1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR ORDER S.B.CRIMINAL REVISION PETITION NO. 712/2006 (Gopal V/s State of Rajasthan and Ors.) Date of Order : 24/07/2007 PRESENT HON'BLE MR. JUSTICE H.R.PANWAR Mr. P.N.Mohanani for the petitioner. Mr. V.R.Mehta P.P. BY THE COURT:- By the instant criminal revision petition under Section 397 r/w 401 Cr.P.C., the petitioner has challenged the judgment and order dated 10.5.2006 passed by learned Additional Sessions Judge, No.2, Bhilwara Camp Shahpura (for short 'the appellate court' hereinafter) in Criminal Appeal No.86/05 whereby the appeal filed by the respondents No.2 to 4 against the judgment and order dated 11.1.2005 passed by Additional Chief Judicial Magistrate, Shahpura (for short 'the trial court' hereinafter) was allowed and the accused respondents were acquitted by giving benefit of doubt for the offence under Section 457 IPC and set aside the order of the trial court. 2 I have heard learned counsel for the parties. Carefully gone through the judgment and order impugned passed by the appellate court and the judgment and order passed by the trial court as also record of the trial court. On a case instituted by first informant, the police registered a crime report No. 32/98 for the offences under Sections 457 and 380 IPC. However, the police after investigation, did not find case for the offence under Section 380 IPC and filed challan for the offence under Section 457 IPC against the accused respondents. The trial court convicted and sentence the accused respondents for the said offence. However, on an appeal, the appellate court while allowing the appeal, set aside the order of the trial court. The petitioner claims to be in possession of the disputed shop on the basis of a document of the year 1993 wherein there were some proceeding with regard to the putting shutter on the shop. In the instant case, the occurrence is of the year 1998. The appellate court on reappreciation of the evidence produced by the parties, came to the conclusion that the first informant as also the prosecution failed to establish the possession of the petitioner over the disputed shop. The disputed shop is owned by Ram Niwas Dham Trust. Thus, the property is owned by a Trust and the petitioner claims to be the tenant. The petitioner has neither produced any of the witnesses from Ram Niwas Dham Trust nor the petitioner 3 has placed on record rent note or receipt showing himself to be the tenant of the shop. There has not been convincing evidence showing possession of the petitioner over the shop in question. After 1993 for more than a period of five years there had not been any evidence to show as to whether the first informant was in possession of the shop on the relevant date of occurrence. The allegation against the non petitioners are of breaking a lock of the shop. Neither the witnesses have seen the accused breaking lock nor the lock was produced in Court. The first informant did not show the presence of the witnesses which have been produced by prosecution to support the case of the prosecution. PW-9 Rajendra alleged to be an eye witness to the occurrence has not shown the presence of PW-10 Ganesh Lal, on the contrary stated that at the time of occurrence except him, there was no one present, whereas, PW-10 appeared as eye witness and stated that accused respondents put the articles of the petitioner outside the shop. In the circumstances, therefore, the appellate court was justified in not believing the statement of PW-10 claiming himself to be the eye witness of the occurrence. The occurrence is of 07th Morning as per the petitioner, whereas PW-10 Ganesh Lal stated that the occurrence is of 6.2.98. Even these two witnesses are not sure as to when and on what time the occurrence alleged to have taken place, one states 6th and other states 7th February, 1998. It has also come in evidence 4 that the owner of the shop is Ram Niwas Dham Trust. The first informant claims to be the tenant but failed to establish by any evidence showing himself to be the tenant of the shop. The petitioner stated that he purchased the stamp and got the rent note executed, but neither rent note nor any receipt have been placed on record. In the circumstances, therefore, on re- appreciation of the evidence, the appellate court came to the conclusion that the prosecution has failed to prove case beyond reasonable doubt against the accused respondents. In my view, the conclusion arrived at by the appellate court is based on proper and sound appreciation of evidence. The order impugned cannot be said to be in any manner erroneous, perverse or suffers from any illegality warranting interference in revisional jurisdiction. The State did not challenge the order of acquittal. In this view of the matter, the revision petition has no force and it is therefore, dismissed. (H.R.PANWAR),J. rp