Amria vs State of Rajasthan

Gopal Krishan Sharma, J.—This revision petition is directed against the judgment of Additional Sessions Judge, Kishangarhbas, dated 6th Dec., 1986, by which he partly accepted the appeal of the petitioner and maintained his conviction under Sections 379 & 447, I.P.C.

One Prabhati lodged a written-report at P.S. Mundawar on 21st Sept., 1982 alleging that some 4-5 years before he was allotted 4 bighas and 7 biswas of land situated in Village-Silgaon, by the Government, under Antodaya Scheme, bearing Khasra Nos. 210 & 212. In this land, he cultivated Bajra crop, and when the crop was ripe Amria and his family members cut the said crop and took it away. On this report, a case u/s 397, I.P.C. was registered.

After completing investigation the police submitted a challan against Amria, Mangu and Prabhu under Sections 447, 379, I.P.C.

After completing the trial, the learned Magistrate, Kishangarbass, acquitted Mangturam and Prabhu of the offence alleged against them, but found Amria guilty under Sections 379 & 447 I.P.C. For the offence u/s 379, I.P.C., the was sentenced to 6 months'' simple imprisonment and a fine of Rs. 100/-; and for offence u/s 447, I.P.C. he was find to Rs. 100/-. in default of payment of fine, he was further directed to undergo 1 month''s simple imprisonment on each count.

An appeal was preferred against the conviction and the sentence passed against the accused by the learned Magistrate, and the learned Addl. Sessions Judge vide his judgment dated 6th Dec, 1986, partly accepted the said appeal and maintained the conviction of petitioner Amria under Sections 379 & 447, I.P.C. He however, set aside the substantive sentences awarded to the accused-petitioner, but imposed a fine of Rs. 1000/-for offence u/s 379, I.P.C. and another fine of Rs. 200/- for offence u/s 447, I.P.C.

Mr. Dhankhar, the learned Counsel for the petitioner argued that the conviction of the petitioner u/s 447, I.P.C., is not correct. According to him, the prosecution has failed to prove that complainant Prabhati was in possession of the disputed land. He argued that when the possession is not proved, then, there was no question of cultivating the land and taking away the crop by the accused-petitioner treating it to be the crop of the complainant. It has not been disputed by the petitioner that the disputed land was allotted to Prabhati under the Antodaya Scheme. His contention is that he was in possession of the disputed land prior to its allotment under the Scheme and that, he had constructed 3 Chhappars over this land and had his tubewell, and further that he had been cultivating the land since long and as such, he has also challenged the allotment order in the revenue court. Mr. Dhankar argued that as far as his knowledge, the revenue matter is pending either before the Collector or the Revenue Appellate Authority, but the fact is that the dispute regarding she allotment of the land is pending in the revenue court. Under such circumstances for a criminal court, the only point to be seen is whether the complainant was in possession of the disputed land, if his possession is established, then the question would be whether he had cultivated the crop over that land, and then the question for consideration would be whether the crop had been cut away by the accused So, all these points would be decided if it is established that complainant Prabhati was in possession of the disputed land. In this respect, I have perused the statement of Prabhati. In his examination-in-chief, he has stated that he was allotted this land and was put in its possession, and since then, he has been cultivating it. But, in his cross-examination he has admitted that the accused had three Chhappars and a tubewell over this disputed land. It means, the land was allotted to the complainant, and according to him, when the land was handed over to him the accused had three Chhappars and one tubewell over the disputed land indirectly, it is established that when the land was allotted to Prabhati, it was in possession of the accused-petitioner. After the allotment order, because the land was allotted under the Antodaya Scheme, the Government must have handed over the possession thereof to Prabhati. There must be some document to prove that after allotment of the land to Prabhati, the land was handed over to him, and he was put in its possession. But, no such document has been produced in the Court. Mere statement of Prabhati or other person that the Possession was handed over to Prabhati, after the allotment of the land by the Government, is not sufficient. A Government land was allotted to the complainant, and so, there must be something in writing to the effect that the possession of the said land was handed over to him, but there is no such proof. Therefore, the learned Magistrate as well as the learned Addl. Sessions Judge have failed to appreciate this aspect, and have incorrectly relied on the oral statements of Prabhati and others that the disputed land was in possession of the allottee, Prabhati. This is not a correct conclusion.

Apart from this, Prabhati in his cross-examination has said that he was in possession of the disputed land, which, according to him, means that he was paying the ''Lagan'' (levy) for it. Because he was paying the ''Lagan'', so he is in possession of the land, is no proof of possession. This shows that the complainant was not put in possession of allotted land. The matter is under dispute in the Revenue Court. The accused-person is challenging the allotment order. So, paying ''Lagan'' only for the disputed land, does not prove that the complainant was put in possession thereof. There is, thus, no proof on the record that after allotment by the Government, the complainant was put in possession of the allotted (disputed) land. The Magistrate failed to appreciate the evidence and incorrectly held that Prabhati was in possession of the said land. There was no question of committing trespass by the accused petitioner, because, he was in its possession when the land was allotted to Prabhati. Therefore, conviction of the accused-petitioner u/s 447; I.P.C., is bad. When Prabhati was not in possession of the land, there was no question of his cultivating the said land. So, no question of committing theft and taking away the harvested crop from the land arises in this case. So, the conviction passed against the accused-petitioner u/s 379, I.P.C. is again bad.

Therefore, the revision petition is accepted. The conviction and sentence u/s 379 & 447, I.P.C., passed against the accused-petitioner, by the lower courts, are set aside, and he is acquitted of these offences. Fine if already deposited by the petitioner, be refunded to him.