Smt. Basanti Chakma vs The State Of Tripura
2021 Latest Caselaw 154 Tri

                                HIGH COURT OF TRIPURA
                                      AGARTALA
                                 Crl.Rev.P.No.73 of 2017

              Smt. Basanti Chakma
              wife of Sri Mahian Chakma
              resident of Fishery Para
              P.O: Chhailengta
              P.S: Langtrai Valley
              District: Dhalai, Tripura
              Pin-799275                               .....................Petitioner(s)

                                             Versus

              The State of Tripura                     ..................Respondent(s)

For the Petitioner(s) : Mr. P.K.Ghosh, Adv.

For the Respondent(s) : Mr. S.Ghosh, Addl. PP

Date of hearing & Judgment : 10.02.2021

Whether fit for reporting: No.

BEFORE

HON'BLE MR. JUSTICE S.G.CHATTOPADHYAY

Judgment & Order(oral)

[1] This Criminal Revision Petition has been filed challenging the judgment and order dated 20.06.2017 delivered by the learned Sessions Judge, Unakoti Judicial District at Kailashahar in Criminal Appeal No.9(3) of 2016 affirming the judgment and order of conviction and sentence dated 01.06.2016 passed by the Sub-divisional Judicial Magistrate, Longtherai Valley in case No GR 9 of

2012 whereby petitioner Basanti Chakma was convicted under Sections 447 and 427 of the Indian Penal Code (IPC, in short) and was released after due admonition in terms of Section 3 of the Probation of Offenders Act, 1958 with a direction to pay compensation of an amount of Rs.10,000/- to the complainant under Section 5 of the said Act while the other 5(five) accused were acquitted.

[2] Brief facts of the case are as under:

Sri Amritlal Debnath, son of Shri Hari Narayan Debnath of Chailengta, Longtherai Valley sub-division filed a written complaint in the court of the Chief Judicial Magistrate at Kailashahar on 15.12.2011 alleging, inter alia, that all the 6 accused including the present petitioner trespassed into his house and removed the boundary pillars and barbed fencing from his land and by such conduct they caused damage to his property to the tune of Rs.1 lakh. It was further alleged by the complainant that only few days back he restored the possession of the said land pursuant to execution of a decree in case No. Execution 01 T/2009. After the said occurrence, he lodged a complaint at the police station which was not acted upon by police.

Therefore, he came to court and filed this complaint. His complaint was forwarded to Chailengta Police Station from court for investigation and report in terms of Section 156(3) of the Code of Criminal Procedure, 1973(Cr.P.C., hereunder) and based on his complaint

Chailengta P.S Case No.2 of 2012 under Sections 448, 427, 379 and 149 IPC was registered and investigation of the case was taken up.

[3] During investigation, police visited the crime scene and drew up hand sketch map with separate index thereof and also seized 36 boundary pillars and huge barbed wire vide seizure list dated 28.01.2015 [Exhibit-1] which were allegedly removed by the accused from the land of the informant. This apart, the Parcha [extract of the record of rights] of the complainant respecting the said land was also seized by the investigating officer. The material witnesses were examined and their statements were recorded by him under Section 161 Cr.P.C and at the conclusion of investigation, charge sheet No.7 dated 29.05.2012 was submitted under Sections 447, 427 and 149 IPC.

[4] The learned Chief Judicial Magistrate received the charge sheet and took cognizance of offence punishable under Sections 447,149 and 427 IPC against all the 6 accused including the petitioner vide his order dated 19.6.2012 and thereafter made over the case to the Judicial Magistrate of the First class at Kailashahar for trial.

[5] At the commencement of the trial, the trial court explained the substance of the accusation to all the 6 accused in terms of Section 251 Cr.P.C. All accused pleaded not guilty and claimed trial.

[6] During trial prosecution examined as many as 10 [PW-1 to PW-10] witnesses including complainant Amritlal Debnath [PW-5] and the IO of this case. Apart from adducing their ocular testimony, prosecution relied on as many as 7 documents which were exhibited during trial and marked as Exhibit 1 --Exhibit 7/12 .

[7] After the recording of prosecution evidence was over, all the 6 accused were separately examined by the trial court under Section 313 Cr.P.C. In reply, they pleaded innocence and claimed that the charges were foisted on them. The learned trial court recorded their replies. The accused petitioner desired to adduce evidence on her defence. Accordingly, the evidence of 2 defence witnesses [DW-1 and DW-2] namely Nirmalendu Sarkar [DW-1] and Liladebi Chakma [DW-2] was recorded by the learned trial court. No documentary evidence was, however, adduced on behalf of the petitioner in the course of examination of the defence witnesses.

[8] At the conclusion of trial, the learned trial court on appreciation of evidence found the petitioner guilty of offence punishable under Sections 447 and 427 IPC and convicted her for the said offence. The trial court having found no evidence against the other 5 accused, acquitted them of the charge of offence. After conviction, the trial court heard the petitioner on sentence and found it appropriate to release her on probation under the Probation

of Offenders Act, 1958 instead of sentencing her to any punishment. Accordingly, she was released after due admonition in terms of Section 3 of the Probation of Offenders Act and she was also asked to pay compensation of Rs.10,000/- in terms of Section 5 of the Probation of Offenders Act to compensate the victim for the loss suffered by him. The learned Sessions Judge by the impugned judgment upheld the conviction of the petitioner and also the order with regard to her release on probation as well as the compensation order.

Hence this criminal revision petition.

[9] Heard Mr. P.K.Ghosh, learned counsel appearing for the petitioner as well as Mr. S.Ghosh, learned Addl. PP representing the State respondent.

[10] It is submitted by Mr. P.K.Ghosh, learned counsel that the evidence available on record do not justify her conviction. Mr.P.K.Ghosh learned counsel further contends that the learned trial court as well as the learned appellate court did not take into consideration the infirmities appearing in the prosecution evidence and as such their judgments are erroneous and liable to be set aside.

[11] Further submission of Mr. P.K.Ghosh, learned defence counsel is that other than the informant [PW-5] no other witness supports the allegations of the complainant. It

is also contended by Mr.Ghosh, learned defence counsel that learned trial court committed serious error in reaching the conclusion that the land on which the alleged incidence took place belonged to the complainant without verifying any document. Learned counsel, therefore, urges the court to set aside the impugned judgment which is based on no evidence.

[12] Mr. S.Ghosh learned Addl. PP on the other hand submits that the prosecution witnesses have given very consistent, corroborative and trust worthy evidence on the basis of which learned trial judge recorded the conviction of the petitioner which was also upheld by the learned appellate court. It is further submitted by Mr. Ghosh, learned Addl. PP that it was proved before the trial court that all other accused were day labourers who were engaged by the petitioner to commit the offence. They had no idea that the accused was not the owner of the land or that there was a dispute between the accused and complainant over the possession of the said land. They simply acted under the instruction of the accused. As a result, the learned trial court did not find them guilty whereas the offence of the accused was proved beyond reasonable shadow of doubt before the trial court. In consequence she was convicted. It is submitted by Mr.Ghosh, learned Addl. PP that there is no reason to interfere with the findings of the courts below. Learned

Addl. PP, therefore, urges the court to uphold the conviction of the petitioner.

[13] Among the 10 witnesses examined by the prosecution, PW-1 has simply stated that the barbed wire fencing and the pillars were seized in his presence and he signed the seizure list. PW-2, gave no evidence at all. Similarly, PW-3 was also silent about the occurrence. PW-4, Arun Sku, a police officer stated at the trial that he received the complaint at Chailengta police station after it was forwarded to the police station from the court of the learned Chief Judicial Magistrate and the investigation of the case was initially endorsed to him by the officer in charge of the police station and due to his illness the same was re- endorsed to Subodh Debbarma, SI of police.

[14] PW-5, Amritlal Debnath is the informant. In his examination-in-chief, he told the court that on the material day he received a telephonic call from someone and the caller informed him that the convict petitioner was removing the barbed wire and pillars from his land. The PW rushed to there to prevent the accused. By that time, the accused and her men had already removed the boundary fencing and the boundary pillars. Thereafter, the complainant reported the matter to police. Since police did not take any action on his complaint, he filed a complaint in court which was later forwarded to police station and

ultimately the case was registered. In his cross examination he denied that he filed a false case against the accused.

[15] PW-6, Sri Dulal Kanti Majumder, a neighbor of the complainant told the court that in his presence the court's staff demarcated the plot of land owned by the complainant and handed over the possession thereof to PW-5. Before such handing over of possession the land was in occupancy of the accused. Few days thereafter, while the PW was going to market he noticed that the petitioner along with the other accused was uprooting the pillars and removing the barbed wire from the said land.

[16] PW-7, Nikunja Das told the court that court staff had handed over the possession of the land to the complainant after properly demarcating the land. After few days, he noticed the accused uprooting the pillars and removing the barbed wire from there with the help of people engaged by her.

[17] PW-8, Sailesh Chakraborty also supported PW-6 and PW-7 and said that he witnessed the accused removing the pillars and barbed wire fencing from the land in possession of the said complainant.

[18] Shri Hemanta Chakma PW-9 stated that being appointed by the survey commissioner namely Basanta Das and informant Amritlal Debnath he visited the land at Chailengta for demarcation of the said land which was later

handed over to the informant pursuant to a decree of the court. After demarcation and handing over of its possession, the complainant posted pillars around the boundary of the land.

[19] PW-10 is the IO of the case who has stated that during his investigation, the case against the accused persons was established and as a result, he submitted charge sheet against all the 6 accused for trial of the case.

[20] The judgment of the learned trial judge demonstrates that in view of the evidence led by the prosecution, learned trial judge held that accused Basanti Chakma trespassed into the property of the informant and committed mischief thereon and therefore, he found her guilty and convicted her under Sections 447 and 427 IPC. However, considering the fact that she was an old lady and she had no past criminal record, the learned trial court released her on probation after due admonition and asked her to pay compensation of Rs.10,000/- to the complainant. In appeal the learned trial court upheld the judgment without any modification.

[21] Admittedly, there is a long standing dispute between the informant and the convict petitioner who filed Civil Suits against each other pertaining to their disputes over landed property.

[22] Evidently the informant restored the possession of one of his lands from the petitioner pursuant to a decree passed by a civil court. It is gathered from the records that the adjoining land having common boundary is in possession of the accused. As a result, the boundary dispute between the parties has not come to end even after the matter has been decided in court.

[23] Apparently, the conviction of the accused is based on trial court's finding that the land form which the boundary pillar was removed belonged to the informant. Such finding of the criminal court without examining the records of possession and ownership is not sustainable. Moreover, the evidence adduced before the learned trial court with regard to the identification and possession of the land from where the boundary pillars and barbed wire fencing were allegedly removed was not also enough for the court to arrive at the conclusion that the said land was in the lawful possession of the informant.

[24] Section 447 IPC provides punishment for criminal trespass and criminal trespass is defined under Section 441 IPC. Section 447 IPC reads as under:

"447. Punishment for criminal trespass.-- Whoever commits criminal trespass shall be punished with imprisonment of either description for a term which may extend to three months, with fine or which may extend to five hundred rupees, or with both."

[25] Section 441 IPC which defines criminal trespass reads as under:

"441. Criminal Trespass.--Whoever enters into or upon property in 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,

is said to commit "criminal trespass".

[26] Nobody has seen the petitioner entering into the land of the informant and removing the pillars and fencing therefrom. Moreover, there is no reliable proof to hold that the place from where the pillars were removed actually belonged to the informant to constitute an offence under Section 447 IPC. The investigating officer seized as many as 36 pillars which were allegedly removed from the land of the informant. On the same set of evidence trial court disbelieved the involvement of the other 5 accused and held the petitioner guilty of criminal trespass for entering into her neighbour's land and removing 36 boundary pillars from his land. Admittedly, the petitioner is aged about 58 years. It was quite improbable that she would alone uproot and remove 36 pillars from her neighbour's land. None had even seen the informant raising any objection while she was allegedly committing such offence. Therefore, the prosecution case against the petitioner appears to be quite doubtful.

[27] In view of what is discussed above, conviction of the petitioner cannot be allowed to stand.

Resultantly, the impugned judgment is set aside and the revision petition stands allowed.

The petitioner being on bail, her bail bond stands discharged.

The case is disposed of accordingly.

Send back the LCR.

JUDGE

Saikat Sarma, P.A