G. K. SHARMA, J. - (1.) THIS revision petition is directed against the judgment of Additional Sessions Judge, Kishangarhbas, dated 6th Dec,, '86', which, he partly accepted the appeal of the petitioner and maintained his conviction u/s 379 & 447, IPC.
(2.) ONE Prbhati lodged a written report at P. S. Mundawar on 21st Sept. , '82' 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. 213 212. In this land, he cultivated 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, 379, IPC was registered. After completing investigation, the police submitted a challan against Amria, Mangturam and Prabhu u/ss. 447 & 379, IPC. After completing the trial, the learned Magistrate, Kishangarhbas, acquitted Mangturam and Prabhu of the offences alleged against them, but found Amria guilty u/ss. 379 & 447, IPC. or the offence u/s. 379, IPC, he was sentenced to 6 months' simple imprisonment and a fine 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, '86' partly accepted the said appeal and maintained the conviction of petitioner Amria u/s. 379 & 447, IPC, He, however set aside the substantive sentences awarded to the accused-petitioner, but imposed a fine of Rs. 1,000/- for offence u/s. 379, IPC and another fine of Rs. 200/- for offence u/s. 447, IPC. Mr. Dhnkhar, the learned counsel for the petitioner argued that the conviction of the petitioner u/s. 447, IPC, 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 complaint. 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 tube well, 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. Dhankhar 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 the 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 pursued 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 tube well over this disputed land. It means, the land was allotted to the complainant and according to him, when the accused had three Chhappars and one tube well over the disputed land was handed over indirectly, it established that when the land was allotted to 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 persons 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 also 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.
(3.) 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 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 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. IPC is again bad. Therefore, the revision petition is accepted. The conviction and the sentence u/ss. 379 & 447, IPC, 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. .;