NILKANTH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This appeal by special leave is against the judgment of the Bombay High Court confirming the conviction of the appellants under Sections 447 and 426 of the Penal Code but enhancing the sentences after giving notice to the appellants.

(2.) Respondent 2 Ramkrishna who is the owner of survey Nos. 45 and 48 in the village of Jamni, filed a complaint on July 23, 1963 against the appellants and some others, in all ten in number, that these persons had come to his land and removed an embankment on survey No. 45 and thereby committed of fences punishable under Sections 143, 477 and 426 I.P C. The I Class Magistrate Warera, convicted the appellants of the offences with which they were charged and sentenced each of them to pay a fine of Rs. 75/- under Section 143, in default to suffer rigorous imprisonment of 15 days Rs. 10/- under Section 447 and Rs. 15/- under Section 426 I.P C., in default to suffer rigorous imprisonment for a farther period of 7 days on each count. The remaining accused who were labourers were given the benefit of doubt and acquitted. The Sessions Judge, Chandrapur, in appeal confirmed the conviction and sentences under Sections 447 and 426 but acquitted them and under Section 143 I.P.C. The High Court of Bombay in revision as already stated, maintained their convinction but enhanced the sentences. The first appellant Nil Kanth was sentenced to 15 days rigorous imprisonment and to pay a fine of Rs. 50/- under each court, in default to suffer further rigorous imprisonment for 15 days. Accused 2 to 5 were each sentenced to one weeks R.I. and to pay a fine of Rs. 15/- under each count, in default to suffer further rigorous imprisonment for 7 days. All these sentences were made to run concurrently. The court further directed that out of the fine when recovered the complainant be paid Rs. 50/- as a compensation for the damage done to his property.

(3.) The facts upon which the convinction is based are not really in dispute. It appears that on October 20, 1962 the Patwari of the village reported that respondent 2 and some other persons had encroached on the cartway belonging to the Panchayat. On November 2, 1962, the Panchayat decided that the persons who were named in the report be summoned and their explanations taken. Accordingly, on June 12, 1963, notices were issued among others to the complainant asked him to be present on June 14, 1965 which notice he is said to have received on June 13, 1963. The complainant however did not turn up on that day. The Panchayat again met on June 18, 1963 and decided to issue another notice but it is said that the second respondent refused to take it. On July 16, 1963, the Panchayat met again and directed that the encroachment be removed. In compliance with this resolution the appellants on July 23, 1963, taking the help of some labourers went to the place of the incident and removed the encroachment The complainant stages that all these resolutions are got up at the instance of the Sarpanch to further his personal grudge against him and were not genuine.