IMPORTANT POINT
House trespass and use of derogatory terms referring to caste – Conviction and sentence cannot be sustained there are gross inconsistencies insofar as complaint and oral evidence led by way of deposition before Court.

JUDGMENT :

K. Vinod Chandran, J.

1. Leave granted.

2. The appellants were charged under Section 447 of the Indian Penal Code, 1860,¹[“the I.P.C.”] and Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989,²[“the SC & ST Act”]. The Trial Court convicted the nine accused arraigned by the prosecution and sentenced them to undergo simple imprisonment,³[“S.I.”] of three months under Section 447 of the I.P.C. and S.I. of two years under Section 3 of the SC & ST Act with a fine of Rs.3,000/- and default sentence of S.I. of one month each. In the appeal filed, the Learned Single Judge of the High Court converted the sentence to six months S.I. under SC & ST Act and three-month S.I. under Section 447 of the I.P.C.; which were to run concurrently. Accused nos. 1 to 3, 6 and 9 are the appellants in the above case.

3. We heard Mr. Braj Kishore Mishra, learned counsel for the appellants and Mr. Vishnu Sharma, learned standing counsel for the respondent.

4. The genesis of the case is a land dispute involving the complainant and her family and accused nos. 2, 6 and 9 with respect to land admeasuring 28 decimals in khata no. 116 plot no. 698, which eventually the accused were forced to deliver to the complainant and her family vide Ext.-5 on 25.04.2005; pursuant to the dismissal of an appeal filed by the accused before the Court of Deputy Commissioner, Lohardaga. The alleged incident occurred on 22.05.2005 at about 7 a.m. when the appellants along with the other accused allegedly trespassed into the house/land of the complainant and used derogatory terms, referring to their caste.

5. The prosecution was launched by a complaint filed under Section 156(3) of the Criminal Procedure Code, 1973,⁴[“the Cr.P.C.”] numbered as Complaint Case No. 58 of 2005 before the Chief Judicial Magistrate, Lohardaga. The complaint was filed by PW-3 who is the wife of PW-1. It was specifically alleged that the accused nos. 2 and 9 armed with iron rods along with others formed into an unlawful assembly and broke open the lock of the house of the complainant at about 7 a.m. and committed theft of kitchen utensils, rice, pulse and bed with bed sheet having a total value of Rs.3,000/-. It was also specifically alleged that the accused persons threatened the complainant and her husband and abused them using their caste name, thus insulting and humiliating them before the villagers. The chargesheet was under Section 447 of the I.P.C. and Section 3 of the SC & ST Act.

6. We have looked at the evidence of the prosecution witnesses, who are all related. PW-1 and PW-3 are husband and wife, PW-6 the brother of PW-1, PW-2 the son of PW-6 and PW-4 the son of PWs-1 and 3. PW-8 is the Officer who commenced the investigation and PW-5 is the Investigating Officer who laid the chargesheet. PW-7 admitted in chief-examination that he had no knowledge about the occurrence.

7. Admittedly all the prosecution witnesses are related and the specific case of the accused was that due to the enmity, on account of the land dispute, the accused were framed under the SC & ST Act alleging house trespass. Section 3 of the Act charged against the accused is not attracted for reason of the allegations of derogatory terms being used against the complainants, if at all true, was not in a public place nor in the presence of any member of the public. However, we see from the order of the Trial Court that the specific allegation levelled was of wrongful occupation or cultivation in any land owned by or in the possession, allotted to or notified by any competent authority to be allotted to a member of a Scheduled Caste and Scheduled Tribe as coming out in sub-clause (f) of Section 3(1) of the SC & ST Act. We cannot but notice that there is also an allegation of derogatory terms having been used in the presence of villagers, in the complaint filed before the Judicial Magistrate, which brings in clause (s) of Section 3(1) dealing with abusing any member of a Scheduled Caste and