1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR. CRIMINAL APPEAL NO.10 OF 2011 AND CRIMINAL APPLICATION (APPA) NO.483 OF 2011 CRI.APPEAL NO.10/11. Dr. Smt. Jaishree w/o. Avinash Banait, Aged 48 years, Occu.: Medical Practitioner, R/o. Congress Nagar, Nagpur. .... APPELLANT. // VERSUS // 1. State of Maharashtra, Through Police Station Officer, Police Station, Sitabuldi, Nagpur. 2. Kaustubh s/o. Vasudeorao Buty, Aged about 43 yrs., Occu.: Business, R/o. Plot No.275, Bajajnagar, West High Court Road, Nagpur. 3. Omkar S/o. Jaiwantrao Buty, Aged about 30 years, Occu.: Business, 4. Subhash S/o. Ganpatrao Buty, Aged about 62 years, Occu.: Business, 5. Sou. Kalyani W/o. Subhashrao Buty, Aged about 53 years, Occu.: Household, All Nos. 3 to 5 R/o. Buty Bungalow, Civil Lines, Nagpur. ....RESPONDENTS. ----------------------------------------------------------------------------------------------- Mr.J.M.Gandhi, Advocate for Appellant. Mrs. Bharti Dangre, Addl P.P. with Mr. Doifode, A.P.P. for Respondent/ State. ----------------------------------------------------------------------------------------------- AND 2 CRI.APPLN.(APP) NO.483/11. The State of Maharashtra, through Police Station Officer, Police Station, Sitabuldi, Nagpur. .... APPELLANT. // VERSUS // 1. Kaustubh s/o. Vasudeorao Buty, Aged about 41 yrs., R/o. 275, Bajajnagar. 2. Onkar S/o. Jaivantrao Buty, Aged about 28 years, 3. Subhash S/o. Ganpatrao Buty, Aged about 60 years, 4. Sau. Kalyani Subhashrao Buty, Aged about 51 years, Appellant Nos. 2 to 4 R/o. Buty Bungalow, Civil Lines, Nagpur. ....RESPONDENTS. ----------------------------------------------------------------------------------------------- Mrs. Bharti Dangre, Addl P.P. with Mr. Doifode, A.P.P. for Appellant/ State. Mr. S.V.Sirpurkar, Advocate for Respondent No.1. Mr. A.C.Dharmadhikari, Advocate for Respondents No.3 & 4. ----------------------------------------------------------------------------------------------- CORAM : M.N.GILANI, J. DATED : DECEMBER 13, 2011. COMMON ORDER : P.C. 1. Criminal Appeal No.10 of 2011 is filed by original complainant under proviso to Section 372 of the Indian Penal Code, whereas Criminal Application No.483 of 2011 filed by the State is under Section 378(3) of the Code of Criminal Procedure, wherein prayer for leave to file appeal has been made questioning the correctness of the judgment 3 and order of acquittal dated 12.04.2010 passed by learned Additional Sessions Judge, Nagpur in Criminal Appeal No. 82/2007 whereby the accused 1 to 4 - respondents 1 to 4 herein were acquitted of an offence punishable under Section 448 read with Section 34 of the Indian Penal Code. 2. Facts, are thus : Dr. Mrs. Jaishree-complainant is a tenant in the premises known as “Buty Chambers”, Sitabuldi, Nagpur where she runs her clinic. The accused Nos.1 to 4 are landlords. The incident occurred on 19.09.2000 at about 2.30 p.m. The complainant alleged that accused Nos. 1 to 4 and one another committed criminal trespass by entering in her premises unauthorisedly and with intent to cause damage to the property and also to cause her hurt. On the basis of the report lodged by her offence punishable under Sections 148, 149, 448, 325, 427 was registered and investigated into by Police Station Officer, Police Station, Sitabuldi, Nagpur. On completion of investigation chargesheet was submitted. Seven witnesses were examined. The learned Magistrate, after considering the evidence, held that the offence punishable under Sections 147, 149, 325 and 427 has not been proved. However, he held that the offence of committing trespass punishable under Section 448 has been proved and accordingly he convicted all the four accused for the said offence and sentenced each of them to suffer simple imprisonment for two months. An appeal was carried to the Sessions Court being Criminal Appeal No.82 of 2007. 4 3. After hearing the rival submissions, the learned Additional Sessions Judge held that even the offence punishable under Section 448 read with Section 34 of the Indian Penal Code has not been proved against any of the accused and therefore, he allowed the appeal and acquitted the accused. This very order is assailed before this Court. The learned counsel for the respondents informed that an attempt by the complainant to challenge the acquittal of the accused persons under other sections by filing Criminal Revision, failed. 4. As regards charge under Section 325 is concerned the learned Magistrate in paragraph 8 of his judgment observed that : “... So there is no nexus between the injury to the shoulder of the complainant and causing it by any of the accused. So due to this reason there is no case u/s. 325 of I.P.C. against the accused.” As regards charge under Section 427 of the IPC the learned Magistrate in paragraph 9 observed that : “As far as the case u/s. 427 of I.P.C. is concerned, on perusal of spot panchnama vide Exh.34, it is seen that only one board came out from the wall and there is nothing mentioned in the Exh.34, which is carried immediately after the happening of incident. That there was no damage or loss to the door of latrine, so the prosecution failed to prove that accused intentionally caused damage or loss of anything in the clinic of the complainant above Rs.50/-. The complainant herself in Exh.48 had stated that the accused were trying to break the door, it is not stated by her that the accused broken the door. P.W.-2 in her examination in chief stated regarding breaking the door of bathroom by the accused, but the spot panchnama Exh.34 do not disclose anything regarding the breaking or destruction of anything in the clinic, so the prosecution failed to prove the offence u/s. 427 of I.P.C.” 5 5. While assessing the evidence, so far as it relates to offence punishable under Section 448 of the Indian Penal Code, the learned Magistrate observed that the possession of the complainant over the premises was not disputed. It is pertinent to note that it had never been disputed. By relying upon the testimony of P.W. Nos. 1 Monali and P.W. 2 Jaishree the learned Magistrate in paragraph 10 observed that the act of the accused in breaking the door of bathroom had definitely caused annoyance to the complainant and as such ingredients of Sections 441, 448 of the Indian Penal Code are attracted. 6. The learned Additional Sessions Judge in paragraph 19 of his judgment recorded finding that the entry of the accused persons in the premises was not unauthorized nor there was any intention on their part to commit any offence. The fact that civil dispute was going on between the parties also weighed with the learned Additional Sessions Judge in directing acquittal of the accused. The relevant discussion is in paragraph 14 of the judgment, which is reproduced below: “The above mentioned witnesses were thoroughly cross examined by the defence Counsel. No doubt the depositions of the above prosecution witnesses as it is from the point of view of the prosecution speaks the guilt of appellants, but if we analysis the same in the light of other evidence on record and the defence of the appellants, there creates doubt in the testimony of the said witnesses. If we peruse the deposition of these three witnesses in the light of spot panchnama at exh-34 which according to prosecution was prepared at the earliest after receipt of information, shows exactly the opposite version Exh.34 shows that the door of the toilet/ bathroom situated on the western side of the passage (corridor) is locked and opposite to said toilet / bathroom 6 there appears a entry for another room (block No.4) which is closed by fixing the wooden panels, of which one of the wooden panel found un-nailed. It is pertinent to note that the doors of bath room/ toilet does not appear to be destructed as per the spot panchnama as against the oral testimony of the above mentioned witnesses. ….” 7. It is pertinent to note that even the learned Magistrate in paragraph 9 had by referring to panchnama Exh.34 observed that there was no proof regarding the breaking or destruction of anything in the clinic. In that light of the matter, no fault can be found with the judgment and order of acquittal passed by the learned Additional Sessions Judge. 8. Mr. Gandhi, learned counsel appearing for the appellants in Criminal Appeal No.10 of 2011, contended that the learned Additional Sessions Judge committed an error in referring to the provisions of the Rent Act and then coming to a conclusion that the entry of the accused persons in the premises in possession of the complainant was not wrongful. I do not concede to this submission. The entry simpliciter in the premises in possession of other does not constitute an offence of criminal trespass. Such entry has to be with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property. This aspect has already been dealt with by the learned Additional Sessions Judge. 9. About approach of the appellate court while dealing with an appeal against the judgment of acquittal, the Hon'ble Supreme Court in Maloth Somaraju Vs. State of A.P., reported in (2011) 3 SCC (Cri.) 531 7 cautioned thus : “14. The law dealing with the judgments of acquittal is now settled. There can be no two opinions that merely because the acquittal is found to be wrong and another view can be taken, the judgment of acquittal cannot be upset. The appellate court has more and serious responsibility while dealing with the judgment of acquittal and unless the acquittal is found to be perverse or not at all supportable and where the appellate court comes to the conclusion that conviction is a must, the judgment of acquittal cannot be upset.....” 10. For the reasons afore-stated, the judgment and order of acquittal passed by the learned Additional Sessions Judge needs no interference. 11. Leave, as prayed for in Criminal Application (APPA) No. 483 of 2011 is refused. Consequently, Criminal Appeal No.10 of 2011 filed under the proviso to Section 372 of the Code of Criminal Procedure is dismissed summarily. JUDGE RR.