Dhani Ram vs State

Mufti, J.—This is a revision petition by the accused who was convicted by the trial Court of Munsiff, Judicial Magistrate 1st Class, Jammu,

u/s 447, R. P. C- and sentenced to undergo rigorous imprisonment for one month and pay a fine of Rs. 100/-- In default of payment of fine he was

required to undergo further 15 days' rigorous imprisonment. The accused went in appeal to the Sessions Court. The appeal was heard by the

Additional Sessions Judge, Jammu, who maintained the conviction and the sentence imposed on the accused and dismissed the appeal.

The prosecution case was that On 19-3-1970 the accused forcibly entered upon the land under survey Nos. 722/727 situated in village Gool,

Tehsil Jammu in the possession of Dev Asthan Bawa Sei Nath and started ploughing the same to the exclusion of Dev Asthan. Their further case

was that Dev Asthan had entered into possession in March 1965 in pursuance of the orders of Munsiff, Jammu, and had ever since continued in

possession till it was dispossessed by the accused on the aforesaid date. The defence case was that the land was originally in the possession of

Sant Ram, uncle of tine accused, and after him in the possession of the accused himself right from the year 1947 The trial Court and so also the

appellate Court confirmed the case of the prosecution and negatived that set up by the accused-

The case u/s 247, R. P C originated upon a report Ex. A which was lodged with the police by Mr Amir Chand, president of Dev Asthan on 21-

3-1970. Alongside Mr. Amir Chand filed an application u/s 145, Criminal PC. on 27-3-1970 on identical allegations which was heard by the City

Magistrate, Jammu. On consideration of the affidavits and related evidence the learned City Magistrate came to. the conclusion that the applicant

was in peaceful possession of the disputed land when on 19-3-1970 the non-applicant forcibly occupied the same and brought it under cultivation

on account of which there was danger of breach of peace on spot. On this finding, by his order dated 22-10-1970, the learned City Magistrate,

declared the applicant to foe in possession within two months next before the date of the Preliminary order viz. 30-4-1970 and forbade the non-

applicant from disturbing his possession. unless evicted in due course. It seems that the non-applicant did not choose to agitate this matter further

and as such the order made by the learned Magistrate has become final.

It is unfortunate and, surprising too, that the two cases, based as they were on the same occurrence, should have been allowed to be heard and

determined by two different Courts, particularly so. when they raised a common question whether or not the accused had trespassed upon the land

on 19-3-1970. Be that as it may, the principal question before me is whether or not the Courts below have justifiably found the accused guilty of

the offence u/s 447, R. P.C. On evidence both the Courts below have held that the land in question continued to be in the possession of Dev

Asthan from the year 1965 until it was dispossessed by the forcible occupation and cultivation of the land by the accused on 19-3-1970. In

coming to this conclusion the trial Court was influenced by the statement of Durga Dass P.W. and the entries in the revenue record, as may be

gathered from .the following observations made by the trial Court in the penultimate paragraph of its judgment:

So by corroboration of the statement of Durga Dass and the revenue record it is proved that the complainant was in possession of the suit property

on the day of occurrence and the accused committed a criminal trespass in order to annoy the complainant.

The learned Additional Sessions judge has endorsed) this conclusion of the trial Court relying upon the statement of Amir Chand complainant,

entries in the revenue record and the order made by City Magistrate Jammu u/s 145, Criminal P.C.

Ordinarily, this Court would not and does not, while sitting in revision 5n a criminal case, interfere with the concurrent findings of the Courts

below on a question of fact but where the finding is vitiated Ss as to cause miscarriage of justice as, for instance, when it is based on no evidence

or where vital evidence has been overlooked or evidence has not been considered in its true perspective the Court will and must interfere. The

same principle was stated by their Lordships of the Madras High Court in AIR 1960 Mad 115 : 1960 Cri LJ 354 in these words:

The High Court could and does interfere in criminal revision, even upon findings of fact, and even though they may be concurrent findings of two

Courts below, where the conscience of the Court is satisfied that, in the broad interests of justice, the conviction is not sustainable; and where; as in

this case, the conviction is not sustainable in certain respects, because vital evidence has been overlooked, or has not been given due

consideration.

In the instant case the case of the prosecution was that the complainant Dev Asthan obtained possession in the year 1965 in execution

proceedings upon a decree granted by the Court of City Munsiff Jammu and continued in possession thereafter till the date of occurrence. The

prosecution has not cared to examine the person who delievered the possession nor also given any reason for its inability to produce him. He was

the best person to depose to the fact whether it was actual possession or symbolic possession alone which was delivered to Dev Asthan. The oral

evidence produced by the prosecution is by no means consistent to show that actual physical possession was delivered to the Dev Asthan. Durga

Dass and Surai Prakash P.W.'s state that Dev Asthan entered into possession of the land through Dr. Amir Ghand, its President, who ploughed the

land in token of having entered into actual physical possession. Himself Mr. Amir Chand does not say so- He baldly states that Dev Asthan

obtained possession tihrough Court. On the other hand Peenja Chowkidar P.W. categorically stated that the accused never parted with possession

and even when Jandial Baradari representing the Dev Asthan came to obtain the possession of the land, the accused had already brought it under

plough and grown maize and vegetables over it. He even adds that the accused was not present when the Jandial Baradari came to get possession.

The trial Court has excluded the statement of Peenia Qhowkidar with a cryptic observation that his statement is self-contradictory without spelling

out what those contradictions and how they could be considered material contradictions. I have gone through the statement. I see no contradiction

worth noticing. The Additional Sessions Judge, Jammu does not even make a mention of the deposition of Peenia Chowkidar. much less offer his

comments on the same. He has relied on the statement of Dr. Amir Chand which, as already stated, nowhere suggests that actual physical

possession was delivered to Dev Asthan. On oral evidence, therefore, there was no good ground for the Courts below to hold that Dev Asthan

entered into actual physical possession in the year 1965. All that could be reasonably said was that the possession delivered to the Dev Astihan

was merely symbolic. It is also nowhere suggested in the evidence that Dev Asthan entered upon the land and brought it under plough at any time

after the year 1965. In fact the suggestion is to the contrary. Dr. Amir Chand himself states that the land had remained vacant for the last five years,

or putting it differently ever since the possession was obtained by Dev Asthan. Both the Courts below have overlooked this aspect of the evidence.

The sheet anchor of their judgments is the Khasra Girdawari Exp. B testified to by the patwari Ramnath. In the circumstances stated above, the

entries in the Khasra Girdawari. even ii they favoured the prosecution, could not mean much, however, the entries do not favour the prosecution, if

examined properly. Actually, Khasra Girdawari Exp. B pertains to the years 1969 and 1970. The entry for the year 1970 expressly names the

accused as to the person in cultivating possession of the land. For the year 1968 the land is shown to be vacant and the entry in the column of

tenants reada thus : (Original in Urdu, omitted in. this reports-Ed.)

Viewed on its terms, the entry suggests that the land was actually held by Sant Ram, uncle of the accused, and. constructively by Dr, Amir Chand

on behalf of Dev Asthan. Ex facie, therefore, the entry did not help the prosecution or advance its case in any manner. The Courts below could not

appreciate it because they did not care to dive deep into the matter. like a machine they tried to draw a sketch of the entries and the related

statement of Patwari on their minds and never cared to consider or ludee their true import and meaning. In this back- ground, their conclusion,

based on oral evidence and revenue record, that Dev Asthan was in actual physical possession of the land in question immediately before the date

of occurrence, in which hinged the conviction of the accused, is vitiated on the ground that they have overlooked important aspects of such

evidence and record and, in no less measure, other related circumstances having bear-p on the case.

The additional circumstance relied upon by the learned- Additional Sessions Judge Jammu is based on the judgment of the City Magistrate

Jammu u/s 145, Criminal P.C. The learned Additional Sessions Judge has observed that ""the decision in that application also supports the case of

the prosecution that without any right the accused took the possession of the land in question."" The learned City Magistrate may0 have decided the

Question of possession in the proceedings u/s 145, Criminal P.C. but that could not clinch the matter in the parallel case u/s 447, R. P.C. on that

question. The action of a Criminal Court in disputes u/s 145, Criminal P- C. is summary and merely a stop-gap. Its orders are meant only to ensure

peace till the dispute is decided by a competent Court. On the other hand the action of a Criminal Court trying an offence u/s 447. R. P. C

constitutes a regular trial with the potentiality of depriving the accused of his liberty. Accordingly the Court must naturally insist on a strict proof as

regards the question of the disputed actual physical possession when it is trying an offence u/s 447, R. P.C. than when it is making an enquiry u/s

145, Criminal P. C- The finding given' on the question of possession in proceedings u/s 145. Criminal P. C cannot, therefore, be treated as

conclusive and binding on the Court try in if the offence u/s 447, R. P.C. even ii the two cases are based on the same occurrence. The Court trying

the offence must come to its own conclusion the material placed before it. It may be relevant for such Court to consider the order made u/s 145,

Criminal P.C. but, without anything else, as in the present case no conviction can be justifibaly founded; upon such order or the findings related to

it.

For these reasons I am of the opinion that the charge u/s 447, R. P.C. was not brought home to the accused-petitioner beyond any reasonable

doubt. I therefore allow this (petition: set aside the conviction and, sentence imposed upon him; and. acquit him of the charge.