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Judgment
Surinder Singh, J.—The challenge in this appeal is to the judgment of conviction and sentence passed by the learned trial Court in Sessions Case No.11 of 2001 decided on 1.12.2004, whereby the appellants, hereinafter referred to be ''the accused persons'' were sentenced under various sections as under:-
Sl. No.
Offence under Section
Sentence
1
427 read with Section 34 IPC.
S.I. for one year and fine of Rs. 500/-and in default, S.I. for a period of one month.
2
447 read with Section 34 IPC.
S.I. for three months and fine of Rs. 200/-and in default, S.I. for a period of one month.
3
379 read with Section 34 IPC.
S.I. for one year and fine of Rs. 500/-and in default, S.I. for a period of one month.
4
3(1)(v) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act,1989.
S.I. for one year and fine of Rs. 500/-and in default, S.I. for a period of one month.
All the sentences were ordered to run concurrently. The accused were also given the benefit of Section 428 of the Code of Criminal Procedure.
In short, the prosecution story as emerges from the evidence on record can be stated thus. The parties belong to a remote area of village Behi in Pargana Himgiri, falling under Police Station Tissa, District Chamba, H.P.
PW1 Smt. Ram Dei is the wife of Rasalu. They belong to I.R.D.P. family and Rasalu is stated to be a handicapped person.
Under the Policy of the State Government, the complainant Ram Dei was allotted 02 Biswas of land in Khasra No.119/1 for the construction of the house under "Gandhi Kutir Yojna", but it was not found suitable, as such on the instructions of the Sub-Divisional Collector, PW2 Ram Chand Naib-Tehsildar was ordered to allot the land bearing Khasra No.106/1. PW2 aforesaid demarcated the land, which was abutting to Khasra No.352 belonging to the accused persons.
As per the case of the prosecution, the complainant Smt. Ram Dei started constructing a house on the allotted land. On 8.2.2000, when the walls of the house raised to some height, the accused persons are alleged to have removed the door and window frames and dismantled the raised structure. The complainant was not on the spot at the time, but she was informed on 9.2.2000 in the morning, by one Chand who was engaged alongwith two other labourers namely, Devi Singh and Nand Lal by the complainant that the walls of her house under construction were dismantled by the accused persons.
On 11.2.2000, the complainant is alleged to have informed Pradhan, thereafter she reported the matter to the Police and the FIR Ext.PA was registered alleging that she being from a "Chamar" (a Scheduled Caste community) was not allowed to construct the house at the said place, as such, FIR was lodged under Sections 427, 447, 379, read with Section 34 of the Indian Penal Code and Section 3(1)(v) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act,1989.
The case was investigated. PW10 Dy. S.P. Padam Chand took into possession the caste certificate Ext. PB of the complainant countersigned by PW2 Naib Tehsildar Ram Chand and certificate Ext.PC issued by Pradhan. PW9 Dy.S.P. D.K. Chaudhary took the photographs Exts.P1 and P2 of the place of the incident and prepared site plan Ext.PW9/A. He also recorded statements of some of the witnesses. PW8 Additional S.P. Jagat Ram took into possession documents Ext.PG, Ext.PW2/A, Mark-A, certificates Exts.PB/1, PC/1, PE to PD vide memo Ext.PH.
On 7.3.2000, PW10 Dy.S.P. Padam Chand arrested the accused persons. On 8.3.2000, the accused persons namely Tej Singh and Baldev are stated to have made a joint disclosure statement Ext.PK and got recovered the frames of the window and door from the ''Lapeda Nallah'' nearby alongwith some iron bars. The recovery memo Ext.PJ to this effect was prepared. He also took into possession the report of demarcation Ext.PW2/A dated 2.1.2000,
After completing investigation, the challan was presented in the Court for the trial of the accused persons. They were accordingly charge-sheeted, to which they pleaded not guilty and claimed trial.
To prove the case, prosecution examined its witnesses and the accused persons were also examined u/s 313 of the Code of Criminal Procedure. They denied the dismantling of the house and also that the complainant was "Chamar" by caste. When called upon to enter into their defence, they examined DW1 Nar Singh, the then Naib-Tehsildar to prove his demarcation report Ext.DA showing that the dismantled house was being raised upon Khasra No.352 belonging to the accused persons.
The learned trial Court believing the prosecution witnesses convicted and sentenced the accused persons as aforesaid, which is assailed in this appeal.
Shri N.K. Thakur learned Senor Advocate, duly assisted by Shri Surender Kumar, Advocate vehemently argued that the learned trial Court wrongly appreciated the evidence on record. He also referred to the statement of the complainant vis-�-vis statement of PW7 Chain Lal, Patwari coupled with the statement of DW1 Nar Singh, Naib-Tehsildar and argued that in no way the case of the prosecution is said to have been proved, especially when the star witness Chand who is alleged to have seen the occurrence was not examined and complainant did not witness the incident.
On the other hand, Shri P.M. Negi, learned Deputy Advocate General supported the impugned judgment of conviction and sentence, submitted that the accused persons have been agitating about the construction of the house near to their land by the complainant. The recovery of the doors and window frames was effected at the instance of the accused persons, which proved the case against them and further that the caste certificate of the complainant is on the record which was counter-signed by PW2 Naib-Tehsildar Ram Chand. The accused persons being from the higher caste, they intentionally dismantled the house of the complainant being a lady belonging to the scheduled caste community.
I have given my thoughtful consideration to the rival contention for the parties and have legally scanned the evidence on record.
Of course, there is no witness who had seen the accused persons committing the alleged offence; except one Chand, but he was not examined to substantiate the prosecution case. The whole case thus hinges upon the statement of PW1 Ram Dei complainant herself as well as statement of the revenue officers and recoveries.
The statement of PW7 Chain Lal, Patwari demolishes the case of prosecution. He categorically stated that earlier land Khasra No.119/1 was allotted to the complainant, but it was not worth allotable for the construction of the house, thereafter said allotment was changed to Khasra No.106/1, but significantly stated that even for this land, no "Patta" of allotment or any mutation showing such allotment is in favour of the complainant. He also stated that the land was demarcated in his presence by PW2 Naib-Tehsildar Ram Chand and she was made aware of the boundaries thereof, but later a dispute arose and the land was re-demarcated by the Naib Tehsildar DW1 Nar Singh. During the demarcation, he found the house being constructed by the complainant in the land of the accused persons over Khasra No.352. The complainant admitted that the accused party had also filed a suit for injunction against her with respect to Khasra No.352. He further clarified in his cross-examination that the plinth area on the demarcation conducted by DW1 Nar Singh was a part of the land of the accused referred above and during such demarcation he was also present with the DW-1Naib�Tehsildar Nar Singh. DW1 aforesaid has also proved his report Ext.DA, which shows that the house under construction was the land of the accused persons.
As already stated above, there is no witness of the incident in question and the case revolves around recovery only. The Investigating Officer has taken a joint disclosure statement of the accused persons which is not interceded in law. Such an evidence is inadmissible. Otherwise also it has only a corroborative value, but in the instant case, nothing is left for corroboration when the incident in question itself stands not proved against the accused persons.
Further the certificate Ext.PC issued by Pradhan to whom she is alleged to have made a complaint does not find any reference to this effect that she being a lady from "Chamar" community was not allowed to construct a house near the land of the accused persons. Further the accused persons has no where admitted that she belongs to Scheduled Caste community and the certificate Ext.PB/1 issued by the Patwari and countersigned by PW2 Ram Chand Naib-Tehsildar is no proof to hold that she belongs to "Chamar community" a scheduled class in absence of any notification issued by any competent authority as required under the law. Therefore, in the totality of the above circumstances and proved facts, in my considered opinion, there is no legal evidence against the accused persons for their conviction for the offences charged.
For the aforesaid reasons, the impugned judgment of conviction and sentence passed against the accused persons is hereby set-aside and by giving them the benefit of doubt, each of the accused persons stand acquitted. Consequently, the appeal is allowed. The fine amount, if already deposited, be refunded to the accused persons.
The respondents who are on bail are discharged of their bonds entered upon by them at any time during the proceedings of the case. Send down the records.