bsb IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION APPEAL APPEAL APPEAL NO. 578 OF 1996 NO. 578 OF 1996 NO. 578 OF 1996 Raghunath Sakharam Bhise ... Appellant v/s 1. Raghunath Narayan Shinde 2. Bapu Narayan Shinde 3. Bhagirati Gajanan Mane 4. Sharda Bapu Shinde 5. Macchindra Rangrao Shinde 6. Vishnu Rangrao Shinde 7. Vilas Rangrao Shinde 8. Jalindar Rangrao Shinde 9. Shanabai Rangrao Shinde 10. Chhaya Jalindar Shinde 11. Bharati Macchindra Shinde 12. The State of Maharashtra ... Respondents/ Accused Ms.Dhanashri Shende i/by Mr.N.V.Gangal for appellant. Mr.Y.V.Divekar for respondent Nos.1 to 11. Mr.Y.S.Shinde, A.P.P for respondent No.12 State. CORAM: CORAM: CORAM: A. S. OKA, J. A. S. OKA, J. A. S. OKA, J. DATED: DATED: DATED: 6TH JANUARY, 2009 6TH JANUARY, 2009 6TH JANUARY, 2009 ORAL ORAL ORAL JUDGMENT JUDGMENT JUDGMENT: 1. The appellant (the original complainant) has taken an exception to the judgment and order dated 30th March 1996 passed by the learned Chief Judicial Magistrate, Sangli, by which the learned Magistrate acquitted the respondents (accused) for offences punishable under Section 447, 506(2) read with Section 34 of the Indian Penal code. 2 2. The appellant filed a private complaint. In the private complaint, the case made out by the appellant was that he alongwith respondents are residents of Sangliwadi. The appellant’s house is situated in Dhangar Lane, whereas the house of the respondents is situated near Yallamma Temple. The distance between two houses is 250 feet. 3. On 6th September 1988, the appellant purchased western side half portion admeasuring 25 ft. x 50 ft. in land Survey No.21/1-A on the outskirts of Sangliwadi from one Dattatraya Pawar for a consideration of Rs.10,000/- under a registered sale deed. The case of the appellant is that, on the very day he was placed in possession of the said property which is the subject matter of the dispute. 4. The said Dattatraya Pawar and the 1st respondent had purchased the larger property bearing Survey No.21/1-A from one Narayan alias Shankar Shinde by a registered sale deed in the year 1967. According to the case of the appellant, the said larger land was partitioned between the 1st respondent and himself. The eastern side half portion was allotted to the share of the 1st respondent. In the northern side strip of land of 15 3 ft. x 25 ft. in western side half portion, the appellant had constructed four rooms. Out of the four rooms, he had let out three rooms and the fourth one was in his possession. According to the appellant, he used to tether his cattle in the said room. On 31st December 1991 at about 10.30 a.m., the appellant released his cattle and took them to river. The allegation is that, in the meanwhile, the 1st respondent came and occupied the said fourth room which is in the disputed land. When the appellant questioned the 1st respondent as to why he has committed criminal trespass, the 1st respondent declined to vacate the disputed room and threatened to kill the appellant. 5. According to the appellant, he approached the Sangli City police station and lodged a complaint in writing. As the police failed to take cognizance he forwarded the complaint to the District Superintendent of Police, Sangli. As no steps were taken on the basis of the said complaint, present private complaint was filed by the appellant. Process was issued by the learned Magistrate on the said private complaint for offences punishable under Sections 447, 506(2) read with Section 34 of the Indian Penal Code. 6. The appellant examined himself as the 1st witness. 4 He examined two other witnesses, namely, Hindurao Govind Kokare and Suman Jagannath Sutar. The learned Chief Judicial Magistrate disbelieved the case of the complainant and came to the conclusion that guilt of the respondents has not been established. 7. The learned counsel appearing for the appellant has taken me through the notes of evidence and the impugned judgment and order. She invited my attention to the observation made by the learned Trial Judge in paragraph 9 of the judgment to the effect that in the complaint, the Court was not concerned about the factum of possession. She pointed out that the learned Judge, however, relied upon a judgment of the District Court in an appeal and came to the conclusion that as per the said judgment, the respondents were in possession of the disputed property. Her submission was that, on one hand the learned Judge observed that he was not concerned with the factum of possession but on the other hand, relying upon the judgment of the District Court, he has discarded the case of the respondents that they were in possession. She submitted that the factum of trespass has been clearly established by the evidence of prosecution witnesses. She placed reliance on a decision of Allahabad High Court in the case of Baldeo Baldeo Baldeo and and and others v/s The State and another (A.I.R. 1954 others v/s The State and another (A.I.R. 1954 others v/s The State and another (A.I.R. 1954 5 Allahabad Allahabad Allahabad 650). 650). 650). She invited my attention to the ratio of the said decision. She submitted that in the present case, the guilt of the accused has been established. 8. I have carefully considered the submissions. I have perused the documents and evidence on record. I have also perused the complaint. The appellant in his evidence narrated that he purchased the disputed property by a registered sale deed dated 6th September 1988. He stated that the incident occurred at 10.30 a.m. on 31st December 1991. He stated that his brother Ananda had taken the cattle from the disputed property towards river. Taking disadvantage of his absence and the absence of other members of his family, the respondents occupied the disputed room. He stated that his brother’s son came to him and narrated the incident of criminal trespass. He stated that he saw the respondents sitting in the disputed room. On noticing his presence, the accused started abusing him and they threatened to kill him. He stated that he approached the Sangli Police Station and lodged a complaint in writing. However, the police did not take cognizance. He stated that a copy of the complaint was forwarded to the Superintendent of Police by Post. In the cross-examination he denied the correctness of the suggestion that Dattatraya Pawar was not placed in 6 possession of the disputed property. He denied that he had not paid the property tax. He stated that he was in a position to produce the property tax receipts. He referred to a civil suit filed by him as well as the civil suit filed by the 1st accused. He stated that the respondents had filed a civil suit against his brother Anand. In the said suit, temporary injunction was granted against the said Ananda with respect to the disputed property. An appeal preferred by the said Ananda had been dismissed. 9. The second witness examined by the prosecution is one Hindurao Govind Kokare. The said witness deposed that four years prior to the date of recording the deposition he was residing in the disputed property as a tenant of the appellant. He stated that the appellant used to tether his cattle in the disputed room. He identified the accused who was present in the Court and stated that there were some frequent quarrels between the appellant and the respondents. He stated that on the date of the incident he was present in the house. He stated that quarrel between the appellant and the respondents was going on. He stated that some of the accused persons and especially women were sitting in the disputed room. He stated that the quarrel was in respect of the possession of that room. He further 7 stated that he has not heard any abuses hurled by the accused. He stated that he cannot state who abused whom. 10. The third witness examined by the appellant is one Suman. The witness stated that she was occupying a room as a tenant in the room owned by the appellant for a period of one and half years. She stated that the respondent started asserting possession over the disputed room on the ground that the Civil Court had been decided the case in their favour. She stated that she witnessed the incident. She stated that there was a quarrel between the appellant and the 1st, 3rd and 4th respondents. She stated that the appellant abused the respondents and the respondents abused the appellant. She, however, proceeded to state that she has not heard the abuses given. 11. The first offence alleged is under Section 447 of the Indian Penal Code of committing a criminal trespass. Criminal trespass is defined by Section 441, which reads thus - "Section "Section "Section 441. 441. 441. Whoever enters into or upon property in the intimidate, insult or annoy any person in possession of such property, or 8 having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence." 12. Perusal of the examination-in-chief of the appellant shows that he has not made out a case that the respondents entered the possession of the disputed room with an intent to commit an offence or with an intent to intimidate, insult or annoy him. His case is that, taking undue advantage of his absence on 31st December 1991 the respondents dispossessed him of his possession over the disputed room. According to him when he questioned the respondents they started abusing him and threatened to kill him. There are 11 respondents. The appellant has not stated as to whether all 11 respondents abused and threatened him. What was the nature of abuses allegedly hurled at him is also not set out. No attempt has been made to produce a copy of the complaint lodged by him to the police station as also to the Superintendent of Police. There is no evidence adduced to show that any such complaint was filed by him with the police station on the date of the incident and that any such complaint was filed by him with the Superintendent of Police. The present complaint was 9 filed by him on 17th January 1992 i.e. after a lapse of 16 days from the incident. The other two witnesses examined by the appellant have not fully supported him. The witness Hindurao stated in his examination-in-chief that he did not hear any abuses by the respondents accused. He has not stated that the respondents dispossessed the appellant. However, the said witness says that some of the accused persons especially women were sitting in the disputed room and there was a quarrel over the possession of the disputed room. The other witness Suman stated that only the 1st, 3rd and 4th respondents had come to the disputed room. The said witness stated that the appellant abused the respondents and the respondents abused the appellant. However, she stated that she has not heard the abuses given. Even the said witness has not deposed about the forcible or illegal dispossession by the respondents. Thus, both the witnesses examined by the appellant have not supported the appellant by deposing alleged illegal dispossession. Both the witnesses have not deposed regarding the alleged threat given by the respondents to the appellant of killing him. Both of them have not supported the appellant as regards the alleged abuses hurled by the respondents. 13. Considering the definition of criminal trespass, 10 even assuming that dispossession by the respondents is established, that itself is not sufficient to prove the offence of criminal trespass. On the aspect of illegal dispossession, the so-called eye-witnesses have not supported the complainant. Even on the aspect of giving threat and abuses, both the witness have not supported the appellant and on the contrary their evidence has destroyed the case of the appellant. 14. Admittedly, there are civil disputes pending between the appellant, his brother on one hand and respondents on the other hand. 15. Considering the aforesaid aspects, the learned Chief Judicial Magistrate came to the conclusion that the guilt of the accused is not established. It is true that, in paragraph 9, there may be some inconsistency. However, in further paragraphs of the judgment, the learned Judge has considered the oral evidence of the appellant and the two witnesses examined by him and has reached to the conclusion that the guilt of the respondents is not established. 16. Considering the discussion made above, the view taken by the learned Magistrate is certainly a possible view which could have been taken on the basis of 11 evidence on record. Considering this aspect and the nature of evidence, for the reliance placed on the case of Allahabad High Court will not help the appellant. 17. In the circumstances, there is no merit in the appeal against acquittal and the same is accordingly dismissed. ( A.S.OKA, J. ) A.S.OKA, J. ) A.S.OKA, J. )