Reserved on 03.12.2019 Delivered on 18.12.2019
Case :- CRIMINAL APPEAL No. - 864 of 2003 Appellant :- Mata Deen And Another Respondent :- State of U.P.
Counsel for Appellant :- K.B. Srivastava,Surendra Kumar Srivastava Counsel for Respondent :- Govt. Advocate
Hon'ble Siddharth,J.
Heard Sri K.B. Srivastava, learned Counsel for the appellants and Sri S.S. Tripathi, learned AGA appearing on behalf of the State the State.
This criminal appeal has been preferred by Mata Deen and Ram Das, sons of Khuman Dhimar, against the judgment and order dated 04.2.2003 passed by Special Judge, SC/ST Act, Jhansi in Special Trial No. 134 of 1997 convicting the appellants under Section 198-A U.P. Zamindari Abolition and Land Reforms Act and sentencing them to undergo six months imprisonment alongwith fine of Rs.1,000/- each and in default of payment of fine, to undergo 15 days additional imprisonment.
The prosecution case is that informant, Ganesh, s/o Halku, r/o Palar, Police Station Bada Gaon, was granted lease of plot No.1340/1 area 0.405 hactare and he was duly given possession over the same on 15.2.1997, 25.3.1997 and 28.4.1997. The appellants are influential persons of the village and they forcibly disposed him and cultivated the land of the informant. When informant objected, they threatened him of life and he was abused by use of caste related comments. Informant gave an application to the Revenue Inspector, who gave a report in favour of the informant stating that he is a poor scheduled caste lease holder and was given possession of lease land, but the appellants have illegally disposed him and occupied the same. On the direction of Pargana Adhikari dated 5.5.1997, FIR was lodged against the appellants on 7.5.1997. The documentary evidence regarding the grant of lease, possession, etc., was collected by the Investigating Officer and he submitted the charge-sheet. The trial court framed charges against the appellants, which they denied and sought trial.
PW-1, Devendra Kumar Dwivedi, Revenue Inspector, proved that possession of the land was handed over to the informant on 28.4.1997 after demarcation. He proved the “Dakhalnama”. PW-2, Arvind Kumar, proved that he delivered the possession of land to the lease holder, Ganesh. PW-3, Informant, also proved the allegations made against the appellants and his statement was recorded before the court below. PW-4, Zahar Singh, Lekhpal, also proved the grant of lease to the informant and delivery of possession. He also stated that appellants have forcibly taken possession over the land of the informant. PW-5, Vijay Kumar, Investigating Officer, proved investigation record.
Statements of the appellants were recorded under Section 313 Cr.P.C., wherein they have been falsely implicated in this case on account of village party bandi.
The trial court after going through the evidence on record found that the only offence, under Section 198-A U.P. Zamindari Abolition and Land Reforms Act, is made out against the appellants. The allegation regarding commission of offences under Section 504/506 IPC and 3(1)(10) SC/ST Act is not made out and convicted and sentenced the appellants for the offence under Section 198-A U.P. Zamindari Abolition and Land Reforms Act only.
Learned counsel for the appellants has submitted that the court below wrongly disbelieved the oral evidence of DW-1, Mani Ram, Ex-Pradhan of the village, who stated that possession of the land was never given to the informant. He further stated that the land in dispute remains submerged in river and only comes out of river in the months of May and June and it can neither be demarcated nor any cultivation can be carried over the same.
Counsel for the appellants has submitted that appellant No.1 was working as Gang-man in the North Central Railway, Jhansi, at the time of alleged offence and he had no concern with the dispute. He has been falsely implicated in this case only on account of being brother of appellant No.2. The age of the applicant No.1 is 64 years and he has retired from service and appellant No.2 is aged about 77 years. The appellants specifically denied the charges of occupying the disputed land. Revenue Authorities should have verified the correct facts before initiating the present proceedings. No notice was given to the appellants to vacate the land. The trial court has convicted the appellants relying upon the examination-in-chief of PW-1, which was not found to be correct in his cross-examination and the prosecution failed to prove the case against the appellants.
Learned AGA has opposed the arguments advanced by learned counsel for the appellants and has stated that from the statements of the witnesses on record, the fact of delivery of possession of the land to the appellant after grant of Patta on 15.2.1997, 23.3.1997 & 28.4.1997 was proved, but the land was re-occupied by force. For making out offence under Section 198- A U.P. Zamindari Abolition and Land Reforms Act, re-occupation of the land is sufficient and that is proved from the material on record. The judgment of the trial court does not suffers from any error. The material on record has been property appreciated and the appellants have only been convicted for offence under aforesaid Section. Regarding the allegations of committing offences under Sections 504/506 IPC and Section 3(1)(10) SC/ST Act, they have already been acquitted by the trial court in all fairness. This appeal is devoid of merit and deserves to be dismissed.
After hearing rival contentions, this Court finds that section 198-A (1) of U.P. Zamindari Abolition and Land Reforms Act provides that where any land referred to in Section 195 or 197 is allotted to any person whether as a Bhumidhar with non- transferable rights or an Asami and any person other than the allottee is in occupation of such land in contravention of the provisions of this Act, and without the consent of the allottee the Assistant Collector may of his own motion and shall on the application of the allottee, put him in possession of such land and may, for that purpose use or cause to be used such force as he considers necessary. Section 198-A(2) of the Act states that where any person, after being evicted under this Section, reoccupies the land or any part thereof without lawful authority, he shall be punishable with imprisonment for a terms which may extend to two years, but which shall not be less than three months and also with fine which may extend to three thousand rupees.
From the consideration of the above provisions of U.P. Zamindari Abolition and Land Reforms Act, it is obvious that any person after being evicted under Section 198-A (1) of the Act reoccupies the land or any part thereof without lawful authority, is liable to be punished with imprisonment, which may extend to two years, but shall not be less than three months with fine, which may extend to three thousand rupees. In the present case the trial court found that allottee, Ganesh, was put in possession over the allotted lease land, which was reoccupied by the appellants. The procedure prescribed for lodging of the case before the police has been followed by the Tehsil authorities and thereafter, the appellants have been convicted and sentenced.
From the evidence of PW-1 and PW-2, the fact of delivery of possession and thereafter reoccupation of the disputed land by the appellants if fully proved. Therefore, the offence alleged also stands proved against the appellants.
The incident in dispute took place in the year 1997 and about 22 years have passed since the incident took place. The appellant Nos. 1 & 2 are now aged about 64 and 77 years respectively. There is not justification for sending them to jail again. There is no force in the argument advanced by learned counsel for the appellants that appellant No.1 was employed in railway. He was not actively involved in dispute. It was appellant No.2, who was cultivating the field and being brother of applicant No.1, applicant No.1 has been falsely implicated in this case. There is no evidence on record to prove that appellant No.1 was employed in railway nor any such ground has been taken in this appeal. In the statement of the appellants under Section 313 Cr.P.C. also no such defence was taken.
After considering the advanced age of the appellants, time lag and the fact that it would not be in the interest of justice to send the appellants to jail again at this stage, this Court confirms the conviction of the appellants, but converts the remaining sentence of the appellants into fine of Rs.10,000/- each, which shall be paid as compensation to the informant, Ganesh, or in case of his death, to his legal heirs within three months. In case failure to pay the amount as directed, the appellants shall be taken into custody and will undergo the remaining sentence. The judgment and order of the court below is set aside. The appellants are on bail. Their bail bonds and sureties shall be discharged only after payment of compensation as directed herein above.
This criminal appeal is partly allowed.
Office is directed to send the lower court record to the court below alongwith copy of this judgment.
Order Date :- 18.12.2019 Ruchi Agrahari