIR was lodged on 21.11.2005 and there is delay of 6 months in lodging of FIR. In this regard, ongoing through the record, I find from the order dated 03.06.2005 of the learned CJM court that learned CJM in its order dated 03.06.2005 had ordered the officer-in-charge to register the FIR and to investigate the case under section 156(3) of Cr.P.C. But, FIR was lodged on 21.11.2005, after delay of about six months and this delay is lapse on the part of prosecution and for this complainant should not suffer.

25. Accordingly, the impugned judgment of conviction dated 19.03.2010, passed by the learned Sessions Judge, Lohardaga, in S.T. No. 212 of 2006 is hereby sustained and upheld.

26. So, far as sentence is concerned, I find that occurrence is of the year 2005, hence, about 18 years have already passed. Appellant no.2 Usman Ansari and appellant no.9 Alam Ansari were in their sixties at the time of pronouncement of judgment by the learned trial court and now they would be in their seventies, further appellant no.6 Izrail Ansari was 54 years of age at the time of pronouncement of judgment and now he would be about 65 years of age and remaining other appellants were fairly of young age at the time of occurrence and all the appellants have suffered rigor and vigor of trial and appeal. Considering the judgment of the Hon'ble Apex Court passed in the case of State of Madhya Pradesh v. Vikram Das reported in (2019)4 SCC 125 at para-9, at this stage, I modify the sentence of the appellants to 6 months SI for their conviction under section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and the fine amount as imposed by the learned trial court remains. The sentence of 3 months S.I. passed under section 447 IPC requires no interference. Both the sentences shall run concurrently and the period already undergone by the appellants shall be set-off. Appellants are on bail and their bail bonds stand cancelled.

27. Accordingly, Criminal Appeal (SJ) No. 360 of 2010 is dismissed with the aforesaid modification in sentence.

( Ratnaker Bhengra,J.)

Jharkhand High Court, Ranchi Dated 24 /02 /2023 Sharda/NAFR