IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal Nos.338 and 345 of 2005 Decided on: March 25, 2011 Cr. A. No. 338 of 2005 Sher Singh Vs. State of HP Cr. A No. 345 of 2005 Minu Ram & others Vs. State of HP. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 Yes For the Appellant(s): Mr. R.L. Sood, Senior Advocate with Mr. Arjun Lall Sood and Mr. Inderjeet Singh, Advocates. For the Respondent(s): Mr. P.M Negi, Dy. Advocate General and Mr. Ramesh Thakur, Assistant Advocate General. Surjit Singh, Judge (oral) By means of this judgment, two appeals, particulars whereof find mention on the top, are being disposed of, as in both of them, the same judgment, which is dated 29.7.2005, of learned Special Judge, Kullu, has been challenged. Appellants in both the appeals have been held guilty of criminal conspiracy. In addition to that, appellant Minu Ram has been held guilty of offence, under Section 420 IPC, appellants Yagya Parkash (now dead) and Whether reporters of the local papers may be allowed to see the judgment? …2… Sher Singh, have been held guilty of offences, under Section 420 IPC and Section 13(2) of the Prevention of Corruption Act and appellant Bimla Devi has been held guilty of offence, under Section 420 IPC. 2. Case of the prosecution, as it emerges from the evidence on record, may be noticed. Minu Ram (appellant in Cr. Appeal No. 345/2005) is resident of village Nasogi, Tehsil Manali, District Kullu. A report was lodged against him by Field Revenue Staff that he had made encroachment upon 4 biswas area, by constructing a house. Tatima Ext. PW4/K of the area, allegedly encroached upon by him, was submitted alongwith the report. Notice of the report was issued to appellant Minu Ram by the concerned Revenue Officer and he was called upon to show cause why ejectment order be not passed against him, under Section 163 of the H.P. Land Revenue Act. Alongwith that notice, copy of Tatima Ext. PW4/K, was also made available to him, in which the piece of land, allegedly encroached upon, is shown and its area has also been worked out. 3. Appellant Minu Ram filed reply to the aforesaid show cause notice. The same is Ext. PW4/N. He denied that he was an encroacher. He took the plea that he had been in possession of the site for the last 35 years and that it was his father, who had occupied the land and constructed …3… a house thereon and, thus, on the strength of his forefathers’ possession and his own possession, he had acquired title by prescription. His reply is dated 11.6.1987. 4. During the pendency of aforesaid proceedings, under Section 163 of the Land Revenue Act, a suit was filed by appellant Minu Ram. Copy of plaint is Ext. PW4/A. In the suit, which was instituted in the Court of Senior Sub Judge, Kullu, it was claimed that plaintiff (appellant Minu Ram) had become owner by adverse possession, in respect of the site underneath the house. Description of the site was given by boundaries in a loose manner. Area underneath the house had not been stated. However, it was very categorically stated that the plaintiff was in occupation of the site underneath the house for the last 35 years and had acquired title by prescription, meaning thereby that his claim was only in respect of the site underneath the house. Alongwith the plaint, map (copy Ext. PW4/C) was also filed, in which the house was shown to be in rectangular shape, measuring 40’x20’. Suit was dismissed by the learned Senior Sub Judge, vide judgment, copy Ext. PW4/B. 5. Appeal was carried by appellant Minu Ram to the Court of leaned District Judge, who accepted the appeal, vide judgment, copy Ext. PW4/P and decree, copy Ext. …4… PW4/Q. In the judgment, description of the suit property was given by boundaries. Initial para of the judgment said that the property would be referred to as suit land in the following paras of the judgment. On the basis of judgment, decree was also passed, copy of which is Ext. PW4/Q. Appeal was filed against the judgment and decree of the learned District Judge in this Court, which was dismissed in the year 1992. 6. Prosecution story of criminal conspiracy, cheating and misconduct by public servants, punishable under the Prevention of Corruption, starts after the dismissal of Regular Second Appeal in this Court, when appellant Minu Ram entered into a criminal conspiracy with the Patwari, namely appellant Yagya Parkash (now dead), appellant Sher Singh, Naib Tehsildar as also appellant Bimla Devi wife of Patwari Yagya Parkash. The conspiracy was to enter and sanction mutation of larger area than the area, in respect of which suit was filed and decree had been passed by the District judge as upheld by this Court in a Regular Second Appeal. Mutation Ext. PW9/A was entered by appellant Yagya Pakash, showing the area of the suit property to be 15 Biswas. Out of this 15 biswas area, 5 biswas area was shown to be Abadi and 10 biswas under Bagicha. Mutation was attested by appellant Sher Singh in …5… his capacity as Assistant Collector, 2nd Grade. Order of mutation was passed on 28.6.1992. 7. About a month after attestation of aforesaid mutation, i.e. on 30.7.1992, a sale deed Ext. PW1/A was executed by appellant Minu Ram in favour of appellant Bimla Devi, the wife of Patwari Yagya Parkash, who entered the mutation, purportedly on the basis of District Judge’s decree, as affirmed by the High Court. As per this sale deed Ext. PW1/A, appellant Minu Ram sold 4 biswas area, a part of which was built up and a part was shown as Bagicha. Sale consideration, as mentioned in the deed, is `60,000/-. This sale deed was registered by appellant Sher Singh in his capacity as Sub Registrar. It needs to be noticed here that this very appellant had earlier attested the mutation on the basis of District Judge’s decree in favour of appellant Minu Ram, acting as Revenue Officer. Thereafter, mutation was sanctioned in favour of appellant Bimla Devi on the strength of aforesaid sale deed. Order of mutation is Ext. PW9/B. This mutation was also attested by appellant Sher Singh, acting as Naib Tehsildar-cum-Assistant Collector, 2nd Grade. 8. During the course of a vigilance inquiry, it came to notice that though the decree of District Judge was only in respect of the site underneath the house or at the most in …6… respect of 4 biswas area, which was the subject matter of ejectment proceedings, under Section 163 of the H.P. Land Revenue Act, mutation had been entered and attested in respect of 15 biswas area and this was the result of quid pro quo between appellant Minu Ram on one side and the revenue officials on the other and this was proved by the fact that within about a month of the attestation of mutation, sale deed had been executed in respect of four biswas area in favour of the wife of the Patwari, namely appellant Bimla Devi. On the basis of said Inquiry Report, case was formally registered vide FIR Ext PW34/B. 9. Investigation revealed that mutation had been entered by deceased appellant Yagya Parkash, Patwari and it was attested by appellant Sher Singh, Naib Tehsildar. Report, under Section 173 Cr. P.C. alongwith relevant papers, was filed in the Court of Special Judge, on completion of investigation. Copies of the report and other documents were supplied to all the appellants-accused by the learned Special Judge. Thereafter, learned Public Prosecutor and the learned defence counsel were heard and the record was gone through. It was felt by the learned Special Judge that a prima-facie case, under the aforesaid penal provisions of law, was made out. Appellants-accused …7… were charged accordingly. They pleaded not guilty to the charge and were, therefore, put on trial. 10. Appellants Yagya Parkash (now dead) and Sher Singh did not deny having entered and attested the mutation, but pleaded that since the area of the subject matter of the decree had not been given and the subject matter of the suit was described only by boundaries, they entered the mutation on the basis of the boundaries and the area within those boundaries was 15 biswas. Appellant Minu Ram also took the plea that the entire 15 biswas area, in respect of which the mutation was sanctioned and attested, had been in his possession since the time of his forefathers and he had acquired title by prescription and the decree of the Court covered the entire area. 11. Learned trial Court did not feel convinced by the explanation of the appellants and convicted them, as aforesaid. It awarded the following sentences, after hearing the appellants, on the quantum of sentence: “Convict No.1 Minu Ram U/s 120-B IPC Sentenced to undergo rigorous imprisonment for three years and to pay fine of `15,000/-. In default of payment of fine he is further sentenced to undergo rigorous imprisonment for six months. U/s 420 IPC Sentenced to undergo rigorous imprisonment for three years and to pay fine of `15,000/-. In default of payment of fine he is further sentenced to undergo rigorous imprisonment for six months. …8… Convict No.2 Yagya Parkash U/s 13(2) of the Prevention of Corruption Act. Sentenced to undergo rigorous imprisonment for three years and to pay fine of `10,000/-. In default of payment of fine he is further sentenced to undergo rigorous imprisonment for six months. U/s 420 IPC Sentenced to undergo rigorous imprisonment for three years and to pay fine of `10,000/-. In default of payment of fine he is further sentenced to undergo rigorous imprisonment for six months. U/s 120-B IPC Sentenced to undergo rigorous imprisonment for three years and to pay fine of `100,00/. In default of payment of fine he is further sentenced to undergo rigorous imprisonment for six months. Convict No.3 Sher Singh U/s 13(2) of the Prevention of Corruption Act. Sentenced to undergo rigorous imprisonment for three years and to pay fine of `10,000/-. In default of payment of fine he is further sentenced to undergo rigorous imprisonment for six months. U/s 420 IPC Sentenced to undergo rigorous imprisonment for three years and to pay fine of `10,000/-. In default of payment of fine he is further sentenced to undergo rigorous imprisonment for six months. U/s 120-B IPC Sentenced to undergo rigorous imprisonment for three years and to pay fine of `10,000/. In default of payment of fine he is further sentenced to undergo rigorous imprisonment for six months. Convict No.4 Bimla Devi U/s 420 IPC Sentenced to undergo rigorous imprisonment for two years and to pay fine of `7,500/-. In default of payment of fine she is further sentenced to undergo rigorous imprisonment for three months. U/s 120-B IPC Sentenced to undergo rigorous imprisonment for two years and to pay fine of `7500/. In default of payment of fine he is further sentenced to undergo rigorous imprisonment for three months. …9… 12. I have heard learned counsel for the appellants as also the learned Deputy Advocate General and gone through the record. 13. Above discussed factual position is admitted by the appellants. Their specific plea now is that the judgment and the decree of learned District Judge, being silent about the area, which was subject matter of the suit and the suit property having been described by boundaries in the opening para of the judgment of the District Judge and the area within those boundaries having been measured as 15 biswas, mutation had been correctly entered and attested. Submission is without merit. 14. In the notice that was issued to appellant Minu Ram, after receipt of the report from the filed staff of Revenue Department that he had made encroachment on government, it was specifically mentioned that he (appellant Minu Ram) had encroached upon 4 biswas area, adjoining certain Khasra numbers, the site of which was indicated in the Tatima. In fact, three notices, copies Exts. PW4/J, PW4/L and PW4/M, were served upon appellant Minu Ram alongwith copy of Tatima, wherein location, dimension and area of the encroached upon government land, had been indicated. …10… 15. Learned counsel, representing appellants Minu Ram and Bimla Devi, submits that site plan Ext. PW4/K has not been proved in accordance with law. Submission has been noticed only to be rejected. 16. While filing the suit in the Court of Senior Sub Judge, seeking declaration that he had acquired titled by prescription, appellant Minu Ram stated that he was in occupation of only the site underneath the house. This is clear from a bare reading of plaint Ext. PW4/A. He did not claim that any vacant portion, leave alone Bagicha (orchard), around the site underneath his house had also been in his possession. With the plaint, he submitted plan, copy Ext. PW4/C, in which he showed the site of the house in the form of rectangle, measuring 40’x20’, the total area of which comes to around 2 biswas. 17. Now, when there was no reference of any vacant site, leave alone an orchard, measuring 11 biswas in the plaint and the plaint specifically and categorically stated that declaration was being sought only in respect of the site underneath the house and even according to the mutation that was entered in favour of appellant Minu Ram, on the strength of decree of Sessions Judge, as affirmed by this Court, the site underneath the house was only 4 biswas and there was no reference of any Bagicha either in the plaint or …11… in the Judgment of District Judge, there could not have been any question of entering the mutation in respect of the area described as Bagicha and also on the basis of such entry, attestation order could not have been passed. Area of Bagicha mutated in favour of appellant Minu Ram was almost thrice the area which was recorded as Abadi (house in the context of present judgment) in the mutation order Ext. PW9/A. This itself speaks volume of the dishonest intention of appellant Yagya Parkash, Patwari, who entered the mutation and appellant Sher Singh, Naib Tehsildar, who attested the same. The fact that Bimla Devi is recorded as daughter of Gehri, instead of being recorded as wife of Yagya Parkash, is another circumstance, indicative of the dishonest intention. 18. Appellants Yagya Parkash, Patwari and Sher Singh, Naib Tehsildar must not have done this favour to appellant Minu Ram, who was stated to be a poor Hrijan, by risking their job, without any consideration. Evidence of consideration came within a month of the attestation of mutation, in the form of sale deed, Ext. PW1/A. 19. However, I do not find convincing evidence, connecting appellant Bimla Devi wife of Patwari (appellant Yagya Parkash), with the alleged conspiracy or the offence …12… of cheating. It appears that her name was got recorded by her dishonest husband, who was working as Patwari. 20. In view of the above stated position, Bimla Devi, one of the appellants (appellant No.3 in Cr. Appeal No. 345 of 2005) is acquitted and the impugned judgment convicting and sentencing her is set aside. However, conviction and sentences of appellants Minu Ram (appellant No.1 in Cr. Appeal No. 345 of 2005) and Sher Singh (appellant in Cr. Appeal No.338 of 2005) are upheld and the appeal filed by them is dismissed. So far as appellant Yagya Parkash is concerned, appeal stands abated, as he is stated to have died. Both the appeals stand disposed of accordingly. March 25, 2011(ss) (Surjit Singh ), J.