CRIMINAL APPEAL No.11 OF 1993 (U/s.) [Appeal against the judgment and order dated 21st July, 1992 passed in Complaint case No.1266 of 1987 G.R.case No.409 of 1992 by Sri Suresh Chand Jaiswal, Judicial Magistrate IInd class, Darbhanga] ******** ABDUL AZIZ SON OF LATE MD. SHAFIQUE, RESIDENT OF MOHALLA BAJIDPUR, POLICE STATION DARBHANGA SADAR, DISTRICT DARBHANGA -----------Appellant Versus 1. MD. HAROON SON OF ABDUL SUBHAN 2. ABDUL HAFIZ 3. MD. IRFAN 4. JAMIRUL HASSAN, ALL SONS OF MD. HAROON, ALL RESIDENTS OF MOHALLA BAJIDPUR, POLICE STATION DARBHANGA SADAR, DISTRICT DARBHANGA ----------------Respondents For the Appellant : Mr. M.N. Choudhary, Advocate Mr. Ambika Bhagat, Advocate Mr. K.K. Sinha, Advocate For the Respondents : Mr. Farooque A. Khan, Advocate Mr. Md. Sufiyan, Advocate For the State : Mr. S.N. Prasad, A.P.P. ******** P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J: This appeal has been filed against the judgment of acquittal dated 21.7.1992 passed by the Judicial Magistrate, Darbhanga in Complaint case No.1266 of 1987 G.R.case No.409 of 1992 by which the opposite party nos.1 to 4 have been acquitted of the charges u/ss.342, 447 and 379 of the I.P.C. The case of the prosecution according to the complainant Abdul Aziz, in short, is that on 16.12.1987 at - 2 - about 5 P.M. respondent no.2 Abdul Hafiz stole bricks from the complainant’s wall. Thereafter the respondents came and demolished part of the wall and on protest the complainant was assaulted. In the aforesaid complaint, cognizance was taken for the offences u/ss. 323, 342, 447 and 379 of the I.P.C. The appellant to prove its case examined five witnesses. Out of whom P.W.4 Ali Akbar is a formal witness, whereas P.W.1 is Jamil Akhtar, P.W.2 is Abdul Quim and P.W.3 is Abdul Aziz. The defence also examined two formal witnesses. P.W.4 Ali Akbar is a formal witness and has proved the complaint petition as Ext.-2, whereas P.W.1, P.W.2 and P.W.3 have deposed as eye-witnesses. Only P.W.3 has supported the case of the prosecution with regard to the assault upon the complainant, whereas P.W.1 and P.W.2 did not support the same. The trial court while discussing the evidence of the witnesses has gone into the question as to whether the alleged P.O. was in the possession of the prosecution or the accused persons and came to a conclusion that on the basis of Ext.-A exhibited on behalf of the defence it appeared that the place of occurrence was in fact in possession of the accused persons. It further concluded that from the evidence of the prosecution witnesses it could not be conclusively - 3 - said that the land upon which the brick wall was standing in fact belonged to the complainant. The trial court also went into the question of the veracity of the present complaint in view of the fact that the accused had also filed a case with regard to the same occurrence on the same morning and therefore the time of occurrence stated by the prosecution to be at 5 P.M. was also not believable. It clearly concluded that the present case was in fact a counter version of the case filed by the accused persons which was a police case. For disbelieving the case of the prosecution the trial court also took into consideration the fact that the prosecution had not filed any police case but had filed the complaint despite the fact that the police station was nearby. Taking into consideration the totality of the case, the trial court acquitted the respondents and I see no perversity in the judgment which has considered all aspects of the case. There is no reason for this Court to take a different view, which has been taken by the trial court. In the result, the appeal is dismissed. Patna High Court Dated, 27th of November, 2009. NAFR/ Narendra/ ( Anjana Prakash, J. )